Disclosure manual

1.1

Disclosure is a vitally important aspect of criminal procedure. The principal purpose of disclosure is to secure the fair disposal of criminal proceedings and ensure that justice is done. Non-disclosure of material information may prejudice the fairness of a trial. It would be incompatible with the Article 6 rights of the accused, and could – if a conviction is secured – result in an appeal being successful. It can also result in judicial criticism of the Crown – see, for example, PF Glasgow v Von & Hume ([2008] HCJAC 9).

1.2

The Privy Council in McDonald v HMA [PC] (2008 S.L.T. 993) recognised that the Crown have addressed the problems that were identified in Holland (2005 S.C. (P.C.) 3) and Sinclair (2005 S.C. (P.C.) 28) “with great care and attention to detail” (para 33). It was further commented that the Crown had shown “a commendable determination…to eliminate the problems as far as it is humanly possible to do so, and to put in place new systems to minimise the risk of error in the future” (para 34).

1.3

It is clear that the Crown has set itself a high standard in relation to complying with disclosure, and while the positive opinions expressed in McDonald v HMA [PC] recognise and commend this work, it is essential that Procurators Fiscal should not become complacent and should continue to live up to the standard so highly praised by Lord Hope.

1.4

More importantly, it should be noted that the Privy Council has reviewed the current system of disclosure and is satisfied that it is compatible with an accused’s Article 6(1) Convention rights (McDonald v HMA [PC] para 61).

1.5

Part 6 of The Criminal Justice and Licensing (Scotland) Act 2010 places the law surrounding disclosure on a statutory footing and replaces any equivalent common law rules about disclosure. All common law rules about disclosure of information by the prosecutor in connection with criminal proceedings are abolished in so far as they are replaced by or are inconsistent with Part 6 of the Act (s. 166 Criminal Justice and Licensing (Scotland) Act 2010).

1.6

This Manual is designed to ensure that Procurators Fiscal and their staff are aware of the Crown’s disclosure obligations to the defence and that those obligations are fully and consistently implemented to a high standard.

1.7

The instructions contained in this manual must be followed by all members of COPFS staff in order to ensure a consistent approach to disclosure. Any derogation from, or variation of, these instructions must be agreed by the Director of Serious Casework. Consistency in this area is vital.

1.8

These instructions apply to all Crown prosecutions and appeals.

1.9

Copies of cases referred to in the manual can be accessed in the Knowledge Bank.

2.1 General principles

2.1.1

Our system of criminal procedure proceeds on the basis, as required by Article 6 of the ECHR and Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010, that the Crown has a duty, which exists in perpetuity, to provide to the defence all material information, namely that information which:

1. would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,
2. would materially strengthen the accused’s case, or
3. is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused (s121(3) Criminal Justice and Licensing (Scotland) Act 2010).

This includes information, of which the Crown is aware, which is likely to be of real importance to any undermining of the Crown case, or to any casting of reasonable doubt upon it, or which is of positive assistance to the accused (McDonald v HMA [AC] (2008 S.C.C.R. 154)). Put shortly, the Crown must disclose any statement or other material of which it is aware and which materially weakens the Crown case or materially strengthens the defence case (McDonald v HMA [AC] at para 50).

2.1.2

This is summarised in the first and second Principles of Disclosure:

1. The Crown is obliged to disclose all material information for or against the accused (subject to any public interest immunity considerations). This relates to statements, but it also relates to all information of which the Crown is aware. ‘Information’ is defined as material of any kind given to or obtained by the prosecutor in connection with the proceedings (s116 Criminal Justice and Licensing (Scotland) Act 2010).
2. “Material” means information which either materially weakens or undermines the evidence that is likely to be led by the prosecutor; materially strengthens the defence case; or is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused (disclosable information).

2.1.3

The Crown is not obliged to disclose all material information against the accused, only that information against the accused that forms part of the prosecution case. Neutral information or information damaging to the defence and not part of the prosecution case need not be disclosed and should not be brought to the attention of the court (R v H & C 2004 AC 1324), neutral information being information with no evidential significance to any party.

2.1.4

It is the Crown’s duty to disclose information that is material to the defence. This duty does not depend on the defence making an application or request to the Crown for disclosure (McDonald v HMA [PC] at para 55, Sinclair at para 53)

2.1.5

The Crown’s duty is a continuing one – it persists in perpetuity. It continues throughout and to the conclusion of any trial, and any subsequent appeal proceedings, and even after the final disposal of a case. Statute places a continuing duty of review on the prosecutor (Criminal Justice and Licensing (Scotland) Act 2010 s123). The prosecutor must, from time to time, review the information held and disclosed and make further disclosure where appropriate. Where proceedings, at first instance, have concluded there is a continuing statutory duty on the prosecutor to review the information held (Criminal Justice and Licensing (Scotland) Act 2010 s134). The statute provides that there is no requirement to re-disclose information which has previously been disclosed to the defence.

1. Any new information received by the Crown at any stage in the preparation of a case, during trial or any subsequent appeal proceedings, or even after the final disposal of a case must be considered for disclosure and may require previous decisions in relation to disclosure to be reviewed to assess whether further information requires to be disclosed to the defence;
2. When a defence statement is lodged in a solemn case and if a defence statement is lodged in a summary case, the Crown should consider whether there is information which was not previously considered disclosable which should be disclosed in light of any new line of defence. Previous decisions about disclosure may need to be reviewed and an assessment made whether further information requires to be disclosed to the defence. Where it is decided that information does not require to be disclosed in light of a defence statement, this decision and the reasons for it should be highlighted, in solemn cases, in the Disclosure Page (following the Observations Page) in the precognition, and in summary cases, recorded in the case papers; and
3. If it becomes apparent that there has been an earlier failure to disclose material information, i.e. information which is likely to be of real importance to any undermining of the Crown case, or to any casting of reasonable doubt on it, and of positive assistance to the accused, that information must be disclosed.

2.1.6

The Crown’s disclosure duty exists in perpetuity and extends to all information received and known to the Crown in the course of investigation and criminal proceedings.

2.1.7

However this does not mean that the Crown should disclose all information in its possession. It means that the Crown requires to consider all information for disclosure, and disclose any information which meets the materiality test, i.e. all information obtained in the course of the investigation and any criminal proceedings, of which the Crown is aware, which is likely to:

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• to form part of the evidence to be led by the prosecutor in the proceedings against the accused

2.1.8

While, in terms of the materiality test outlined above the Crown must consider each piece of information to ascertain whether it requires to be disclosed, the Holland and Sinclair decisions made it clear that, in certain circumstances, certain classes of information will always fall to be disclosed: “the police statements (as opposed to precognitions) of any witnesses on the Crown list and – subject to the Crown argument on article 8…- the previous convictions and outstanding charges relating to those witnesses” (McDonald [PC] para 51). The information to be considered for disclosure includes not only documents, but also other types and formats of information which come into the Crown’s possession. The information need not be in written form. It would, for example, include:

1. video/audio evidence;
2. information which has been provided orally, such as a negative result of a forensic analysis which has been reported to the Crown by telephone; and
3. information contained in emails or text messages.

This list is not exhaustive and it is essential to always remember that it is not the format in which the information is held that is important, it is the nature of the information itself. Information that meets the disclosure test, for example, could even be contained within a complaint made to COPFS.

2.1.9

The prosecutor may disclose information “by any means.” (Criminal Justice and Licensing (Scotland) Act s160(2)). It is the content of the information and not the format it is contained in which is important. The Crown will satisfy its disclosure obligation by providing the information as opposed to the document/ item in which the information is held, e.g. where something is elicited at precognition which is disclosable, the obligation is to disclose that piece of information and not the precognition itself. The only exception to this is where the form is considered to be a class of information that is always disclosable, e.g. witness statements, as stated in Sinclair.

2.1.10

Information falling within the materiality test is disclosable even if it would not be, or is in a form which would not be, admissible at trial. For example, information contained within a standard precognition which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or to form part of the evidence to be led by the prosecutor in the proceedings against the accused is disclosable even though that information is contained in a document which would not itself be admissible at trial.

2.1.11

The Courts have identified certain information which must be disclosed in all cases (subject to any claim to public interest immunity as mentioned in paras. 2.1.13-15 below). In particular:

1. statements for all witnesses on the Crown and defence lists; and
2. material criminal history information for all witnesses on the Crown lists (e.g. previous convictions and outstanding charges) (Holland and HMA v Murtagh [2009] UKPC 32).

2.1.12

There is further detailed guidance about disclosure of statements and criminal history information in Chapters 13 - 20 of this Manual. Remember, the duty to disclose these particular items does not exhaust the duty of disclosure. The Crown’s disclosure duty extends to all information which falls within the materiality test.

2.1.13

In exceptional circumstances, there may be good reason for seeking to withhold information which is normally disclosable in terms of the materiality test e.g. where disclosure could result in a threat to the life or limb of a witness or other persons¹ (Swinney v Chief Constable of Northumbria (1999) 11 Admin L.R. 811) and Osman v Ferguson [1993] 4 All ER 344). However any decision on whether or not the Crown may withhold information which would otherwise be disclosable must be taken by the Court.

2.1.14

In Solemn cases, the prosecutor should not disclose details of sensitive information. ’Sensitive’ means that if the information were to be disclosed, there would be a risk of (a) causing serious injury or death to any person, (b) obstructing or preventing the prevention, detection, investigation or prosecution of crime or (c) cause serious prejudice to the public interest (Criminal Justice and Licensing Act 2010 s122(3) and (4)).

2.1.15

Where there is information which in terms of the materiality test is disclosable, but which it is considered should not be disclosed in the public interest, the matter should be referred initially to the Federation Head, the functional lead for High Court / Sheriff & Jury / Summary (depending on the forum of the case), or another appropriately vetted member of COPFS staff. Thereafter the matter should be reported, including an appropriate recommendation, by that person to the Director of Serious Casework for the onward attention of Crown Counsel. Crown Counsel will issue a final decision as to how the issue should be addressed.

2.1.15

Further guidance on the handling of sensitive information and related disclosure decisions is included in Chapter 25 of this Manual.

2.1.16

When assessing the materiality of a piece of information, a generous approach should be adopted and where there is a doubt about the materiality of a piece of information, then the Crown must err on the side of disclosure.

2.2. The legal basis of the obligation of disclosure

2.2.1

The Crown’s disclosure obligation was formed at common law, and from the European Convention on Human Rights, and is now founded in statute within Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010. The statutory obligations apply in respect of cases in solemn proceedings where the first appearance was on or after 6 June 2011, and in summary proceedings where a plea of not guilty was recorded on or after 6 June 2011.

2.2.2

In addition, it is unlawful for the Crown to act incompatibly with Article 6 of the European Convention on Human Rights; the Scotland Act 1998, section 57(2); or the Human Rights Act 1998, section 6(1). In Rowe and Davis v United Kingdom [2000] 30 EHRR 1, a Grand Chamber of the European Court of Human Rights articulated the law in the following terms:–

“It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and the defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given an opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party … In addition Article 6(1) requires, as indeed does English law …, that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused …”

2.2.3

The Crown’s disclosure obligation is co-extensive with its obligations under Article 6 of the Convention.

2.3 The duty of the defence

2.3.1

It is important to remember that the Crown’s duty of disclosure is not its principal duty and “the Crown’s job is to prosecute, not to defend” (McDonald [PC] at para 60). Disclosure is simply one aspect of the overall duty to prosecute the case fairly and the Crown should meet its disclosure obligations while “diligently carrying out their core duties of preparing and prosecuting cases”.

2.3.2

As recognised by Lord Rodger in McDonald [PC], “the success of our adversarial system of trial depends on both sides duly performing their respective roles”.

2.3.3

In addition to the duty of initial disclosure, the Crown has a continuing duty to keep its disclosure decisions under review and to disclose all “disclosable” information of which the Crown is aware or becomes aware while carrying out that duty.

2.3.4

In McDonald [PC], the Privy Council recognised that the Crown does not have a responsibility to investigate all possible lines of defence and to expect the Crown to set about investigating all the possible lines of defence in the case would take the Crown’s work into defence territory which is the role of the accused’s representatives. Accordingly, it is not the duty of the Crown “to spontaneously comb through all the material in its possession, on the look-out for anything which might assist the defence and should be disclosed”. If lines of defence manifest themselves during the Crown investigation these must be disclosed to the defence.

2.4 Requests by the defence for additional disclosure

2.4.1

The Crown will disclose all relevant information which is likely to:

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused

2.4.2

Thereafter, if the defence considers that disclosure of further information is required by reference to the accused’s defence then the nature of the information and the reasons why disclosure is considered necessary should be set out in a defence statement (Criminal Justice and Licensing (Scotland) Act 2010 s124 (solemn) or s125 (summary)). The lodging of a defence statement is mandatory in all solemn cases and conditional in summary cases. Further guidance on defence statements can be found in Chapter 42 of this Manual.

2.4.3

Following receipt of a defence statement the prosecutor must review all the information of which the prosecutor is aware which has previously been revealed as potentially relevant but not considered material to the case for or against the accused and disclose any information which now meets the materiality test. This will require effective communication with the Reviewing Officer to ensure that information which was considered to be manifestly irrelevant is also reviewed in light of the defence statement. Further guidance on disclosure policy following receipt of a defence statement can be found in Chapter 42 of this Manual and operational process guidance can be found in the Case Processing Manual.

2.4.4

Where the defence considers that the prosecutor has failed, in their response to a defence statement, to disclose an item of information which is disclosable in terms of the materiality test they may apply to the Court for a ruling on whether the information is disclosable (Criminal Justice and Licensing (Scotland) Act 2010 s128). Further guidance on applications for Court rulings on disclosure can be found in Chapter 39 of this Manual.

2.5 Failure to disclose material information

2.5.1

Failure to disclose material information may result in a breach of Article 6 and constitute a miscarriage of justice. In some cases unfairness occasioned by non-disclosure is capable of being cured by disclosure during an appeal of the information which had not been disclosed at first instance (e.g. Botmeh and Alami v United Kingdom (Application no.15187/03, 7 June 2007); Kelly v HMA (2006) SCCR 9), but in other cases the effect of non-disclosure at first instance will be irreparable (e.g. Rowe and Davis v United Kingdom; Kidd v HMA (2005) SCCR 200) and will result in a conviction being quashed.

2.5.2

Article 6 of the Convention is concerned with the right of the accused to a fair trial. In the normal course therefore, such an issue cannot be determined until after a trial has taken place. The courts have made it clear that there is a very high test for looking at the effect of non-disclosure in advance of the trial and have stated that Article 6 issues will only be considered prior to the completion of the trial in the most exceptional and blatant cases (PF Glasgow v Von and Hume).

2.5.3

In McDonald [PC], Lord Rodger of Earlsferry stated that:

“While a failure by the Crown to disclose material may be incompatible with article 6(1), it by no means necessarily follows that the accused has not had a fair trial in terms of article 6, or that there has been some other miscarriage of justice”

Thus a failure to disclose a statement may, in itself, not result in an unfair trial if, for example, the witness did not depart from their statement when giving evidence (Kelly v HMA). The court must consider the effect of any failure to disclose in the context of the circumstances as a whole (McDonald [PC] and McLellan v HMA ([2008] HCJAC 66)) and as stated in McInnes v HMA (2008 HCJAC 53), it is the significance of the statement that has not been disclosed in the context of the actual trial which is of importance to whether the accused’s right to a fair trial has been infringed.

2.5.4

As stated by the Lord Justice General in McInnes v HMA:

“In the context of determining whether there has been a miscarriage of justice (or, we venture to think, an unfair trial) a robust test is required. The test of a real risk of prejudice to the defence was, rightly in our view, adopted in Kelly v HMA at paragraph 33.”

2.5.5

The approach taken by the Appeal Court in McInnes v HMA was upheld by the Supreme Court ([2010] UKSC 7), in which Lord Hope stated (para 24):

“The question which lies at the heart of it is one of fairness. The question that the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome – if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence”. (also see Allison v HMA, [2010] U.K.S.C. 6)

2.6 Information disclosed by the Crown

2.6.1

Where information is disclosed to the accused’s legal representative, the disclosure is governed by Article 11 of the Code of Conduct in Criminal Work. In terms of Article 11, a solicitor should not give the accused, or any other third party, copies of any documents, materials or recordings. In exceptional circumstances, it may be appropriate for the solicitor to refer the matter to the Professional Practice Department of the Law Society of Scotland for guidance and authority to disclose the information to the client or any other 3rd party.

2.6.2

Guidance on disclosure to unrepresented accused can be found in Chapter 23 of this Manual.

2.6.3

Section 162 of the Criminal Justice and Licensing (Scotland) Act 2010 provides that information disclosed will not be used or further disclosed other than:

1. For the purposes of the proper preparation and presentation of the accused’s case in the original proceedings;
2. With a view to the taking of an appeal in relation to the matter giving rise to the original proceedings;
3. For the purposes of the proper preparation and presentation of the accused’s case in any such appeal

2.6.4

Section 163 confirms that it is a criminal offence for any person to knowingly use or disclose information, or anything recorded in it, for any purpose other than those detailed above.

2.7 Crown undertakings to the Court regarding the disclosure duty of the prosecutor

2.7.1

Lord Hope recognised in McDonald [PC](para 33) that

“an absolute guarantee cannot be given in any case that every single piece of information has been disclosed that ought to have been. The most that can reasonably be expected is (1) that everything that can be done by way of instruction, organisation and training to eliminate the possibility of error has been done, and (2) that an assurance is given in each particular case that to the best of the knowledge and belief of the Lord Advocate or those acting for her there has been full disclosure”.

2.7.2

Procurators Fiscal should never proactively provide such an absolute guarantee or undertaking to the Court regarding the Crown’s compliance with its duty of disclosure. If the Crown were to provide such an undertaking, it would leave the person making the undertaking or even the Lord Advocate as the responsible minister, vulnerable to possible contempt of court proceedings if it later transpires that the Crown had not fully complied with its duty of disclosure (HMA v GB (2006 SCCR 692)). Such a situation should be strenuously avoided.

2.7.3

Furthermore, should the Court expressly seek an undertaking from the Crown that all information that meets the disclosure test has been disclosed, Procurators Fiscals should decline to provide such an undertaking. In such circumstances, the Court should be referred to Lord Hope’s opinion in McDonald [PC] and advised that, on the basis of that opinion, there is no legal basis for requiring such an undertaking.

2.7.4

As recognised by Lord Hope, the most that the Crown can be expected to do is to be able to reassure the Court that the systems and procedures in place to eliminate the possibility of error have been followed and that to the best of the knowledge and belief of the Lord Advocate or the person acting for him that there has been full disclosure. The accuracy of such a reassurance is dependent on the careful diligence of all staff to ensure that the appropriate systems and procedures set out in this Manual are followed in every case. Such reassurances should be given verbally.

2.8 Disclosure and redaction

2.8.1

All redaction and disclosure of witness statements and criminal history records should be carried out in FOS, unless there are exceptional circumstances to justify redaction and disclosure being carried out by other means.

2.8.2

Accordingly, all cases – including solemn cases – should remain in FOS and should not be routed elsewhere. Precognoscers will still be able to access the case through SOS-R and will still be able to create and edit documents in SOS-R.

2.8.3

Keeping a case in FOS and carrying out all redaction and disclosure through FOS allows disclosure binders to be created and printed, negating the need to print off every statement individually. Additionally, PROMIS production records will be automatically updated when statements are disclosed.

2.9 Translation of Productions, Witness Statements & CHRs

2.9.1

Notwithstanding the fact that a SPR may highlight that an accused requires translation of written documentation into a particular language, it is not necessary to routinely commission translation of productions for the defence on the basis that legal aid is available to the accused for interpreting and translation work and an interpreter will be provided for the accused at every court diet.

2.9.2

However, where the accused makes admissions at interview or judicial examination which are considered to be important, or essential, parts of the Crown case, the Crown should arrange for these to be translated and provided to the defence in order to ensure that the prosecution has some control over the choice of translator and the approach taken by the translation service.

2.9.3

Furthermore detailed guidance in relation to the transcription of productions and other information disclosed to the defence is contained in Chapter 8 of the Interpreting and Translating Handbook.

3.1. The law

3.1.1

In order for the system of disclosure to function correctly, the Crown, the police and other investigating agencies must fulfil certain fundamental obligations: “Ultimately, the correct functioning of any system of disclosure depends on the diligence and sense of duty of everyone involved, starting with the police and going on up through the Procurator Fiscal service to the Crown Office and the Lord Advocate herself.” McDonald [PC] at para 61.

3.1.2

The police and other investigating agencies are under an obligation to submit all relevant information to the Crown (Criminal Justice and Licensing (Scotland) Act 2010 s116). The court in Smith v HMA (1952 JC 66) at pages 71 and 71 set out that it is the duty of the police:

“to put before the Procurator-fiscal everything which may be relevant and material to the issue of whether the suspected party is innocent or guilty. We repeat, it is not for the police to decide what is relevant and material but to give all the information which may be relevant and material.”

This is affirmed in the Criminal Justice and Licensing (Scotland) Act 2010 which sets out the statutory obligation, as follows:

In relation to solemn cases, section 117 provides that:

(1) where in a prosecution –
(a) an accused appears for the first time on petition, or
(b) an accused appears for the first time on indictment (not having appeared on petition in relation to the same matter).
(2) as soon as practicable after the appearance, the investigating agency must provide the prosecutor with details of all information that may be relevant to the case for or against the accused that the agency is aware of that was obtained in the course of investigating the matter to which the appearance relates.
(3) As soon as practicable after being required to do so by the prosecutor, the investigating agency must provide the prosecutor with any of that information that the prosecutor specifies in the requirement.

In relation to summary cases, section 119 provides that:

(1) this section applies where a plea of not guilty is recorded against an accused charged on summary complaint.
(2) as soon as practicable after the recording of the plea, the investigating agency must inform the prosecutor of the existence of all the information that may be relevant to the case for or against the accused that the agency is aware of that was obtained (whether by the agency or otherwise) in the course of investigating the matter to which the plea relates.
(3) As soon as practicable after being required to do so by the prosecutor, the investigating agency must provide the prosecutor with any of that information that the prosecutor specifies in the requirement.

It should be noted that in both summary and solemn cases this obligation on the investigating agency to submit relevant information is a continuing duty until the conclusion of proceedings against the accused (Criminal Justice and Licensing (Scotland ) Act 2010 s118 (Solemn) and s120 (Summary). Therefore if during proceedings the investigating agency becomes aware of further information that may be relevant to the case for or against the accused they must inform the Procurator Fiscal of the existence of this information and, where required, provide him with details of it. Proceedings are taken to be concluded if:

1. a plea of guilty is recorded against the accused,
2. the accused is acquitted
3. the proceedings against the accused are deserted simpliciter
4. the accused is convicted and does not appeal against the conviction before the expiry of the time allowed for such an appeal,
5. the accused is convicted and appeals against the conviction before the expiry of the time allowed for such an appeal, (in which case there are provisions for disclosure during live appeals – see chapter 26 herein)
6. the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed, or
7. the complaint/ indictment falls or is for any other reason not brought to trial, the diet is not continued, adjourned or postponed and no further proceedings are in contemplation.

Clearly, in reporting the results of their investigation, the police and other investigating agencies must exercise a power of selection. Any reporting officer is not the judge of what is relevant and material and will tend to err on the safe side. If in doubt, COPFS should be consulted. A reporting officer will also remember that the result of the investigations must be put fairly before COPFS in order that they may decide whether or not to prosecute.

3.1.3

In the course of their investigation the police and other investigating agencies will retain information which may be relevant, which includes anything that appears to the police to have some bearing on any offence under investigation, or any person being investigated, or on the surrounding circumstances, unless it is incapable of having any impact on the case. Thereafter, the police will submit to the Procurator Fiscal details of all relevant information.

3.1.4

A failure on the part of the police or other investigating agencies to fulfil this obligation may result in a miscarriage of justice and/or breach of Article 6. For examples of cases in which non-disclosure of information by the police to the Crown gave rise to difficulties, see HMA v. Johnston (2006 SCCR 246) and HMA v G.B. (2006 SCCR 692).

3.2. Policy

3.2.1

Notwithstanding the disclosure duty on the Crown to disclose all statements of all witnesses on the Crown and defence lists, the police and other investigating agencies must submit to the Crown all statements held by them in respect of a case. Where multiple statements are taken from one witness, all of the statements taken must be submitted, regardless of whether the information contained in the statement is also included in later statements taken from the same witness. It includes statements which are recorded only in a police officer’s notebook as well as statements which are recorded in other formats. As a matter of routine, the police will submit electronic typed versions of original manuscript statements obtained from witnesses. Unless specifically requested by the Crown, these original manuscript statements will not be submitted. Further detail in relation to the submission and disclosure of manuscript statements is included at Chapter 4.3.

3.2.2

There is no general requirement for the police and other investigating agencies to submit to the Procurator Fiscal ‘door-to-door’ enquiry forms or pro forma questionnaires used to gather information and/or evidence at an early stage of the investigation. However any enquiry form or pro forma questionnaire from a witness who then provides a statement to the police or another investigating agency, which is submitted to the Procurator Fiscal and disclosed to the defence, should be submitted to the Procurator Fiscal;

3.2.3

Where ‘door-to-door’ enquiry forms or pro forma questionnaires exist and they are not from a witness from whom a witness statement is subsequently taken, the Reporting Officer must discuss with the Solemn Legal Manager whether any or all of this information should be submitted to the Crown. (See Chapter 27, in particular paragraphs 27.2.2 – 27.2.5. and Chapter 16, paragraphs 16.4.1 – 16.4.3.)

3.2.4

Where there is an appeal following conviction, for example, in additional evidence appeals, the Procurator Fiscal should remind the Reporting Officer to further consider, in light of the grounds of appeal, whether or not there is information which exists from individuals who are not witnesses, which should be submitted to the Crown. As stated earlier, the police or other investigating agencies are obliged to provide this information under s118 and 120 of the Criminal Justice and Licensing (Scotland) Act 2010.

3.2.5

Where an application is made by COPFS under the Double Jeopardy (Scotland) Act 2011 it is important not to forget about disclosure obligations. The principles and procedures are laid down in part 6 of the Act and further detail is provided in Chapter 43. These include an obligation on the prosecutor to review and disclose all information of which the prosecutor is aware that relates to the double jeopardy application.

3.2.6

The fact that the information in question is voluminous is not a good reason for not submitting relevant information to the Crown. If the volume of information which should be submitted to the Crown poses practical difficulties, the police and other investigating agencies should discuss practical arrangements for consideration of the information by the Crown with the Solemn Legal Manager. For example, depending on the circumstances, it may suffice that the Procurator Fiscal is given access to the relevant information in the hands of the police. (See Chapter 27, in particular paragraphs 27.2.1 – 27.2.7, and Chapter 16, paragraphs 16.6.7 – 16.6.8.)

3.2.7

Where there are large amounts of information being made available increasingly the Court will request for that information to be scanned in and provided to Judges in electronic format. This should be considered when productions are initially being ingathered and sent to the Crown.

3.2.8

In order to ensure that the Crown is meeting its disclosure obligations, the Crown must be satisfied that the police and other investigating agencies have submitted details of all relevant information held by them. Further guidance is contained in Chapter 16 of this Manual about specific procedures in place for High Court cases to ensure this.

3.3 Reasonable Lines of Enquiry

3.3.1

An essential element of the duty of disclosure is the obligation on the police or other investigating agency to pursue all reasonable lines of enquiry, including any line of enquiry that might point away from the accused as the perpetrator of the offence.

3.3.2

What constitutes a reasonable line of enquiry will be dependant upon the circumstances of each individual investigation. If a line of enquiry is relevant to the offence then it is reasonable that further investigation should be undertaken, however it is important that the police or other investigating agency do not embark on lines of enquiry which are remote to the case. The officer in charge of any investigation, and where appropriate under the direction of the Crown, has responsibility for determining what is a reasonable line of enquiry and therefore pursuable.

3.3.3

The Crown also has an obligation to ensure that all reasonable lines of enquiry are pursued and, accordingly, may instruct the police or other investigating agency to carry out particular lines of enquiry where this has not already been identified (McDonald [PC] at para 60). Additionally where the accused puts forward a line of defence at judicial examination there is a requirement that the Crown will secure the investigation, to such extent as is reasonably practicable, of any ostensible defence disclosed in the course of the examination (Section 36(10) Criminal Procedure (Scotland) Act 1995).

3.3.4

If there is any doubt as to the appropriateness of a particular line of enquiry in High Court cases then the issue should be raised for consideration and instruction from the Director of Serious Casework. As part of this process, any decisions taken in respect of a particular line of enquiry in any investigation, must be accurately retained and recorded, including decisions not to pursue a particular line, along with reasons for any particular decision.

3.3.5

Connected to the requirement to pursue all reasonable lines of enquiry, the police and other investigating agencies also have a duty to identify all information that could possibly be exculpatory. The officer in overall charge of any investigation has responsibility for ensuring that all potentially exculpatory information is identified and provided to the Crown, e.g. the existence of witnesses who speak in support of the accused’s position or otherwise undermine the prosecution case.

Intelligence

3.3.6

The duty on the police to submit relevant material extends to intelligence information.

3.3.7

During any investigation, particularly a major inquiry, the SIO or other investigators may, during the initial phase of the investigation where there is no immediate suspect, explore hypotheses as to the persons responsible. This may mean the ingathering of numerous items of information. Only once clear lines of enquiry are established should the police begin to focus on and consider the need for revelation of relevant material. This principle is set out in Smith v HMA: ‘Clearly, in reporting the results of their investigation, the police must exercise a power of selection. It would be absurd to suggest that all their results should be submitted’ and ‘to put before the Procurator-fiscal everything which may be relevant and material to the issue of whether the suspected party is innocent or guilty. We repeat, it is not for the police to decide what is relevant and material but to give all the information which may be relevant and material.’

List of persons of possible interest to the enquiry

3.3.8

There has been a recently established practice, particularly in respect of homicide cases, of the defence requesting disclosure of lists of all suspects and/or persons of possible interest to the enquiry. The general rule of thumb in relation to such requests is to refuse them on the basis that COPFS is not the haver of any such list and routinely no such list in fact exists. There is no obligation on the prosecutor to instruct the police to create such a list for the purposes of disclosure.

3.3.9

The responsibility and duty rests with the police to assess the extent to which they will trace, investigate and eliminate individuals identified by way of intelligence as of possible interest to an enquiry.

3.3.10

If following the trace, investigate and eliminate process the SIO deems any of the named persons to be potentially relevant to the investigation then this information would be revealed to the prosecutor by way of the appropriate disclosure schedule, most likely the Highly Sensitive Schedule and then considered by the prosecutor for disclosure in terms of materiality. It is unlikely however that such information would exist or be revealed in list format. If however such a list was revealed and considered for disclosure it is critical that the necessary redactions are made prior to disclosure being made to ensure that any non-material, sensitive information is removed.

3.3.11

Persons of possible interest identified via intelligence and then subsequently excluded by the police are unlikely to meet either the relevance or materiality tests. For example a person named via intelligence as a person of potential interest to the enquiry may following investigation be found to have been in custody at the time of the offence.

3.4 The role of the Reporting Officer

3.4.1

In general terms, the Reporting Officer has overall responsibility for the conduct of an investigation unless a Senior Investigating Officer (SIO) has been appointed.

3.4.2

Depending on the scale of the enquiry, the Reporting Officer will carry out a range of differing functions and have overall responsibility for:

• Conducting all lines of enquiry;
• Recording and retention of all information;
• Production management;
• Compilation of SPR;
• Ensuring timeous submission of statements and productions to the Crown (Criminal Justice and Licensing (Scotland) Act 2010 s117 (solemn) and s119 (summary)).;
• Submission to the Crown of any additional information (Criminal Justice and Licensing (Scotland) Act 2010 s118 (solemn) and s120 (summary)
• Conducting enquiries as directed by the Crown
• Reviewing all relevancy decisions.

3.4.3

Where the case is proceeding on petition and an SIO has not been appointed, the Reporting Officer will also have responsibility for preparing and submitting all schedules in respect of the case and providing undertakings in relation to revelation.

3.5 The role of the Senior Investigating Officer

3.5.1

An SIO will be appointed in major crime investigations and will have responsibility for the direction and conduct of that investigation. The SIO will be accountable for the investigative strategies and associated policy decisions.

3.5.2

In relation to disclosure, the SIO will also have particular responsibilities in relation to:

• Appointing a dedicated Reviewing Officer;
• The recording and retention of information obtained or generated during the investigation;
• Assessing whether such information is relevant; and
• Ensuring that the all information that may be relevant is revealed to COPFS.

3.5.3

When appointing a Reviewing Officer, the SIO must decide:

1. If a dedicated Reviewing Officer is required, or whether the role can be taken on by another officer already involved in the investigation;
2. Whether a particular Reviewing Officer is required for intelligence information; and
3. Whether multiple Reviewing Officers are required.

3.5.4

Where multiple Reviewing Officers are appointed, the SIO must determine which of these officers will take on the role of Principal Reviewing Officer, who will have overall responsibility for the revelation of information to the Crown.

3.5.5

The Reviewing Officer must liaise closely with the SIO to ensure that the revelation responsibilities have been timeously, effectively and efficiently discharged, as the SIO retains overall responsibility for ensuring that the duties relating to revelation and disclosure are properly carried out.

