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SUMMARY OF RESPONSES
Questions A-C - Statutory definition of the disclosure requirement
Questions:
A. Do you agree that there should be a statutory definition of the disclosure requirement?
B. Do you agree that the statutory requirement should be based on McLeod and could be "to disclose to the defence all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it"?
C. Do you have any comment on recommendations 6 and 7?
8. All respondents were in favour of a statutory definition of the disclosure requirement (A). In the case of the Scottish Legal Aid Board ( SLAB), this was expressed as support for "the introduction of a more formalised structure for determining what should be disclosed and fixing a procedure for disclosure".
9. A majority of respondents were in favour of Lord Coulsfield's proposal of a McLeod-based definition, though the response from Victim Support Scotland ( VSS) gave only qualified support. There were 2 groups of respondents who argued for alternative approaches:
The Glasgow Bar Association ( GBA) and the Faculty of Advocates Criminal Bar Association ( FACBA) both favoured basing a definition on Sinclair with the GBA noting that "The decision in Sinclair v HMA should be the guiding principle. This decision post dates McLeod and reviews our obligations under ECHR". FACBA stated that "the statutory requirement should be based on the Sinclair definition. Arguably Sinclair sets out a wider definition of the duty of disclosure". Similarly, the Law Society of Scotland ( LSS) were in favour of extending the principle in McLeod "by including…a reference to the duty to disclose any evidence which may assist the case for the defence…".
Her Majesty's Advocate General for Scotland ("the Advocate General") and The Scottish Criminal Cases Review Commission ( SCCRC) both suggested that the definition should be more closely linked to the law in England and Wales. The Advocate General "supports the definition of the disclosure requirement from H and C", while the SCCRC said "it would be preferable to base the wording on section 3(1)(a) of the Criminal Procedure and Investigations Act 1996 (as amended) which applies in England and Wales".
10. A variety of comments were made on Lord Coulsfield's recommendations 6 and 7. There was little dissent from recommendation 6, which was that "the statute should provide that the duty applies to all categories of material produced or recovered in the course of a criminal investigation and that it applies throughout the whole course of the investigation and prosecution", although 2 respondents suggested that this would fit better in the statutory code of practice than in the statute itself. The SCCRC welcomed the proposal in recommendations 5 and 6 "that the Crown's obligation extend to 'information' as well as 'evidence'". Professor Raitt said "there is a pragmatic issue over 'control' of the material … [the obligation] does place a particular burden on the Crown to be clear it knows what its experts are doing", while the Scottish Police Services Authority ( SPSA) Forensic Services said "If this were to be applied to forensic processes then it would appear that all material generated during a forensic examination would need to be disclosed, for example scientists' notes or data derived from a scientific process or instrument… In implementing such a recommendation there would also need to be clear rules around the use of these materials or data."
11. Recommendation 7 listed six examples of material which would require to be disclosed. The SCCRC welcomed this proposal. They noted that "…this proposal… should reduce to a minimum the possibility of differing interpretations of the Crown's obligation, and should promote consistency of approach". Several respondents emphasised that the list could not be exhaustive, and the Advocate General recommended additional categories should be added to the list. 3 respondents suggested such lists should be in the code of practice rather than the statute. Scottish Women's Aid ( SWA) said "it is important that the concept of 'materiality' is paramount in relation to the nature of the information disclosed".
Question D - Disclosure of Statements
Question:
D. Do you agree that the requirement for disclosure of statements should include production and disclosure of all statements of persons whom the Crown intend to call as witnesses in solemn cases (as per Sinclair ), and otherwise be defined in accordance with recommendation 3?
12. 5 respondents did not agree with the distinction Lord Coulsfield drew between solemn and summary cases, and said that the that requirement should include production and disclosure of all statements of persons whom the Crown intend to call as witnesses, in summary as in solemn cases. The Sheriff's Association noted that "…there should be no difference between solemn and summary cases as regards what requires to be disclosed, particularly given the increase in summary sentencing powers". The anonymous respondent also noted that "I agree as to requirement and think that the same should also apply to witnesses in summary cases".
