| Lord Coulsfield's analysis and recommendations: 7.5 A reliable disclosure system therefore needs to address revelation of disclosable material by the police to the Crown, as well as disclosure by the Crown to the defence. Flaws and insecurity in either part of the process can undermine the effectiveness of the disclosure system overall. I have noted above that decisions and judgements will inevitably be taken by police officers and by the Crown. The obvious next question is whether safeguards can be put in place to minimise the risk of error in these decisions, and to maximise the scope for reversing any that are wrongly called. The system in operation in England and Wales does this by providing for the preparation of schedules. Briefly, the police are required to list all material which "may be relevant" on a pair of schedules (for non-sensitive and for sensitive material) which they pass to the prosecutor, and the prosecutor is required to go through the schedules and confirm on them whether each item listed is "disclosable". This imposes a discipline on the handling of information which in itself reduces the risk of error. In addition: - The completeness of revelation is promoted by requiring the police to apply a test (material which "may be relevant") which is far wider than the disclosure test later applied by the Crown (material which may be capable of undermining the prosecution or assisting the defence); and
- The completeness of disclosure is promoted by disclosing the schedule of non-sensitive material to the defence, allowing them to make representations if they consider anything listed may be helpful to their client's case.
7.6 It is clearly necessary to keep records of material obtained during an investigation, except possibly material which is so obviously irrelevant that there can be no question of it figuring in any subsequent proceedings. It is also obviously desirable to provide police officers with a structured procedure within which decisions can be made and recorded. Nevertheless, I have had some doubts about the creation of schedules, because it does seem to me to be potentially over-cumbersome. I would therefore have preferred to be able to recommend a simpler system. It is, however, difficult to do so, and as a result something very similar to the English system seems to be required for all solemn cases. 9.8 I considered whether I should recommend the creation of schedules in summary as in solemn cases. However, in a very great many summary cases, once the material needed for the presentation of the Crown case has been identified and produced, there will not be a great quantity of relevant material left over, and there should be no real problem in deciding what to do with it. In addition, in discussion with practitioners in England, it has been said that the system of schedules probably is operated in the bigger and more serious cases, but that it is doubtful whether it really is operated, at least fully, in more routine cases. Most importantly, summary practitioners in Scotland did not think that it would serve a useful purpose to prepare schedules in the way proposed for solemn cases. R12. A system of schedules of material in solemn cases should be introduced, along the lines of the system in England and Wales. R15b. There should be no requirement for the production of schedules in summary cases. R26. In Scotland, as already happens in Northern Ireland, all material that may be relevant to a solemn case should be listed on a schedule, without a distinction between "used" and "unused" material. R27. The police should include on the schedules all items that "may be relevant" - ie anything which could have a bearing on the outcome of the case - and should err on the side of including material in interpreting this requirement. There should be one schedule for non-sensitive material and another for material which is "sensitive" - ie if its disclosure would create a real risk of serious prejudice to an important public interest. The code of practice should set out the procedures to be followed. R28. The Crown will then require to go through the schedules and consider: - whether they wish to see any of the items for their own purposes;
- whether they agree with the police classifications of items as disclosable or non-disclosable and as sensitive or non-sensitive;
- whether the descriptions of items are sufficiently informative and fit-for-purpose, including for defence use in the case of the non-sensitive schedule.
The Crown will add their comments and revisions to the schedules and then send a copy of the non-sensitive schedule to the defence. R29. It will be open to the defence to apply, informally to the Crown or formally to the court, for disclosure of any item on the schedule in the usual way. However such requests should not require to be granted unless the defence can justify why there is a need for disclosure. R30. The statutory code of practice should make it clear that the Senior Investigating Officer ( SIO), Reporting Officer ( RO) or dedicated officer will be responsible for ensuring that the material has been reviewed, and that the schedules prepared and submitted are complete. |