3.5.6

The SIO must also ensure that all reasonable lines of enquiry, as specified in section 3.3, are investigated and that the outcomes of these enquiries are carefully recorded.

3.5.7

Finally, the SIO has responsibility through the Reviewing Officer for ensuring that all material which may be relevant, which has been obtained or generated during the investigation is revealed to the Crown and listed on the appropriate schedule.

3.6 The role of the Reviewing Officer

3.6.1

An SIO will determine whether a dedicated Reviewing Officer should be appointed to take on responsibility for reviewing, assessing and preparing schedules and for revelation to the Crown of all information that may be relevant.

3.6.2

Where the SIO does not consider it necessary to appoint a dedicated Reviewing Officer, this role will be appointed to another officer already involved in the investigation, usually the Reporting Officer.

3.6.3

All Reviewing Officers, whether dedicated or carrying out a dual role, have responsibility for carrying out a 3-stage assessment process of all information obtained or generated during an investigation as set down in section 3.9 below.

3.6.4

After the 3-Stage assessment process has been conducted, the Reviewing Officer must ensure that all information that may be relevant is recorded in one of the following categories of schedule:

1. Non-sensitive schedule;
2. Sensitive schedule; or
3. Highly sensitive schedule.

Full guidance in relation to schedules is contained in Chapters 16 and 34-37 of this Manual.

3.7 Dedicated Reviewing Officers

3.7.1

Dedicated Reviewing Officers will usually be appointed where it is anticipated that a large volume of information will be obtained, or where the investigation is complex or detailed. It is anticipated that dedicated reviewing officers will be appointed in relation to all homicide investigations.

3.7.2

In particular, the dedicated Reviewing Officer will have responsibility for:

• Identifying and ensuring that there is a record of all information obtained or generated during the investigation;
• Identifying if there are any linked or parallel investigations within the force/agency or within other forces/agencies and liaising with them to establish whether they hold any information that may be relevant;
• Reviewing and assessing all information as per the 3 stage assessment process;
• Preparing the appropriate schedules and providing same to the Crown;
• Continuously reviewing the schedules and the retained information throughout the life of the investigation and any proceedings and providing updates to the Crown as required;
• Identifying any additional information to the Crown and submitting additional schedules and copies of relevant information;
• Submitting any additional information to the Crown as requested or facilitating access to additional information;
• Facilitating defence access to information on instructions of the Crown; and
• Dealing with any revelation and disclosure issues arising during the investigation, preparation or presentation of the case or any subsequent appeal.

3.7.3

The Reviewing Officer must liaise early and closely with both the relevant solemn legal manager and the precognoscer in order to ensure that both the police and the Crown comply with their respective revelation and disclosure obligations.

3.7.4

Depending on the size and complexity of the investigation, the SIO has discretion to appoint more that one reviewing officer. On such occasions, however, the SIO must also identify a principal reviewing officer who will have overall responsibility for (i) ensuring that all information that may be relevant is revealed to the Crown and (ii) liaising with the Crown in relation to all revelation and disclosure issues.

3.8 Intelligence Reviewing Officers

3.8.1

Where an investigation involves information that is held by an Intelligence Cell, the SIO will liaise, at an early stage, with the intelligence cell manager to agree whether a separate and distinct dedicated reviewing officer should be appointed to deal with highly sensitive information held on the intelligence side of the firewall. This will depend, to a certain extent, on the degree of sensitive information held by the intelligence cell.

3.8.2

The role of the intelligence reviewing officer is the same as for reviewing officers on the operational side of an investigation, as set out in section 3.7 above.

3.8.3

An intelligence reviewing officer must work closely with the operational reviewing officer(s) to ensure that there is no duplication of work and to ensure that they both have sufficient information to make an accurate and informed decision regarding the information held by them.

3.9 The 3-Stage assessment process

3.9.1

Once appointed or identified, the Reviewing Officer must consider each item of information obtained or generated during an investigation and determine:

1. Whether the information may be relevant and therefore must be revealed to the Crown within the appropriate section of the SPR, subject report or in the appropriate schedule in solemn proceedings;
2. Whether that relevant information is sensitive (Criminal Justice and Licensing (Scotland) Act s122(4)) and the extent of the sensitivity i.e. is it highly sensitive?
3. Whether the information might (a) materially weaken or undermine the Crown case or (b) materially strengthen the defence case.

3.9.2

Where the information is sensitive it should be revealed to the Crown through the remarks section of the SPR in summary cases or an appropriately marked subject report. Where it is a solemn case, the information should be detailed in the appropriate sensitive or highly sensitive schedule.

3.9.3

Where the information is potentially exculpatory, then this should be detailed in section 4 of the SPR. In solemn proceedings, it should also be highlighted in the schedule as being potentially exculpatory information.

3.10 Police Scotland Standard Operating Procedures

3.10.1

The Police Scotland Standard Operating Procedures set out the essential elements of the police’s revelation and disclosure obligations and provides practical guidance to all officers.

4.1 The law

4.1.1

The Judicial Committee of the Privy Council, in endorsing McLeod v HMA ((No.2) 1998 J.C. 67), has held that the Crown is under an obligation to disclose to the defence the statements of all witnesses on the Crown and defence lists (Sinclair at para 49 and McDonald [PC]).

4.1.2

The Crown must perform this duty proactively, whether or not the defence calls upon the Crown to do so (McDonald [PC] at para 55), unless unusually, the duty is waived by the defence (Sinclair at para 53).

4.1.3

The reason for this duty was recently expressed by Lord Rodger of Earlsferry in McDonald [PC] at para 57:

“Under the Scottish system, the defence has the valuable right to precognosce witnesses … but the law imposes a duty on the Crown to disclose all the statements of these witnesses precisely because, in the nature of things, they may well contain information which even careful precognoscing by the defence would not uncover and which might materially weaken the Crown case or support the defence case”.

4.1.4

In Thomson v Burns (2009 HCJAC 45), the Appeal Court confirmed that the obligation in Sinclair did not extend to a requirement on the Crown to require police statements to be brought into existence so that they can be disclosed and reaffirmed that the obligation set down in Sinclair only related to statements already in existence. In other words, there is no duty on the Crown to create witness statements purely for the purposes of disclosure.

4.2 Policy

4.2.1

The general rule is that all material witness statements that are in the possession of the Crown should be disclosed. For the avoidance of doubt, this general rule includes witnesses whom the Crown does not intend to cite but who are considered material. ‘Material’ means information which is likely to materially weaken the Crown case or materially strengthen the defence case. Failure to disclose all material statements timeously can give rise to serious practical difficulties at a later stage: for example, see HMA v G.B..

4.2.2

The Crown should, in general, obtain all witness statements from the police and other investigating agencies and disclose all material witness statements to the defence.

4.2.3

As recognised in McDonald [PC] at para 53, the Crown’s policy of disclosure in relation to witness statements is wider than its Article 6(1) duty of disclosure. In terms of the policy in this manual and in the Crown Practice Statement on Disclosure of Evidence in High Court cases, the Crown will also routinely disclose statements of witnesses who may not appear on any subsequent list of witnesses attached to the indictment or who may not be called to give evidence in a summary trial.

4.2.4

Accordingly, Lord Rodger of Earlsferry states at para 54 that:

“if in any particular case the Crown slips up and fails to supply a police statement from someone who does not appear on the Crown list, this may constitute a failure to carry out the Crown’s declared policy, but it will not constitute a breach of the Crown’s article 6(1) obligation of disclosure – unless the statement does in fact materially weaken the Crown case or strengthen that of the accused. The question whether the Lord Advocate had failed to carry out her declared policy in this way would, accordingly, not be a devolution issue”.

4.2.5

In exceptional cases, however, there may be good reason why a witness statement should not be disclosed, e.g. where there is a threat to the life or limb of a witness or other persons² (see Swinney v Chief Constable of Northumbria. (1999) 11 Admin. L.R. 811 and Osman v Ferguson, [1993] 4 All ER 344 )

4.2.6

Where a statement,

1. does not contain information which is relevant to the issues in the case (i.e. the information is manifestly irrelevant); or
2. contains information which is relevant to the issues in the case, but none of that information falls within the statutory obligation of disclosure, i.e. it does not meet the materiality test e.g. if it contains wholly incriminatory information

it may be withheld where the information is sensitive (Criminal Justice and Licensing (Scotland) Act 2010 s122)and/or the circumstances in paragraph 4.2.5 above apply. However, non disclosure should be the last option after all other possibilities have been considered, and, in particular, relevant wholly incriminatory information should only be withheld in exceptional cases.

4.2.7

A decision to withhold a statement in terms of paragraph 4.2.6 above must be taken by the appropriate Legal Manager. In solemn cases, the matter should be reported to the Director of Serious Casework, for Crown Counsel’s instructions. If a statement is withheld on these grounds, the witness may not be called to give evidence. (See Chapter 13 paragraphs 13.3.1 – 13.3.4.)

4.2.8

If a particular witness statement contains material information, i.e. information which is

• likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• to form part of the evidence to be led by the prosecutor in the proceedings against the accused

and there is a compelling reason why it should not be disclosed, e.g. where there may be a threat to the life or limb of a witness or other persons, the matter should be referred initially to the functional lead High Court / Sheriff & Jury / Summary (depending on the forum of the case), the Federation Head or another appropriately vetted member of COPFS staff.

Thereafter the matter should be reported, including an appropriate recommendation, by that person to the Director of Serious Casework for the onward attention of Crown Counsel. Crown Counsel will issue a final decision as to how the issue should be addressed. However, non disclosure should be the last option after all other possibilities have been considered. (See Chapter 13, paragraphs 13.3.5 – 13.3.9.)

4.2.9

Before a witness statement is provided to the defence, it shall be open to the Crown to redact the statement to obscure information of a sensitive nature, which is not covered by the materiality test (Criminal Justice and Licensing (Scotland) Act s161). Any redaction should be obvious on the face of the statement. For further guidance on what material should be redacted from witness statements, see Chapter 15 of this Manual. Attention must always be paid to witnesses’ rights, such as where there is a threat to the life or limb of a witness or other persons, and there may be other circumstances where public interest immunity may be claimed, as mentioned at paragraph 4.2.6 above.

4.2.10

Any inconsistencies or alteration of the position of the witness, as between statements, should be apparent to the defence on the face of the disclosed statements.

4.2.11

Details of the procedures to follow for the disclosure of statements can be found in Chapters 8 - 10 of this Manual.

4.3 Original manuscript witness statements

4.3.1

As a matter of routine, the police will submit electronic typed versions of original manuscript statements obtained from witnesses. Unless specifically requested by the Crown, these original manuscript statements will not be submitted.

4.3.2

Each police force has specific procedures in place for ensuring that the typed version is an accurate reflection of the original statement and that there are no discrepancies, material or otherwise.

4.3.3

The Crown will satisfy its obligation to disclose witness statements by disclosing the typed version of the statement and not the original manuscript version. Accordingly, the Crown should resist defence requests for disclosure of the manuscript statement except where the request is reasonable in the circumstances. A desire to check the accuracy of the typed version against the manuscript version will not usually be considered to be a reasonable request.

4.3.4

Original manuscript statements should be obtained and lodged as a production where there is a reasonable concern that a witness may not speak to his/her statement.

4.3.5

Where an original manuscript statement is obtained, the depute or precognoscer should confirm the accuracy of the typed version against it. Any material discrepancies between the two must be disclosed to the defence, unless the typed statement was not disclosed. Such discrepancies can be disclosed in the form of a letter or by provision of a copy of the manuscript statement, suitably redacted.

4.3.6

It is essential, particularly in High Court Cases, that the precognoscer properly assesses the likelihood of a civilian witness requiring to have their statement put to them at trial, either under section 260 or 263 of the 1995 Act. To assist in this assessment process, the police will highlight in the remarks section of the SPR and in section 6 of the typed NSS if there is any information that might indicate that a witness might be reluctant, hostile or otherwise struggle to remember what they said at the time the statement was taken (e.g. high degree of intoxication). If any further information comes to the attention of the police after the submission of the SPR and NSS, then the police will submit a separate subject sheet detailing this. This information, along with any information obtained by the precognoscer will be used to inform the assessment of whether the original manuscript statement may be required.

4.3.7

Precognoscers should err on the side of caution when making this assessment, particularly where the evidence of the witness is controversial and crucial to the proof of the case, i.e. the victim, an eye-witness or a witness who evidence is otherwise crucial, e.g. if the witness speaks to admissions made to them by the accused 4.3.7 In addition, in all High Court cases, the precognoscer must complete the Witness Precognition Record, which includes 2 columns relating to manuscript witness statements:

1. The precognoscer must specify in relation to each civilian witness whether there is a reasonable belief that the witness will not speak to their statement; and
2. Where the original manuscript statement has been obtained, whether there is any material discrepancies between it and the typed version disclosed to the defence.

4.3.8

At the preliminary hearing stage, the Advocate Depute may also consider whether any further original handwritten witness statements from other witnesses will be required. If further statements are requested, the precognoscer should obtain these and add them as productions by section 67 notice.

4.4 Questionnaires (pro forma and house to house)

4.4.1

Although questionnaires are usually prepared at an early stage in an investigation, they are indistinguishable from police statements (McLeod v HMA, No. 2 1998 J.C. 67, at paragraph 87).

4.4.2

As set down in paragraph 16.4.2 of this Manual, however, there is no mandatory requirement for the police to reveal questionnaires. It is open for the Reviewing Officer to seek the permission of the Solemn Legal Manager not to submit these. Prosecutors and Precognoscers must be vigilant to this and ensure that they have liaised with the Reviewing Officer to confirm the existence of any such questionnaires. Where the questionnaires have not been submitted, the precognoscer must confirm with the Reviewing Officer that the materiality of such questionnaires has been discussed with the Solemn Legal Manager and permission has been obtained not to submit them.

4.4.3

As, however, questionnaires are deemed to be statements, the Crown must, in terms of Sinclair and McDonald [PC] disclose any such questionnaires relating to any witness listed on the indictment or whom the Crown intends to lead at trial.

4.5 Victim impact statements

4.5.1

Where a victim makes a statement to the court about how they have been affected by a crime, under section 14 of the Criminal Justice (Scotland) Act 2003, such statements should not be disclosed to the defence in advance of the trial as a matter of routine.

4.5.2

While a victim statement is not laid before the court until the point of conviction or a guilty plea, it is normal practice for such a statement to be obtained in advance of this stage, in anticipation of such a conviction/plea. As the statement is quite distinct from an evidential police statement, it should not be routinely disclosed to the defence in advance of trial.

4.5.3

In some instances, however, there will be a duty to disclose the content of such a statement at an earlier stage in order to satisfy the Crown’s obligations in terms the materiality test (Criminal Justice and Licensing Act s121(3)). While it is made clear in the guidance to victims that the statement should not contain material about the circumstances of the incident and should be limited to information about how the victim has been affected by the crime, it is inevitable that such information will be included on occasion.

4.5.4

Should the victim statement disclose: (a) any alteration or inconsistency by a witness on a material matter; or (b) information which either materially weakens the Crown case or materially strengthens the defence case, this must be disclosed to the defence in advance of trial in order to fulfil the Crown’s disclosure obligations.

4.5.5

Where a victim impact statement exists, any assessment of its materiality must be kept under review. In particular, where evidence is led from the witness at trial regarding the impact of the incident, care must be taken to ensure that any material departure from the victim impact statement is disclosed to the defence.

4.5.6

Guidance on the National Victim Impact Statement scheme is contained in Crown Office Circular 4/2009, which provides full details of those cases where victim impact statements might be obtained.

4.6 Precognitions

4.6.1 The law

4.6.1.1

Precognitions are not admissible in evidence, with the exception of precognition on oath (Criminal Procedure (Scotland) Act 1995 s260). The courts will not, in general, order the production of precognitions, as they are not admissible in evidence (see Ward v HMA (1993 SLT 1202) and HMA v Fleming ([2005] HCJ 02 2005 Scot (D) 38/10)). There is no general rule that the Crown is obliged at all times to provide information to the defence about the contents of its precognitions (see Fraser v HMA (2008 HCJAC 26)). Nevertheless, the information which is contained in a precognition may include information which falls to be disclosed, by reference to the materiality test i.e. information which is likely to

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused

4.6.1.2

Lord Rodger of Earlsferry recognised in McDonald [PC] (para 61) that the duty to routinely provide the witness statements of all witnesses listed on the indictment did not extend to precognitions.

4.6.2 Policy

4.6.2.1

Information which falls within the materiality test should be disclosed notwithstanding that it comes to the Crown’s attention in the context of the precognition process.

4.6.2.2

In the first instance, in the event of (a) any significant material discrepancy emerging between the account given in the witness statement and that at precognition, or (b) any significant additional information being supplied, whether it is contradictory or not, consideration should be given to assessing the value of obtaining a further police statement from the witness recording such contradictory or additional material information, and any such further statement is to be disclosed, subject to any public interest issues arising.

4.6.2.3

Thereafter, Procurators Fiscal will need to consider whether or not further disclosure is required of any material departure or difference between the witness’s position at precognition and the terms of any police statement which has been submitted by the police. It is essential that any material departure or difference from the terms of a police statement are fully explored with the witness at precognition, so that the precise nature and extent of any difference and, if available, any explanation for the difference, can be furnished to the defence.

4.6.2.4

It is the material information that is obtained during the precognition that requires to be disclosed as opposed to the precognition itself (HMA v Fraser). The method of disclosure of information contained in a precognition, however, is a matter for the discretion of the Procurator Fiscal, having regard to the particular circumstances of the case. In most cases it will suffice that the defence is told in writing about material information obtained in the course of the precognition process which falls within the materiality test. The defence should be told that the information being provided is contained in a precognition. A written record of the communication with the defence should be retained.

4.6.2.5

Copies of precognitions, however, should not normally be provided to the defence. The Crown’s duty of disclosure does not extend to the provision of Crown precognitions to the defence (see Harvey v HMA (2008 HCJAC 46 at para 27); Fraser v HMA (2008 HCJAC 26 at para 189); Sinclair (para 49); Downie v HMA (1952 JC 37). 4.6.2.6 Material discrepancies between statements and precognitions should be disclosed to the defence at the earliest opportunity. However, where it relates to a vulnerable witness and the precognoscer is considering recommending no proceedings, it is best practice to delay disclosure until Crown Counsel’s instructions have been received, at which stage the discrepancies will only need disclosed if proceedings are to continue.

4.6.3 Precognoscers’ notes

4.6.3.1

Precognoscers’ notes appended to precognitions should not be shown to the defence unless the note contains material information as distinct from a precognoscer’s personal opinion. It will be unusual that information contained in a precognoscer’s note falls within the materiality test but if the note does contain such information, this should be disclosed too if it is not already known to the defence, e.g. the witness made the precognoscer aware of a conviction for wasting police time, or making false statements in another jurisdiction. Precognoscers must be very careful about the information contained in these notes. Any notes should, in general, be restricted to the precognoscer’s opinion about how the witness presented at precognition, or is likely to present in court. In Fraser v HMA, Lord Osborne stated at para 226 that the Crown should be at liberty to prepare precognitions in which observations of a confidential nature can be made concerning witnesses, for the benefit of those possessed with the responsibility of conducting the prosecution (or the defence to it) without fear of prosecution.

4.6.4 Disclosure advice to witnesses

4.6.4.1

Precognoscers should be careful not to advise witnesses that precognitions are confidential. This avoids any difficulties arising from any necessary subsequent disclosure of any part of a precognition.

4.6.4.2

There is no requirement for precognoscers to advise witnesses that the whole or part of their precognition may be disclosed. However, if a witness enquires about disclosure, precognoscers should advise the witness that it is part of the Crown duty to disclose to the accused, or the accused’s legal representative, all material evidence for or against the accused provided by witnesses, including the witness being interviewed, in order to ensure a fair trial.

4.6.5 Precognitions of children

4.6.5.1

Particular consideration should be given to providing the defence with access to precognitions of children. Reference is made to paragraph 16.79 of the Book of Regulations regarding precognitions of children.

4.6.6 Reluctant witnesses

4.6.6.1

Where a witness is reluctant, this fact does not require to be disclosed as a matter of course. In general, the fact that a witness is reluctant should only be disclosed where the witness’s reluctance is related to the content of their evidence, for example, if a witness’s reluctance relates to the credibility, reliability, accuracy or truth of what they previously stated, that is a matter that is likely to require to be disclosed. If a witness’s reluctance stems from extraneous pressure being applied to them that is not a matter that necessarily requires to be disclosed.

4.6.6.2

For the avoidance of doubt, if the Crown receives information which is not directly related to the evidence provided by a witness and which indicates the witness’s intention not to attend court, this does not require to be disclosed as a matter of course.

4.6.7 Witnesses who adopt their statements at precognition

4.6.7.1

Where a witness attends for precognition and is unable to recall the incident but does adopt their statement on the basis that the police or another investigating agency were told the truth, this is not a material change in the evidence and accordingly there is no requirement to disclose this to the defence.

4.6.7.2

Where however the witness is unable to recall the incident and states at precognition that the statement given cannot be adopted, then this will constitute a material change in their evidence and must be disclosed to the defence.

4.6.7.3

Where a witness is willing at precognition only to adopt part of the statement and refuses or is otherwise unable to adopt the remainder then the defence must be advised of those parts that they are unable or unwilling to adopt as, again, this constitutes a material change in the witness’s evidence. Similarly, where a witness has given multiple statements, but only adopts some of them and is unable or unwilling to adopt the remainder, the defence must be advised of those statements that the witness is unable or unwilling to adopt.

4.7 Vulnerable witness summary reports

4.7.1

Guidance in relation to these reports can be found in Chapter 33 of this Manual.

4.8 Evidence introduced by section 259 certificate

4.8.1

Where a witness is deceased, or falls within any of the other categories listed at section 259(2) of the Criminal Procedure (Scotland) Act 1995 (unfit or unable to give evidence to his/her bodily or mental condition; resides outwith UK or cannot be located; refuses to give evidence on basis of incrimination; refuses to give evidence at trial or refuses to take the oath), and evidence of a statement made by that person is being introduced by section 259, then, for the purposes of disclosure, the witness must be treated as if they were giving oral evidence (Allison v HMA)

4.8.2

Accordingly, all witness statements taken from this witness must be disclosed to the defence, subject to any redaction considerations.

4.8.3

Similarly, if the witness was precognosed prior to the decision to introduce their evidence via section 259 of the 1995 Act, then any material differences/additional information elicited at precognition must be disclosed to the defence.

4.9 Defence witnesses

4.9.1

The Judicial Committee of the Privy Council, in endorsing McLeod v HMA, has held that the Crown is under an obligation to disclose to the defence the statements of all witnesses on the Crown and defence lists:

“The statements of all the witnesses in the list attached to the indictment or in any supplementary notice served under section 67 of the Criminal Procedure (Scotland) Act 1995 must contain material evidence against, or, in some cases, in favour of the accused. Similarly, if the defence give notice that they intend to lead a witness and the Crown have a statement from him, then that statement is likely to contain material evidence for the accused”. (Sinclair para 49)

4.9.2

Where the defence have intimated an intention to lead a witness, all statements and material criminal history record information held by the Crown or the police or other investigating agency in relation to this witness must be disclosed. This will include any statement that the police might have taken for this witness at an earlier stage in the investigation, e.g. a house to house questionnaire.

4.9.3

Accordingly, where the Crown obtains a statement from a defence witness, then this statement must be disclosed to the defence, subject to the principles of redaction set down in Chapter 15 of this Manual.

4.9.4

Where a defence witness statement requires to be disclosed, and there are co-accused, the statement must be disclosed to the agents for all accused, not just the accused who has intimated the intention to lead the defence witness.

4.9.5

Where there are any concerns regarding the appropriateness of disclosing a defence witness statement to a co-accused, e.g. if there is sensitive information within it that is material, then a report should be submitted to the Director of Serious Casework for Crown Counsel’s instructions.

4.10 Recording of witness statements on schedules

4.10.1

Witness statements will usually be listed on the non-sensitive schedule. In exceptional circumstances, they may be listed in the sensitive or highly sensitive schedule but only where the existence of such a statement would, if it were disclosed, risk:

1. Causing serious injury, or death, to any person,
2. Obstructing or preventing the prevention, detection, investigation or prosecution of crime; or
3. Causing serious prejudice to the public interest.

4.10.2

As the Crown must provide the defence with details of all non-sensitive relevant information that is not material, it is essential that witness statements are only listed in the sensitive or highly sensitive schedules where absolutely necessary. Such an assessment must be approved in all cases by the appropriate solemn legal manager.

4.10.3

Where a statement contains sensitive information that may require redaction prior to disclosure, the police or other investigating agency should highlight this in the note section of the schedule.

5.1 The law

5.1.1

In Holland v HMA (2005 SCCR 417), Lord Rodger of Earlsferry stated (at para 72) that information about the previous convictions of any witness who is to be led at the trial is information that would be likely to be of material assistance to the proper preparation or presentation of the accused’s defence, and that the accused’s agents and counsel are accordingly entitled to have that information disclosed so that they can prepare his defence.

5.1.2

He also stated that information about any outstanding criminal charges that a witness faces is also considered to be information that would be likely to be of material assistance to the proper preparation and presentation of the accused’s defence, so that, in principle, the Crown should disclose this information.

5.1.3

The Privy Council confirmed in HMA v Murtagh ([2009] UKPC 35 at para 40) that this obligation extends to PF direct measures, including warnings and fixed penalties issued by the police or other specialist agencies.

5.1.4

The Privy Council also confirmed that the obligation to disclose criminal history information is restricted to those convictions and outstanding charges, if any, that materially weaken the Crown’s case or materially strengthen the defence case.

5.1.5

When determining whether or not a conviction or outstanding charge is material, and therefore, disclosable, a generous approach should be taken. The Crown should not consider a conviction, outstanding charge or direct measure as being immaterial purely on the basis that an objection to its relevance at trial could be successfully taken. Any decision as to what may be used to support an attack on credibility or character is a matter for the Court (HMA v Murtagh para 31).

5.1.6

Immaterial convictions, outstanding charges or direct measures, however, should only be withheld where it would be likely to be embarrassing or damaging to the witness if the conviction or charge was disclosed.

5.1.7

Accordingly, while in law the Crown is only obliged to disclose material criminal history record information, following the dicta in HMA v Murtagh, the Crown will adopt a generous approach and disclose all criminal history record information except those parts which are both immaterial and sensitive (Criminal Justice and Licensing (Scotland) Act 2010 s122(4)). Full guidance on the considerations to apply when redacting criminal history records is contained in Chapter 19 of this Manual.

5.2 Policy: Civilian witnesses

5.2.1

Criminal history records, i.e. details of previous convictions, outstanding charges and direct measures should be obtained in respect of all civilian witnesses that the Crown intends to rely on at trial in summary proceedings and in respect of all civilian witnesses listed on the provisional list of witnesses in solemn cases.

5.2.2

All previous convictions, outstanding charges and direct measures in respect of all civilian witnesses cited for trial in summary cases, and on the indictment in solemn cases, should be disclosed, except for those parts of the record assessed as being both immaterial and sensitive. Further guidance is provided in Chapter 19 of this Manual.

5.2.3

Guidance on the procedures to follow for the disclosure of criminal history records is contained in Chapters 8 - 10 of this Manual.

5.2.4

Guidance on the content and redaction of criminal history records is contained in Chapters 17 - 19 of this Manual.

5.3 Policy: Police witnesses

5.3.1

Guidance on obtaining and disclosing criminal history records for police officers and police civilian staff is contained in Chapter 20 of this Manual.

5.4 Policy: Professional, expert and official witnesses

5.4.1

Criminal history records, i.e. details of previous convictions, outstanding charges and direct measures should be obtained in respect of all professional, expert and official witnesses that the Crown intends to rely on at trial in summary proceedings, and in respect of all professional, expert and official witnesses listed on the provisional list of witnesses in solemn cases.

5.4.2

All previous convictions, outstanding charges and direct measures in respect of all professional, expert and official witnesses cited for trial in summary cases, and on the indictment in solemn cases, should be disclosed, except for those parts of the record assessed as being both immaterial and sensitive. Further guidance is contained in Chapter 19 of this Manual.

5.4.3

Guidance on the procedures to follow for the disclosure of criminal history records is contained in Chapters 8 - 10 of this Manual.

5.4.4

Guidance on the content and redaction of criminal history records is contained in Chapters 17-19 of this Manual.

5.5 Policy: English & Welsh and foreign convictions

5.5.1

In terms of Holland the obligation to routinely obtain and disclose material criminal history information is limited to information held by SCRO/SPSA. Accordingly, there is no obligation on the police/investigating agency to routinely obtain PNC information from England and Wales or criminal history information from other jurisdictions. It has been agreed that, at present, the Police/Agencies should not routinely conduct criminal history checks other than CHS, however should there be reasonable belief (for whatever reason) that an accused/witness has relevant PCOCs elsewhere than CHS, these records should be interrogated and PCOCs revealed to the prosecutor.

5.5.2

The obligation to disclose relevant and material information remains but only crystallises, for the purpose of further enquiry as to the existence of criminal history information held on PNC, if information regarding the existence of such material information comes to light either through the Crown’s own investigation or from any reasonable indication from the defence at any stage that there is such material information. If such circumstances arise, details of any criminal history information held on PNC should be sought (through the reporting officer) and then considered for disclosure purposes. If any of the criminal history information is material information, it should then be disclosed to the defence.

5.6 Evidence introduced by section 259 certificate

5.6.1

Where a witness is deceased, or falls within any of the other categories listed at section 259(2) of the Criminal Procedure (Scotland) Act 1995 (unfit or unable to give evidence due to his/her bodily or mental condition; resides outwith the UK or cannot be located; refuses to give evidence on basis of incrimination; refuses to give evidence at trial or refuses to take the oath), and evidence of a statement made by that person is being introduced by section 259, then, for the purposes of disclosure, witnesses must be treated as if they were giving oral evidence (Allison v HMA [2010] UKSC 6).

5.6.2

Accordingly, the criminal history record for the witness must be obtained and any material convictions or outstanding charges must be disclosed, along with all statements obtained from this witness (Allison v HMA [2008] HCJAC 63).

5.7 Criminal History Records for Defence Witnesses

5.7.1

Where the Crown has obtained criminal history records for any witnesses that the defence intend to lead at trial, then any convictions, outstanding charges or direct measures that are not deemed to be immaterial and sensitive must be disclosed to the defence, in the same way as for witnesses that the Crown intends to lead at trial.

5.7.2

Accordingly, where the Crown obtains a criminal history record for a defence witness, then it must be considered in terms of Chapter 19 of this Manual, and all information, except that which is both immaterial and sensitive, should be disclosed, along with any statements obtained from this witness subject to redaction.

5.7.3

Where information contained within a criminal history record relating to a defence witness requires to be disclosed, and there are co-accused, the information must be disclosed to the agents for all accused, not just the accused who has intimated the intention to lead the defence witness.

5.7.4

Where there are any concerns regarding the appropriateness of disclosing material criminal history record information to a co-accused then a report should be submitted to the Director of Serious Casework for Crown Counsel’s instructions.

5.8 Recording of CHRS on schedules

5.8.1

In terms of Section 2 of the Data Protection Act 1998, sensitive personal data includes information about (i) the commission or alleged commission by that person of any offence and information and (ii) proceedings for any offence committed or alleged to have been committed by a person, the disposal of such proceedings or the sentence in such proceedings.

5.8.2

On that basis, where a witness (civilian, police, professional, expert or official) holds a criminal history record, the existence of that record will be recorded in the sensitive schedule.

5.8.3

However, as criminal history records for witnesses who are cited as witnesses will always be relevant and potentially material, it is essential that the defence are advised of the existence of a criminal history record where the witness is listed on the indictment and the record is considered to be wholly immaterial.

6.1 The law

6.1.1

The Crown has a subsisting duty to provide to the defence all material information i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or to form part of the evidence to be led by the prosecutor in the proceedings against the accused. This duty applies to all material information, including all productions.

6.2 Policy

6.2.1

The general rule is that all material productions that are in the possession of the Crown should be disclosed to the defence. For the avoidance of doubt this extends not just to those productions listed in the Crown list, but also to any other items submitted by the police or other investigating agencies which are not listed as productions, but which are considered disclosable in terms of the materiality test i.e. information which is likely to

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused.

Any material information contained in additional items which are not listed on the indictment should be disclosed to the defence. For the avoidance of doubt, this includes items which, if listed as productions, would be labels.

6.2.2

The Crown can satisfy its disclosure obligations by either providing the defence with a copy of the production or by providing the defence with access to the production (Hanif v HMA (2009 SCCR 38)). In usual practice, the Crown will provide a copy of the production. Where, however, the production is either a label production or where it would be inappropriate or impracticable to provide the defence with a copy of the production then the defence must be advised of:

1. The existence of the production
2. The whereabouts of the production for viewing purposes; and
3. Details of the appropriate person to contact to arrange access to the production.

6.3 Timescales for disclosure of productions

SOLEMN PROCEEDINGS

6.3.1

In Solemn cases, prior to the service of the indictment, the Crown will provide to the defence the following where they meet the materiality test:

1. Copies of documentary information in the case (so far as it can be copied readily) having regard to departmental guidance on redaction of disclosable material; and
2. Where practicable, either copies of audio, video or digital recordings or details of these items and their location, and offer the defence an opportunity to listen to, or view them; and
3. Where practicable, details of the location of, any other productions in the case. and instructions in relation to the opportunity to examine them,

The Crown will provide to the defence, upon service of the indictment:

1. A courtesy copy indictment;
2. Copies of any previously undisclosed listed productions (so far as they can be copied readily);
3. Details of, the location of, and an opportunity to examine, any other listed productions in the case; and
4. Details of any other items seized and retained by the police which the Crown does not consider to be material evidence, so that, where approached by the defence, consideration can be given by the Crown to allowing the defence to view or examine such items.