13. 4 respondents agreed with the recommendation including the distinction between solemn and summary trials. 2 respondents were of the opinion that a more restrictive approach to disclosure of statements was required, with VSS stating that due to the nature of some incidents the limited information that the police may note down may be "somewhat inaccurate information that is later straightened out once the full report and witness statements are composed. If the quick notes written down on the scene contain somewhat different information than the full witness statements, the witness may be seen as unreliable by the court. Therefore, quality standards in the notes are crucial, if they were to be made disclosable".
Questions E-F - Disclosure of Criminal History Records
Questions:
E. Do you agree that the disclosure requirement should only extend to previous convictions and outstanding charges of witnesses where they comprise material information ?
F. Do you agree that in summary cases, the Crown should provide this information on request, rather than automatically?
14. The majority of respondents who commented (8) agreed with question E. SWA agreed and commented that "…this should apply to solemn cases only, and with the clear emphasis being on the materiality and relevance of the information as a crucial factor". 3 respondents disagreed, arguing that it would be better to disclose all previous convictions and outstanding charges, with few exceptions. The LSS commented that "…the materiality issue tends to leave it to the discretion of the Crown…all convictions and outstanding charges should be disclosed unless…subject to public interest immunity or manifestly irrelevant".
15. Of the respondents who commented on question F, more respondents (6) disagreed than agreed (4). ACPOS disagreed and stated that "In summary cases the Crown should continue, as is done at present, to obtain the witnesses' unique criminal history reference number from the police and thereafter disclose to the defence CHRs that meet the disclosure test…It is necessary to ensure that the defence have confidence in a disclosure system both in summary and solemn cases." Similarly, Her Majesty's Revenue and Customs ( HMRC) noted that "In summary cases the Crown should obtain criminal history records…and thereafter supply to the defence criminal history records that meet the disclosure test". The GBA and Professor Raitt were among the respondents who agreed with the recommendation that the onus should be on the defence to request the information.
Questions G-H - Code of Practice
Questions:
G. Do you agree that there should be a statutory code of practice to set out disclosure procedures and responsibilities in more detail than the legislation?
H. Do you agree with the recommended definition of material which "may be relevant", to inform police judgements on whether information requires to be retained and recorded?
16. Almost all respondents (12) were in favour of a more detailed statutory code of practice. The exception was the Sheriffs' Association, who noted that they were "…in agreement with the thrust of the proposals" but expressed "a slight concern about the existence of various sources of instruction" and thought that it "would be preferable to include everything in the one piece of legislation".
17. All those who commented (12) agreed with the recommended definition of material which "may be relevant", to inform police judgements on whether information requires to be retained and recorded. The GBA added that "It should be exceptional where a line of enquiry is undertaken and then not retained or recorded. The defence are at a disadvantage in terms of resource, manpower and their inquiries may be years after the event. That does not mean that the police need to carry out fruitless investigations but simply disclose their lines of inquiry."
Question I - Decision Making
Question:
I. Do you agree that the police and the Crown should carry the responsibilities set out in recommendations 10 and 11?
18. All of the respondents were in agreement that the police and Crown should carry the responsibilities set out in recommendations 10 and 11. However, some caution was expressed by the GBA who said that "We do not understand why the Crown should decide not to disclose information to the defence if there is no sensitivity or wider public interest". The LSS commented that they "…would highlight potential resource issues where the Crown are required to undertake such a sifting process." SPSA Forensic Services added that "These responsibilities must reflect the existence and use of third party organisations where appropriate. One of the responsibilities of the Crown must be to ensure these organisations can continue to provide cost effective services by ensuring disclosure is conducted in an appropriate manner."
Questions J-K - Public Interest Immunity
Questions:
J. Do you agree that there is a need for a system of Public Interest Immunity hearings to be introduced in Scotland?
K. Do you have any comments on the proposed details of the system, as set out in Lord Coulsfield's description and analysis of the system in England and Wales?
19. A majority of respondents (9) agreed that there is a need for a system of Public Interest Immunity ( PII) hearings to be introduced in Scotland. No respondent explicitly disagreed, but the GBA thought that "…it would be preferable to pilot such a system before legislating" and VSS noted that they are "… still undecided whether this will add any major benefits to victims and witnesses of crime."
