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4 DISCLOSURE
There has been a significant change in processes relating to the Disclosure of evidence required by the Crown since the judgements issued by the Privy Council in the cases of Holland and Sinclair in 2005. There is now a presumption in favour of Disclosure of witness statements to the defence in all cases where a not guilty plea is tendered and a trial fixed. This has involved fresh protocols being agreed with the police concerning the submission of statements and arrangements in relation to checking of statements and provision of these to defence solicitors. The IT systems allow for these procedures to be set in place at the marking stage to avoid 'double-handling' of cases (ie a second Depute reading the case to fully prepare the case for trial should there be a trial fixed).
A Disclosure Manual has recently been issued by Crown Office containing comprehensive advice on procedures and timetables to be followed.
The recently published Report by Lord Coulsfield, published September 2007, suggests legislation is required to clarify Crown duties and obligations relating to Disclosure of the Crown evidence and further changes in processes in this area are anticipated. This review has concentrated on the requirements at the time the cases proceeded.
Staff interviewed in the Grampian Area advised that Disclosure has caused a significant increase in workload and that there are problems meeting the target dates for providing disclosed material to the defence. The main reason given for this is the continuing issue relating to recruitment and retention of staff (see Chapter 7 - 'Staff Management' for further information). Although management are doing their very best to deal with this issue we were informed that cases in Aberdeen are being adjourned at court because the defence only receive the material a few days before the case calls in court. In a few cases the court has deserted the diet.
A Disclosure Team was set up in the Aberdeen office and consists of two Band B posts and a Depute (re-allocated from other work). However, due to increasing pressure additional temporary resource from the office was provided to the team to help alleviate the problem. We were advised that staff have indicated to the Area Management that, while they understand the why it is being done, Disclosure is causing frustration because of the extra demands on limited time available to get through the workload. Staff shortages contribute further to this burden.
In Elgin a member of staff is given responsibility to manage Disclosure material but it has been reported as having a big impact on the workload and a problem meeting the targets expected although staff do try their best to meet them. In Peterhead and Banff a legal member of staff redacts information and passes the material to typists for forwarding to defence agents. The District Fiscal at Banff advised that the office is coping with the required targets.
We were also advised that in the past defence agents indicated that they did not always receive disclosed material sent by post. As a result a system has been set up where they are now required to attend the office and sign for disclosed material at Aberdeen and Elgin. For Peterhead and Banff disclosed material is posted to agents who are required to sign and return a receipt to the offices.
Criminal justice partners such as Sheriffs, Clerks to both Sheriff and District Courts, and local solicitors, particularly in Aberdeen and Stonehaven have referred to Disclosure as being an issue and a cause for concern.
The Area Fiscal acknowledges that Disclosure is a real challenge and if she had a full complement of staff they could probably deal with Disclosure. The Crown Office timescales are not legally binding and it's a matter for the courts to decide whether disclosure has been made timeously. Even in the parts of the Area where Disclosure is not seen as a problem in the courts, Banff, Elgin and Peterhead it is a huge burden on staff impacting on morale and the extra hours worked by the staff as commented upon below.
In our case analysis, while not statistically relevant, it provides a useful snapshot of the position area wide.
Aberdeen
District Court:
In the 6 cases where Disclosure was appropriate
- In 3 cases Disclosure was made timeously
- In 1 case Disclosure was late
- In 2 cases we could find no evidence of Disclosure having been made
Sheriff Court:
Of the 14 cases where Disclosure was appropriate
- In 12 cases Disclosure was made timeously
- In 1 case the full statements were not submitted timeously by the police
- In 1 case a Disclosure package was sent out timeously but at intermediate diet it was minuted that a statement had not been disclosed
Banff
District Court:
In the 1 case where Disclosure was appropriate it was made but late.
Sheriff Court:
In the 5 cases where Disclosure was appropriate it was made timeously.
Elgin
District Court:
In the 2 relevant cases Disclosure was made but in one case it was late.
Sheriff Court:
In the 5 relevant cases
- In 1 case Disclosure was made timeously
- In 1 case it could not be ascertained
- In 2 cases it was not made as the police had not submitted statements timeously
- In 1 case no solicitor was instructed until after the intermediate diet so no request was made until then
Peterhead
District Court:
In the 2 relevant cases Disclosure was made timeously.
Sheriff Court:
In the 6 relevant cases
- In 5 cases Disclosure was made timeously
- In 1 case it could not be ascertained
Stonehaven
District Court:
All of the cases inspected pled guilty by letter at the first opportunity.
Sheriff Court:
In the 4 relevant cases the Disclosure requirements do not appear to have been met.
Conclusion
The picture across the Area varies slightly from office to office but in Aberdeen the compliance with Crown Office policy on Disclosure timelines was not as bad as some had indicated although this does not hold true for Stonehaven cases or Aberdeen District. In Banff and Peterhead the results were good. In Elgin it was not possible to meet the requirements in the majority of cases for reasons outwith the Fiscal's control. We have information from other sources eg District Court Clerk and Sheriff in Elgin that there is generally no problem with Disclosure in Elgin. The good results however come at a price and the requirements are a considerable burden on staff with us being told by a criminal justice partner about the extra hours worked by the local Fiscal. This is borne out by the information received on overtime paid and unpaid and flexi time lost or worked unrecorded which is shown in Chapter 7 - 'Staff Management'.
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