6.3.2

The Procurator Fiscal will order all necessary productions and other material information in accordance with the timescales set out below, accepting that it will not always be appropriate to order every production due to certain items, for example, being the subject of forensic scientific examination, or hazardous, or contaminated, or by their nature, impracticable to transfer and store in the Procurator Fiscal’s Office.

6.3.3

Different timescales apply depending on whether: (a) the accused is in custody; (b) the accused is at liberty; or (c) the case is to be treated as a priority (described below).

Custody cases

6.3.4

Where the accused is in custody, or a case is to be treated as a priority, the Procurator Fiscal will request from the police all necessary outstanding productions and other material information immediately, on the same day as the accused first appears in court (CFE).

6.3.5

The police will submit all productions and other material information requested by the Procurator Fiscal within 7 days of the first appearance in court (CFE).

6.3.6

As soon as practicable, but no later than 28 days after CFE, the Procurator Fiscal will, where it has been intimated that the defence solicitor is acting for the accused, provide the defence solicitor with the items and information listed above at 6.3.1, (1) to (3) above, along with any information identified to date that does not form part of the prosecution case but could materially weaken the prosecution case or materially strengthen the defence case.

Cases where the accused is at liberty

6.3.7

Where the accused is at liberty, the Procurator Fiscal will, as soon as possible, and not later than 3 working days after the first appearance in court (CFE), request from the police all necessary productions and other material information.

6.3.8

The police will submit all productions and material information requested by the Procurator Fiscal within 14 days of the first appearance in court (CFE).

6.3.9

As soon as practicable, but no later than 28 days after CFE, the Procurator Fiscal will, where it has been intimated that the defence solicitor is acting for the accused, provide the defence solicitor with the items and information listed above at 6.3.1, (1) to (3), along with any information identified to date that does not form part of the prosecution case but could materially weaken the prosecution case or materially strengthen the defence case.

Priority Cases

6.3.10

Certain cases where the accused is on bail or ordained to appear will be treated by the Procurator Fiscal as if the accused were remanded in custody. This can apply to both summary and solemn cases.

6.3.11

Examples of such cases include murder cases, domestic assaults, and cases involving children or other vulnerable witnesses. This list is not exhaustive.

6.3.12

Where a case has been identified as a priority case, the timescales set out at above regarding custody cases will apply.

6.3.13

When requesting productions and other material information in priority cases, the Procurator Fiscal will highlight the case as such.

Forensic science reports

6.3.14

The above timescales are subject to any different timescales agreed between COPFS, SPA and Police Scotland in respect of forensic science reports.

6.4 Sensitive productions

6.4.1

Care requires to be taken in relation to productions that contain sensitive information i.e. information which if it were to be disclosed would constitute a risk of (a) causing serious injury, or death, to any person; (b) obstructing or preventing the prevention, detection, investigation or prosecution of crime; or (c) causing serious prejudice to the public interest.

6.4.2

It may be necessary, for example in intelligence-based cases, to redact part of an original document where there are sound operational reasons for doing so. This often occurs in cases where RIPSA applies where, for example, the disclosure of the full copy of a surveillance authority may prejudice an ongoing operation. In such a case the provision of a certified copy of a redacted version of the authority would be appropriate, provided that this does not conflict with the Crown’s duty to disclose material information i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or to form part of the evidence to be led by the prosecutor in the proceedings against the accused. Information should only be redacted if it is immaterial.

6.4.3

A similar approach may be required where productions contain sensitive material information which, for example, relates to children, or the investigation of indecent images. In those circumstances it may be appropriate to limit disclosure to the defence to allowing access to view the material rather than the providing a copy production, e.g. a copy of a visual recording of an interview of a child.

6.4.4

In particular, in relation to indecent images of children, under no circumstances should these be copied and disclosed in the usual way to the defence. The defence should be encouraged to view the images at the earliest opportunity so that they can give fully informed advice to their client, and indicate their position regarding any dispute on matters such as whether the images depict children or are indecent. Arrangements to view the images should be made in liaison with the police using the police computer equipment at a suitable location.

Obtaining and Disclosing Sensitive Personal Records in Sexual Crime Cases

6.4.5

During the investigation of a sexual crime particular consideration will require to be given to the question of whether to obtain sensitive personal records such as health records (including psychiatric and psychological records), education records or social work records. The fact that such material is very often sought by the defence and admitted at trial compels the Crown to seek to anticipate such action by recovering these records early thereby preventing delay, narrowing the scope of what is to be disclosed, responding to any application to recover the records and to counter in evidence any adverse inference which might be drawn from the history they disclose.

6.4.6

The primary consideration should be whether the complainer has a history which is likely to be relevant to the prosecution or the defence. It is clear that the prospect of sensitive personal information being obtained, disclosed and aired in the course of a public criminal trial may be a potentially distressing prospect for complainers in sexual offences cases. The potential impact of obtaining and disclosing such material should not be underestimated. Indeed for some complainers the likelihood of such information being obtained and disclosed may influence the extent to which they will support the prosecution.

6.4.7

It is essential that, from the earliest stage in the investigation, the case preparer, the Solemn Legal Manager and the National Sexual Crimes Unit are focussed on the question of whether relevant records will require to be obtained, considered and disclosed where appropriate in order to comply with the Crowns disclosure obligations.

6.4.8

A four stage process should be adopted:

• Identify whether there is a reason to obtain the records as part of the investigation
• Identify the Complainer’s view of the records being obtained
• Consider whether the records contain information which requires to be disclosed under the materiality test
• Where information has been disclosed identify whether it is inadmissible in terms of section 275 of the Criminal Procedure (Scotland) Act 1995 or in terms of the fact that it relates to collateral matters (see DS v HMA (2007 SLT 1026))

6.4.9

At all stages of the case consideration should be given as to whether there are likely to be health, social work or other sensitive records which may contain material evidence for or against the accused. This should be considered by the Depute preparing the initial report, the National Sexual Crimes Unit, the Solemn Legal Manager and the Case Preparer.

6.4.10

The test for recovering sensitive, personal records will be met when a legitimate purpose which justifies a particular line of investigation has been identified. That line of investigation may ultimately yield material evidence for or against the accused (which therefore requires to be disclosed) but it may not. It is not necessary to conclude that the records in question will contain evidence which will form part of the Crown case or which will otherwise be disclosable. It is sufficient that the records in question may contain relevant information. In all cases it is essential that the purpose of the inquiry can be clearly defined.

6.4.11

It is essential that the complainer is fully informed of the nature of any enquiry which will be undertaken and of the implications of their records being obtained. In order to ensure that the victim’s rights to privacy provided for by Article 8 of the ECHR are given proper consideration, it is vital that the Procurator Fiscal places the victim on notice and gives the victim an opportunity to express their views on the recovery of personal and sensitive records and that any view given is informed by and understanding of the process and the implications of recovery.

6.4.12

In High Court cases Crown Counsels instructions will be sought at an early stage and the Crown will contact the agents acting for the accused to inform them of the nature and extent of the records being sought or, just as importantly, that no such personal records will be sought. If a response is received from the agents this will be considered and if it includes information such as to form a basis on which further or different records might appropriately be requested by the Crown, or where it is possible that this information may form a basis on which such further or different personal records may be obtained then additional instructions will be sought from Crown Counsel.

6.5 Visual recording of child witness interviews

6.5.1

Visual recordings of joint investigate interviews with children must be made available to the defence where the recording is material, unless there are overriding public interest considerations that justify non-disclosure.

6.5.2

Accordingly, where there is a visual (including audio) recording of a child witness interview and it is considered to be material and therefore disclosable, the defence should be provided with details of the recording and its location in order that the defence can make arrangements to view the recording.

6.5.3

Routinely, the recording shown should be an unedited version of the interview, but where the interview contains sensitive and immaterial information then careful consideration should be given to showing the defence an edited version. This may not require the same considerations as for the redaction of statements where the accused may not be given access to the video by virtue of section 288C of the 1995 Act. Where the recording contains sensitive and material information and there are public interest reasons for not disclosing a report should be submitted by the functional lead for High Court / Sheriff & Jury / Summary (depending on the forum of the case), Federation Head or other appropriately vetted member of COPFS staff. Thereafter the matter should be reported, including an appropriate recommendation, to the Director of Serious Casework for the onward attention of Crown Counsel as set out in Chapter 25 of this Manual.

6.5.4

Access to the recording should be given to the defence solicitor, counsel and any expert instructed, provided the expert has been instructed for a purpose that requires access to the recording. The defence may take notes when viewing the recording of the interview – an interview transcript is not usually available at this stage. The defence should be allowed to view the recording more than once if necessary, except where a request for additional access appears unreasonable.

6.5.5

Where the defence consider that the particular circumstances of the case require that the accused should see the redacted recording, a request to this effect should be submitted providing detailed reasons why it is considered necessary for the accused to view the recording. Thereafter, a report should be submitted to the Director of Serious Casework for Crown Counsel’s instructions.

6.5.6

Where Crown Counsel considers that it is not in the public interest to disclose the recording to the accused or that disclosure will in any way put a child at risk or otherwise interfere with the Convention rights of the child, Crown Counsel may consider it best that the request be refused and that an application for a ruling be lodged by the defence and the matter adjudicated by the Court.

6.5.7

Where Crown Counsel considers that there are circumstances which require the accused to have access to the recording, this should not be done unless or until it becomes clear that the case is proceeding to trial. All issues of timing should be carefully considered and it is preferable that the disclosure to the accused is made as close to the preliminary hearing/ first diet/ intermediate diet as is practicable.

6.5.8

If it is agreed that the accused should see the recording, or the Court has ruled that the recording is disclosable in terms of the materiality test, then careful consideration requires to be given as to whether or not to disclose by access a redacted version of the recording (removing any sensitive and immaterial information). Under no circumstances should a non-redacted version of the recording be made available. It is important to note that a Court ruling that information is disclosable, is not per se a ruling to disclose the information. In circumstances where the Crown continues to be of the view that it is not in the public interest to disclose the recording (even in a redacted form) a report should be submitted to the Director of Serious Casework for Crown Counsel’s Instructions as to whether or not the case at hand merits risking the Crown being held to have breached it’s disclosure obligations. It should be remembered that breach of the Crown’s disclosure obligations will not always result in an unfair trial in terms of Article 6 ECHR. This approach should only be followed in exceptional circumstances.

6.5.9

Viewing of the recording should be facilitated through the Reviewing Officer, although the defence, including the accused (if applicable) should be permitted to view the recording in private. However, the Reviewing Officer should confirm suitable arrangements are in place to ensure that no copies are made and that the recording is returned to the Crown after viewing.

6.5.10

At present, the police will only provide a transcript of the interview once it has been confirmed that the recording is to be used as a production in the case. When a transcript is available, this should be disclosed to the defence, subject to the principles of redaction as set out above.

6.5.11

Further guidance in relation to section 288 of the 1995 Act and the unrepresented accused is contained in Chapter 23 of this Manual.

6.6 Video identification parades

6.6.1

Where the Video Identification Parade Electronic Recording System (VIPER) has been used, the DVD containing the video parade will not routinely be lodged as a production. However, if an issue relating to the conduct or composition of the parade is raised, the defence should not be provided with a copy of the DVD. Instead the defence should be allowed access to the DVD and, if necessary, the Crown should arrange for the DVD to be lodged as a production.

6.7 Witness statements as productions

6.7.1

Where a witness statement is disclosed to the defence in terms of the Crown’s disclosure obligations, then it should be the typescript version of the statement that is disclosed.

6.7.2

However, where the Crown intends to lodge a witness statement as a production, then it should be the original statement that is lodged and not the typescript version. Where the handwritten statement has been prepared in NSS format, then only sections 1-3 of the handwritten NSS should be lodged. In exceptional circumstances, the full statement may require to be lodged, i.e. where there is material evidence contained within section 6 that the Crown intends to rely on at trial.

6.7.3

Where a handwritten statement is lodged as a production, a copy will require to be disclosed to the defence as well. Where the typescript version of the statement previously disclosed to the defence has been redacted, then the handwritten version of the statement must contain the same redactions. In such circumstances, the handwritten statement should be copied and redacted. A schedule 8 certificate should then be prepared under the Criminal Procedure (Scotland) Act 1995 and the certified copy of the redacted handwritten statement should then be lodged as a production.

6.7.4

The appropriate form of the schedule is Form 26.1-A.17 – certified copy of a document by person in possession and control of the original and should be completed by the precognoscer. Accordingly, the precognoscer must ensure that they are in possession of the original at the time they complete the schedule.

6.8 Applications for search warrants

6.8.1

Where a search warrant application is submitted in respect of an investigation, the content of the application must be considered to determine whether any of the information contained within the application might materially weaken the Crown case or support the defence case.

6.8.2

Where such information does appear to exist, then, the solemn or summary legal manager must discuss this with the Reporting Officer to ascertain if there are public interest concerns in disclosing this information.

6.8.3

If, following discussion with the Reporting Officer, there do appear to be public interest grounds for not disclosing the information notwithstanding its materiality, then a report must be submitted to the Director of Serious Casework for Crown Counsel’s instructions on whether to withhold the material.

6.8.4

If there are no public interest concerns, or Crown Counsel instruct disclosure following submission of a report under paragraph 6.8.3 above, then the information must be disclosed to the defence. The application itself, however, should not be disclosed. Any material information contained within the application should be extracted and disclosed to the defence in a letter.

6.8.5

If there are exceptional circumstances that might justify the disclosure of the actual application, then Crown Counsel’s instructions must again be sought before any such disclosure can be made.

6.9 Forensic files

6.9.1

Where forensic analysis has been instructed and carried out, the results of the analysis as detailed in the forensic report should be disclosed to the defence. Negative findings should also be disclosed.

6.9.2

During the course of the analysis, the Forensic Laboratory will create a forensic file in relation to the analysis. The file should only contain forensic notes and will not include copies of the prosecution report or any witness statements. This file should not be provided to the Crown, nor should the Crown request a copy of the file.

6.9.3

If the defence request access to the forensic file, then arrangements should be made through the forensic laboratory for a suitably qualified expert instructed by the defence to examine the forensic file.

6.9.4

There is no obligation on the Crown to obtain from the Forensic Laboratory and thereafter disclose to the defence, the written recordings of their workings which relate to the examination carried out and form the basis of the report which is then prepared and revealed to the Crown.

6.9.5

These items will form the contents of a forensic case file. There is no routine obligation to reveal such information or to provide the contents of the forensic case file to the police or Crown unless it contains relevant information which has not been included within the joint report or associated witness statement(s). If such information is identified, then it must be revealed to the Crown in order that it can determine whether or not the information should be disclosed. However, as a matter of routine, all relevant information should be included in either the joint report or the associated witness statements.

6.9.6

There may occasionally be the need for limited, supervised access to forensic notes during defence precognitions or defence examinations to allow a defence expert with sufficient knowledge and skill to interpret such notes in order to assess them for materiality. This will be done under the guidance contained within the SPA’s Defence Access Policy. Accordingly, at the end of each joint report, the following phrase should be inserted: “Access to the examination and analysis records held by the SPA will be in accordance with the current SPA Defence Access Policy.”

6.9.7

Forensic scientists will not provide the defence with copies of material from the file or allow the case files or any part of them to be removed or copied unless on the directly instruction of the prosecutor.

6.10 Continuing duty to disclose

6.10.1

The Crown has a continuing duty of disclosure. Until proceedings against the accused are concluded, the prosecutor must “from time to time” review all of the information which the prosecutor is aware of in relation to the case and make required disclosure.

6.10.2

Where any relevant information not previously disclosed to the defence comes to the attention of the police or other reporting agency after initial disclosure of any productions either the police or other investigating authorities will inform the Crown immediately about such items and/or the Crown will disclose (where the items are material information), or provide details of any such items to the defence, as soon as practicable. (See Chapter 2, in particular paragraph 2.1.4 and Chapter 3, on the obligation of the Police and other investigating agencies to submit relevant information to the Crown.)

6.11 Recording of productions on schedules

6.11.1

Productions should usually be listed in the non-sensitive schedule. However, the sensitivity of each production must be considered on its own merits and then recorded on the appropriate schedule.

6.11.2

In terms of Section 2 of the Data Protection Act 1998, sensitive personal data includes information about a person’s physical or mental health or condition. Accordingly, medical, dental and social work records should be considered as sensitive data and recorded in the sensitive schedule.

6.11.3

Further guidance on the types of information likely to be listed in the sensitive or highly sensitive schedules is contained in Chapters 35-36 of this Manual.

6.11.4

Where the Reporting/Reviewing Officer does consider a production to be sensitive and accordingly lists it on either a sensitive or highly sensitive schedule, the reasons for classifying the information as sensitive will be specified in the “Reasons for Sensitivity” column.

6.11.5

Sensitive information is defined as that which if it were to be disclosed would constitute a risk of (a) causing serious injury, or death, to any person; (b) obstructing or preventing the prevention, detection, investigation or prosecution of crime; or (c) causing serious prejudice to the public interest.

7.1 General principles

7.1.1

In all cases, where proceedings are taken in court, a summary of evidence is provided to the accused along with his or her complaint or petition. A summary of evidence should be provided in both police reported cases and specialist reported cases. IT software has been designed to assist with this process in relation to police reported cases. Where the report is from a specialist reporting agency, different procedures will need to be followed.

7.1.2

It is important that the charges libelled are an accurate reflection of the summary of evidence. Particular care should be taken when drafting charges to ensure that they correspond to what can be proved on the basis of the available evidence as reflected in the summary of evidence, subject to any necessary evidential charges.

7.2 Submission of the police report

7.2.1

When the police electronically submit a police report to the Procurator Fiscal, the FOS system will automatically create a separate document containing an extract from the SPR. When you open the case in FOS, this will appear in the list of documents as “Summary of Evidence.doc”.

7.2.2

This extract of the police report contains the following sections of the Section 4 summary of the SPR:

• SPR1
• Description of locus
• Description of events
• Police involvement
• Interview with accused
• Caution and charge
• Medical evidence
• SPR2
• Description of locus
• Description of events
• Medical evidence
• Police interview/text of admission
• Caution and charge/reply

7.2.3

The extract will not include the following sections of the Section 4 summary:

• SPR1
• Antecedents
• Background information
• Reason for warrant request
• Analysis of evidence
• Remarks
• Further enquiry
• SPR2
• Antecedents
• Analysis of Evidence/identification of accused
• Further enquiry
• Remarks
• Further information

7.3 Preparing the summary of evidence

7.3.1

Once it is decided that Court Proceedings are appropriate, the marking depute should read the summary of evidence document and confirm that (a) there is no information within the summary that should not be disclosed, having regard to the redaction guidance detailed in Chapter 15 of this Manual and (b) there is no information in any of the parts of the report listed at paragraph 7.2.3 above that should be disclosed. This should always be done before the checklist is completed and the C-kit is generated.

7.3.2

Where information is contained in the summary which should not be disclosed, for example, for reasons of confidentiality, taking into account the current redaction guidance, it can be edited from the summary. Unlike the redaction of information from a witness statement or a criminal history record, the removal of the material should not be obvious on the face of the summary. What the Crown is disclosing is a summary of evidence not an extract of the police report, albeit we extract that summary from the police report for reasons of practicality and convenience. Therefore, there is no need to show the defence that material has been removed.

7.3.3

Where there is information in the police report which is not included in the summary of evidence but which falls to be disclosed, e.g. information contained within the “background information” section regarding an earlier incident that might have provoked the accused, then this should be manually copied and pasted into the summary of evidence document.

7.3.4

Consideration should also be given to whether additional information which has been submitted by means of a subject sheet (e.g. details of additional witnesses) should be included in the summary of evidence. If such additional information should be disclosed, again this should be manually added to the summary of evidence document.

7.3.5

A summary of evidence should never be provided to the accused without it first being checked as detailed in this section above.

7.4 Preparing the C-kit

7.4.1

Once the summary of evidence has been checked and the marking depute is satisfied that it can be disclosed to the accused, the checklist should be completed.

7.4.2

When the C-kit is generated it will pull in three copies of the summary of evidence. Accordingly, the summary should be prepared before completing the checklist. One copy of the summary should be attached to the complaint or petition and served on the accused. The other two copies should be retained on file.

7.5 Specialist reporting agency cases

7.5.1

At present, when an electronic SRA report is submitted, a “summary of evidence” document is not automatically created. Accordingly, once it has been decided that court proceedings are appropriate, a separate document should be created. A summary should then be manually copied and pasted from the SPR and inserted into this document.

7.5.2

After generating and printing off the C-kit, three copies of the summary of evidence document should be printed off (as these will not automatically be pulled into the C-kit). One copy should be attached to the complaint or petition and served on the accused. The other two copies should be retained on file.

7.5.3

As for police reported cases, care should be taken to ensure that no material is included in the disclosed summary that should not be disclosed having regard to the redaction guidance in Chapter 15 of this Manual.

7.6 Failed/rejected direct measures

7.6.1

Where a case has been marked for a direct measure (e.g. a diversion scheme referral or a road traffic conditional offer of a fixed penalty etc.) which has been unsuccessful and a decision is taken to commence court proceedings, a disclosable summary of evidence will require to be prepared.

7.6.2

It is a matter for local practice whether this summary should be prepared at the stage the case is marked for the direct measure, or at the stage court proceedings are taken up. The functional lead for ICP/Summary should, however, issue clear guidance on which stage is the appropriate stage to ensure that the summary is properly considered prior to disclosure.

7.6.3

If the summary is being considered at the marking stage, then this should be considered by the marking depute.

7.6.4

If the summary is being considered at the stage court proceedings are commenced, then this should be considered by the member of staff (administrative or legal) who is preparing the case for court.

7.7 Roll up cases

7.7.1

At present the summary of evidence function does not fully operate in respect of roll up cases. The summary of evidence for the destination (main) case is the only summary which will automatically be pulled into the C-kit. In respect of the source case(s) rolled up into the destination case, the summary/ or summaries will need to be printed and manually added to the C-kit.

7.8 Information that routinely needs to be removed

7.8.1

Where Procurators Fiscal find that they are routinely removing information from the summary of evidence document in police reported cases, the functional lead for ICP/Summary should liaise with the relevant Divisional Commander to ensure that such material is included in one of the non-disclosable parts of the police report, as listed in paragraph 7.2.3 above.

7.9 Custody statements

7.9.1

Where the accused is reported in custody and bail is to be opposed, the summary of evidence provided to the accused will be sufficient intimation of the evidence against him/her. There is, therefore, no requirement to serve a separate custody statement. It is good practice, in such cases, to insert the bail position at the end of the summary to give the accused and his/her representative early notice where the Crown will be opposing bail.

7.10 Disclosure of further information

7.10.1

Provision to the accused of the summary of evidence does not absolve the Crown of its duty to disclose further information which falls within the duty of disclosure described in Chapter 2 above.

7.11 Disclosure to solicitors from England, Wales & Northern Ireland

7.11.1

In cases where the accused instructs agents who are solicitors based in England, Wales or Northern Ireland, or the agent is an in-house solicitor it should be ascertained whether they hold a practising certificate for Scotland prior to handing over any information for disclosure purposes. Larger solicitor firms in England, Wales or Northern Ireland may have employees who are dual qualified but where they do not they should be advised that disclosure will only be made to a local agent instructed to act on their behalf. Similar principles will apply where the accused person is assisted by a “McKenzie friend as outlined in McKenzie v McKenzie ([1970] 3 All ER 1034)³.

7.11.2

Solicitors who are not members of the Law Society of Scotland are not governed by the provisions of Articles 11 and 12 of the Law Society Code of Conduct for Criminal Work and as such there is no safeguard on what they do with information that they receive from COPFS.

7.11.3

All criminal defence solicitors practising in Scotland require to sign an undertaking prior to COPFS handing information over. This is routinely covered by letters of engagement, which require to be submitted prior to any disclosure being made. These letters include the signed undertaking, in respect of the information disclosed in the particular case, that:

1. such material, or any information contained in it, will not be used or disclosed other than for the purpose of the preparation and conduct of any trial or any appeal in the case referred to;
2. such material will not be made available to the accused or to any other party without the express agreement in writing of the Procurator Fiscal; and
3. in the event of the accused becoming unrepresented, any such material will be returned to the Crown.

7.11.4

The main purpose of this undertaking is to ensure that COPFS, as data controller at the time of the handover of that data, complies with the seventh data protection principle namely; that appropriate technical and organisational measures are taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. The Information Commissioner has confirmed that when data is handed over to defence agents for the purpose of disclosure the agent becomes the data controller. Additionally this undertaking reminds the defence agents of their legal obligations surrounding the use and sharing of such information, in terms of Articles 11 and 12 of the Law Society Code of Conduct for Criminal Work. The Information Commissioner has confirmed that defence agents require to be registered as data controllers. The agents “process” the data once in receipt of this from COPFS and the responsibility for compliance with the terms of the Data Protection Act 1998 transfers to them at this point.

7.11.5

The general rule therefore when dealing with agents from outside Scotland is that disclosure will only be made to a local Scottish agent instructed to act on their behalf.

7.11.6

However there is provision for disclosure direct to agents in England, Wales and Northern Ireland upon request in certain circumstances and upon the acceptance by them of conditions akin to those specified in the undertaking.

7.11.7

For instance, due to the unique nature of some Health and Safety cases, disclosure can be made to solicitors who do not hold a practising certificate in Scotland prior to a complaint being served, in order that proper consideration can be given to the issues prior to being called to plead. In such circumstances, however, the solicitor must be asked to sign an undertaking to the effect that the information is provided on the basis that:

1. The information disclosed will not be used or further disclosed other than:–
1. For the purposes of the proper preparation and presentation of the accused’s case in the original proceedings;
2. With a view to the taking of an appeal in relation to the matter giving rise to the original proceedings;
3. For the purposes of the proper preparation and presentation of the accused’s case in any such appeal
2. The documents provided will not be made available to the accused or to any other party without the express agreement in writing of the Procurator Fiscal;
3. In the event of the accused being unrepresented, any such information will be returned to the Procurator Fiscal.

7.11.8

It is important to remember, and to remind agents when appropriate, that it is a criminal offence under section 163 and 164 of the Criminal Justice and Licensing (Scotland) Act 2010 for any person to knowingly use or disclose information, or anything recorded in it, for any purpose other than those detailed in the undertaking.

8.1 Initial processing of cases

8.1.1

When reporting a case, the police should allocate all witnesses a witness type: civilian, police or “professional/expert/official”.

8.1.2

Once the police have submitted a case and a legal member of staff has marked it for court proceedings, be it for summary or petition proceedings, the marking depute should then consider the witness types and ensure that the witnesses have been properly categorised. Where necessary, the witness type should be updated.

8.1.3

If a case has been marked for a direct measure, such as a referral to a diversion scheme, or a road traffic conditional offer of a fixed penalty which is subsequently rejected or fails in some way, when processing the case for court, the witness types should be considered and, where necessary, updated.

8.2 Disclosure timelines

8.2.1

Once a case has been marked for proceedings, statements and criminal history records should be obtained and disclosed at certain stages of proceedings, depending on whether the case is marked for summary or solemn proceedings.

8.2.2

The procedures to follow for summary proceedings are contained in Chapter 9 of this Manual.

8.2.3

The procedures to follow for solemn proceedings are contained in Chapter 10 of this Manual.

8.3 Disclosure to accused’s representative

8.3.1

Disclosure of witness statements, previous convictions and outstanding charges should only be made to the accused’s representative and upon receipt of a signed undertaking confirming that:

1. such material, or any information contained in it, will not be used or disclosed other than for the purpose of the preparation and conduct of any trial or any appeal in the case referred to;
2. such material will not be made available to the accused or to any other party without the express agreement in writing of the Professional Practice Department of the Law Society of Scotland; and
3. in the event of the accused becoming unrepresented, any such material will be returned to the Crown
4. In the event of a change of agency any such material will be transferred on receipt of a mandate to the new solicitor or returned to the Crown

8.3.2

Separate guidance on the disclosure of information to an unrepresented accused is set out in Chapter 23 of this Manual.

8.3.3

Details of the accused’s legal representative must be stored in the PROMIS (the COPFS live, operational database which is used to manage the processing of reports submitted to Procurators Fiscal by the police and other reporting agencies) / FOS (Future Office System – the COPFS system used to process all summary business and facilitate disclosure processes) database. Both PROMIS and FOS are designed to allow the user to update the legal representative’s details. The solicitor must notify the Crown that they act for the accused before disclosure will take place. Guidance on how to update the legal representative’s details is contained in the FOS User Guide Manual: Disclosure Processing – Disclosure of Lists of Witnesses and Statements.

8.3.4

If an accused changes his or her legal representative, the solicitor holding information disclosed by the Crown should pass the material on to the accused’s new legal representative or they should return the material to the Crown. This is set out in Article 11 of the Code of Conduct in Criminal Work, which governs the use and retention of disclosed information by defence solicitors. Should further disclosure require to be made to the new legal representative, a formal intimation that they now act for the accused should be requested.

8.3.5

If a solicitor ceases to act for the accused and the accused becomes unrepresented, any information disclosed by the Crown should be returned to the Crown, as set out in Article 11. Guidance on the disclosure of information to an unrepresented accused is set out in Chapter 23 of this Manual.

8.4 Disclosure where an indictment is raised without any prior petition

8.4.1

Where the decision is taken to commence solemn proceedings by raising the indictment, without the accused having first appeared on petition, it is essential that the disclosure binders are available to the defence via the Secure Disclosure Website immediately on service of the indictment. This may arise, for example, where there has been extensive pre-precognition of the case or where the accused is a body corporate.

8.4.2

In such circumstances, all information that requires to be disclosed in terms of the materiality test, i.e. information which is likely to

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused

including statements and material criminal history information, should be prepared and ready for upload to the Secure Disclosure Website immediately upon confirmation of who the accused’s legal representative will be.

8.4.3

Where it has been confirmed prior to service of the indictment that an agent is acting for the accused in respect of the matter to which the indictment will relate and earlier disclosure of the information referred to above would not jeopardise proceedings, then the agent can be provided with the disclosure material in advance of service of the indictment.

9.1 Marking witnesses for citing

9.1.1

When marking witnesses for citing, staff should take care to cite only the minimum number of witnesses reasonably required to prove the charge(s) libelled, as detailed in Paragraph 7.61 of the Book of Regulations.

9.2 Statements & witness ‘S’ (CHS) numbers: what to request

9.2.1

Statements will be requested for all witnesses listed in the police report (SPR – Standard Prosecution Report). Statement requests will not be restricted to those witnesses marked for citing.

9.2.2

‘S’ (CHS) numbers will be requested for all civilian and professional, expert and official witnesses that have been marked for citing.

9.2.3

Full statements and ‘S’ (CHS) numbers must be ordered through the administration record. Details of how to request full statements and ‘S’ (CHS) numbers can be viewed in the Summary Administration Instructions.

9.3 Statements & witness ‘S’ (CHS) numbers: when to request

9.3.1

Where the accused pleads not guilty and is remanded in custody, statements and witness ‘S’ (CHS) numbers should be ordered immediately after court (i.e. on the same day). This is particularly important where the plea is tendered on a Friday. Where the plea of not guilty is tendered in a court that does not finish until after office hours, care should be taken to ensure that the statements and witness ‘S’ (CHS) numbers are ordered the following morning. Local arrangements should be put in place to deal with courts that overrun on a Friday to ensure that the police are advised at the earliest opportunity that statements are required, e.g. obtaining local agreement to order statements before court, in cases where bail is opposed.

9.3.2

Where the accused pleads not guilty and is bailed or ordained to appear, statements and witness ‘S’ (CHS) numbers should be ordered, as soon as possible after the plea is tendered but not later than 3 working days after the pleading diet.

9.3.3

Where the accused pleads not guilty and is bailed or ordained to appear and the court has fixed custody diets, due to the nature of the case, statements and witness ‘S’ (CHS) numbers should be ordered as if it were a custody case.

9.3.4

In FOS, a COP update is required in order to request statements through a checklist. If, at the stage statements require to be ordered in order to comply with the above timescales, a COP update has not yet been provided, statements should be requested outwith the checklist. In each such case, the appropriate member of staff must go into each individual case manually and set the BU.

9.4 Event records

9.4.1

When requesting full statements and witness ‘S’ (CHS) numbers, the “FOS BU” date should be set for 28 calendar days after the date of the pleading diet, where the accused is on bail or ordained to appear. This will be the date by which the police must submit full statements and witness ‘S’ (CHS) numbers.

9.4.2

Where the accused is remanded in custody, the “FOS BU date” should be entered set for 7 calendar days after the pleading diet, i.e. the date on which a plea of not guilty was tendered.

9.5 Submission of statements & witness ‘S’ (CHS) numbers

9.5.1

The investigating agency should submit full statements for all witnesses, along with ‘S’ (CHS) numbers, where they exist, for those civilian witnesses who have been cited, within agreed timescales. The timescales depend on whether the case is a custody or bail case. The investigating agency should also submit, within the same timescales, the “S” numbers for those professional, expert and official witnesses who have been cited.