20. Comments were invited on the proposed details of the system as detailed by Lord Coulsfield. 3 respondents thought that there would be ECHR issues, with FACBA commenting that they would "…anticipate challenges in terms of article 6 of ECHR..." 4 respondents recommended that the system in Scotland should be guided by the principles set out in R v H&C [2004] UKHL 3. SWA are of the opinion that "…the checklist of questions that should be considered by the court in PII hearings, as specified by the House of Lords in R v H&C…should be followed, the key additional requirement being that the court must check that any proposed withholding of material represents the minimum derogation necessary to protect the public interest in question."
Questions L-N - Schedules for Solemn Cases
Questions:
L. Do you agree that requiring the production of schedules of material would provide an appropriate safeguard for the accuracy of disclosure in all solemn cases?
M. Do you have any comments on the detailed arrangements proposed in recommendations 26-30?
N. Do you agree that schedules should not be required for summary cases?
21. 12 respondents agreed that requiring the production of schedules of material would provide an appropriate safeguard for the accuracy of disclosure in all solemn cases. However VSS were ambivalent, stating that "The production of schedules…does provide a far-reaching safeguard to enhance the accuracy of disclosure; however it adds a vast amount of time-consuming workload onto the police". GBA are of the opinion that "…such a system should be immediately piloted to assess the effectiveness."
22. Comments were received on the detailed arrangements proposed in recommendations 26-30. Among these the Advocate General "…supports the obligation on the Crown to produce schedules of the information that it holds, along the lines of the process followed in England and Wales and Northern Ireland." ACPOS are of the opinion that "The non-sensitive schedule must be served by the Crown on the defence in order to create a credible disclosure regime." The SCCRC commented that "as Lord Coulsfield recognises, the effectiveness of schedules prepared by the police is very much determined by the level and usefulness of the information they contain".
23. 6 respondents agreed with Lord Coulsfield that schedules should not be required for summary cases, but 5 disagreed. Of the 5 who disagreed the anonymous respondent noted that "There are common law crimes which could be prosecuted under solemn or summary - it is not for the police to decide, or prejudge, which should apply." And the SCCRC noted their concern that "…that if the use of schedules is not extended to summary cases there will be an absence of safeguards..." On the other hand, Professor Raitt agreed Lord Coulsfield's proposal on the grounds that "this is a question of proportionality and effective use of resources".
Questions O-P - Information from the Defence
Questions:
O. Do you agree that the defence should not be required to provide a defence statement following initial disclosure by the Crown, but should be entitled to do so voluntarily? Do you agree that there should be a standard recommended form for voluntary statements provided by the defence to inform further disclosure considerations?
P. Do you agree that the Crown should be required to review disclosure decisions in the light of any new information provided by the defence?
24. Respondents to question O fell into 3 main groups: 5 respondents felt that there should be a mandatory system of defence statements, with a standard form for the purpose; 3 supported a voluntary system with a standard form, as recommended by Lord Coulsfield; while 4 argued there was no need for a standard form or any change to the current arrangements.
25. The Advocate General did not support a mandatory system but made no comment on whether there should be a standard form. Conversely, SLAB supported a standard form but expressed no view on whether arrangements for making statements should be mandatory.
26. Reasons given for supporting the status quo included the GBA comment that "The accused does not have to breach the right to silence". In support of a mandatory system, ACPOS commented that "To really produce a system of 'equality of arms' there should be a statutory requirement for a defence statement for solemn cases."
27. Those who opposed the idea of a standard form for (voluntary) defence statements did so because this "may lead to a perception of 'good practice' whereupon the defence may feel obliged to provide a defence statement" ( LSS and FACBA) or because it would be "too restrictive" (Sheriffs' Association).
28. All respondents agreed that the Crown should be required to review disclosure decisions in the light of any new information provided by the defence. However the GBA also noted that "There would be no reason to do so if they simply disclosed everything at the start. The Crown has a duty to disclose information and our view is that they should not be retaining information from the defence."