9.5.2

Where the accused is remanded in custody, the investigating agency should submit statements and witness ‘S’ (CHS) numbers within 7 days of the plea of not guilty being tendered.

9.5.3

Where the accused is at liberty, the investigating agency should submit statements and witness ‘S’ (CHS) numbers within 28 calendar days of the plea of not guilty being tendered.

9.5.4

Where the accused is at liberty and, due to the nature of the case, custody diets have been fixed, the police should submit statements and witness ‘S’ (CHS) numbers within 7 days of the plea of not guilty being tendered. The fulfilment by the police of this requirement will be dependant on the Crown advising the police of the custody diets that have been fixed.

9.5.5

Where a case is identified as a priority case at case marking, and subsequently a plea of not guilty is tendered and custody diets are fixed, the court depute (or other appropriate member of staff according to local arrangement) at the time the plea of not guilty is tendered must send an ISCJIS email to the Reporting Officer immediately after court (i.e. on the same day), advising that the case is a priority case, that custody diets have been fixed and the relevant dates, and requesting the submission of full statements within 7 days of that date, i.e. the date on which a plea of not guilty was tendered. The email request must make clear that the 7 day deadline for submission of full statements applies notwithstanding any other timescale specified in any other standard full statement request.

9.5.6

After the Reporting Officer has been advised of these details by way of an ISCJIS email, the papers should be passed to the relevant member of staff to request full statements in the usual way, but with an instruction that the request must be sent that day, i.e. the date on which a plea of not guilty was tendered.

9.5.7

Notwithstanding the timescale specified in the standard full statement request, a FOS BU date should be entered, set for 7 calendar days after the pleading diet, i.e. the date on which a plea of not guilty was tendered.

9.5.8

Policy Division and ISD are working to achieve a solution which will allow priority cases to be identified at the marking stage and thereafter any full statement requests to be made, in the usual way, automatically within the custody timescales, without the need to notify the Reporting Officer that the case is a priority case.

9.6 List of witnesses

9.6.1

The defence should be provided with a list of witnesses 14 days after the plea of not guilty being tendered where the accused is at liberty, subject to the defence confirming in writing that they act for the accused. In custody cases and other cases where custody diets have been fixed, this list should be provided within 3 working days of the pleading diet.

9.6.2

This list should include all the witnesses listed in the SPR, and should not be restricted to the witnesses that the Crown is citing for trial.

9.6.3

The list of witnesses should generally be provided to the defence in advance of the disclosure of statements, previous convictions and outstanding charges.

9.6.4

Further guidance on the creation of a disclosable provisional list of witnesses is contained in Chapter 12 of this Manual.

9.7 Consideration of statements

9.7.1

Once statements have been submitted by the investigating agency to the Crown, a legal member of staff should consider the statements and decide whether they should be withheld or disclosed to the defence in terms of the guidance set out in Chapters 4, 13 & 14 of this Manual. If the statement is to be disclosed or withheld meantime, it should then be considered for redaction purposes in terms of the guidance set out in Chapter 15 of this Manual.

9.7.2

Where there are only investigating agency witnesses in the case, statements do not need to be checked prior to disclosure to the defence. Where, however, there are civilian and investigating agency witnesses, the investigating agency witness statements should be checked to ensure that they do not contain any sensitive information about the civilian witnesses. Sensitive information is defined under section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010.

9.7.3

Where a legal member of staff considers that it is appropriate to withhold a statement completely, which contains either irrelevant or relevant and immaterial information, the decision not to disclose the statement must be taken by the functional lead for Summary or other senior legal manager expressly authorised to act on his or her behalf in this regard. If a statement is withheld on these grounds, the witness may not be called to give evidence. (See Chapter 4, in particular, paragraphs 4.2.3 – 4.2.5, and Chapter 13, paragraphs 13.3.1 – 13.3.4.)

9.7.4

However, if a particular witness statement contains material information, i.e. information which falls within the materiality test i.e. information which is likely to

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused

and there is a compelling reason why it should not be disclosed, e.g. it contains material covered by public interest immunity, or which raises Article 8 issues, such as where there is a threat to the life or limb of a witness or other persons, the matter should be referred initially to the functional lead for Summary, the Federation Head or other appropriately vetted member of COPFS staff. Thereafter the matter should be reported, including an appropriate recommendation, by that person to the Director of Serious Casework for the onward attention of Crown Counsel. Crown Counsel will issue a final decision as to how the issue should be addressed. However, non disclosure should be the last option after all other possibilities have been considered. (See Chapter 4, paragraph 4.2.6, and Chapter 13, paragraphs 13.3.5 – 13.3.9.)

9.8 Consideration of criminal history records

9.8.1

On receipt of the witness statements, where a witness is identified as having an ‘S’ (CHS) number, the criminal history record for that ‘S’ (CHS) number should be electronically requested from the Criminal History System (CHS). Further details on this are contained in Chapter 18 of this Manual.

9.8.2

Once criminal history records have been obtained, they should be checked to ascertain whether, and to what extent, they should be disclosed, subject to the materiality test.

9.9 Disclosure to the accused’s legal representative

9.9.1

Once the statements and criminal history records have been checked, and where appropriate redacted, they should be disclosed to the accused’s representative.

9.9.2

Where the accused is remanded in custody pending trial and intimation has been received in writing from the defence solicitors that they are representing the accused, the Procurator Fiscal should, not later than 7 calendar days before the intermediate diet, provide the defence solicitor with those statements and criminal history records in their possession, which require to be disclosed.

9.9.3

Where the accused is at liberty and intimation has been received in writing from the defence solicitors that they are representing the accused, the Procurator Fiscal should, not later than 28 calendar days before the intermediate diet, provide the defence solicitor with those statements and criminal history records in their possession, which require to be disclosed.

9.9.4

Where the accused is at liberty but the case has been assigned a custody diet and intimation has been received in writing from the defence solicitors that they are representing the accused, the Procurator Fiscal should, not later that 7 days before the intermediate diet, provide the defence solicitor with those statements and criminal history records in their possession, which require to be disclosed.

9.9.5

After disclosure has been made, and if further statements and/or criminal history records are submitted to the Procurator Fiscal, these should be checked and, where appropriate, disclosed to the defence at the earliest opportunity.

9.9.6

The prosecutor may disclose information by any means (Criminal Justice and Licensing (Scotland) Act s2010 s160). Guidance on the method by which information should be disclosed to the accused’s legal representative is contained within Chapter 11 of this Manual.

9.10 Disclosure to solicitors from England, Wales & Northern Ireland

9.10.1

In cases where the accused instructs agents who are solicitors based in England, Wales or Northern Ireland, or the agent is an in-house solicitor it should be ascertained whether they hold a practising certificate for Scotland prior to handing over any information for disclosure purposes. Larger solicitor firms in England, Wales or Northern Ireland may have employees who are dual qualified but where they do not they should be advised that disclosure will only be made to a local agent instructed to act on their behalf. Similar principles will apply where the accused person is assisted by a “McKenzie friend”⁴.

9.10.2

Solicitors who are not members of the Law Society of Scotland are not governed by the provisions of Articles 11 and 12 of the Law Society Code of Conduct for Criminal Work and as such there is no safeguard on what they do with information that they receive from COPFS.

9.10.3

All criminal defence solicitors practising in Scotland require to sign an undertaking prior to COPFS handing information over. This is routinely covered by letters of engagement, which require to be submitted prior to any disclosure being made. These letters include the signed undertaking, in respect of the information disclosed in the particular case, that:

1. such material, or any information contained in it, will not be used or disclosed other than for the purpose of the preparation and conduct of any trial or any appeal in the case referred to;
2. such material will not be made available to the accused or to any other party without the express agreement in writing of the Procurator Fiscal; and
3. in the event of the accused becoming unrepresented, any such material will be returned to the Crown

9.10.4

The main purpose of this undertaking is to ensure that COPFS as data controller at the time of the handover of that data complies with the seventh data protection principle namely; that appropriate technical and organisational measures are taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. The Information Commissioner has confirmed that when data is handed over to defence agents for the purpose of disclosure the agent becomes the data controller. Additionally this undertaking reminds the defence agents of their legal obligations surrounding the use and sharing of such information, in terms of Articles 11 and 12 of the Law Society Code of Conduct for Criminal Work. The Information Commissioner has confirmed that defence agents require to be registered as data controllers. The agents “process” the data once in receipt of this from COPFS and the responsibility for compliance with the terms of the Data Protection Act 1998 transfers to them at this point.

9.10.5

The general rule therefore when dealing with agents from outside Scotland is that disclosure will only be made to a local Scottish agent instructed to act on their behalf.

9.10.6

However there is provision for disclosure direct to agents in England, Wales and Northern Ireland upon request in certain circumstances and upon the acceptance by them of conditions akin to those specified in the undertaking.

9.10.7

For instance, due to the unique nature of some Health and Safety cases, disclosure can be made to solicitors who do not hold a practising certificate in Scotland prior to a complaint being served, in order that proper consideration can be given to the issues prior to being called to plead. In such circumstances, however, the solicitor must be asked to sign an undertaking to the effect that the information is provided on the basis that:

1. The information disclosed will not be used or further disclosed other than:–
1. For the purposes of the proper preparation and presentation of the accused’s case in the original proceedings;
2. With a view to the taking of an appeal in relation to the matter giving rise to the original proceedings;
3. For the purposes of the proper preparation and presentation of the accused’s case in any such appeal
2. The documents provided will not be made available to the accused or to any other party without the express agreement in writing of the Procurator Fiscal;
3. In the event of the accused being unrepresented, any such information will be returned to the Procurator Fiscal.

9.10.8

It is important to remember, and to remind agents when appropriate, that it is a criminal offence under section 163 and 164 of the Criminal Justice and Licensing (Scotland) Act 2010 for any person to knowingly use or disclose information, or anything recorded in it, for any purpose other than those detailed.

10.1 Requesting statements & criminal history records: What to request

10.1.1

The same information will be requested regardless of whether the case has been provisionally identified as a High Court case or a Sheriff and Jury case.

10.1.2

Notwithstanding the disclosure duty on the Crown to disclose all statements of all witnesses on the Crown and defence lists, all statements held by the investigating agency should be requested. This includes all statements held by the investigating agency for a particular witness. The investigating agency should then provide all statements held by them in respect of the case.

10.1.3

Criminal history records will be requested for all civilian and professional, expert and official witnesses listed in the SPR or subsequently intimated to the Crown by the investigating agency, regardless of whether or not the witness is likely to be included as a witness in the indictment.

10.1.4

Full statements and criminal history records in summary and solemn cases should be ordered through the FOS link. Where a solemn case has been routed to SOS-R prior to the CHR being ordered then the reporting officer should be requested to submit CHRs for all witnesses. Full details of how to request full statements and criminal history records can be viewed in the Case Processing Manual.

10.2 Requesting statements & criminal history records: When to request

10.2.1 Custody cases

10.2.1.1

Where the case is reported as a custody case and is marked as a petition, statements and witness criminal history records should be ordered at the time the custody case is prepared for court, i.e. before the accused appears in court. The timescales for submission will depend on whether bail is being opposed or not.

10.2.1.2

If bail is opposed, essential statements and criminal history records should be requested for submission within 5 calendar days of CFE with the remainder of all statements to be submitted within 21 days of CFE. Essential statements are those statements which are necessary to establish a sufficiency of evidence for full committal.

10.2.1.3

Currently there is no facility in FOS to automatically identify and request the submission of full statements and criminal history information for essential witnesses, within the specified timescales. Policy Division is working closely with ISD to achieve a long term solution which will enable deputes to insert details of essential witnesses within the Depute Instructions in FOS. That information will then be extracted automatically and included in the full statement request, for submission within 5 calendar days of CFE.

10.2.1.4

In the meantime, until a suitable solution is in place, it is the responsibility of the marking depute where a case is marked for petition proceedings and bail is opposed by the Crown, to identify what witness statements are essential for submission before full committal. A member of COPFS staff as determined locally must then send an ICJIS email to the Reporting Officer confirming details of those essential witnesses. The Reporting Officer will thereafter prioritise these statements and ensure that these and the relevant criminal history records are submitted within 5 calendar days of CFE. The remainder of statements and criminal history records will then be submitted within 21 days.

10.2.1.5

If bail is granted and no Crown Bail appeal is marked, the Custody Court Clerk should contact the Reporting Officer or Case Management, depending on local arrangements, and advise them that essential statements are no longer required within 5 days. In such a case all statements and criminal history records should be submitted within 21 days of CFE.

10.2.2 Petition warrants

10.2.2.1

Where the case is marked as a petition warrant, statements and criminal history records should be requested immediately, i.e. at the time of marking. It is not necessary to wait for the accused to answer the warrant. All statements in the case should be requested at this stage. The reporting officer should be asked to submit these within 21 days in all such cases.

10.2.2.2

If the accused answers the petition warrant and the statements and criminal history records have not yet been submitted, a reminder should be sent immediately after court where the accused is remanded in custody. This is particularly important where the appearance is on a Friday. As with custody cases, essential statements should be requested for submission within 5 days of CFE, with the remainder being submitted within 21 days of CFE.

10.2.2.3

Where the accused is committed for further examination and remanded in custody, in a court that does not finish until after office hours, care should be taken to ensure that reminders for submission of the statements and criminal history records are ordered the following morning. Where this is a regular occurrence on a Friday, the Functional Lead for ICP should liaise with the relevant Divisional Commander to ensure procedures are in place for intimating requests at the earliest opportunity.

10.2.2.4

Where, on answering a petition warrant, the accused is admitted to bail and the statements and criminal history records have not yet been received, a reminder should be sent as soon as possible after court, and not later than 3 calendar days after the accused has been committed for further examination.

10.3 Event records

10.3.1

When requesting full statements and criminal history records, an “Event Date” should be entered into the “Administrative Record” for 21 calendar days after the date of first appearance, where the accused is on bail. This will notify the date by which the investigating agency must submit full statements and criminal history records.

10.3.2

Where the accused is remanded in custody, the “Event Date” should be entered into the “Administrative Record” for 5 calendar days after first appearance.

10.4 Submission of statements & criminal history records

10.4.1

The investigating agency will submit full statements, along with criminal history records (where they exist) for all civilian witnesses, within agreed timescales, depending on whether the case is a custody or bail case. The investigating agency should also submit, within the same timescales, any criminal history records for professional, expert or official witnesses.

10.4.2

Where the accused is remanded in custody, the investigating agency will submit essential statements and associated criminal history records within 5 calendar days of committal for further examination. The remainder of the statements and criminal history records will be submitted within 21 days of CFE.

10.4.3

Where the accused is at liberty, the investigating agency will submit statements and criminal history records within 21 calendar days of committal for further examination.

10.4.4

Where the accused is at liberty and, due to the nature of the case, it is to be reported to Crown Office within custody timescales, the investigating agency will submit statements and criminal history records in accordance with the custody timescales set out above. However, the marking depute (or other appropriate member of staff according to local arrangement) must advise the Reporting Officer that the case is a priority when sending notification of the essential witnesses whose statements and criminal history information should be submitted within 5 days of CFE. Therefore, the case is being treated as a custody case.

10.4.5

Policy Division and ISD are working to achieve a solution which will allow priority cases to be identified at the marking stage and thereafter any full statement requests to be made, in the usual way, but automatically within the custody timescales, without the need to notify the Reporting Officer that the case is a priority case.

10.5 List of witnesses

10.5.1

Once it has been confirmed in writing that a defence solicitor acts for the accused, they should be provided with a provisional list of witnesses in the case. This list should include all the witnesses listed in the SPR, and should not be restricted to the witnesses that the Crown is citing for trial.

10.5.2

The provisional list of witnesses should be provided to the accused’s representative within 14 calendar days of first appearance. Where no agent has intimated that they are acting for the accused, arrangements should be put in place for that witness list to be available within that time frame, so that it can be issued when defence solicitors have intimated in writing that they are engaged on behalf of the accused. Intimation is not required for preparation of the list but it is required before the list is issued.

10.5.3

It may be appropriate in certain cases to temporarily withhold the details of a witness. Guidance on the drafting of the provisional list of witnesses is contained in Chapter 12 of this Manual.

10.6 Consideration of statements

10.6.1

Once statements have been submitted to the Crown, the Solemn Legal Manager should consider the statements and decide whether they should be withheld or disclosed to the defence in terms of the guidance set out in Chapters 4, 13 & 14 of this Manual. If the statement is to be disclosed or withheld meantime, it should then be considered for redaction purposes in terms of the guidance set out in Chapter 15 of this Manual.

10.6.2

Where the Solemn Legal Manager considers that it is appropriate to withhold a statement completely, which contains either irrelevant or relevant and immaterial information, the matter should be reported to the Director of Serious Casework, for Crown Counsel’s instructions. If a statement is withheld on these grounds, the witness may not be called to give evidence. (See Chapter 4, in particular paragraphs 4.2.3 – 4.2.5, and Chapter 13, paragraphs 13.3.1 – 13.3.4.)

10.6.3

However, if a particular witness statement contains information which falls within the materiality test i.e. information which is likely to

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused

and there is a compelling reason why it should not be disclosed, e.g. it contains material covered by public interest immunity, or which raises Article 8 issues, such as where there is a threat to the life or limb of a witness or other persons, the matter should be referred initially to the functional lead for High Court / Sheriff & Jury (depending on the forum of the case), the Federation Head or other appropriately vetted member of COPFS staff. Thereafter the matter should be reported, including an appropriate recommendation, by that person to the Director of Serious Casework for the onward attention of Crown Counsel. Crown Counsel will issue a final decision as to how the issue should be addressed. However, non disclosure should be the last option after all other possibilities have been considered. (See Chapter 4, paragraph 4.2.6, and Chapter 13, paragraphs 13.3.5 – 13.3.9.)

10.6.4

All witness statements should be checked for redaction purposes prior to disclosure unless there are no civilian witnesses in the case. (In summary cases, where the only witnesses in the case are investigating agency witnesses, their statements do not routinely require to be checked for redaction purposes prior to disclosure.) In solemn cases, investigating agency statements should be routinely checked to ensure that no sensitive information is disclosed, e.g. references to a CHIS, ongoing confidential operations, details of where police took observations of the accused from etc. Sensitive information is defined in section 122 of the Criminal Justice and Licensing (Scotland) Act 2010.

10.7 Consideration of criminal history records

10.7.1

Once criminal history records have been obtained, they should be checked to ascertain whether, and to what extent, they should be disclosed in accordance with the materiality test i.e. do they contain information which is likely to

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused

10.7.2

When a witness attends for precognition, the precognoscer should advise the witness that it will be necessary to disclose details of their previous convictions and/or outstanding charges where the Crown intends to disclose this information. They should also canvass with the witness if there are any grounds for nondisclosure, as set out in Chapter 17 of this Manual.

10.7.3

Any decision or recommendation not to disclose criminal history information should be recorded in the Disclosure Page. Where appropriate, the ‘PCOCs’ column in the Witness Precognition Record should be completed with a general indication of “yes” or “no” in terms of a recommendation on whether or not the previous convictions and/or outstanding charges of a witness should be disclosed. Where appropriate, for example, where the recommendation is that only part of a witness’s record should be disclosed, and part should be withheld, further details of the recommendation should be included in the relevant section of the Disclosure Page in the precognition. (See Chapter 19, paragraphs 19.2.2 and 19.2.3 on the different recommendations required in High Court cases and Sheriff and Jury Cases.)

10.7.4

In all solemn cases, a witness’s criminal history information should be inserted into the precognition behind the witnesses’ precognition and investigating agency statements. Where a civilian or professional, expert and official witness has no criminal history record this should be highlighted at the top of the precognition or the first page of the witness statement.

10.8 Disclosure to the accused’s legal representative

10.8.1

Once the statements and criminal history records have been checked, and where appropriate redacted, they should be disclosed, at the stages detailed below, to the accused’s representative. This should only be done where it has been confirmed in writing that the defence solicitor is acting for the accused. Please note that in solemn cases, the criminal history records are disclosed at a later stage than the statements.

10.8.2

The Crown will also provide the defence with copies of all civilian, police and “professional/expert/official” witness statements that are in its possession, within 28 days of first appearance in all cases that are likely to be indicted in the Sheriff and Jury and High courts.

10.8.3

In all cases that are being indicted, either in the High Court or in the Sheriff and Jury Courts, the defence should be provided, at the time the indictment is served, with copies of criminal history records against those witnesses listed on the indictment.

10.8.4

Where witnesses are added by a notice served under the terms of section 67 of the Criminal Procedure (Scotland) Act 1995, copies of the statements of the relevant witnesses should be given to the defence at the time of service, if they are available, along with copies of their criminal history records, if applicable, subject to the materiality test.

10.8.5

Guidance on the method by which information should be disclosed to the accused’s legal representative is contained within Chapter 11 of this Manual.

10.9 Disclosure to solicitors from England, Wales & Northern Ireland

10.9.1

In cases where the accused instructs agents who are solicitors based in England, Wales or Northern Ireland, or the agent is an in-house solicitor it should be ascertained whether they hold a practising certificate for Scotland prior to handing over any information for disclosure purposes. Larger solicitor firms in England, Wales or Northern Ireland may have employees who are dual qualified but where they do not they should be advised that disclosure will only be made to a local agent instructed to act on their behalf. Similar principles will apply where the accused person is assisted by a “McKenzie friend”⁵.

10.9.2

Solicitors who are not members of the Law Society of Scotland are not governed by the provisions of Articles 11 and 12 of the Law Society Code of Conduct for Criminal Work and as such there is no safeguard on what they do with information that they receive from COPFS.

10.9.3

All criminal defence solicitors practising in Scotland require to sign an undertaking prior to COPFS handing information over. This is routinely covered by letters of engagement, which require to be submitted prior to any disclosure being made. These letters include the signed undertaking, in respect of the information disclosed in the particular case, that:

1. such material, or any information contained in it, will not be used or disclosed other than for the purpose of the preparation and conduct of any trial or any appeal in the case referred to;
2. such material will not be made available to the accused or to any other party without the express agreement in writing of the Procurator Fiscal; and
3. in the event of the accused becoming unrepresented, any such material will be returned to the Crown

10.9.4

The main purpose of this undertaking is to ensure that COPFS as data controller at the time of the handover of that data complies with the seventh data protection principle namely; that appropriate technical and organisational measures are taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. The Information Commissioner has confirmed that when data is handed over to defence agents for the purpose of disclosure the agent becomes the data controller. Additionally this undertaking reminds the defence agents of their legal obligations surrounding the use and sharing of such information, in terms of Articles 11 and 12 of the Law Society Code of Conduct for Criminal Work. The Information Commissioner has confirmed that defence agents require to be registered as data controllers. The agents “process” the data once in receipt of this from COPFS and the responsibility for compliance with the terms of the Data Protection Act 1998 transfers to them at this point.

10.9.5

The general rule therefore when dealing with agents from outside Scotland is that disclosure will only be made to a local Scottish agent instructed to act on their behalf.

10.9.6

However there is provision for disclosure direct to agents in England, Wales and Northern Ireland upon request in certain circumstances and upon the acceptance by them of conditions akin to those specified in the undertaking.

10.9.7

For instance, due to the unique nature of some Health and Safety cases, disclosure can be made to solicitors who do not hold a practising certificate in Scotland prior to a complaint being served, in order that proper consideration can be given to the issues prior to being called to plead. In such circumstances, however, the solicitor must be asked to sign an undertaking to the effect that the information is provided on the basis that:

1. The information disclosed will not be used or further disclosed other than:–
1. For the purposes of the proper preparation and presentation of the accused’s case in the original proceedings;
2. With a view to the taking of an appeal in relation to the matter giving rise to the original proceedings;
3. For the purposes of the proper preparation and presentation of the accused’s case in any such appeal
2. The documents provided will not be made available to the accused or to any other party without the express agreement in writing of the Procurator Fiscal;
3. In the event of the accused being unrepresented, any such information will be returned to the Procurator Fiscal.

10.9.8

It is important to remember, and to remind agents when appropriate, that it is a criminal offence under section 163 and 164 of the Criminal Justice and Licensing (Scotland) Act 2010 for any person to knowingly use or disclose information, or anything recorded in it, for any purpose other than those detailed.

11.1 Policy

11.1.1

The policy for transmission of disclosure of information detailed in this chapter relates to the disclosure of information to the accused’s legal representative only. Where the accused is unrepresented, the guidance set out in Chapter 23 of this manual should be followed.

11.1.2

In terms of the legislation, the prosecutor may disclose information by any means (Criminal Justice and Licensing (Scotland) Act 2010 s160). However, following full consultation with the Law Society, it has been agreed that the primary method of disclosure will be by use of the secure disclosure website (SDW). This will, where practicable, include any productions capable of being scanned and uploaded on to the website.

11.1.3

COPFS must have regard to its legal obligations and those of solicitors under the Data Protection Act 1998. The use of this technology reduces the security risks surrounding hard copy material going missing or being lost and the use of encryption further protects the integrity of the data. The Deputy Information Commissioner has confirmed that the Crown must ensure that defence agents are registered as data controllers prior to disclosure of any information.

11.1.4

Accordingly, in order to satisfy this requirement, defence agents must sign an undertaking confirming that the firm is registered. The undertaking only requires to be signed prior to the first disclosure of information to a defence firm, and not in advance of disclosure to that firm in every case. Where new firms are created or Solicitors leave firms and become sole practitioners they must sign the undertaking anew. Where a firm fails to provide such an undertaking, or cannot otherwise satisfy the Crown that it is registered as a data controller, then disclosure bundles cannot be issued in any format.

11.1.5

COPFS need not disclose again anything that has already been disclosed to the accused in relation to the same matter (whether because the same matter has been the subject of an earlier petition, indictment, or complaint or otherwise) (Criminal Justice and Licensing (Scotland) Act 2010 section 127). If defence agents are requesting repeated disclosure (as a result of losing or misplacing the disclosure information), then they are failing to comply with the seventh data protection principle. The loss of such data is not a matter which should be taken lightly and it is inappropriate that the COPFS response to the loss of such data be, as a matter of routine, to provide a further copy. COPFS will consider all requests to supply a further copy, providing requests for such, including the reasons as to why repeated disclosure is considered necessary, are made in writing by defence agents.

11.1.6

It is crucial that COPFS maintains a comprehensive audit trail in respect of their disclosure obligations. Defence agents or their representatives must be required to sign a receipt in respect of information disclosed to them. This receipt must be retained with the case papers and available to present to the Court in the event of a dispute. In any case where we are unable to show that disclosure has been made COPFS will not be in a position to refuse a request for repeated disclosure.

11.1.7

The use of the secure disclosure website assists in providing an accurate audit trail and a copy of the publication report created by the electronic system should be printed off and placed within the case papers. This can be referred to in Court if confirmation is needed that the Crown has complied with their disclosure obligation. Further guidance regarding use of the publication report to confirm disclosure and respond to such challenges in Court can be found in COC 8 of 2012.

11.1.8

Whilst all agents undertaking criminal work should have registered for the secure disclosure website there may be occasions when an agent involved in a criminal case has not registered or does not have the capacity to access the secure disclosure website and where that is the case then disclosure should be made via use of a pen drive or by handing over hard copies as deemed appropriate. In these limited circumstances it is vital that all disclosure actions are properly documented and receipted Pen drives must not be posted to the defence agent. In all such cases, regardless of forum, the defence must uplift the pen drive from a PF Office. In most cases this will be the office where the case is being prepared, however the solicitor can elect to uplift the pen drive from an office more convenient for them. Such requests should be accommodated unless there are exceptional reasons for not doing so.

11.1.9

Transmission of information to the defence by the secure disclosure website ensures that COPFS is taking all reasonable steps to safeguard sensitive information and thus comply with the seventh data protection principle which obliges the COPFS, as a data controller, to take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

11.1.10

The emphasis placed on compliance with the seventh data protection principle is that the procedures adopted by a data controller must be adequate to maintain the highest level of security that is reasonably practicable. Therefore, as long as COPFS can demonstrate that it has adequate procedures in place to prevent against the accidental loss of data (and these procedures have been followed), it will not be found in breach of its data protection obligations should any accidental loss actually occur. The policy set down in this chapter sets out those adequate procedures that COPFS has put in place for disclosing information to defence agents.

11.1.11

Any reference in this chapter to a defence agent also includes any authorised agent acting on behalf of the principal agent.

11.2 Disclosure of statements and Previous Convictions and Outstanding Charges (PCOCs)

11.2.1

Statements and PCOCs should be disclosed via the secure disclosure website as the COPFS primary method of disclosure.

11.2.2

Once witness statements are available to be disclosed in FOS the first step is to prepare and disclose the List of Witnesses. This should be done by checking which witnesses addresses are discloseable. Any that are not discloseable should be redacted from the list. Thereafter a binder should be created and the list of witnesses should be published on the secure disclosure website.

11.2.3

The second step is to prepare and disclose all witness statements and any previous convictions and outstanding charges (PCOCs) relating to witnesses. This should be done by checking whether the witness statements or PCOCs require to be redacted. Once they are redacted a binder should be created and the witness statements and PCOCs relating to witnesses should be published on the secure disclosure website.

11.2.5

Full guidance outlining the processes for uploading material onto the secure disclosure website is contained in the Case Processing Manual.

11.3 Subsequent disclosure of additional information in all cases

11.3.1

Where any additional statements or productions require to be disclosed to the defence agents, then the same procedures should be followed.

11.6 Disclosure of information in Court – High Court cases

11.6.1

Whenever a case is calling in court, a blank Court Disclosure Minute Sheet should be placed with the court papers for use by the Advocate Depute in court. This should be done by High Court Registry when preparing the papers for Court and should be slotted into the AD’s blue folder, next to the standard minute sheets.

11.6.2

Where copies of information are provided to the defence in court, then this should be clearly recorded on the Court Disclosure Minute sheet by the Advocate Depute or the Crown Junior.

11.6.3

Where the defence are given access to any information in court, then this should be clearly recorded on the Court Disclosure Minute sheet.

11.6.4

After court, the Court Disclosure Minute Sheet should be returned to High Court Registry who should then update this information on the electronic copy of the Disclosure Page.

11.7 Disclosure of information in Court – Sheriff and Jury cases

11.7.1

Whenever a case is calling in court, a blank Court Disclosure Minute Sheet should be placed with the court papers for use by the Depute in court. This should be done by the appropriate member of solemn administrative staff.

11.7.2

Where copies of information are provided to the defence in court, then this should be clearly recorded on the Court Disclosure Minute sheet.

11.7.3

Where the defence are given access to any information in court, then this should be clearly recorded on the Court Disclosure Minute sheet.

11.7.4

After court, the Court Disclosure Minute Sheet should be returned to solemn administrative staff who should then update this information on the electronic copy of the Disclosure Page. It is the responsibility of the Solemn Administrative Manager to identify the appropriate member of staff to complete this work.

11.8 Disclosure of information in Court – Summary cases

11.8.1

Where, due to exceptional circumstances, any additional information is provided to the defence agents in court, this must be clearly minuted in the case papers.

11.9 Disclosure of information by access

11.9.1

Where the defence agent is provided access to view information, and are not provided with a copy, e.g. label productions; photographs of indecent images; video tapes of joint interviews with children, a record of this must be kept.

11.9.2

In all solemn cases, this should be carefully recorded on the Disclosure Page of the precognition. This should clearly state the date the information was viewed, the name of the member of staff who supervised the access and precise details of the information accessed by the defence.

11.9.3

In all summary cases, the following information should be recorded in the case papers: the date the information is accessed by the defence agent, the name of the person supervising access and precise details of the actual information accessed.

11.11 Disclosure of productions

11.11.1

Productions should be disclosed via the secure disclosure website where possible.

11.11.2

A production record should be added in FOS for each production. Many of these will be done automatically when the Police submit an SPR2 however some may have to be added manually.

11.11.3

Productions should be redacted if required and thereafter scanned in to the system and a binder should be created using Disclosure Manual Client. The binder should be published on the secure disclosure website. This should be done separately for each accused in a case with multiple accused.

11.11.4

Full guidance outlining the processes for uploading material onto the secure disclosure website is contained in the Case Processing Manual

11.12 Disclosure of information by e-mail

11.12.1

Ordinary e-mail sent via the Internet is not a secure means of communication and must not be used for the transmission of information regardless of whether the statement fits the criteria necessary to allow electronic disclosure.

11.13 Disclosure of information by other means

11.13.1

Statements and Criminal History Records should always be disclosed on the secure disclosure website.

11.13.2

Productions should always, where possible, be disclosed on the secure disclosure website. However, where the production is not in a format which is compatible with the secure disclosure website, then the production can be disclosed using a different format, for example on a CD, DVD or encrypted pen drive.

11.13.3

Where productions are disclosed on a different format staff should ensure that the disclosure is properly recorded and that a receipt is available which clearly reflects the items disclosed.

11.15 Defence as data controllers of the information disclosed

11.15.1

A data controller is defined as “a person who (either alone or jointly in common with other persons) determines the purposes for which and the manner in which any personal data are…processed”. Processing is held to include obtaining, recording, holding or using personal data or information. Accordingly, it should be noted, that where defence agents during the course of their business, enter details about identifiable individuals onto a computer, or retain such data as part of a recognised filing system, they must submit a notification to the Information Commissioner’s Office, and if they fail to do so, they could be prosecuted. A failure to so register is a breach of the data protection legislation and could expose the defence agents to a fine. The defence agent could also be liable to prosecution under section 17(1) of the Data Protection Act 1998 for processing personal data where there is no entry in respect of them included in the register maintained by the Information Commissioner

11.15.2

As data controllers, defence agents are also bound by the data protection legislation and are required to adhere to the eight principles of data protection, including the seventh principle relating to take adequate steps against accidental loss or destruction of, or damage to, personal data.

12.1 General practice

12.1.1

The general practice adopted by the Crown on disclosure of lists of witnesses is set out in the Crown Practice Statement on Disclosure in High Court Cases. This applies to disclosure of lists of witnesses in Sheriff and Jury and Summary cases as well.

12.1.2

In Summary cases, the Crown should, where the accused’s representative has confirmed in writing that they act for the accused, provide them with a provisional list of witnesses within 14 days of the pleading diet.

12.1.3

In Solemn cases, the Crown should, where the accused’s representative has confirmed in writing that they act for the accused, provide them with a provisional list of witnesses within 14 days of first appearance.

12.2 Addresses of a witness

12.2.1

When sending out the list of witnesses to a defence agent, the witness’s home address can be disclosed except where:

1. The witness is vulnerable;
2. The witness has requested that his/her home address not be disclosed; or
3. The PF has any concern that would justify the witness’s home address to be withheld.

Home addresses should not be disclosed to an unrepresented accused.

12.2.2

Covering letters DISCLOWSOLLET and LOWLET2 should be used, which clearly specify that the list of witnesses is provided on the understanding that the home addresses of the witnesses will not be made known to the accused.

12.2.3

Witnesses who are witnesses in the course of their employment should be designated as being care of their place of employment.

12.3 Withholding details of a witness

12.3.1

The obligation is to issue a provisional list of witnesses. It may be necessary to withhold disclosure of the details of some witnesses temporarily pending further steps. The Crown Practice Statement on Disclosure in High Court Cases specifically permits this, subject to those details being provided as soon as practicable. This exception will apply principally in the case of vulnerable witnesses as set out in the Precognoscer’s Handbook.

12.4 When to withhold

12.4.1

It may be appropriate to withhold details of vulnerable witnesses to ensure that they are given a full explanation of the precognition process and the court procedure that may follow thereafter, prior to them being questioned by the defence in circumstances where they have no such understanding. Details of when a witness would be considered vulnerable are contained in Crown Office Circular 5 of 2006: Vulnerable Witnesses (Scotland) Act 2004. Procurators Fiscal should also exercise their discretion in this regard in respect of other witnesses where appropriate.

12.4.2

This is particularly relevant in the case of child witnesses where the child or his or her carers should be advised of the possibility of defence precognition before details are provided to the defence.

12.4.3

Issues of operational security should also be borne in mind. There may be witness details which, for reasons in the public interest, or related to Article 8 issues, such as where there is a threat to the life or limb of a witness or other persons, it is appropriate to withhold, until such time as the outstanding issues have been resolved. In this event, an early FOS BU date should be fixed in order to ensure this position is reviewed for the purpose of disclosure.

12.4.4

If it is not clear from the initial police or other investigating agency report whether a witness is of relevance to the case (because his or her involvement is not specified in the narrative or analysis sections) then such details should be withheld pending receipt of full statements. It should be borne in mind that the list of witnesses is a provisional list and that in most cases it will be the disclosure of statements that will be of material interest to the defence.

12.4.5

In any case where a decision is taken to withhold the details of a witness temporarily then any further work e.g. liaison with the witness, liaison with the police or precognition must be completed as a matter of urgency, and the details must be released as soon as practicable thereafter. As this is likely to apply almost exclusively to vulnerable witnesses, this is in keeping with best practice and is consistent with the terms of the Case Marking Instructions Chapter 4.10.2 regarding prevention of delay. It is essential that an early FOS BU is created where witness details are withheld in order to ensure that this position is reviewed for the purpose of disclosure.

12.4.6

In exceptional circumstances it may be necessary to withhold the details of a witness completely on public interest grounds and this is recognised in the Crown Practice Statement on Disclosure in High Court Cases. Although it may be possible to advise the defence that this has been done it should be borne in mind that the very disclosure that information has been withheld may allow the defence to identify the nature of the evidence, e.g. that of an informant, with a consequential risk to security. Details of a witness should only be withheld on public interest grounds on the explicit instructions of the functional lead for High Court / Sheriff & Jury / Summary/ ICP (depending on the forum of the case), or a senior legal manager expressly authorised to act on his or her behalf in that regard. The relevant functional lead or senior manager will only give such instructions after the matter has been reported to the Director of Serious Casework for the attention of Crown Counsel, and the receipt of explicit instructions. Chapter 25 of the Disclosure Manual has further information on the withholding of sensitive and intelligence information.

12.5 Additional witnesses

12.5.1

Where, after the provisional list of witnesses has been disclosed to the defence, the Crown identifies, during the course of its preparation or investigation of the case, any further witnesses who are relevant to the case against the accused and who have not been previously intimated to the defence, it will provide to the defence details of these as soon as practicable, subject to the same qualifications as apply to the provisional list of witnesses.

13.1 General practice

Timing of disclosure of witness statements

13.1.1

The general rule is that in all summary cases where the accused is on bail or ordained to appear, the Crown should provide the defence such copies of witness statements as are then in the possession of the Crown, not less than 28 calendar days before the Intermediate Diet.

13.1.2

The general rule is that in all summary cases where the accused is remanded, the Crown should provide the defence such copies of witness statements as are then in the possession of the Crown, not less than 7 calendar days before the Intermediate Diet.

13.1.3

The general rule is that in all solemn cases, the Crown should provide the defence such copies of witness statements as are then in the possession of the Crown, within 28 calendar days of the accused’s first appearance.

Content of disclosure

13.1.4

The general rule is that the Crown should provide the defence with copies of statements of all witnesses that are in their possession. It should be noted that this is not limited to those witnesses that the Crown intends to call at trial.

13.2 Withholding statements temporarily

13.2.1

Statements may be withheld where the Crown proposes to disclose a statement but further steps are necessary before disclosure is made, e.g. statements of vulnerable witnesses (particularly where the case involves sexual offences) and/or child witnesses where the Crown intends to precognose these witnesses prior to their statements being disclosed to the defence. In such circumstances, care should be taken to ensure early precognition of such witnesses in order to limit the period during which the statement is withheld. (See Chapter 4, paragraphs 4.2.3 - 4.2.7, Chapter 9, paragraphs 9.7.1 – 9.7.4, and Chapter 10, paragraphs 10.6.1 – 10.6.4.)

13.3 Withholding statements completely

13.3.1

The Crown may require to consider withholding a statement where it contains information which is covered by public interest immunity, or which raises Article 8 issues, such as where there is a threat to the life or limb of a witness or other persons⁶ (Swinney v Chief Constable of Northumbria (1999) 11 Admin LR 811 and Osman v Ferguson [1993] 4 All ER 344).

13.3.2

If the statement does not contain any information which would fall to be disclosed in terms of the materiality test i.e. information which is likely to

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused

for example, where the statement is wholly incriminatory of the accused, the Crown may, if the circumstances referred to in paragraph 13.3.1 pertain, decide not to call the witness and to withhold the statement. (See Chapter 4, paragraphs 4.2.3 - 4.2.5.)

13.3.3

Where the statement contains sensitive information as defined by section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010 and/or the circumstances in paragraph 4.2.6 above (in Chapter 4 of this Manual) apply, it may be withheld. However, non disclosure should be the last option after all other possibilities have been considered, and, in particular, relevant wholly incriminatory information should only be withheld in exceptional cases.

13.3.4

A decision to withhold a statement in terms of paragraph 4.2.6 above (in Chapter 4 of this Manual), must be taken by the appropriate Legal Manager. In solemn cases, the matter should be reported to the Director of Serious Casework, for Crown Counsel’s instructions. If a statement is withheld on these grounds, the witness may not be called to give evidence.

13.3.5

If the statement contains information which is disclosable in terms of the materiality test i.e. information which is likely to

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused,

then the Crown must consider whether or not the statement can be withheld while still fulfilling its obligations. The following are possible ways of securing that the Crown’s obligations of disclosure are fulfilled while still withholding the sensitive information which is not disclosable:–

1. disclose the statement in a redacted form removing the sensitive information, so that the defence is provided with all information which must be disclosed in terms of the materiality test; or
2. making an admission of facts, essentially providing a note advising the defence of the content of the statement which is disclosable in terms of the materiality test without providing a copy of it.

13.3.6

If the Crown’s obligations cannot be secured in this way, the Crown has two options:–

1. to discontinue proceedings; or
2. to seek to a non-disclosure/non-notification order/exclusion order as appropriate. Full guidance on these orders can be found in Chapter 25 of this Manual.

13.3.7

If the Crown is not prepared to discontinue proceedings, it is not entitled unilaterally to withhold the information from the defence. The question of whether the information is disclosable i.e. material can be decided by the Court. However if the summary/solemn legal manager deems the information to be disclosable but considers that disclosure would not be in the public interest the matter should be referred initially to the functional lead for High Court/Sheriff and Jury/Summary or the Federation Head. Thereafter the matter should be reported to the Director of Serious Casework for the attention of Crown Counsel with an appropriate recommendation, for a decision as to how the issue should be addressed.

13.3.8

Where Crown Counsel considers that it is not in the public interest to disclose the information to the accused, Crown Counsel may consider it best that the information be withheld and that an application for a non-disclosure order is made to the court.

13.3.9

If the Court has ruled that the information is disclosable in terms of the materiality test, then careful consideration requires to be given as to whether or not to disclose a redacted version (removing any sensitive and immaterial information). Under no circumstances should a non-redacted version be made available. It is important however to note that a Court ruling that information is disclosable, is not per se a ruling to disclose the information. In these circumstances the Crown will require to respect the decision of the court and take necessary steps to deal with the situation.

13.3.10

In circumstances where the Crown continues, following a Court ruling that the information is disclosable, to be of the view that it is not in the public interest to disclose the information (even in a redacted form) a report should be submitted to the Director of Serious Casework for Crown Counsel’s Instructions as to whether or not the case merits risking the Crown being held to have breached it’s disclosure obligations. It should be remembered that breach of the Crown’s disclosure obligations will not always result in an unfair trial in terms of Article 6 ECHR. This approach should only be followed in exceptional circumstances and under the authority of Crown Counsel and the Director of Serious Casework.

13.3.11

It will be highly exceptional for statements to be completely withheld. In any case where a decision is taken to withhold a statement completely, it will not usually be appropriate to disclose the reasons for withholding where such reason may of itself present a security risk, e.g. where the information has been provided by an informant.

13.3.12

Where a statement has been withheld in whole or in part, it will be necessary to keep the question of disclosure under review. New information and other developments in the case may require the question of disclosure to be revisited.

13.4 Additional witness statements

13.4.1

Where the Crown, in the course of its preparation or investigation of the case, receives additional statements of any further witnesses who are material to the case against the accused and who have not been previously provided to the defence, it will provide to the defence copies of these as soon as practicable, subject to the same qualifications that apply to the original provision of copy statements.

13.4.2

It should be noted that this also applies where the Crown receives additional statements of witnesses already known to the Crown and disclosed to the defence.

13.5 Release of statements

13.5.1

Where any disclosure of statements is to be made, it should be conditional on the statements only being used for the limited purpose of the proper preparation and presentation of the case in which disclosure is made. This is clearly specified in the Article 11 of the Code of Conduct in Criminal Work, which governs the use and retention of disclosed information by defence solicitors. The guidance note attached to Article 11 states that “solicitors are reminded that, in receiving documentation, material or recordings from the COPFS, or other third parties, that they are accepting an implied undertaking to comply with the terms of this Article”.

13.5.2

Moreover, section 162 of the Criminal Justice and Licensing (Scotland) Act 2010 provides that information disclosed will not be used or further disclosed other than:–

1. For the purposes of the proper preparation and presentation of the accused’s case in the original proceedings;
2. With a view to the taking of an appeal in relation to the matter giving rise to the original proceedings;
3. For the purposes of the proper preparation and presentation of the accused’s case in any such appeal

13.5.3

It is an offence under section 163 of the Criminal Justice and Licensing (Scotland) Act 2010 for any person to knowingly use or disclose information, or anything recorded in it, for any purpose other than those detailed at paragraph 13.5.2 above.

13.6. Access to statements by witnesses

13.6.1

Section 54 of the Criminal Justice and Licensing (Scotland) Act 2010 enables the Crown at any point before the witness gives evidence in the criminal proceedings, to provide any witness who is cited (or likely to be cited) with a copy of their statement (or statements) or to otherwise give the witness access to their statement. In light of this being a permissive provision the practicalities of implementation will need to be assessed and in summary cases this will be by way of a pilot in an appropriate area/office(s). The main aim of this provision was to ensure that the quality of the evidence of Crown witnesses would be enhanced as previously the witness was the only person in court not entitled by law to see their statement.

13.6.2

Section 54 will only apply where the statement is contained within a document. Under section 262 of the 1995 Act, a statement will be deemed to be contained within a document where the witness:

1. Makes the statement in the document personally;
2. Makes a statement which is, with or without his/her knowledge, embodied in a document by whatever means or by any person who has direct personal knowledge of the making of the statement; or
3. Approves a document as embodying the statement.

13.6.3

A document will, as specified in section 262 of the 1995 Act, include:

1. Any document in writing;
2. Any map, plan, graph or drawing;
3. Any photograph;
4. Any disc, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
5. Any film, negative, disc or other device in which one or more visual images are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom.

Accordingly, under section 54, copies of audio or visually recorded statements can be provided to witnesses, in the same way as statements held in NSS format.

13.6.4

By virtue of subsection (3), section 54 does not apply to victim impact statements provided under section 14 of the Criminal Justice (Scotland) Act 2003. However, this subsection does not prohibit the Crown from providing such a statement in response to a subject access request from the witness under the Data Protection Act 1988. Similarly, by virtue of section 262 of the 1995 Act, section 54 does not apply to a precognition except where it is a precognition on oath.

13.6.5

A statement should not be provided to the witness unless the statement has been or will be made available to the defence. It will be the disclosable redacted statement which will be given to the witness. This will show the witness that any sensitive information has been removed prior to disclosure to the defence and should not cause any problems for the witness as they should recall what information they gave to the police. Reference may have to be made to the unredacted version if there is dispute as to the content although this will be extremely unlikely due to the fact that the redaction will have been applied in order to protect either the personal details of the witness or some other immaterial information which should not be disclosed.

13.6.6

Under section 261A of the 1995 Act (as inserted by section 85 of the 2010 Act), a witness may, where permitted by the Court, refer to their statement when giving evidence, provided both the prosecutor and the accused (or the solicitor or advocate acting on his/her behalf) has seen or been given the opportunity to see the statement. It should be borne in mind that the defence will only have seen the redacted version of a statement and therefore the witness should not make reference to any information which has been redacted.

13.6.7

It is important to ensure that a record is kept in the case papers of which witnesses have been given access to their statement to allow this to be addressed if raised by the defence.

13.6.8

It has been agreed that a two tier policy will be applied to ensure that section 54 can be implemented by COPFS taking account of the different nature of procedures in summary and solemn cases and to complement the aims of purpose driven precognition.

13.6.9

Care must be taken to ensure that a witness is not placed at a disadvantage by not having access to their statements prior to giving evidence.

13.6.10

As the definition of “document” contained within section 262 of the 1995 Act extends to audio and visual images, where a witness has provided a statement in the form of an audio or visual recording, the witness can be provided with a copy of the recording. In such circumstances, however, it may be more appropriate to provide the witness with access to his/her statement.

13.7 Solemn cases

13.7.1

The precognoser in consultation with the SLM will determine who should and should not have access to their statements(s). In certain circumstances it may be that it is impractical or inappropriate to provide the witness with a copy of his/her statement(s) Examples of where this would apply would be:

1. Where it is suspected that a witness might share his/her witness statement with other persons involved in the proceedings
2. Where provision of a copy might present a security risk to the wellbeing of the witness, e.g. if the witness is in prison or has a connection with the accused
3. Child Witnesses

This list is not exhaustive and there may be other situations not detailed above where it may be more appropriate to provide the witness with access to the statement. All decisions should be recorded within the disclosure page of the case papers so that an informed review can be carried out at a later stage if required.

13.7.2 Where a witness is being precognosed

The witness will be allowed to read over a copy of their statement(s) immediately prior to the precognition commencing. The precognition will thereafter take place and any inaccuracies in the content of the statement should be addressed. Where there are material inconsistencies then the nature of this must be recorded in the precognition and details disclosed to the defence. This should also be highlighted within the body of the precognition and recorded on the disclosure page.

13.7.3 Where a witness is not being precognosed

Where a witness is essential to the case but no precognition is required they may be allowed access to their statement prior to the trial, unless there are good reasons why it would be inappropriate for such a witness to have sight of their statement and to prepare their evidence accordingly. This will generally take place at the PF Office and will be organised through the precognoser.

13.7.4

This offer will be made to a witness at the point when witnesses are cited. This will ensure that only those witnesses who are to be cited will be given access to their statements. In exceptional circumstances a witness may be offered access to their statement at an earlier stage although this must be under the authorisation of the Solemn Legal manager.

13.7.5

The most likely circumstances when this will occur are when a decision has been taken that the witness is essential to the case and they are not to be precognosed but there is a concern around the content of the statement or the status of the witness in light of all the other information available during the precognition process. This will only apply where there are circumstances which can not be addressed by the police re-interviewing the witness.

13.7.6

Full details of the processes to be applied are contained within chapter Q of the Case Processing Manual.

13.7.7

The presumption in all child witness cases is that children will NOT be given access to their statement prior to a trial.

13.7.8

Where the witness wishes to question the content or depart considerably from the details contained in the statement then the witness should be informed that they will be contacted by the police and a further statement obtained.

13.7.9

The PO or SLM should thereafter contact the reporting officer and instruct that a subsequent statement be obtained from the witness. This will allow the details of the changes to be recorded and disclosed to the defence.

13.7.10

The witness should have been asked to sign the statement given to the investigating agency and should therefore already be aware of the content of any statement given.

13.7.11

Full details of all decisions made and access provided must be recorded in the disclosure page of the case papers. However the fact that a statement has been provided to a witness in advance of trial does not require to be disclosed to the defence as part of the Crown’s disclosure duty. Should any additional or contradictory information be provided by the witness at the point at which they have access to the statement then, providing this information meets the materiality test, it should be disclosed to the defence.

13.7.12

Witnesses in solemn cases should not be provided with access to a copy of their statement on the day of trial unless there is an express instruction allowing this from the trial Advocate Depute, the Solemn Legal Manager or the Depute conducting the trial. The prosecutor giving the instruction should confirm whether access is to be supervised or not.

13.8 Summary cases

13.8.1

A Pilot is being run at Glasgow Procurator Fiscal’s Office in relation to witnesses in summary cases being given access to their statements. Until this pilot has been fully run and evaluated this provision will not be implemented within any other PF Office.

13.8.2

Where the case has sensitive or vulnerability considerations and there is VIA involvement, VIA will contact the witness and arrange for them to attend at the PF Office to have access to their statement if the witness wishes it. This should be linked into the provision of information about attending court and arrangement of court visits.

13.8.3

Where the case does not fall into one of the categories of cases where there is VIA involvement then the witness who will have been given the opportunity to opt-in to see his/her statement, will receive a copy of their statement at court on the day of the trial. If practical a room separate from the witness room will be made available for this purpose.

13.8.4

Where the witness wishes to dispute the content of the statement they should be informed that this should be addressed with the trial depute.

13.8.5

Full details of the processes to be applied in relation to this provision are contained within chapter Q of the Case Processing Manual.

13.8.6

Where the witness is a child then it will not be appropriate for them to be offered access to their statement prior to the trial.

13.8.7

Where the witness indicates that they do not agree with the content of a statement this should be addressed by the Depute in court who if necessary may need to instruct the police to re-interview the witness prior to commencement of the trial. Where the witness is questioning a minor issue within the statement this should be addressed in the examination in chief if required.

13.8.8

The witness should have been asked to sign the statement given to the investigating agency and should therefore already be aware of the content of any statement given.

13.8.9

The fact that a statement has been provided to a witness in advance of trial does not require to be disclosed to the defence as part of the Crown’s disclosure duty. Should any additional or contradictory information be provided by the witness at the point at which they have access to the statement then, providing this information meets the materiality test, it should be disclosed to the defence.

13.9 Witness statements: Use during trial

13.9.1

Section 85, of the 2010 Act provides an amendment to the Criminal Procedure (Scotland) Act 1995 by insertion of section 261A which provides at subsection 2 that a court may allow the witness to refer to a statement while the witness is giving evidence.

13.9.2

This provision applies where

1. a witness is giving evidence in criminal proceedings,
2. the witness has made a prior statement,
3. the prosecutor has seen or has been given an opportunity to see the statement, and
4. the accused (or a solicitor or advocate acting on behalf of the accused in the proceedings) has seen or has been given an opportunity to see the statement.

13.9.3

In solemn cases a copy of the statement will be contained within the case papers and can be accessed for this purpose. It may also be listed as a production. Whilst in summary cases if the witness has opted in to receive a copy of his/her statement then they will have the statement with them. Where there has been no opt-in then a short adjournment may need to be sought to allow a copy of the statement to be obtained from the PFO.

14.1 General

14.1.1

To promote good quality and best practice in statement taking, a National Standard Statement was designed. This now forms the template for dictation of all statements to be submitted to the Fiscal by all Scottish Police Forces. A copy of the template is attached at Annex A.

14.1.2

Police Scotland and COPFS have prepared joint guidance on Police Reports, Statements and Presentation of Evidence in Court which includes guidance on completion of the National Standard Statement.

14.2 Framework of the National Standard Statement (NSS)

14.2.1

The NSS is in two parts. The first part is the statement itself and is designed to be disclosed. The second part contains confidential information about the witness that does not form part of the statement and is for the information of the Procurator Fiscal. Either part may, however, contain information that is or is not disclosable in terms of the materiality test under section 121(3) of the Criminal Justice and Licensing (Scotland) Act 2010 i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or to form part of the evidence to be led by the prosecutor in the proceedings against the accused and Procurators Fiscal must consider both parts when considering whether information requires to be disclosed.

14.3 Disclosable part of the National Standard Statement

14.3.1

Sections one to three of the NSS make up the disclosable part of the statement.

14.3.2

The first section contains basic information about the witness, such as name, disclosable address and age.

14.3.3

The second section confirms the circumstances in which the statement was taken, including details of the date and time it was compiled, where it was compiled and the identity of the persons present. This section – the provenance section – also notes details of where the original statement is recorded (whether in a notebook, hard copy statement, log or elsewhere). Finally, this section provides details of whether the witness has authenticated the contents. Completion of the details in the provenance section are mandatory, e.g. if a witness does not authenticate the statement it will still be necessary to say whether the witness has refused to sign the statement. A police officer’s statement must be verified by that officer as his or her own statement. If the witness has not had the opportunity of doing so, then that statement should not be submitted until it has been verified except where the statement is required urgently for full committal. In such circumstances, it has been agreed nationally that the police can submit essential statements unauthenticated for the purposes of full committal, but thereafter must confirm their accuracy within 21 days of committal for further examination, i.e. by the date that the remainder of the statements in the case should be submitted.

14.3.4

The third section of the disclosable part is free text. This will contain details of what the witness says. Where there is information that is operationally sensitive (as defined by section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010 or if there is personal information about the witness that is not relevant to the case, this should be put in the separate confidential part.

14.4 Confidential part of the National Standard Statement

14.4.1

Sections four to six of the NSS make up the confidential part of the statement. Although, in general, the information contained in this part of the NSS is confidential, it may nevertheless contain information which the Crown is obliged to disclose to the defence in terms of the materiality test i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or to form part of the evidence to be led by the prosecutor in the proceedings against the accused

14.4.2

Section Four contains additional personal data, such as mobile phone numbers, private addresses etc. This section will also note details of whether a witness has an ‘S’ (CHS) number. Completion of this information is mandatory, e.g. if a witness does not have an ‘S’ (CHS) number then it is necessary to state this by selecting the option “No SCRO Record”. A search for a ‘S’ (CHS) number will only be carried out if the witness is a civilian witness. Where the witness is either a police witness or a “professional/expert/official” witness, then the officer must state that the ‘S’ (CHS) number is “not applicable”. (See Chapter 17, sections 17.4 – 17.5.)

14.4.3

Section Five provides details of a witness’s availability to come to Court over a 12-month period. This is particularly critical in High Court cases because the Court must have a range of dates available for each witness in order to set a date upon which it is known that any trial will proceed.

14.4.4

Section Six contains any confidential material that would not, in the opinion of the police, be disclosable to the defence but which the officer requires to bring to the attention of the Fiscal. This will include any concerns that the officer may have regarding the accuracy of the ‘S’ (CHS) number included in section four of the NSS. Ordinarily this part of the statement will not be treated as part of the statement for the purposes of disclosure.

14.5 Specialist reporting agency cases

14.5.1

Currently statements submitted as part of a specialist reporting agency case will not necessarily be in the format of the National Standard Statement. Special care may, therefore, need to be taken when redacting these statements.

14.6 Content of witness statements

14.6.1

It is a fundamental and obvious requirement that statements should be compiled as accurately as possible. Prosecution decisions depend on the accuracy of statements. Statements may be used, both by the Crown and by the defence in the course of the trial. The contents of a statement may, in certain circumstances, become evidence in the case. All of this presupposes that statements contain an accurate account of the witness’s evidence as given to the police.

14.6.2

Guidance to the police on the form and content of statements is contained in the COPFS/ACPOS Guidance on Police Reports, Statements and the Presentation of Evidence in Court. Further detailed guidance on the form and content of statements from medical witnesses and police casualty surgeons is included in the COPFS/Strathclyde Police Guidance Notes for the Prosecution of Serious Crime.

14.6.3

Where the police submit statements that do not comply with the guidance detailed at paragraph 14.6.2 above, consideration should be given to requiring the Reporting Officer to submit fresh statements, particularly where any of the matters specified in the guidance have not been adequately dealt with in the statements originally submitted. In addition, in light of other information which is or becomes available to the Crown, the police may be instructed to take an additional statement. In any case where a fresh statement is obtained, both the original and the new statement should be disclosed to the defence.

15.1 General principles

15.1.1

The prosecutor’s entitlement to redact information prior to disclosure has been placed on a statutory footing under section 161 of the Criminal Justice and Licensing (Scotland) Act 2010. The Crown may redact any witness statement to obscure information of a non-disclosable/confidential nature contained within the statement, provided that the information redacted does not fall within the parameters of the materiality test i.e. information which is likely to

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused.

15.1.2

Any such redaction of a witness statement must be obvious on the face of the statement. The relevant text should be blackened out. Under no circumstances should the text simply be deleted from the disclosable copy of the statement so that the redaction is not apparent on the face of the document.

15.1.3

There are various types of information within a statement that may require to be redacted. These are considered further below. However, the question of redaction must always be considered in light of and subject to the Crown’s obligation of disclosure in terms of the materiality test as detailed in paragraph 15.1.1 above.

15.1.4

In any case of doubt, staff should consult the appropriate legal manager.

15.1.5

Care must be taken to read the entirety of the statement, as it may be that references are made in section 3 of the statement to information which should be redacted and this may not be obvious.

15.1.6

Where statements have been obtained from defence witnesses and these are being disclosed to the defence, the same principles of redaction apply.

15.2 Personal details

15.2.1

Before disclosing any statement, any personal data that is not relevant to the case should be redacted.

15.2.2

The Full Name of a witness should not be redacted unless redaction is considered necessary in order to ensure the anonymity of a witness to whom such disclosure may represent a risk to life, health or security, or in order to avoid prejudicing ongoing investigations or proceedings. This will be highly exceptional (see case of HMA v Giovanni Mola (2007 SCCR 124)).

15.2.3

The Age of a witness should not be redacted.

15.2.4

The Date of Birth of a witness should not be redacted.

15.3 Address of a witness

15.3.1

The address inserted in Section 1 should generally not be redacted. There is a presumption that the police officer taking the statement will have canvassed this issue with the witness and, accordingly, the address given in Section 1 will be the address the witness is willing to have disclosed to the defence.

15.3.2

Where there are concerns that the police are inserting addresses into Section 1 of the National Standard Statement (NSS) without first canvassing the issue with the witness, the Federation Head should arrange for this to be addressed at a local level.

15.3.3

Redaction of the address should only be necessary where:

1. The witness is the victim of an offence of a sexual nature;
2. Where the witness fears reprisals or intimidation;
3. Where the witness is speaking to matters arising from his/her employment (such witnesses should be designated and cited at their places of employment); or
4. The witness otherwise indicates that their address should not be disclosed.

15.3.4

The address inserted in Section 4 of the NSS should never be disclosed.

15.3.5

Where the home address of a witness is not to be disclosed, particular care should be taken when checking the statements of other witnesses and in particular the statement of the police officer who took the statement from the witness, as the officer may make reference in Section 3 of his or her own statement to attending at the home address of the witness to take their statement. Section 2 should also be checked to ensure that it does not contain details of an address which should not be disclosed.

15.4 Telephone numbers

15.4.1

These should always be redacted unless:

1. The information is already known to the accused, for example in a domestic matter; or
2. It is essential to proving the charge.

15.4.2

Telephone numbers of witnesses should only be noted in the confidential section of the statement.

15.5 Occupation

15.5.1

This should not be redacted unless:

1. Redaction is considered necessary in order to ensure the safety of a witness, for example where the complainer is the victim of a housebreaking (thus the accused knows their address) and their occupation is a police officer, COPFS employee, prison officer etc.;
2. Disclosure of the occupation may lead to the location of the workplace and that information is irrelevant to the offence.

15.6 Place of work

15.6.1

This should be redacted unless it is relevant to the offence.

15.6.2

This information should normally only be noted in the confidential section of the statement.

15.7 Next of kin/ family history details

15.7.1

There is a presumption that this information should be redacted.

15.7.2

This information should normally only be noted in the confidential section of the statement and should not be disclosed unless the defence advance a case that is based upon such features in any way.

15.8 Medical information

15.8.1

This should be redacted unless it is directly material to the cases, for example where there are injuries sustained by a complainer in an assault case, or where it is relevant to explaining the behaviour of a witness.

15.8.2

Again, this position should be reviewed if the defence advance a case that is based upon such features in any way.

15.9 Where & when a statement was taken and by whom

15.9.1

This should not be redacted unless the information is not disclosable, with reference to the points above, for example, if it would reveal a private address. The police should use general descriptions like “Witness Business Address” or “Witness Home Address” rather than give the actual addresses.

15.10 Security information

15.10.1

The police will occasionally record information that could potentially reveal security aspects of domestic or business premises. This information may be relevant to the crime but very often it is not and disclosure would be inappropriate.

15.10.2

Where such information is contained within a statement, and is irrelevant, it should be redacted. This category will include, for example, information on where a witness stores valuables or keys. It can also include dates where the witness will be on holiday, which should normally be contained within Section 5 of the NSS.

15.10.3

Care should also be taken where the witness does not wish a home address to be disclosed. The police may do so inadvertently by including details of the witness’s movements that refer to the address indirectly in the body of the statement, e.g. “I called in to the Jet garage across the road from my house”. If the visit to the garage was by way of general background but not directly relevant to the facts of the case, this part should be redacted if the witness has indicated that the home address should not be disclosed.

15.10.4

Security information regarding other witnesses in the case should also be redacted.

15.11 Operational information

15.11.1

A witness statement may sometimes reveal information about an ongoing Police operation which, if it were to be known to the accused, may prejudice that operation.

15.11.2

An example would be a witness statement that disclosed what the accused had said to a witness about his involvement in the crime, e.g. his movements or his involvement with a production. It may be necessary, prior to redaction, to check with the Reporting Officer whether or not the line of enquiry that this information may have produced has been completed or whether it would be necessary to consider withholding or redacting the statement until such time as that has been done.

15.11.3

Another common example is where the police have been engaged in surveillance operations that implicate the accused but are not necessarily needed to prove the case against the accused. In those circumstances, the revelation of the existence of the details of the surveillance may prejudice a larger operation of which the case in point may only be a small part.

15.11.4

It is also relevant to consider whether or not disclosure of operational information that might place a member of the public, who is not a witness, at risk, e.g. disclosure of an observation point in a member of the public’s home.

15.11.5

If the information is not relevant to the case against the accused, then it is not disclosable in terms of the materiality test as detailed in paragraph 15.1.1 above and the information may properly be redacted. If it is relevant to the case against the accused but does not fall within the Crown’s obligation of disclosure (e.g. because any relevance which it might have would be wholly incriminatory of the accused), the Crown may redact the statement to obscure that information. If there is any doubt about what information should be redacted the appropriate legal manager should be consulted.

15.11.6

If the information would fall to be disclosed under the materiality test as detailed in 15.1.1 above, the Crown has two options:–

1. to discontinue proceedings; or
2. to seek a non-disclosure/non-notification order/exclusion order as appropriate. Full guidance on these orders can be found in Chapter 25 of this Manual.

15.11.7

If the Crown is not prepared to discontinue proceedings, it is not entitled unilaterally to withhold the information from the defence. The question of whether the information is disclosable (i.e material) can be decided by the Court. However if the summary/solemn legal manager deems the information to be disclosable but considers that disclosure would not be in the public interest the matter should be referred initially to the functional lead (High Court/Sheriff and Jury/Summary) and then the Federation Head,. Thereafter the matter should be reported to the Director of Serious Casework for the attention of Crown Counsel with an appropriate recommendation, for a decision as to how the issue should be addressed.