Question Q - Witnesses to Refer to their Statements
Question:
Q. Do you agree that witnesses should be able to refer to copies of their statements when called to give evidence?
29. Most (9) respondents agreed that witnesses should be able to refer to copies of their statements when called to give evidence. Within these both SCCRC and the Advocate General supplied additional comments. SCCRC added that "The Commission…considers it essential that it goes hand in hand with the measures designed to improve the accuracy of statements…" and the Advocate General commented that the "witness should be allowed to see the statement that they gave to the police at the time, particularly if the witness has agreed with the content of the statement and signed it at the time."
30. 3 respondents disagreed. Among these the LSS commented that there are "…concerns that differences in the practices and procedures for the taking of statements are such that there is no guarantee that consideration of such statements as are noted in Scotland prior to the giving of evidence would lead to more accurate or reliable information being given."
31. The Sheriffs' Association reported that they had no concluded view, and added that "those who support this proposal are clear that the statement must have been read and signed by its author."
Question R - Misuse of Disclosed Information
Question:
R. Do you agree that misuse of disclosed information should be made an offence?
32. 12 respondents agreed that misuse of disclosed information should be made an offence. None disagreed.
Questions S-T - Disclosure for Summary Cases
Questions:
S. Do you agree with Lord Coulsfield's recommendations on the content of the summary of evidence to be provided with the complaint, and do you have any comments on the practical steps needed to implement this system?
T. Do you have any comments on Lord Coulsfield's recommendations for additional disclosure following a plea of not guilty in a summary case?
33. A majority of the respondents (10) agreed with Lord Coulsfield's recommendations on the content of the summary of evidence to be provided with the complaint. HMRC commented that "However, in terms of Recommendation 31 it would be preferable to provide a full account of the evidence available." VSS "…hope that by giving a summary of the evidence at an earlier stage, the trial may go ahead more rapidly and this will benefit both victims and witnesses." A note of caution was provided by the SCCRC. Although they see a "good deal of value in Lord Coulsfield's recommendations" in terms of article 6 of ECHR, they raised concerns "that in certain cases the provision of detailed information to an accused at the time the complaint is served will heighten the risk of witnesses being intimidated or approached."
34. Agreement for Lord Coulsfield's recommendations for additional disclosure following a plea of not guilty in a summary case came from 6 respondents. The anonymous respondent also commented that "In addition there should be a requirement for the Crown to respond timeously to such requests - ideally within 28 days after a not guilty plea, or not less than 28 days before ID." 4 respondents had concerns about this recommendation, generally suggesting that procedures should mirror those for solemn cases, in particular by providing for full disclosure of statements after a plea of guilty. Thus, the GBA noted that "Statements should be made available except in cases where, for example, the witnesses are police officers whose involvement is contained in the summary…Civilian witness statements should be available, as a one line summary of a material witness is insufficient where the accused can face 2 years imprisonment on a summary complaint for an offence committed on bail." Similarly, both the LSS and FACBA opposed the distinction between solemn and summary cases, with the LSS highlighting "that there has been too much of a distinction drawn between solemn and summary and that full disclosure should be made following a plea of not guilty in a summary case."
Question U - Other Issues
Question:
U. Do you have any other comments on the recommendations in the Annex or on any other issues raised in Lord Coulsfield's report?
35. Comments were received from 9 respondents. The GBA commented on policing stating that "It is important that police procedures should be changed. Witnesses attending a police station to provide a statement should have that taken verbatim or in a serious case it should be recorded on tape in order that the questions put are available." The Sheriffs' Association recorded their support for the recommendations dealing with the taking of statements (Recommendation 18 and Recommendation 20), the recommendation dealing with the disclosure of exculpatory material thrown up during precognition (Recommendation 36) and the recommendation dealing with the availability of equipment on which visual-image recordings can be played (Recommendation 37). They commented that "Any step which can be taken to ensure that any tape or video can be readily seen in Court without an interminable delay because the need for transcription or transfer to a Court compatible format has not been highlighted in advance is to be welcomed." The anonymous respondent and SWA agreed that the Crown's internal guidelines should be made public. HMRC and ACPOS both commented on the "considerable practicable and procedural implications" regarding workload, training and timescales.
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