15.11.8

Where Crown Counsel considers that it is not in the public interest to disclose the information to the accused, Crown Counsel may consider it best that the information be withheld and that an application for a non-disclosure order be made to the court.

15.11.9

If the Court has ruled that the information is disclosable in terms of the materiality test, then careful consideration requires to be given as to whether or not to disclose a redacted version (removing any sensitive and immaterial information). Under no circumstances should a non-redacted version of be made available. It is important however to note that a Court ruling that information is disclosable, is not per se a ruling to disclose the information.

15.11.10

In circumstances where the Crown continues, following a Court Ruling that the information is disclosable, to be of the view that it is not in the public interest to disclose the information (even in a redacted form) a report should be submitted to the Director of Serious Casework for Crown Counsel’s Instructions as to whether or not the case merits risking the Crown being held to have breached it’s disclosure obligations. It should be remembered that breach of the Crown’s disclosure obligations will not always result in an unfair trial in terms of Article 6 ECHR. This approach should only be followed in exceptional circumstances.

15.12 Issues of materiality and admissibility

15.12.1

Issues of materiality and admissibility should not be considered as part of the redaction process. Thus potentially irrelevant material such as hearsay evidence or statement of opinion should be disclosed unless there is any other reason to withhold or redact it. In no case should information which is likely to be of real importance to any undermining of the Crown case, or to any casting of reasonable doubt on it, or which is of positive assistance to the accused be redacted.

15.13 Review of decisions

15.13.1

Any decision to redact information should be reviewed: (a) if the defence request access to the redacted information; or (b) if it becomes apparent, in light of any new information or other developments in the case, that the appropriateness of the redaction should be revisited.

15.13.2

Any such review of a decision to redact information should be taken by the appropriate Legal Manager, depending on the type of case. If there is any doubt about what information should be redacted / disclosed, the matter should be reported to the Director of Serious Casework for Crown Counsel’s instructions.

15.14 Copies of redacted statements

15.14.1

Where a statement has been redacted, a file/hard copy of the redacted statement must be retained for audit purposes.

16.1 Introduction to the scheduling system

16.1.1

In order for the system of disclosure to function correctly, the Crown and investigating agencies must carry out certain distinct functions:

“The duty of the police is simply one of investigation under the supervision of the Procurator Fiscal and the results of the investigation are communicated to the Procurator Fiscal as the inquiries progress…as they are the sole investigators and no more than investigators, it is their duty to put before the Procurator Fiscal everything which may be relevant and material to the issue of whether the suspected party is innocent or guilty…it is not for the police to decide what is relevant and material but to give all the information which may be relevant or material” (Smith v HMA 1852 SC 66 at 71).

16.1.2

As stated in Chapter 3 of this Manual, the police or other investigating agency must, as soon as practicable after first appearance, provide the Crown with the details of all the information that may be relevant to the case for or against the accused that they are aware of which has been obtained (by them or otherwise) during the course of investigating the matter to which the appearance relates (Criminal Justice and Licensing (Scotland) Act 2010 section 117).

16.1.3

Relevant information is that which appears to have some bearing on the offence under investigation or any person being investigated or on the surrounding circumstances unless it is incapable of having any impact on the case.

16.1.4

To assist the Crown in ensuring that it is in a position to satisfy the Court that it has met its disclosure obligations, in all solemn proceedings the investigating agency will provide the Crown with schedules of information detailing all information obtained or generated during the investigation that they consider may be relevant. This must be provided as soon as practicable after the accused appears for the first time on petition or indictment (Criminal Justice and Licensing (Scotland) Act 2010 section 117(2)).

16.1.5

Relevant information will be categorised as either being:

1. Non-sensitive information;
2. Sensitive information (Criminal Justice and Licensing (Scotland) Act 2010 section 122(4)); or
3. Highly sensitive information

Depending on the categorisation of the information, the investigating agency will list the information in one of three schedules:

1. Non-sensitive schedule
2. Sensitive schedule
3. Highly sensitive schedule

16.1.6

Schedules will be prepared and submitted by the investigating agency at key milestones of proceedings as detailed below. It is the responsibility of the reporting officer to collate, review and assess all of the information obtained or generated during the investigation. However, in cases where a Senior Investigating Officer (SIO) has been appointed, the SIO will decide whether a dedicated reviewing officer is required. Where a dedicated Reviewing Officer is appointed, then they will have responsibility for preparing and submitting the schedules. Otherwise this responsibility lies with the Reporting Officer who will perform a dual role as both Reporting Officer and Reviewing Officer.

16.1.7

The Crown must then go through the schedules and confirm and record the appropriate disclosure action. Further information on the completion of the schedules is contained in chapters 34-37 of this Manual.

16.1.8

Finally, once the non-sensitive schedule has been considered and completed by the Crown, it will be disclosed to the defence along with all information that meets the disclosure test. The sensitive and highly sensitive schedules will not be disclosed to the defence, although information listed in either of these schedules may itself meet the disclosure test.

16.1.9

As explained below, schedules will also provide an audit trail and record of all information obtained, revealed and disclosed in the case. Accordingly, where the Case Preparer obtains any information relevant to the case, this should be recorded by the Case Preparer in a separate Crown schedule. Further information in relation to the Crown schedule is contained below at section 16.12.

16.2. Purpose of schedules

16.2.1

The schedules of information will serve as safeguards to minimise the risk of error in revelation and disclosure decisions and in particular will:

1. Impose a discipline on both the investigating agency and the Crown in relation to the handling of information which in itself will reduce the risk of error;
2. Promote the completeness of revelation by requiring the investigating agency to apply a relevancy test which is far wider than the disclosure test later applied by the Crown;
3. Promote the completeness of disclosure by disclosing the schedule of non-sensitive information to the defence, allowing them to make representations (either informally to the Crown or formally to the Court) if they consider that anything listed there (but not disclosed) may be of material assistance to the proper preparation or presentation of the defence case

16.2.2

The investigating agency must keep records of all information obtained or generated during an investigation and the scheduling system provides the police with a structured procedure within which decisions regarding relevancy can be made and recorded.

16.2.3

Similarly, the Crown must keep records of all decisions regarding disclosure in order that (a) decisions can be kept under review; and (b) there is a clear audit trail (which is of particular importance in the context of any appeals proceedings (see for example Murray & O’Hara v HMA (2009 S.C.C.R. 624) in which the Crown did not have an accurate record of what had been disclosed to the defence, in an appeal relating to non-disclosure of evidence). Recording such decisions on the schedules will meet this requirement in solemn proceedings and provide a clear structured approach for staff.

16.2.4

The schedules will also be used to ensure that:

1. The investigating agency have submitted all statements taken;
2. The Crown has actually received all statements submitted by the police;
3. The Crown has considered and, where appropriate, disclosed every material statement submitted by the investigating agency;
4. The police have submitted (where it exists) the “S” (CHS) numbers for all witnesses;
5. The Crown has considered and, where appropriate, disclosed material parts of the Criminal History Record (CHR) obtained from the CHS or the police;
6. The Crown has considered and, where appropriate, disclosed any other relevant piece of information that meets the disclosure test (subject to any public interest immunity considerations).

16.2.5

The schedules will be accompanied by a written undertaking from the investigating agency confirming that all information that may be relevant has been included in the schedules and, to the best of the knowledge and belief of the Reporting/Reviewing Officer, no further relevant information exists. Accordingly, the scheduling system will replace the reconciliation inventories that were previously used in all High Court cases.

16.3 Format of schedules

16.3.1

Each type of schedule will provide the following basic information, which will be completed by the investigating agency prior to submission:

• Name of accused
• Investigating Agency Reference
• PF Reference
• Name of Reporting Officer
• Name of Reviewing Officer who has completed the schedule (unless a dedicated reviewing officer has been appointed, this will be the reporting officer)

16.3.2

Thereafter, the schedule is divided into 2 sections. The first section, which provides details of each item of information, where it is lodged and the date of its submission (if applicable) to the Crown, will be completed by the Reviewing/Reporting Officer prior to submission.

16.3.3

The second section must be completed by the Crown and provides details of the disclosure decision and the date the information was disclosed to the defence (if applicable).

16.3.4

Further more detailed information on the information contained within each of the schedules is contained within Chapters 34-36 of this manual.

16.4 Types of schedules

16.4.1

As stated above, there are 3 types of schedules:

• Non-Sensitive schedules
• Sensitive schedules
• Highly sensitive schedules

Each item of information must be assessed to determine which of the 3 schedules it should be listed on. This assessment will initially be carried out by the Reviewing Officer and that assessment will then be reviewed by the Case Preparer in close consultation with the appropriate solemn legal manager.

16.4.2

Non-sensitive and sensitive schedules will be submitted to the Case Preparer for consideration. Highly sensitive schedules will only be submitted to an appropriately vetted senior prosecutor.

16.4.3

Information is sensitive if, were the item of information to be disclosed, it would be likely to either:

1. Cause the risk of serious injury, or death, to any person,
2. obstruct or prevent the prevention, detection, investigation or prosecution of crime; or
3. Cause serious prejudice to the public interest.

16.4.4

Information is highly sensitive if, were the item of information to be disclosed, it would be likely to either:

1. Lead directly to the loss of life;
2. Directly threaten national security; or
3. Lead to the exposure of a CHIS.

In addition, there may be information that might not fall under these 3 headings, but due to the GPMS⁷ marking that the information attracts, it cannot be revealed to a Case Preparer or legal manager because they do not hold the required level of security clearance. Such information must be included in the Highly Sensitive schedule.

16.5 An overview of the scheduling system

16.5.1

The scheduling system will normally follow the undernoted structure:

Step 1 – COPFS

If, after a case has been submitted to the PF, proceedings are commenced on petition, the PF must intimate this to the Reporting Officer in order that the police can officially commence the scheduling process (template DISCROPET.DOC refers).

Step 2 – Investigating agency

On intimation of the initiation of solemn proceedings, the investigating agency will, if they have not already done so, commence the reviewing and assessment process and the preparation of schedules.

Step 3 – COPFS

As soon as the Case Preparer has been advised of (i) the date by which the precognition is to be reported to Crown Office and (ii) the anticipated date of the preliminary hearing/first diet, the Case Preparer must advise the Reporting/Reviewing Officer of this information (template letter REPPHDATELET.DOC refers).

Step 4 – Investigating agency

The investigating agency will submit the first set of schedules not later than 21 days after CFE, along with the witness statements and S numbers for witnesses. This will be accompanied by a subject report providing a written undertaking that there has been full revelation as of the date of the subject sheet.

Step 5 – COPFS

The Case Preparer, in close consultation with the appropriate solemn legal manager, will go through the schedules and confirm and record the appropriate disclosure action (further guidance is provided in Chapter 36 of this Manual).

Step 6 – COPFS

The Case Preparer will disclose all witness statements and a copy of the completed non-sensitive schedule not later than 28 days after CFE.

Step 7 – Investigating agency

After the initial submission of schedules, the Reporting/Reviewing Officer will continue the reviewing and assessing process (Criminal Justice and Licensing (Scotland) Act 2010 section 118). If any further information is obtained or generated in the course of investigating the accused’s case that may be relevant to the case for or against the accused, the investigating agency must provide the prosecutor with details of it in additional schedules as soon as practicable. The Reviewing Officer will also review all information previously classified as irrelevant to confirm that this classification remains appropriate, having regard to the new information that has been obtained or generated.

Step 8 – Investigating agency

Two weeks prior to the submission of the precognition to Crown Office, the Reporting/Reviewing Officer will submit any additional schedules to the Case Preparer. As before, this will be accompanied by a subject sheet providing a written undertaking that there has been full revelation as of the date of the subject report. If there is no additional information that requires to be scheduled, then a subject sheet will be submitted giving a written undertaking that no further relevant information has been obtained or generated since the submission of the previous schedule or set of schedules.

Step 9 – COPFS

The Case Preparer, in close consultation with the appropriate solemn legal manager, will go through any schedules and confirm and record the appropriate disclosure action. In addition, the Case Preparer will consider all information previously marked as “non-disclosable” in order to confirm that this marking remains appropriate, having regard to the new information that has been obtained/generated by the investigating agency (further guidance is provided in Chapter 36 of this Manual).

Step 10 – COPFS

As soon as reasonably practicable, the Case Preparer will disclose any additional information that meets the disclosure test along with a completed copy of any additional non-sensitive schedules.

16.5.2

Steps 7-10 will be repeated at the following additional milestones:

• 2 weeks prior to the preliminary hearing/ first diet
• 2 weeks prior to the trial

16.5.3

The effectiveness of the scheduling system in all solemn cases is dependant on both the investigating agency and the Crown carrying out its respective steps effectively and timeously.

16.5.4

A timeline setting out the steps detailed above and the stages at which these steps should be carried out is attached at Annex B. This timeline applies to both High Court Cases and Sheriff and Jury cases, regardless of the method by which the precognition is reported.

16.5.5

There will, however, be certain cases where the above-noted structure would not be appropriate, e.g. where there is a high volume of information and schedules need to be submitted in batches. Any move away from the above structure must always be done in liaison between the relevant Solemn Legal Manager and the Reviewing Officer.

16.6 Preparation of schedules by the investigating agency

16.6.1

The Reviewing Officer, who may also be the Reporting Officer, will have responsibility for the reviewing and assessment process which must take place in conjunction with the preparation of schedules.

16.6.2

Officially, this reviewing and assessment process will commence on notification from the PF Office that proceedings have commenced on petition. However, in practice, the investigating agency will commence this process at the earliest possible opportunity where solemn proceedings can be reasonably anticipated. It should be noted that the decision to commence the scheduling process prior to notification from the Crown will be at the discretion of the Reporting Officer or the Senior Investigating Officer.

16.6.3

The reviewing and assessing process will involve examining, inspecting, viewing or listening to all of the information that has been held or generated during the course of the investigation to determine whether:

1. The information may be relevant; and
2. If so, whether the information is sensitive (and, if so, whether it is highly sensitive); and
3. Whether the information is exculpatory in nature i.e. is information that could materially weaken or undermine the Crown case or materially strengthen the defence case.

16.6.4

This process will then inform whether the information needs to be listed on one of the schedules and, if so, which of the schedules.

16.6.5

If, after the schedules have been submitted to the Crown, the Case Preparer does not agree with the categorisation of information, e.g. considers the information to be non-sensitive rather than sensitive, then the Case Preparer must return the relevant schedules to the Reviewing Officer for amendment. This should be accompanied with a covering letter specifying the amendments required. The Case Preparer must consult with the Reviewing Officer first on the reasoning behind the decision to include a piece of information on a particular schedule before coming to a final decision on the need to amend the schedules.

16.6.6

As the final classification of a piece of information will impact on whether the existence of that information is disclosed to the defence (where the information itself has been identified as not being disclosable) and will therefore be critical in ensuring that the Crown has met its disclosure obligations, the final decision regarding the classification must be taken by the Crown. If, however, after consultation, the Reviewing Officer and the Case Preparer remain in dispute regarding the classification, the Case Preparer should consult the appropriate Solemn Legal Manager to confirm that the classification identified by the Case Preparer is the correct one, having regard to any concerns raised by the Reviewing Officer.

16.6.7

Any disputes in classification of a piece of information as being highly sensitive must be addressed by the Functional Lead for High Court/Sheriff and Jury as appropriate.

16.7 Identifying cases as petition cases

16.7.1

It is essential that PF Offices intimate the commencement of petition proceedings at the earliest opportunity in order to ensure that the proper procedures for scheduling are put into effect as soon as possible.

16.7.2

Accordingly, therefore, the appropriate stage for intimating the commencement of petition proceedings is either when:

1. A petition warrant is granted and obtained from the Sheriff Clerk’s office, in which case this should be intimated to the Reporting Officer within 3 working days of receipt of the petition warrant from the Clerks; or
2. Where the accused is reported in custody, proceedings commence by a custody petition, in which case this should be intimated to the Reporting Officer the same day.

16.7.3

It is the responsibility of the Petition/Solemn administrative clerk to advise the Reporting Officer that the case is proceeding on petition. A copy of the relevant template letter is available in the FOS templates on the intranet [DISCROPET.DOC].

16.8 Anticipated reporting, preliminary hearing/ first diet, and trial dates

16.8.1

In all High Court cases, as soon as the Case Preparer is advised of (i) the date by which the precognition is to be reported to Crown Office, (ii) the anticipated date of the preliminary hearing, and (iii) the allocated trial date the Case Preparer must advise the Reporting Officer of this information. Copies of the relevant template letters are available in the FOS templates on the intranet [REPPHDATELET.DOC] and [REPTDATELET.DOC]

16.8.2

In all Sheriff and Jury cases, as soon as the Case Preparer is advised by the relevant Manager of (i) the date by which the precognition is to be reported to Crown Office, (ii) the anticipated date of the first diet, and (iii) the allocated trial date the Case Preparer must advise the Reporting Officer of this information. Copies of the relevant template letters are available in the FOS templates on the intranet [REPPHDATELET.DOC] and [REPTDATELET.DOC]

16.9 Reductions to summary & no further proceedings markings

16.9.1

As soon as a decision it taken to reduce a case to summary proceedings, the Reporting or Reviewing Officer should be advised in order that they can cease the preparation of schedules.

16.9.2

If, at the stage an accused is place on petition, the case marker indicates that this decision should be reviewed prior to full committal and on receipt of statements, the Reporting/Reviewing officer should be advised. It will then be a matter for the discretion of the officer whether to commence completion of the schedules or to await confirmation that the accused is fully committed on petition.

16.9.3

Similarly, as soon as a decision is taken to take no further proceedings in respect of a petition case, the Reporting or Reviewing Officer should be advised in order that they can cease the preparation of schedules.

16.9.4

Where the case is marked for no further proceedings meantime, in order to preserve the position should further evidence come to light, this should be intimated to the Reporting or Reviewing Officer. It will then be a matter for agreement between the Solemn Legal Manager and the Reporting/Reviewing Officer whether schedules should be completed in the interim.

16.10 Submission of schedules by the investigating agency

16.10.1

The investigating agency will submit non-sensitive and sensitive schedules electronically. Highly sensitive schedules will be submitted hard copy.

16.10.2

As detailed above, if after the initial set of schedules are submitted by the investigating agency, further information is brought to the attention of the Reviewing Officer, then an additional schedule listing only this additional information will be submitted.

16.10.3

When the investigating agency submits a schedule, the Reviewing Officer must also provide a written undertaking that to the best of his/her knowledge and belief all relevant information of which they are aware has been revealed to the prosecutor. The written undertaking will also confirm the type or types of schedules submitted. If only a non-sensitive schedule is submitted, the undertaking will also expressly state that there is no sensitive schedule. This undertaking process should be followed on each occasion that a schedule or set of schedules is submitted.

16.10.4

Submission of schedules in stages requires that a structured naming and numbering system is put in place to ensure that the Case Preparer or trial depute is in no doubt where each individual schedule sits in the reporting process for any particular case.

16.10.5

The following naming and numbering protocol of schedules must be followed:

• Fiscal reference number; followed by
• Police/Agency Departmental Code; followed by;
• Schedule type (i.e. NS for non-sensitive, SS for sensitive and HS for highly sensitive); followed by
• Batch number for that type of schedule

16.10.6

Therefore a non sensitive schedule completed by an RVO from A Division CID on the 27 February 2009 would read:

GL12345678 ACID NS 1

• GL12345678 - Procurator Fiscals Reference number
• ACID - Departmental identifier - i.e. A Division CID
• NS - Schedule Type – Non Sensitive – NS, Sensitive – SS, Highly Sensitive – HSS
• 1 - Batch Number – 1, 2, 3, etc

16.10.7

If an additional schedule is to be submitted then the only character of the file name to change will be the last digit to signify that it is in addition to the previous, i.e. GL12345678 ACID NS 2 – Murray & O’Hara v HMA (2009 S.C.C.R. 624) - this signifies that it is the second non sensitive schedule

16.11 Consideration of schedules by the Case Preparer

16.11.1

On receipt of the schedules, the Case Preparer must consider both the schedules and the information obtained within them in order to determine whether and to what extent information should be disclosed. More detailed guidance in relation to the action to be followed by the Case Preparer on receipt of schedules is contained within Chapter 37 of this Manual.

16.11.2

As stated above, any inaccuracies in relation to the content of any schedules, e.g. in relation to the description or where information is listed, must not be corrected by the Case Preparer but should be returned to the Reviewing Officer for amendment.

16.11.3

If any highly sensitive schedules are prepared and submitted, these will be submitted directly to a member of staff with the appropriate security clearance level, who, depending on the level of the GPMS marking, may be the Functional Lead for High Court/Sheriff and Jury as applicable or the Federation Head, or the Director of Serious Casework, who will consider these. The Case Preparer will not be permitted to access this highly sensitive schedule and may not even be advised of its existence.

16.12 Crown schedules

16.12.1

All information obtained or generated during an investigation by the investigating agency or any other party must be listed on a schedule. It is not uncommon, during the course of preparing a precognition, for the Case Preparer to obtain information directly from source, rather than instructing the Reporting Officer to obtain it, e.g. medical records, social work records, tapes of judicial examination, photographs or sketches.

16.12.2

In order for the scheduling process to be effective, such information must be listed on a schedule. However, it would not be practicable to send such information to the Reviewing Officer to place on a schedule, just to be resubmitted to the Crown for consideration. Such a process would be cumbersome, confusing and would lead to unnecessary delays.

16.12.3

Accordingly, where the Crown obtains information directly from source, the Case Preparer must list this information on one of two Crown schedules of relevant information:

1. Non-sensitive Crown schedule [template DISCCROWNNONS.DOC refers],; or
2. Sensitive Crown schedule [template DISCCROWNSS.DOC refers].

Guidance on the type of information that would be non-sensitive is contained in Chapter 34 of this Manual and guidance on sensitive information is contained in Chapter 35.

16.12.4

The Non-sensitive Crown Schedule should be disclosed to the defence in the same way as the non-sensitive schedule prepared by the police or other reporting agency. Where a Crown schedule has been prepared within the 28 days of CFE, e.g. where there has been a judicial examination, the Non-sensitive Crown schedule should be disclosed at this stage. Thereafter, updated versions of the schedule should be disclosed to the defence at the key stages specified in section 16.5 above.

16.12.5

The Sensitive Crown Schedule must not be disclosed to the defence.

16.12.6

Case Preparers should note that forensic reports should be submitted through the Forensic Gateway. Accordingly, the Reviewing Officer will obtain a copy and will schedule the forensic report. There is no requirement, therefore, for the forensic report to be listed in any Crown schedule.

16.13 Disclosure of schedules to the defence

16.13.1

In order to ensure that the Crown has properly discharged its disclosure obligations, the non-sensitive schedule will be disclosed to the defence. This will provide the defence with details of all non-sensitive relevant information that the Crown considers does not meet the disclosure test. The defence can then determine whether they consider the information to be of material assistance to the defence.

16.13.2

If the defence take the view, on reading the description of a piece of information, that it is material information (i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused), then they should, in the first instance, discuss this with the Case Preparer. If after, such discussion, the Case Preparer (in consultation with the appropriate solemn legal manager) agrees that the additional information now meets the materiality test and is disclosable then it should be disclosed.

16.13.3

If, after these discussions, the Crown remains of the view that the information is not disclosable, and the defence considers that the prosecutor has failed to disclose an item of information which is disclosable in terms of the materiality test they may apply to the Court for a ruling on whether the information is disclosable (Criminal Justice and Licensing (Scotland) Act 2010 section 128). Further guidance on applications for Court rulings on disclosure can be found in Chapter 39 of this Manual.

16.13.4

Any additional non-sensitive schedules submitted by the investigating agency must also be disclosed to the defence as soon as is reasonably practicable after receipt.

16.13.5

Under no circumstances must any sensitive or highly sensitive schedules be disclosed to the defence.

16.14 Business processes for schedules

16.14.1

Full business processes for the handling and completion of schedules is contained in the Case Processing Manual. This includes guidance on the mailboxes e-mail system; importing schedules into FOS; how to physically complete schedules; how to export schedules and return to the investigating agency for amendment; and how to disclose the non-sensitive schedule to the defence.

16.14.2

It is absolutely crucial to the Crown’s disclosure duties, that the trial depute is in a position, if asked, to satisfy the court of the time and date on which disclosure has been carried out. The business process detailed in the Case Processing Manual includes a system for recording all disclosure actions and, accordingly, all staff must follow these processes.

16.16 Cases transferred between PF offices

16.16.1

Where a case is received at one PF Office (the originating office) and the decision is taken that the case should be transferred to another PF Office (the receiving PF Office), it is important that the investigating agency are advised of the new PF Reference Number for the case. Otherwise the investigating agency will continue to submit documents, including statements, under the PF reference number for the case in the original office. The new PF office, therefore, would not receive these new statements, and instead they would be received by the original PF office who may not necessarily notice as they will have marked the case as closed.

16.16.2

It should be noted, however, that all documents electronically submitted to the original PF reference before the case is transferred will be transferred to the receiving PF Office as part of the case papers.

16.16.3

It is the responsibility of the originating PF Office to advise the Reporting Officer of the new PF number for the case. The originating PF office obtains this at the stage the case is transferred. Thereafter, it is the responsibility of the Reporting Officer to ensure that all documents submitted to the PF thereafter are submitted under the new PF reference number.

16.16.4

As a matter of best practice, where the receiving office takes the decision to place a transferred case on petition, the receiving office should also advise the Reporting Officer of the new reference number.

16.17 Submission by the investigating agency of updated versions of statements already submitted

16.17.1

As a general principle, the investigating agency should not submit a statement to the Procurator Fiscal until the content of the statement has been authenticated and, where applicable, that the typed version of the statement is a true and accurate reflection of the original handwritten statement from which the typed version has been created.

16.17.2

On occasion, however, in order to meet strict timescales (primarily in relation to petition custody cases where the essential statements are required by the Procurator Fiscal in order to determine whether there is sufficient evidence for full committal), the investigating agency might submit a statement without this authentication process being carried out. In such circumstances, the authentication process will be carried out after the statement has been submitted to the Procurator Fiscal. Where there is a mistake in the statement or something has been accidentally omitted, it may be necessary to submit an updated version of the statement.

16.17.3

Where the Reporting Officer requires to submit an updated version of a statement, the following procedure must be followed:

1. The Reporting Officer must advise the Solemn Legal Manager of the need to resubmit the statement and must clearly specify the reason(s) why the statement requires to be resubmitted and, where it is due to an inaccuracy in the typed statement, specific details of the inaccuracy should be provided;
2. If the Solemn Legal Manager agrees that the statement should be resubmitted, they should make arrangements for the Help Desk to be contacted and advised that a new version of the statement is to be submitted. Help Desk will then rename the first version submitted as “superseded-statement-for-…”. This will enable the COPFS system to accept the new version of the statement.

16.17.4

If the Reporting Officer submits an updated statement without following the above procedures, the statement will not be received by the COPFS system. Instead the investigating agency will receive an automatic message advising them that the statement has been rejected. In addition, a central COPFS report will be created on a daily basis listing all cases where statements have been automatically rejected. This information will then be passed to the relevant offices.

17.1 General obligations & timing of disclosure

17.1.1

The general practice adopted by the Crown in relation to the provision of criminal history records (previous convictions and outstanding charges) to the accused’s representatives is set out in this Manual.

17.1.2

In law, the Crown is only obliged to disclose those parts of a criminal history record that fall within the parameters of the materiality test i.e. information which is likely to

• materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• materially strengthen the defence case; or
• form part of the evidence to be led by the prosecutor in the proceedings against the accused,

A generous approach to assessing materiality should be adopted, and only those parts of the record which are immaterial and sensitive will be withheld. Section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010 defines sensitive information as that which if it were to be disclosed would constitute a risk of (a) causing serious injury, or death, to any person; (b) obstructing or preventing the prevention, detection, investigation or prosecution of crime; or (c) causing serious prejudice to the public interest. Guidance in relation to redaction of criminal history records to remove immaterial and sensitive parts of the record is contained in Chapter 19 of this Manual.

Timing

17.1.3

In all summary cases, the Crown should obtain criminal history records, i.e. details of previous convictions and outstanding charges (PCOCs), in respect of all civilian and professional, expert or official witnesses cited for trial. Where the accused is on bail or ordained to appear, the Crown should provide the defence with copies of all material criminal history records as are then in the possession of the Crown not less than 28 days before the Intermediate Diet.

17.1.4

In all summary cases where the accused is remanded, the Crown should provide the defence with copies of criminal history records (subject to redaction of immaterial and sensitive information) as are then in the possession of the Crown and are suitable for disclosure, not less than 7 days before the Intermediate Diet.

17.1.5

In all solemn cases, the Crown should obtain criminal history records in respect of all civilian and professional, expert or official witnesses listed on the provisional list of witnesses. The Crown should provide the defence with copies of criminal history records (subject to redaction of immaterial and sensitive information) in respect of all civilian witnesses listed on the indictment as are then in the possession of the Crown, when the indictment is served on the accused.

Content of disclosure

17.1.6

The Crown should provide the defence with copies of criminal history records (subject to redaction of immaterial and sensitive information) of all civilian witnesses that the Crown are citing for trial in summary cases or are listed on the indictment in solemn cases. Full guidance on the considerations to apply when redacting criminal history records is contained in Chapter 19 of this Manual.

17.1.7

Criminal history information should be obtained at the same time as statements in order that it can be considered during the precognition process. There is no requirement to obtain a more up-to-date criminal history record at the stage of disclosure, but should any new information in respect of a witness’s criminal history come to the attention of the Crown during the proceedings, this should be disclosed.

For the purpose of this Manual, there is no distinction to be made between previous convictions, outstanding charges, direct measures and police fixed penalties (Murtagh v HMA, ([2009] U.K.P.C. 35)).

17.1.8

The Crown will provide details of the information recorded on the Criminal History System (CHS) at the beginning of the prosecution. There is no requirement to provide information held on any other criminal database such as PNC (Police National Computer) unless this has been specifically brought to the Crown’s attention. Nor is there any requirement to seek further information from the CHS or to carry out regular checks on the COPFS National Database against witnesses, unless the defence specifically requests this and that request provides reasonable grounds for believing that the position may have changed significantly since the original disclosure.

17.1.9

Guidance on the considerations to apply when redacting criminal history information is contained in Chapter 19 of this Manual.

17.2 When to obtain and when to disclose

17.2.1

The extent to which criminal history records are to be obtained and disclosed depends on the nature of the witness and the evidence he or she is likely to give.

17.2.2

Witnesses will fall into one of two categories in the police report:

• Civilian
• Police

The action to be taken on obtaining and disclosing criminal history records will depend into which particular category the witness falls.

17.3 Civilian witnesses

17.3.1

Details of criminal history information should be obtained in respect of all civilian witnesses either:

1. listed on the provisional list of witnesses in solemn cases; or
2. marked for citing in a summary case.

17.3.2

The general rule is that all convictions, outstanding charges and direct measures should be disclosed unless the information (a) is immaterial and sensitive or (b) should be withheld in the public interest.

17.3.3

Where the witness is a victim of a crime to which section 288(C) of the Criminal Procedure (Scotland) Act 1995 applies, details of previous convictions and/or outstanding charges should be routinely obtained and considered for disclosure in the usual way. Taking into account the terms of section 274 of the Criminal Procedure (Scotland) 1995 Act, the defence would need to make an appropriate application to the court under section 275 of the same Act to allow the material to be used in the course of the trial.

17.3.3

Guidance on the materiality considerations to apply is contained in Chapter 19 of this Manual.

17.4 Police witnesses

17.4.1

Particular guidance on criminal history records for on-duty police officers is contained in Chapter 20 of this manual.

17.4.2

Where a police officer is a witness to an offence and is off-duty at the time, he/she should be classified as a civilian witness, e.g. victim of housebreaking, vandalism, assault etc. Where, however, an off-duty police officer witnesses an offence and intervenes in his or her capacity as a police officer, i.e. placing himself or herself on duty in order to apprehend an accused who has just assaulted someone, then they should be classified as a police witness.

17.5 Cases submitted by specialist reporting agencies

17.5.1

Where the case is one reported by a specialist reporting agency, e.g. HMRC, DWP, TV Licensing Authority, Health & Safety Executive etc, ‘S’ (CHS) numbers for civilian, professional, expert and official witnesses should be requested from the police case management divisions.

17.6 Recording of CHRS on schedules

17.6.1

In terms of Section 2 of the Data Protection Act 1998, sensitive personal data includes information about (i) the commission or alleged commission by that person of any offence and (ii) proceedings for any offence committed or alleged to have been committed by a person, the disposal of such proceedings or the sentence in such proceedings.

17.6.2

On that basis, where a witness (civilian incl. professional, expert or official, or police) has a criminal history record, the existence of that record will be recorded in the sensitive schedule.

17.6.3

However, as criminal history records for witnesses who are cited as witnesses will always be relevant and potentially material, it is essential that the defence are advised of the existence of a criminal history record where the witness is listed on the indictment and the record is considered to be wholly immaterial as stated in paragraph 17.8.3 below.

17.7 What should be disclosed as part of the criminal history record

17.7.1

The criminal history record that is received from CHS contains a number of different sections. The format of the criminal history record and guidance on what should be included in the disclosure copy is contained in Chapter 18 of this Manual.

17.7.2

Where a witness has a criminal history record and redaction is appropriate for one or more of the convictions/charges/direct measures, it must be obvious on the face of the record that something has been redacted.

17.7.3

Where redaction is necessary and the result is that the entire record is redacted, there is no value in providing the defence with a redacted copy. Instead, the defence should be advised that the Crown have considered the information about the witness but have decided that this information has no relevance and accordingly it will not be provided to the defence.

17.7.4

Guidance on the considerations to apply when redacting criminal history records is contained in Chapter 19 of this Manual.

17.8 Checking accuracy of criminal history record with the witness

17.8.1

It is not necessary routinely to check with witnesses, prior to disclosure, that their record is accurate.

17.8.2

If, at the time of carrying out the CHS search, the police locate a ‘S’ (CHS) number for a witness and they have concerns that this might not be accurate, the police should provide the ‘S’ (CHS) number in Section 4 of the National Standard Statement and should state in Section 6 of the NSS that they have concerns regarding the accuracy of the record. Section 6 should also contain the reasons for these concerns.

17.8.3

Where the police have highlighted concerns regarding the accuracy of the ‘S’ (CHS) number, the record must be checked with the witness. The record should not be disclosed to the defence until this has been done.

17.8.4

This should be done by sending a copy of the schedule to the witness with covering letter WITPCOCSLET. If the witness does not respond within 21 days, then the record should be deemed to be accepted.

17.8.5

If the witness replies disputing that the record, or any part of it, is theirs, then the Reporting Officer should be instructed to take this up with CHS. In the meantime the disputed part of the record should not be disclosed. For the avoidance of doubt, the non-disputed part of the record can be disclosed.

17.8.6

In such circumstances, the police should be advised of the need to carry out checks with CHS at the earliest opportunity so as to minimise any delay to the trial.

17.9 Multiple accused

17.9.1

Where there are multiple accused in a case, it is not necessary to determine whether or not a witness is only giving evidence against one of the accused, prior to disclosure. Where a witness’s record is to be disclosed, it should be disclosed to the representatives of all the accused in the case.

17.10 Co-accused as a witness

17.10.1

Where there are multiple accused in a case, and a plea is accepted from an accused, and that accused is to be called as a witness, consideration must be given to disclosing his/her criminal history record.

17.10.2

Criminal history information of a former accused should be disclosed on request subject to the redaction principles set out in Chapter 19 of this Manual. However, it will not be sufficient to provide the remaining accused’s representatives with a copy of the schedule prepared for the court as this will (a) not include pending cases and (b) not have been considered in terms of the redaction principles.

17.11 Criminal history records for defence witnesses

17.11.1

It is standard policy, where the Crown has obtained details of defence witnesses, to advise the investigating agency to obtain statements from and criminal history records for these witnesses.

17.11.2

Where the Crown obtains a defence witness’s record, it must be disclosed to the defence in the same way as that of a Crown witness. Prior to disclosure, the criminal history record must be considered, and redacted, if appropriate in terms of the principles set down in Chapter 16 of this Manual. This approach was fully endorsed by the Privy Council in HMA v Murtagh in which Lord Rodger stated at paragraph 70 that the “spontaneous disclosure [of records for defence witnesses] was fully justified on the basis that it ensures equality of basic relevant information and, hence, of arms between the Crown and the defence”.

17.11.3

Where a statement and criminal history record are being requested for a defence witness, the statement will be submitted along with the ‘S’ (CHS) number for that person. The CHS record should then be obtained from CHS using the electronic link between CHS and FOS. Where, however, only the record is requested or the case is no longer in FOS, the investigating agency should be asked to submit the actual criminal history record for the defence witness and not just the ‘S’ (CHS) number.

17.12 Release of material

17.12.1

Where any disclosure of criminal history records is to be made, it should be conditional on the information only being used for the limited purpose of the proper preparation and presentation of the case in which disclosure is made. This is clearly specified in the Article 11 of the Code of Conduct in Criminal Work. The guidance note attached to Article 11 states that “solicitors are reminded that, in receiving documentation, material or recordings from the COPFS, or other third parties, that they are accepting an implied undertaking to comply with the terms of this Article”.

17.12.2

Guidance on the method by which the information should be disclosed to the accused’s legal representative is contained within Chapter 11 of this Manual.

17.13 Advising witnesses that criminal history records may be disclosed

17.13.1

When a witness is cited for trial, they will receive a leaflet setting out what is involved in being a witness. There are leaflets for Justice of the Peace Court, Sheriff Court, Sheriff & Jury Court and High Court. Each of these leaflets advises the witness that the accused’s representative is usually entitled to receive details of any previous convictions or pending cases that the witness might have. The leaflets also confirm that the court will not always allow such information to be referred to at trial but may do so if it considers that it is relevant to the evidence that the witness will be giving.

18.1 Electronic Link to Criminal History System

18.1.1

The Crown now has direct access when a case is in FOS or SOS to CHS and, where the Crown has an ‘S’ (CHS) Number, it can request the criminal history record attached to that ‘S’ (CHS) Number. Accordingly, prior to submitting witness statements, the Police will carry out a CHS check for all civilian witnesses marked for citing. In most cases, the Police will routinely provide the ‘S’ (CHS) number, not the record itself. Staff should then obtain the record direct from CHS.

18.1.2

When the Police prepare statements, there will be an entry in section 4 of the National Standard Statement for inserting details of the witness’s ‘S’ (CHS) Number. This is a mandatory field which must always be completed by the submitting officer.

18.1.3

Where the witness is either a police witness or a “professional/ expert/official” witness, this field will always be completed as follows: “’S’ Number: Not Requested”. Therefore it is very important to ensure that a witness is properly categorised at the time statements are requested from the police.

18.1.4

Where the witness is a civilian witness, this field will either be completed as “’S’ Number: S12345/67E (this will be the unique ‘S’ (CHS) number for the witness) or as “’S’ Number: No Note of Convictions”.

18.1.5

Where a statement is submitted with an ‘S’ (CHS) Number, this number will be automatically populated into the relevant field in the witness record in FOS/PROMIS. Staff should then request criminal history records for such witnesses from the CHS.

18.1.6

Statements are normally electronically submitted as individual statements in the National Standard Statement format. If, however, the statement is submitted by any other means, the ‘S’ (CHS) number in the statement will not be automatically populated into the witness record in FOS/PROMIS. This would include where the statement is submitted by any of the following means:

1. Electronically in one document containing a batch of statements;
2. Electronically attached to a subject sheet;
3. By any means under a different PF reference number, e.g. where there is an associated criminal or death case;
4. Hard copy only, e.g. statements from Scenes of Crime Officers; or
5. On CD-Rom

18.1.7

Where a statement has been submitted by any of the above means for, the ‘S’ (CHS) number, will have to be manually added to the relevant field in the witness record in FOS/PROMIS in order that the criminal history record can be obtained. This S Number may have to be requested from Police Scotland if necessary.

18.1.8

Once the records are requested, these will then be electronically submitted by CHS, and will be available in FOS for redaction. Staff should be aware that criminal history records can now be obtained directly from the CHS once a case has been transferred from FOS to SOS-R. Full details of the processes to achieve this can be found in the Case Processing Manual chapter Q4.

18.1.9

On receipt of the criminal history record, staff will have access to a variety of information that they can then pull into a final record. This final record can then be considered and, if appropriate, redacted prior to disclosure to the defence.

18.2 Content of the CHS record

18.2.1

The CHS record initially received from the CHS will provide the following information:

• Personal Details: ‘S’ (CHS) Number, Date of Birth, Forename and Surname
• Home address
• Firearms details
• Gender
• Number of cases and number of antecedents
• Alias details (names, dates of birth and addresses)
• Warning Signals
• Pending Cases Section (this relates to pending cases that have not yet been reported to the Fiscal)
• Bail Details Section
• Fiscal Pending Cases Section (this relates to pending cases that have been reported to the Fiscal, but proceedings have not yet commenced)
• Court Records Section (this relates to pending cases where proceedings have commenced)
• Disposal Records Section

18.2.2

Not all of this information requires to be disclosed to the defence.

18.2.3

Once the CHS record has been received, staff should create a final copy of the record. This disclosure copy will then be disclosed to the defence subject to the principles of redaction set out in Chapter 19 of this Manual. Details of what information must always be excluded and what information must always be included are detailed at paragraphs 18.2.5 and 18.2.6 below. While a legal member of staff must then consider the CHS record for redaction purposes, a member of either legal or administrative staff can create the pre-redaction record.

18.2.4

Some of the information listed at paragraph 18.2.1 should never be disclosed to the defence. As there is no obligation to disclose it, however, it need not be obvious on the disclosed record that the information has been removed. Accordingly, when creating the final record, staff can elect to exclude certain information from the final print out.

18.2.5

The following information should always be excluded from the final record:

• Home address of the witness
• Firearms details
• Gender
• Number of cases and number of antecedents
• Alias details (names, dates of birth and addresses)
• Warning Signals
• Bail Details Section

18.2.6

The following information should always be included in the final record:

• Personal Details: ‘S’ (CHS) Number, Date of Birth, Forename and Surname
• Pending Cases Section
• Fiscal Pending Cases Section
• Court Records Section
• Disposal Records Section

18.2.7

Although this information must always be included in the final record, some of the information may not be suitable for disclosure on applying the redaction principles set out in Chapter 19 of this Manual. It must be obvious on the face of the copy provided to the defence that this information has been redacted. It is on this basis that it must be selected for inclusion in the final record. If it is removed at the stage of creating the final printout, it will simply not be included in the record and, thus, it will not be obvious that it has been removed.

18.3 Pre-redaction CHS record

18.3.1

Once the pre-redaction CHS record has been created, containing the sections referred to in paragraph 18.2.6, it can be checked to determine whether any of the pending cases or previous convictions should be redacted, applying the principles set out in Chapter 19 of this Manual.

18.3.2

Detailed guidance on how to redact a previous conviction or outstanding charge is contained in the Case Processing Manual.

19.1 General Principles

19.1.1

This Chapter should be read in conjunction with Chapter 5 of this Manual.

19.1.2

Only the sensitive immaterial information contained within the criminal history record should be redacted along with any material that Crown Counsel have instructed should not be disclosed in the public interest. Section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010 defines sensitive information as that which if it were to be disclosed would constitute a risk of (a) causing serious injury, or death, to any person; (b) obstructing or preventing the prevention, detection, investigation or prosecution of crime; or (c) causing serious prejudice to the public interest

19.1.3

Since the decision in Holland v HMA that criminal history records are a class of information that is always disclosable, the Privy Council has clarified that this obligation only requires the disclosure of such previous convictions, outstanding charges and direct measures, if any, as materially weaken the Crown’s case or materially strengthen the defence case.

19.1.4

In HMA v Murtagh, the Privy Council also recognised that the system whereby the Crown makes the initial decision regarding materiality of criminal history information is compatible with the accused’s right to a fair trial (paragraphs 35 and 40).

19.1.5

As stated by Lord Hope of Craighead in HMA v Murtagh, the materiality of criminal history information must depend on whether the information could have any bearing on the credibility or character of the witness (paragraph 30).

19.1.6

Any previous conviction, outstanding charge or direct measure which would be relevant to a legitimate attack on the credibility or character of a witness must always be considered as disclosable. However, when determining the materiality of a previous conviction, outstanding charge or direct measure, the Crown should not exclude everything to which objection might possibly be taken on the ground that it was not relevant as any decision as to what may be used to support an attack on credibility or character is a matter for the Court. Accordingly, a generous approach should be applied when determining whether information is material or not (paragraph 31).

19.1.7

Disclosure of a previous conviction, outstanding charge or direct measure, however, does not reflect an admission or concession that the previous conviction, outstanding charge or direct measure is relevant either to the issues in the case or to the credibility or reliability of the witness. Deputes should, where appropriate, take objection to reliance on the criminal history of a witness where there are good grounds for doing so. As stated by Lord MacFadyen in Maan Petitioners (2001 SCCR 172), provided witnesses’ previous convictions are relevant to a legitimate attack on character or their credibility, then they would be relevant to the accused’s defence. This principle will, of course, extend to outstanding charges and direct measures.

19.1.8

In HMA v Murtagh the Privy Council also stated that it was not necessary for the Crown to redact all immaterial information from a criminal history record prior to disclosure. As stated by Lord Hope of Craighead at paragraph 37,

“…the balance is in need of adjustment towards a general working rule that only those parts of the criminal history should be withheld that are likely to be embarrassing or damaging to the witness if disclosed to the defence and do not satisfy the test of materiality”.

19.1.9

In addition, Lord Rodger of Earlsferry stated at paragraph 61:

“In my view, the Crown can properly and prudently proceed on the basis that, unless some particular conviction is both immaterial and potentially sensitive, the wiser and more appropriate course is to disclose all the previous convictions of witnesses on the Crown list”.

19.1.10

Accordingly, when deciding what information within a criminal history record should be disclosed to the defence, the Crown must consider:

1. What information is material;
2. Whether any of the remaining immaterial information is potentially sensitive and therefore non-disclosable; and
3. Whether there is any reason in the public interest why any of the material information should be withheld.

Thereafter, only the sensitive immaterial information should be redacted along with any material information that Crown Counsel have instructed should not be disclosed in the public interest.

19.1.11

Annex M provides a flowchart setting out the considerations to apply when considering criminal history records for redaction purposes.

19.1.12

The next parts of this Chapter will provide guidance on each of these 3 considerations, along with guidance on what parts of the criminal history record must be considered for disclosure.

19.2 What should be considered for disclosure

19.2.1

The Crown must apply the materiality test to the following information recorded on the criminal history record;

1. Outstanding Charges (Holland v HMA);
2. Previous Convictions including absolute discharges (Holland v HMA);
3. Children’s Hearing Appearances
4. PF Direct Measures, including warnings; and
5. Fixed penalties issued by the police or other specialist reporting agency (HMA v Murtagh).

19.3 Previous Convictions & the Rehabilitation of Offenders Act 1974

19.3.1

Section 4 of the Rehabilitation of Offenders Act 1974 protects a person who has been convicted of an offence from being asked any questions, during any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain, relating to his or her past which cannot be answered without acknowledging or referring to a spent conviction. Section 7, however, clearly states that the section 4 does not “affect the determination of any issue, or prevent the admission or requirement of any evidence, relating to a person’s previous convictions or to circumstances ancillary thereto…in any criminal proceedings before a court in Great Britain (including any appeal or reference in a criminal matter)”.

19.3.2

Accordingly, a spent conviction should not be redacted from the schedule of previous convictions and outstanding charges merely by virtue of it being spent. The materiality considerations set out in section 19.6 below should instead be applied.

19.4 Children’s Hearing appearances & pending cases against children

19.4.1

If a child commits a criminal offence and an order is made in terms of the Children’s Hearing system, this order will remain on the child’s criminal history record until the child turns 16 years of age at which point it will be removed from the record unless one of the following exceptions apply:

1. A supervision order requirement is imposed; or
2. The disposal was made in a criminal court and not within the Children’s Hearing System.

19.4.2

Where one of these exceptions apply, the supervision order or criminal conviction will remain on their criminal history record until either:

1. The supervision order/conviction has been held on the system for 20 years; or
2. The person has reached 40 years of age (whichever is longer).

19.4.3

Children’s Hearing appearances should not be redacted from the schedule of previous convictions and outstanding charges, unless the appearance falls to be redacted for other reasons.

19.4.4

Similarly, outstanding charges for children under the age of 16 years should not be redacted, unless the pending case falls to be redacted for other reasons.

19.5 Direct measures, police fixed penalties & the Rehabilitation of Offenders Act 1974

19.5.1

Although Lord Hope of Craighead recognised, in HMA v Murtagh, that almost every case in which an alternative to prosecution has been utilised will be trivial and of no materiality because they will have no real bearing on the witness’s character or credibility, he also recognised at paragraph 38 that there could be no fixed rule on this point and, accordingly, “the materiality principle applies to this aspect of a witness’s criminal history record in the same way as it does to the rest”.

19.5.2

Lord Rodger also stated at paragraph 68 that:

“So far as outstanding charges, fiscal fines and other alternatives to prosecution are concerned, the same general approach should be applied [as for previous convictions]…Article 6(1) requires that they should all be disclosed where they are material, but not otherwise. Again, however, the Crown can in their discretion disclose other non-sensitive information”.

19.5.3

By their nature, most direct measures will not meet the test for materiality. But some will. Although acceptance of a direct measure is not an acceptance of guilt, the existence of a direct measure may, depending on its nature, provide a proper basis for legitimate defence inquiry.

19.5.4

For example, a direct measure relating to an attempt to pervert the course of justice could legitimately be deployed by the defence in the context of an attack on the witness’ credibility. Similarly a direct measure relating to an attempt to wasting police time or breaching a court order, although rare, would require to be disclosed. Also recent direct measures against an eye witness relating to possession of drugs could found a legitimate line of cross-examination relating to the witness’ reliability.

19.5.5

Schedule 3 to the Rehabilitation of Offenders Act 1974 provides the framework in respect of ‘rehabilitation’ of alternatives to prosecution. Schedule 3 defines when an alternative to prosecution becomes spent; what protection is afforded to persons in relation to spent alternatives to prosecution; and the limitations to that protection. In essence the limitations for alternatives to prosecution mirror those laid down in section 7 in respect of convictions i.e. ‘rehabilitation’ does not “affect the determination of any issue, or prevent the admission or requirement of any evidence, relating to a person’s previous convictions or to circumstances ancillary thereto…in any criminal proceedings before a court in Great Britain (including any appeal or reference in a criminal matter)”.

19.5.6

Accordingly, a spent alternative to prosecution should not be redacted from the schedule of previous convictions and outstanding charges merely by virtue of it being spent. The materiality considerations set out in section 19.6 below should instead be applied.

19.6 Assessing materiality

19.6.1

Criminal history information may be relevant and material for one of two reasons:

1. It potentially bears on an issue in the case; or
2. It may legitimately be used to attack the credibility or reliability of the witness.

The Crown should assess each piece of criminal history information and decide whether or not that piece of information is material on one of these grounds. If the Crown does not consider that the information is material that information should not be disclosed. A generous approach should be taken when determining materiality. Where the issue of disclosure is one of fine judgement or balance, then the Crown should disclose the information.

Criminal history information bearing on an issue in the case

19.6.2

Criminal history information bearing on an issue in the case should always be disclosed. For example, where the accused is charged with assault criminal history information of the complainer which indicates or may indicate a violent or quarrelsome disposition should be disclosed, since it may be relevant to issues of provocation or self defence (HMA v Murtagh at para 30). This will include information relating to crimes of violence, breaches of the peace and possession of knives or offensive weapons.

Criminal history information bearing on credibility

19.6.3

Criminal history information which could reasonably be considered to bear on the credibility of the witness should be disclosed. The question in any case is whether or not the information could legitimately be relied upon by the defence in an attack on the credibility of the witness at trial. Convictions, outstanding charges or direct measures for dishonesty or against the administration of justice will always require to be considered for disclosure. Other convictions which could be founded upon to attack the general character of the witness should also be considered for disclosure. Again, when determining what information is relevant to an attack on the credibility of a witness, a generous approach should be taken as the final decision on what may be used to support an attack on the credibility or character of a witness is a matter for the sheriff or the judge at trial (HMA v Murtagh at para 31).

19.6.4

It is legitimate for the Crown, when considering whether a particular piece of criminal history information is material, to have regard to the totality of the witness’s record. So, for example, the Crown may properly take the view that elderly convictions for relatively minor offences – except offences of dishonesty – are immaterial if the witness has no recent criminal record. The Crown may properly take the view that such offences are of no relevance to the question of whether the witness is likely now to tell the truth in court. This was specifically recognised by Lord Hope of Craighead in HMA v Murtagh who stated at paragraph 32 that:

“A conviction for an offence many years ago which was, on any view, of a trivial nature only and was not repeated would fall well outside the threshold of what was relevant”.

Offences for dishonesty, however, must always be disclosed regardless of the age of the offence as these will always be relevant to an attack on credibility (HMA v Murtagh at para 30).

19.6.5

On the other hand, a catalogue of significant recent offending, even if it does not involve dishonesty in the narrow sense may fall to be disclosed on the basis that it reveals contempt for the law and general depravity of character. As stated by Lord Rodger of Earlsferry at paragraph 61 in HMA v Murtagh,

“While no individual minor conviction may be of any significance, a long trail of even minor infractions may sometimes point to a certain disregard for the law that may be of legitimate interest to the defence”.

19.6.6

Accordingly, convictions, outstanding charges or direct measures for attempts to pervert the course/ defeat the ends of justice, wasting police time, false oaths or accusation, perjury, fraud and other crimes involving dishonesty or indicating a propensity towards dishonesty should be disclosed irrespective of the age of the conviction.

19.6.7

Convictions, outstanding charges or direct measures for crimes which are not crimes of dishonesty in the narrow sense require to be disclosed if they could legitimately, individually or cumulatively, be relied upon to attack the credibility of the witness. Such an attack might be mounted on the ground that the pattern of offending reveals contempt for the law or general depravity of character. In this context, the proximity in time, frequency and nature of the offending will require to be considered and a judgment made as to whether or not the information is material. Supply offences under the Misuse of Drugs Act will require to be disclosed under this head on the basis that, though they are not offences of dishonesty in the narrow, sense, they indicate participation in a dishonest trade. A single road traffic offence would not normally be material, but repeated convictions in the recent past for offences such as driving while disqualified and without insurance should be disclosed, on the basis that such offending, if repeated, indicates a contempt for the law.

19.6.8

Similarly any convictions or outstanding charges for breaches of court orders, including breaches of bail and failures to appear, should be disclosed regardless of the age of the conviction on the basis that such offending, whether repeated or not, indicates a contempt for the court.

Criminal history information bearing on reliability

19.6.9

Criminal history information which could legitimately be used to attack the reliability of the witness should also be disclosed. So for example, recent convictions, outstanding charges or direct measures relating to the misuse of drugs may, in the case of an eye witness, be disclosable, since they may provide a basis for cross-examination as to whether the witness had been taking drugs at the time of the incident and whether this affected the witness’s reliability. Similarly, if an eye-witness has a number of recent convictions for being drunk and incapable, this would be disclosable as, again, it may provide a basis for cross-examination as to whether the witness had been drunk and incapable at the time of the incident.

19.7 Determining what to redact on the basis of sensitivity

19.7.1

Following an initial assessment regarding the materiality of information contained within a witness’s criminal history record, the Case Preparer must then consider what of the immaterial information is potentially sensitive and therefore should not be disclosed to the defence.

19.7.2

The sensitivity of a previous conviction or an outstanding charge may be determined by either the nature of the conviction or charge or by reference to the material information that is being disclosed.

19.7.3

If there is any doubt regarding the sensitivity of a conviction/charge/ direct measure or any part of a record, this should initially be referred to the appropriate legal manager to consider whether a report should be submitted to the Director of Serious Casework for Crown Counsel’s instructions.

Sensitivity based on the nature of the conviction or charge

19.7.4

Any immaterial previous conviction or outstanding charge which might impact on the witness’s safety or lifestyle or which could seriously affect the witness’s relationship with others such as his/her neighbours, employer or members of his/her family will be sensitive and therefore should be redacted (HMA v Murtagh at para 32).

19.7.5

Examples would include where the disclosure of a conviction or charge might affect a witness’s employment, business or economic well-being; a witness with an immaterial conviction, outstanding charge or direct measure of a sexual nature that may be unknown to their family or within their community.

19.7.6

Additional examples include convictions of a prostitute under section 46 of the Civic Government (Scotland) Act 1982 for loitering or soliciting in a public place; convictions for consensual sexual acts committed by men in private before such acts were decriminalised; and convictions for shamelessly indecent conduct which falls outside the limits of public indecency as described in Webster v Dominick (2005 JC 65) and does not otherwise remain criminal.

Sensitivity by reference to the material information being disclosed

19.7.7

In addition to identifying those immaterial convictions, outstanding charges and direct measures that are sensitive due to the nature of the charge, the Case Preparer or depute must also consider whether the remaining immaterial convictions, charges or direct measures are sensitive by reference to the material convictions/charges/ direct measures already being disclosed.

19.7.8

In HMA v Murtagh Lord Rodger of Earlsferry recognised at paragraph 59 that:

“When the schedule already reveal convictions for dishonesty or violence, witnesses are scarcely going to be concerned if the Crown also reveal some trivial conviction for, say, breach of the peace”.

Where, therefore, there is a significant a number of material convictions, charges and/or direct measures being disclosed to the defence, this will reduce or even negate the sensitivity of the remaining information, i.e. if the witness has a number of convictions for dishonesty which require to be disclosed and a few additional immaterial convictions, e.g. for road traffic offences, then, in light of the information already being disclosed, these road traffic offences would not be considered to be of concern to the witness and therefore could be disclosed on the basis that they are non-sensitive.

19.7.9

Conversely, if the witness has no material convictions, outstanding charges or direct measures, then the disclosure of any remaining immaterial information might be of concern, and therefore sensitive, to the witness. As disclosure of such information would not be necessary to ensure a fair trial, then the immaterial information should be redacted on the basis that it is sensitive information, i.e. the whole record should be withheld and the defence should be advised of this.

19.7.10

Similarly, if a witness has a relatively small number of material convictions, outstanding charges and/or direct measures, but a substantially greater number of immaterial convictions, charges or direct measures also exist, then there is a reasonable expectation that the disclosure of this remaining immaterial information might be of concern to the witness. In such circumstances, the balance may lie in the non-disclosure of the immaterial information on the basis that it is sensitive information. Although, in such circumstances, it must always be borne in mind that a generous approach towards disclosure should be applied.

19.8 Non-disclosure of material information in the public interest

19.8.1

Notwithstanding the material nature of criminal history information, circumstances may exceptionally arise where the Crown considers that public interest immunity should be claimed, for example where disclosure of the information could create a threat to life and limb of a witness or other persons. Where this arises, the matter should be referred initially to the, functional lead (High Court/Sheriff and Jury/Summary) and then the Federation Head for consideration of a referral to the Director of Serious Casework including a report for the attention of Crown Counsel, with an appropriate recommendation, for a decision as to how the issue should be addressed.

19.8.2

A non-disclosure/non-notification/exclusion order (as appropriate) may be applied for (note exclusion orders can only be sought in solemn cases) upon an instruction to do so from Crown Counsel via the Director of Serious Casework.

19.8.3

Full guidance in relation to the process to follow where the Crown is seeking to withhold material information is contained in chapter 25 of this Manual.

19.9 Disclosure to the defence

19.9.1

Once the considerations set down above have been applied, the criminal history record should be redacted to remove:

1. Any immaterial and sensitive convictions, charges, children’s hearing appearances and direct measures (including fixed penalties issued by the police or specialist reporting agency; and
2. Any material conviction where Crown Counsel has authorised non-disclosure in the public interest.

All remaining convictions, charges, children’s hearing appearances and direct measures (including fixed penalties issued by the police or specialist reporting agency) should be disclosed.

19.10 Redaction in solemn cases

19.10.1

Criminal history records should be obtained for all civilian witnesses. Copies of these should be placed behind the precognition or statement of each witness in both Sheriff and Jury and High Court precognitions.

19.10.2

In all High Court cases, where the witness is listed on the draft indictment, the Case Preparer should include a recommendation on the disclosure of criminal history records. (See Chapter 10, paragraph 10.7.3.)

19.10.3

In Sheriff and Jury Cases, Crown Counsel’s instructions should only be sought where the Crown is seeking to withhold material information, in terms of the materiality test i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused. (See Chapter 10, paragraph 10.7.3.)

19.10.4

Redaction of criminal history records can be completed manually in both High Court and Sheriff and Jury cases.

19.11 Keeping the position under review

19.11.1

Where a decision has been made not to disclose any part of the criminal history information of a witness on the ground that it is not material, the position must be kept under review. In particular, issues may arise at trial which require disclosure of criminal history information which until then has not been considered to be material.

19.11.2

For example, if a witness were to give evidence indicating that they did not know anything about drugs, but had been the subject of direct measures for offences involving the possession of controlled substances, those would require to be disclosed, if they had not been disclosed at an earlier stage. If a witness were to give evidence that they had never been in trouble with the police, but undisclosed information about direct measures or outstanding charges came to light, these would then require to be disclosed.

20.1 General principles

20.1.1

It is not anticipated that the situation where a police officer has a criminal history record and the Crown intends to call him or her as a witness will arise very often. The Crown, however, is still obliged to ascertain whether or not a police witness has a criminal history record and to disclose that, as appropriate, in accordance with the materiality test i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused and the guidance set down in Chapter 19 of this Manual.

20.1.2

It is recognised, however, that it would be very resource intensive for the police to carry out a Criminal History System (CHS) check every time an officer is cited as a witness in a summary case or appears on the list of witnesses in a solemn case. Accordingly, procedures have been put in place to ensure that the Crown meets its disclosure obligations, while also ensuring that the information is obtained efficiently.

20.1.3

The COPFS holds and maintains a database detailing all serving police officers with ‘S’ (CHS) numbers. This database, which is updated weekly based on information provided by SPA and is checked automatically whenever a police report (SPR – Standard Prosecution Report) is submitted to the Procurator Fiscal. Where an officer listed in the SPR as a witness, is also listed in the COPFS database, his/her ‘S’ (CHS) number will be populated automatically in PROMIS (the COPFS live, operational database which is used to manage the processing of reports submitted to Procurators Fiscal by the police and other reporting agencies), thus enabling COPFS staff to obtain the relevant criminal history record direct from the CHS.

20.2 The police officer / CHS database

20.2.1

Every police officer has a unique reference number (URN). Whenever a police officer is listed in an SPR as a witness, his/her URN is also included in the report. This is mandatory and no police officer can be listed as a police witness unless his/her URN is inserted.

20.2.2

The COPFS database holds details of every serving police officer with an ‘S’ (CHS) number. In order to ensure confidentiality and satisfy data protection principles, police officers are referred to in the database by their URN rather than their name. Associated to each URN in the table is the corresponding ‘S’ (CHS) number for that police officer. If a police officer does not have an ‘S’ (CHS) number, his/her URN will not appear on the table.

20.2.3

The COPFS database can only be viewed and accessed by a limited number of staff in ISD (COPFS Information Systems Division). Staff in PF Offices do not require access to this database.

20.2.4

On receipt of the SPR, POLIN (the COPFS computer system that enables the Crown to receive electronic reports) will automatically access the database and ascertain whether any of the URNs in the database match any of the URNs in the police report. If there are any matches, POLIN will extract the ‘S’ (CHS) number associated to that URN and insert it into the relevant witness record in FOS/PROMIS.

20.3 Updating the database

20.3.1

SPA has responsibility for advising ISD on a weekly basis of any updates to the database, for example, when a police officer listed in the database leaves the Police Force, or a police officer requires to be added to the database.

20.4 Obtaining the CHS record for the police witness

20.4.1

The CHS record for the police witness should be obtained in the same way as for a civilian witness with an ‘S’ (CHS) number, by requesting the record directly from the CHS. Full guidance on this is contained in Chapter 18 of this Manual.

20.4.2

Where a police officer is a witness, but not in his or her capacity as a police officer, then they will be listed in the police report as a civilian witness and their ‘S’ (CHS) number should be obtained from the police in their witness statement in the same way as for other civilian witnesses.

20.5 Scheduling the CHR in solemn proceedings

20.5.1

Where a case is proceeding on petition and therefore subject to the scheduling system as set down in Chapters 16 and 34-37 of this Manual, it is essential that the criminal history records for any police witnesses are included in the sensitive schedule, in the same way as is done for records of civilian, professional, expert and official witnesses.

20.5.2

Where a police witness is identified as having a criminal history record, the precognoscer should immediately contact the relevant force’s Professional Standards Department advising them of the relevant police witnesses with records in order that they can prepare a sensitive schedule detailing these records. Once submitted, the precognoscer should consider the schedule in the same way as any other schedule submitted by the Reporting/Reviewing Officer, as set down in Chapter 37 of this Manual.

20.6 Disclosing the CHS record to the accused’s representative

20.6.1

Once the criminal history record has been obtained for a police witness, a legal member of staff should consider the record for disclosure purposes and determine, in terms of the principles set out in Chapter 19 of this Manual, whether any of the information requires to be redacted prior to disclosure.

20.6.2

If the police witness has a record but the whole record is considered to be immaterial and sensitive the defence should be advised of this. Section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010 defines sensitive information as that which if it were to be disclosed would constitute a risk of (a) causing serious injury, or death, to any person; (b) obstructing or preventing the prevention, detection, investigation or prosecution of crime; or (c) causing serious prejudice to the public interest.

21.1

21.1.1

In High Court Cases the Crown must be in a position to demonstrate, when challenged, that it has complied with its disclosure obligation. The Disclosure Schedule is the primary source of information in relation to the disclosure process carried out by the Crown. However in certain circumstances witness statements will be redacted (see Chapter 29) and the Disclosure Schedules will not provide the details of the material which has been redacted. Formerly a Disclosure Bundle was provided to the Advocate Depute, Trial Judge and Sitting Manager in every High Court case. This Disclosure Bundle comprised all of the statements in the form in which they had been disclosed to the defence, including redactions.

21.1.2

The practice of preparing a disclosure bundle has now been discontinued. Instead the case preparer must, where a statement has been redacted as a result of information being assessed as non disclosable/confidential and not meeting the materiality test, firstly consider whether the redaction simply relates to personal details about a witness or third party. Most commonly this will relate to the situation where a home address or phone number belonging to a third party or witness has been redacted. Where significant redactions are made, i.e. those that relate to information other than personal details, as outlined above, a copy of the redacted statement should be placed in the precognition behind the relevant full version of the statement.

21.1.3

This will apply to all witness statements including those placed in the “For Information” section of the precognition. Where a redacted version is included in the precognition the case preparer will highlight this fact on the Disclosure Page along with a brief outline of the nature of the material withheld (See Chapter 31)

22.1 General practice

22.1.1

The general practice to be adopted by the Crown in relation to the provision of productions to the accused’s representatives is set out in Chapters 6, 22 and 29 of this Manual.

22.1.2

The guidance set down in this chapter relates to disclosure of productions to the accused’s legal representative. For guidance in relation to disclosure to an unrepresented accused, you should refer to Chapter 23 of this Manual.

22.1.3

Unless expressly stated otherwise, any references to productions should be interpreted as including both documentary and label productions.

22.2 General obligations

22.2.1

Chapter 6 of this manual sets out the Crown’s general legal obligations in respect of disclosure of productions and emphasises that the Crown’s disclosure duty applies to all material information and thus includes all productions.

22.2.2

All productions listed in the Crown list and other items submitted by the police which are not listed as productions must be considered for the purpose of disclosure in terms of the materiality test i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused to determine whether the information is disclosable.

22.2.3

In particular, in High Court cases, the Crown Practice Statement on Disclosure in High Court Cases commits the Crown to disclosure to the defence of copies of important documents as soon as practicable.

22.2.4

In solemn proceedings, it is the responsibility of the Case Preparer, in consultation with, and as supervised by, the Solemn Legal Manager, to determine:

1. What productions seized or generated in the course of the investigation require to be disclosed to the defence; i.e. all productions that form part of the Crown case or otherwise form information that might materially weaken the Crown case or strengthen the defence case;
2. The method of disclosure of the productions, i.e. whether by provision of copies or by access; and
3. To what extent, if any, productions require to be redacted prior to disclosure/lodging as a production – the final decision on redaction should be taken by a legal member of staff

22.2.5

Depending on local practices, the Case Preparer should then carry out or instruct the necessary disclosure. It is essential that there is a clear audit trail in relation to the disclosure of all productions. Accordingly, the production record for each production disclosed must be updated at the stage of disclosure. In addition, any decision to disclose by access should be recorded on the Disclosure Page.

22.2.6

Where it is not clear what information meets the disclosure test or the extent of redaction required is not clear, this should first be discussed with the Solemn Legal Manager. If further guidance is required, then a report should be submitted to Crown Counsel for instruction.

22.2.7

In summary proceedings, the depute preparing the intermediate diet should confirm that all productions that require to be disclosed in terms of the materiality test (i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused) have been or will be disclosed. Thereafter, the trial depute should confirm that this has been done prior to trial. Staff are reminded that the timescales for disclosure of productions in summary proceedings are set down in the Best Practice Guide for Summary Cases.

22.3 Reporting of cases

22.3.1

In normal practice, all relevant productions should be fully listed in the SPR. This will allow the Crown to make an informed decision about what items require to be disclosed or at least brought to the attention of the defence, and to take an early decision about whether any items should be returned to the owner. (The obligation of the police and investigating agencies to submit relevant information to the Crown is covered in Chapter 3 of this Manual.)

22.3.2

Where the police or other investigating agency identify any subsequent relevant productions, they should intimate this to the Crown in writing as soon as reasonably practicable, e.g. by means of a subject report.

22.4 Decision making by Procurators Fiscal

22.4.1

Where proceedings are raised, the Crown will decide which productions are required, assessing which productions are essential to prove the charge(s) libelled or are otherwise necessary for the proper presentation of the case, and what items require to be disclosed to the defence.

22.4.2

It is essential to note that the Crown’s obligation goes beyond only disclosing those productions listed on the indictment or the Crown intends to refer to at trial. The duty of disclosure, as with all information held, extends to disclosure of information that meets the materiality test.

22.4.3

Particularly in summary cases (but not exclusively), the Crown will consider whether or not any items can be returned to their owner or otherwise disposed of. In deciding this, a factor to be considered is whether the return or disposal of the item will prejudice the accused in any way. Any potential for prejudice may be removed if the defence is given an opportunity to examine the item.

22.4.4

Like statements, productions can contain sensitive information that requires redaction prior to disclosure, e.g. medical records. Careful consideration must be given to redaction issues prior to disclosure as specified in Chapter 29 of this Manual. Section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010 defines sensitive information as that which if it were to be disclosed would constitute a risk of (a) causing serious injury, or death, to any person; (b) obstructing or preventing the prevention, detection, investigation or prosecution of crime; or (c) causing serious prejudice to the public interest.

Solemn cases

22.4.4

In all solemn cases, the Case Preparer must decide, in close consultation with the relevant Solemn Legal Manager, what productions should be disclosed to the defence and whether it should be by provision of a copy or by access. Where it is not clear whether a production should be disclosed, then this should be included in the Disclosure Page of the precognition and a recommendation on disclosure should be sought from Crown Counsel.

22.4.5

Any decision not to disclose a production must be carefully recorded in the Disclosure Page of the precognition in order that the decision not to disclose can be properly kept under review.

22.4.6

If, following discussions with the relevant Solemn Legal Manager, a production seized by the investigating agency is deemed to relevant and material but it is considered sensitive and not in the public interest to disclose it, this should immediately be brought to the attention of the functional lead (PF/Assistant PF High Court/Sheriff and Jury) and the Federation Head in order that a report can be prepared for the Director of Serious Casework seeking Crown Counsel’s Instructions.

Summary cases

22.4.7

In summary cases, the Crown will also consider which productions it is necessary to request from the investigating agency in the event of a plea of not guilty, in order to facilitate early disclosure to the defence. (See paragraph 22.5.) Normally the Crown will only request submission of productions which can easily be copied and provided to the defence, e.g. documents and video or digital recordings. (N.B. Some productions may have already been provided by the police at an earlier stage prior to any plea, e.g. to assist the marking depute.)

22.4.8

Where upon examining productions in a case (either on the basis of information in the SPR or following receipt and/or examination of the items themselves) the view is taken that certain items need not be further retained, the police must be instructed to this effect as soon as practicable.

22.4.9

In Summary cases, the Summary Legal Manager must ensure that local arrangements are in place to identify the appropriate person within the team with responsibility for deciding in each case what productions should be disclosed, e.g. the depute carrying out the intermediate diet preparation etc.

22.5 Early disclosure of productions

22.5.1

Early disclosure of material productions is likely to assist the defence, not only in preparation for trial, but also in assessing whether or not evidence can be agreed. It may also facilitate early consideration of a plea. As the timing of a plea of guilty is a matter which requires consideration by the Court in every case, and in the High Court the Crown will be expected to provide full information about those circumstances, the Crown should do what it can to facilitate the possibility of early disposal. The Crown should avoid being put in a position where the defence may argue that a plea of guilty has been delayed significantly because of lack of access, for example, to a critical document which was in the Crown’s possession for some time before it was disclosed.

22.5.2

Potentially important documents, should be disclosed as soon as reasonably practicable, for example, forensic science reports (see paragraph 22.13), medical records, photographs, surveillance logs, search warrants and transcripts of taped police interviews. Such documents may, however, require to be redacted prior to disclosure, e.g. medical records to remove immaterial sensitive and non-sensitive information.

22.6 Timing of commencement of disclosure obligations in a prosecution

22.6.1

In summary cases, from the stage of deciding to raise proceedings, the Crown will identify items suitable for disclosure which are likely to assist plea negotiation and possible early resolution of cases, for example audio tapes or DVDs of police interviews, and, as far as possible, provide these items to the defence as soon as reasonably practicable, and thus before a plea of not guilty has been tendered. As stated at paragraph 22.4.9, the Summary Legal Manager must ensure that an appropriate person is identified to do this work.

22.6.2

The Crown will request such items from the investigating agency at an early stage, before any plea has been tendered, and, on occasion, such items will be required prior to the case being marked for proceedings, e.g. in order to assess whether there is a sufficiency of evidence.

22.6.3

In general, the Crown will request such items where they are required to demonstrate a sufficiency of evidence, and particularly where there is an indication from the defence that a case is likely to be resolved on the disclosure of those items, and the defence is not being unreasonable in this approach.

22.6.4

The Crown will seek submission of such items within 7 calendar days of the date of their request to the investigating agency.

22.7 Access by defence to disclosure of Crown productions in summary cases

22.7.1

In summary cases, the Crown will consider all productions and provide, where they are material:

1. Copies of documentary evidence in the case, having considered redaction of non-disclosable information and in so far as it can be readily copied; and
2. Either copies of audio, video or digital recordings, or provide details of these items to the defence, in order to allow the defence to make arrangements to listen to, or view them; and
3. Details of any other productions, in the case which it is not possible or impractical to copy.

22.7.2

In relation to documents and articles, seized and retained by the investigating agency, that are not productions in the case because they are considered immaterial, it is good practice to advise the defence of their existence so that consideration can be given by the defence to viewing or examining such items.

22.7.3

Where such information exists, the Crown should invite the defence no later than within 21 calendar days of the date, on which details of items listed at paragraph 22.7.2 are provided, to notify the Crown if the defence wishes any item to be retained and whether or not the defence wishes to examine any item. Items may be returned to their owner or otherwise disposed of if no notification is received.

22.7.4

Where the defence gives notice of an interest in any item(s), the Crown will respond advising of the location of the item(s), in order to allow the defence to make arrangements to view or examine it.

22.8 Access by defence to disclosure of Crown productions in solemn cases

22.8.1

In solemn cases, as soon as practicable prior to the service of the indictment, the Crown will provide to the defence, only where it is material evidence:

1. Copies of documentary evidence in the case, having considered any need for redaction and in so far as it can be readily copied; and
2. Where practicable, either copies of audio, video or digital recordings or details of these items and their location, in order to allow the defence to make arrangements to listen to, or view them; and
3. Where practicable, details, and the location of any other productions in the case, including any label productions, in order to allow the defence to make arrangements to view or examine them.

22.8.2

In determining what is “practicable” the Crown will as a matter of best practice aim to provide disclosure of productions no later than 28 days after first appearance on petition.

22.8.3

The Crown will provide to the defence, upon service of the indictment:

1. A courtesy copy indictment;
2. Copies of any previously undisclosed listed productions (so far as they can be copied readily); and
3. Details and the location of any other listed productions in the case in order to allow the defence to make arrangements to view or examine them.

22.8.4

In accordance with the Crown Practice Statement on Disclosure in High Court Cases, the Crown will provide items under (ii) and (iii) above to the defence no later than 7 days after service of the indictment.

22.8.5

In relation to documents and articles, seized and retained by the investigating agency, that are not listed as productions on the indictment because they are considered immaterial, it is good practice to advise the defence of their existence so that consideration can be given by the defence to viewing or examining such items.

22.9 Procedures and timelines in summary cases

22.9.1 Summary custody / priority cases

22.9.1.1

Where the accused pleads not guilty and is remanded in custody, or the case is to be treated as a priority, all necessary productions should be ordered from the police or investigating agency immediately after court (i.e. on the same day - this is particularly important where the plea is tendered on a Friday).

22.9.1.2

Where the plea of not guilty is tendered in a court that does not finish until after office hours, care should be taken to ensure that all necessary productions are ordered the following morning. Local arrangements should be put in place to deal with courts that overrun on a Friday to ensure that the investigating agency are advised at the earliest opportunity that the productions are required, e.g. obtaining local agreement to order productions before court, in cases where bail is opposed.

22.9.1.3

In terms of paragraphs 22.9.1.1 and 22.9.1.2, above, productions should be ordered at the same time as Statements and Witness ‘S’ (CHS) Numbers.

22.9.1.4

Where the investigating agency have submitted the necessary productions, as a matter of best practice, the Crown should, where intimation has been received in writing that the defence solicitor is acting for the accused, provide the defence with the items and information listed above, at paragraph 22.7.1 not later than 7 calendar days before the intermediate diet.

22.9.2 Summary bail / ordained to appear cases

22.9.2.1

Where the accused pleads not guilty, the Crown will as soon as possible and not later than 3 working days after the pleading diet, request from the police or investigating agency all necessary productions.

22.9.2.2

Where the investigating agency have submitted the necessary productions, as a matter of best practice, the Crown should, where intimation has been received in writing that the defence solicitor is acting for the accused, provide the defence with the items and information listed above at paragraph 22.7.1 not later than 28 calendar days before the intermediate diet.

22.10 Procedures and timelines in solemn cases

22.10.1

The Crown will order all necessary productions in accordance with the timescales set out at paragraph 22.10.3 below, accepting that it will not always be appropriate to order every production due to certain items, for example, being the subject of forensic scientific examination, or hazardous, or contaminated, or by their nature, impracticable to transfer and store in the Procurator Fiscal’s Office.

22.10.2

Different timescales apply depending on whether (a) the accused is in custody, (b) the accused is at liberty, or (c) the case is to be treated as a priority.

22.10.3 Custody / priority cases

22.10.3.1

Where the accused is in custody, or a case is to be treated as a priority, the Crown will request from the investigating agency all necessary outstanding productions immediately, on the same day as CFE.

22.10.3.2

As soon as practicable, but no later than 28 calendar days after CFE, the Crown will as a matter of best practice, where intimation has been received in writing that the defence solicitor is acting for the accused, provide the defence with the items and information listed above, at paragraph 22.8.1.

22.10.4 Cases where the accused is at liberty

22.10.4.1

Where the accused is at liberty, the Crown will, as soon as possible, and not later than 3 working days after CFE, request from the investigating agency all necessary productions.

22.10.4.2

As soon as practicable, but no later than 28 calendar days after CFE, the Crown will as a matter of best practice, where intimation has been received in writing that the defence solicitor is acting for the accused, provide the defence with the items and information listed above, at paragraph 22.8.1.

22.11 Priority cases

22.11.1

Certain cases where the accused is on bail or ordained to appear will be treated by the Crown as if the accused were remanded in custody. This can apply to both summary and solemn cases.

22.11.2

Examples of such cases include murder cases, domestic assaults, and cases involving children or other vulnerable witnesses. This list is not exhaustive.

22.11.3

Where a case has been identified as a priority case, the timescales set out in paragraph 22.9.1 (for summary cases) or paragraph 22.10.3 (for solemn cases) should apply.

22.11.4

When requesting productions in priority cases, the Crown should highlight the case as being a priority.

22.12 Forensic science reports

22.12.1

The timescales, for both summary and solemn cases (set out in paragraphs 22.9 – 22.13), are subject to any different timescales agreed between COPFS and SPA in respect of forensic science reports.

22.12.2

Early disclosure is particularly important in relation to forensic science reports. Consideration should be given to supplying a copy of any such report to the defence in early course. Arrangements should be in place to ensure that there is no significant time delay between the completion of a report and its transmission to the Fiscal. It may be possible, in certain circumstances, to receive reports in electronic format in order to speed up the process.

22.13 Productions added by section 67 notice

22.13.1

The use of section 67 notices should be avoided wherever possible. As a matter of best practice, section 67 notices should not be delayed to await details of all additional witnesses and productions that require to be added to the indictment. In such circumstances, it is preferable to utilise multiple notices to ensure that the defence are given early notice of the additional information.

22.13.2

If a notice is served less than 7 days before the Preliminary Hearing (not the trial diet), the productions or witnesses will only be added to the list on cause shown. It will be necessary, in such circumstances, to provide the Advocate Depute instructed for the Preliminary Hearing with a full explanation as to why the witness or production was not included at an earlier stage.

23.1 General principles

23.1.1

The Crown’s Principles of Disclosure apply equally to represented and unrepresented accused.

23.1.2

In Foucher v France [1997] 25 E.H.R.R. 234 the European Court indicated that in principle the unrepresented accused has an equal right of access to the case file although the arrangements for providing access might be different.

23.1.3

The Crown’s obligation to disclose information to the defence can therefore be satisfied through either (a) providing copies of such information to the defence; or (b) providing suitable access to view the information. It is also open to the Crown to use a combination of these methods.

23.2 Policy

23.2.1

The Crown should only disclose to the unrepresented accused such information as it is obliged by law to disclose. This applies whether the case is proceeding on indictment or at summary level.

23.2.2

Therefore, where the accused is unrepresented, the accused will not as a matter of routine be provided with copies of all witness statements in the case. The Crown is legally obliged to provide an unrepresented accused with copies of, or access to, all statements of witnesses on the Crown and defence lists. In addition, the Crown is obliged to provide copies or access to all other material information of which the Crown is aware. This means, for example, that any remaining witness statements, and other relevant information, will require to be considered in terms of the materiality test i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused.

23.3 Safeguarding the Information provided to the unrepresented accused

23.3.1

Where disclosure is made to the accused’s representatives, there are safeguards in place to ensure that the information is used only for the proper preparation and presentation of the defence case, namely Articles 11 and 12 of the Law Society Code of Conduct in relation to Criminal Work.

23.3.2

Until recently there were no similar safeguards in place to protect information provided directly to the unrepresented accused and therefore the Crown required to apply to the court for a “protective order”, setting out the terms on which disclosure was made. If the accused then breached that order that would have constituted contempt of court.

23.3.3

Following implementation of Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 on 6th June 2011, in particular sections 162 and 163 which serve to protect the confidentiality of disclosed information, it is no longer necessary for the Crown to apply to the Court for a protective order when disclosing information directly to the unrepresented accused. Statute now provides that if a person, including the unrepresented accused, knowingly uses or discloses information for a purpose other than that for which it had been disclosed by the prosecutor, they commit an offence.

23.3.4

The unrepresented accused, may only use or disclose the information in the following circumstances:

1. for the purposes of the proper preparation and presentation of their case in the same proceedings in which the information was disclosed i.e. the original proceedings;
2. with a view to the taking of an appeal in relation to the matter giving rise to the original proceedings;
3. for the purposes of the proper preparation and presentation of their case in any such appeal

23.3.5

Use or disclosure of the information for any purpose other than those set out at paragraph 23.3.4 above is an offence punishable on summary conviction with a term of imprisonment not exceeding 12 months and/or a fine not exceeding the statutory maximum; and on indictment with a term of imprisonment not exceeding 2 years and/or a fine.

23.3.6

For the avoidance of doubt, where information is disclosed by the Crown in order to satisfy its disclosure obligations, that information cannot then be used for civil proceedings. In Taylor v Director of the Serious Fraud Office [1999] 2 A.C. 177, the court held that in civil proceedings there is an implied undertaking that documents disclosed on discovery must not be used for any purpose other than the purposes of the case in which they are disclosed.

23.4 Determining the appropriate method of disclosure

Summary cases

23.4.1

In all summary cases, the Summary Legal Manager must decide (i) what information should be disclosed to the unrepresented accused, i.e. what information the Crown is legally obliged to provide to the accused (see paragraph 23.2.2) and (ii) the method by which that information should then be disclosed to the defence (as stated in paragraph 23.2.2 above, this might involve a combination of provision of copies of some of the information and access to the remainder).

23.4.2

The method by which disclosure is made to the unrepresented accused will depend upon the nature of the information to be disclosed. Where there are only police witnesses (and there are no sensitivity or intelligence issues) disclosure will be affected by providing the accused with copies of the information. Similarly, where there are additional witnesses and their evidence is formal in nature (e.g. the licensee of premises) it may be appropriate to provide the unrepresented accused with copies of the information.

23.4.3

The following information should only ever be disclosed by access to the accused for both Summary and Solemn cases (this list is not exhaustive):

• Criminal History Records;
• Video/DVD/CCTV recordings;
• Recorded (audio or video) Interviews with witnesses;
• Photographs of victims/witnesses;
• Indecent Images of children;
• DVDs of VIPER parades;
• Medical Records;
• Social Work Records;
• School Records;
• Housing Records;
• Death and Birth Certificates;
• Search Warrants;
• Post Mortem Reports;
• Expert Reports which contain information of a sensitive nature; and
• Personal Letters.

23.4.4

Before disclosing information to the unrepresented accused by provision of copies (as opposed to by access) the Crown must be satisfied that the accused will act responsibly and lawfully in terms of the way in which that information is used. In order to do that the Crown must obtain a signed receipt from the accused confirming that the information has been provided and also that the accused has been made aware of his or her legal obligations under sections 162 and 163 of the Criminal Justice and Licensing (Scotland) Act 2010 in terms of the use of that information. A style receipt is available in the FOS templates.

23.4.5

It is important to note that in order to prove that an accused has committed an offence under section 163 the Crown must establish that the accused knowingly used or disclosed the information in contravention of section 162. Therefore it is vital that, for corroboration purposes, two members of COPFS staff witness the accused being asked to sign, and signing, the receipt confirming that the accused has been provided with copies of the information and made aware of their legal obligations as regards the use of the information.

23.4.6

If an accused refuses to sign the receipt, then this fact, and the two members of staff who can speak to it, should be recorded in the case papers.

23.4.7

It is important to note that refusal by the accused to sign the receipt is not justification for refusing disclosure of the information however in such circumstances the accused should be invited to view the information under supervision.

23.4.8

Even where the Crown can be satisfied that the unrepresented accused will act responsibly, it may be necessary, having regard to the information in the case and the forum of the case, to disclose information by way of allowing the accused access to the information rather than providing copies of it. There are some general presumptions that need to be considered and applied. Further details of these are contained below.

23.4.9

Under no circumstances should information be disclosed by provision of copies where that information, or any part of it, relates to vulnerable or child witnesses or is sensitive or intelligence based.

23.4.10

In cases of particular difficulty or sensitivity, the Summary Legal Manager should report the matter for Crown Counsel’s instructions marked for the attention of the Director of Serious Casework. The report should contain clear details of the information in the case, and recommendations on the proposed method of disclosure.

Solemn cases

23.4.11

In solemn cases any information, including statements, should only be disclosed to the unrepresented accused upon receipt of Crown Counsel’s Instructions.

23.4.12

In all solemn cases, regardless of whether the case is being recommended for Sheriff and Jury or High Court proceedings, the Case Preparer must give careful consideration, in close consultation with the Solemn Legal Manager, to the appropriate method of disclosure, frame recommendations and seek Crown Counsel’s Instructions before disclosing anything.

23.4.13

In both Sheriff and Jury and High Court cases, the Case Preparer should highlight in the Disclosure Page that the accused is unrepresented and that Crown Counsel’s instructions to disclose in a particular manner have been sought.

23.4.14

When determining whether to recommend disclosure by provision of information or by access to it, it is appropriate to consider which method of disclosure would best protect the victim and witnesses in the case. Accordingly, it is essential to consider any sensitivity and/or vulnerability issues. These might be highlighted:

• within the Police Report;
• by the Reporting Officer;
• by VIA;
• within the information to be disclosed; and/or
• anywhere else in the case papers.

23.4.15

It is anticipated that in Solemn cases the vast majority of disclosure will be affected by access rather than provision of copies to the unrepresented accused. The following information should only ever be disclosed by access to the accused for both Summary and Solemn cases (this list is not exhaustive):

• Criminal History Records;
• Video/DVD/CCTV recordings;
• Recorded (audio or video) Interviews with witnesses;
• Photographs of victims/witnesses;
• Indecent Images of children;
• DVDs of VIPER parades;
• Medical Records;
• Social Work Records;
• School Records;
• Housing Records;
• Death and Birth Certificates;
• Search Warrants;
• Post Mortem Reports;
• Expert Reports which contain information of a sensitive nature; and
• Personal Letters.

23.4.16

Before allowing the unrepresented access to information the Crown must be satisfied that the accused will act responsibly and lawfully in terms of the way in which that information is used. In order to do that the Crown must obtain signed confirmation that the accused has been made aware of his or her legal obligations under sections 162 and 163 of the Criminal Justice and Licensing (Scotland) Act 2010 in terms of the use of that information. A style receipt is available in the FOS templates on the intranet [DISCUNREPACCREC.DOC].

23.4.17

It is important to note that in order to prove that an accused has committed an offence under section 163, the Crown must establish that the accused knowingly used or disclosed the information in contravention of section 162. Therefore it is vital that, for corroboration purposes, two members of COPFS staff witness the accused being asked to sign, and signing, the document confirming that the accused has had access to the information and been made aware of their legal obligations as regards the use of the information.

23.4.18

If an accused refuses to sign confirmation of the above, then that fact and the two members of staff who can speak to it, should be recorded in the Disclosure Page.

23.4.19

It is important to note that refusal by the accused to sign the confirmation document is not justification for refusing access to the information.

23.5 Access to information for the duration of the trial

23.5.1

Where disclosure is to be carried out by providing access to the information, the accused must be provided with copies of the material for the duration of the trial.

23.5.2

Accordingly, this material should be lodged with the Clerk of Court in advance of the trial. The accused can then use and refer to the material during the trial but should not be permitted to remove the material from the courtroom.

23.5.3

The material must be returned to the Clerk of Court at the conclusion of the trial and, where the trial lasts more than one day, the material should be returned to the Clerk of Court at the end of each day. The prosecutor should seek confirmation from the Clerk of Court that this has been done.

23.6 Arrangements for Access to Information

23.6.1

Arrangements for the accused to view “access only” information should be agreed at a local level between the police and the Procurator Fiscal and consideration given as to whether it would be more appropriate to have access to disclosure information made at a police office or prison. Further guidance is given at 23.14.8 – 23.14.10, which outlines practical arrangements for the provision of access to information.

23.6.2

Where information is to be viewed at the Procurator Fiscal’s Office, a risk assessment will require to be carried out. Further guidance on this is contained in Annex J attached.

23.6.3

The accused should always be supervised when viewing information (see Section 23.8 below). In addition, the accused should always be required to sign an acknowledgement to confirm that they have been given access to view certain information. The acknowledgement should contain details of all of the information to which the accused has been given access as well as confirmation that they have been made aware of their legal obligations as regards the use of the information they have been given access to.

23.6.4

Where necessary, full guidance on interpreting, translating and transcription of information for persons with special needs can be found in the Diversity Guidance on the Intranet. In cases of doubt, or where the Diversity Guidance does not provide assistance, staff should contact Policy Division.

23.7 Consideration of information prior to disclosure

23.7.1

Where information is being disclosed to an unrepresented accused, be it by access or provision of copies of the actual information, it must be carefully scrutinised by a legal member of staff to ensure that all irrelevant, and immaterial sensitive and/or confidential information is appropriately redacted.

23.7.2

In anticipation that the accused will obtain legal representation, disclosure bundles should be available for disclosure and prepared in accordance with the normal timescales.

23.8 Restrictions placed on accused during access to information

23.8.1

Where information is only provided to the accused by access, this is usually done to further restrict the possibility of the accused misusing the information, e.g. publication on the internet. Accordingly, albeit the accused will have been made aware that improper use of the information constitutes a criminal offence, it is essential that the accused’s access to such information is supervised and, where appropriate, restrictions are put in place.

23.8.2

No accused should be permitted to photocopy, video, photograph, or otherwise reproduce by electronic or mechanical means the content of any information to which the accused has access. Unless there are exceptional circumstances, the accused will normally be permitted to take notes.

Provision of copies

23.8.3

Copies of any information to be provided to the accused should then be handed over to the accused in court if at all possible, along with a covering notice [DISCNOTUNREP] clearly setting out (i) the basis on which disclosure is being made, i.e. for the proper preparation and presentation of the defence case, and (ii) that misuse of the information constitutes a criminal offence.

23.8.4

In addition, the accused should always be required to sign an acknowledgement to confirm receipt of copies of the disclosure bundles, along with a covering notice. The acknowledgement should contain details of all of the information of which the accused has been provided with copies. Should the accused refuse to sign the acknowledgement, the information should not be provided to the accused. Instead, the accused should be invited to make arrangements to view the information under supervision. A template of the acknowledgment receipt where copies are provided can be accessed in the FOS templates [DISCACKCOP]. The acknowledgement should be signed by both the accused and the two members of COPFS staff witnessing the provision of the material to the accused. This will ensure that in the event of subsequent misuse of the information the fact the accused was aware of his or her obligations in terms of its use can be proved by corroborated evidence.

23.8.5

A template of the covering notice mentioned at paragraph 23.8.3 above can be accessed in the FOS templates [DISCNOTUNREP].

23.8.6

In summary cases where:

1. the accused has never appeared in person, and information is to be provided by access (including where disclosure will be made by partly providing copies of information to the accused, and partly by providing the accused with access to view certain information); or
2. the accused has submitted a plea of ‘not guilty’ by letter, and there has been no other communication from the accused other than the letter tendering such a plea, regardless of the intended method of disclosure;

the prosecutor should ask the court to continue the case for a personal appearance of the accused.

23.8.7

In summary cases, where the accused has never appeared in person, and only copies of the disclosure information are to be provided to the accused, the covering notice setting out (i) the basis on which disclosure is being made, i.e. for the proper preparation and presentation of the defence case, and (ii) that misuse of the information constitutes a criminal offence, should be sent to the accused along with a covering letter advising that the accused should attend at the Procurator Fiscal’s Office to uplift the information. A style letter for this purpose has been created and can be accessed in the FOS templates [DISCCOPLET].

Provision by Access

23.8.8

Where information is to be provided by access, the covering notice should be sent to the accused along with a letter containing details of the appropriate person to contact to arrange access. A style letter for this purpose has been created and can be accessed in the FOS Templates [DISCACCESSLET].

23.8.9

Where the accused receives access to information at the Procurator Fiscal’s Office, an acknowledgment must be signed by the accused confirming access to the information. This acknowledgment will specify the information being accessed and must also be signed by two members of COPFS staff both of whom witnessed the accused being advised of his or her legal obligations in terms of the use of the information, and one of whom supervised the access. A template of the acknowledgment to be signed when information is accessed has been created and is available in the FOS templates [DISCRCPTEVIDMAT]

23.8.10

Where the accused is to receive access to information at the local police office, the reporting officer should be advised of this and be provided with a blank acknowledgment receipt for the accused to sign. This should then be signed by the accused and by two members of police staff both of whom witnessed the accused being advised of his or her legal obligations in terms of the use of the information, and one being the officer supervising the access. The signed copy should then be returned to the Procurator Fiscal’s Office. A style letter including the blank acknowledgement has been created and is available in the FOS templates [DISCACCESSROLET]. Where the accused is to receive access to redacted information, e.g. redacted sensitive statements, the reporting officer must be sent copies of the redacted information to show the accused, otherwise there is a danger that the accused will be shown unredacted copies.

Provision of copies and by access

23.8.11

Where the accused is to be provided with access to some information and copies of the remainder of the information, the covering notice should be sent to the accused along with a covering letter advising the accused to (a) arrange a suitable time to access the information and (b) attend at the Procurator Fiscal’s Office to uplift the relevant copies of the information. A style letter for this purpose has been created and can be accessed in the FOS templates [DISCACCESSCOPLET].

23.8.12

The accused will be required to sign an acknowledgment for receipt of the copies of the information clearly setting out (i) the basis on which disclosure is being made, i.e. for the proper preparation and presentation of the defence case, and (ii) that misuse of the information constitutes a criminal offence [DISCACKCOP]. The acknowledgement should contain details of all of the information of which the accused has been provided with copies. A receipt should subsequently be signed by both the accused and the two members of COPFS staff witnessing the provision of the material to the accused. This will ensure that in the event of subsequent misuse of the information the fact the accused was aware of his or her obligations in terms of its use can be proved by corroborated evidence. Should the accused refuse to sign the acknowledgement, the information should not be provided to the accused. Instead, the accused should be invited to make arrangements to view the information under supervision. A template of the acknowledgment and receipt where copies are provided can be accessed in the FOS templates [DISCACKCOP]. As regards that material which is being disclosed by access, the accused should be sent an acknowledgment confirming access to information [DISCRCPTEVIDMAT]. Again a receipt detailing all of the information of which the accused has been provided access to must be signed by the accused and by two members of COPFS staff both of whom witnessed the accused being advised of his or her legal obligations in terms of the use of the information, and one of whom supervised the access.

23.9 Misuse of disclosed information

23.9.1

Where the Crown obtains any information to suggest that the accused has committed an offence under sections 162 and 163 of the Criminal Justice and Licensing (Scotland) Act 2010 by knowingly using or disclosing the information other than:

1. for the purposes of the proper preparation and presentation of their case in the same proceedings in which the information was disclosed i.e. the original proceedings;
2. with a view to the taking of an appeal in relation to the matter giving rise to the original proceedings;
3. for the purposes of the proper preparation and presentation of their case in any such appeal

the Crown should instruct the police to carry out further enquiries and to submit a report regarding the alleged misuse.

23.9.2

It should be borne in mind that the offence of knowingly misusing disclosed information can be committed by persons other than just the accused in the original proceedings. Section 162(4) of the Criminal Justice and Licensing (Scotland) Act 2010 provides that it is also an offence for any person, to whom information has been disclosed by the accused in accordance with the proper purposes of disclosure listed at paragraph 23.9.1 above, to use or further disclose that information, or anything recorded in it, for any other purpose.

23.9.3

Once satisfied that there is sufficient evidence to establish that the accused, or any other person, has committed an offence by using or further disclosing the information, or anything recorded in it, for purposes other than those listed at paragraph 23.9.1 above, the Crown should consider whether it is in the public interest to commence proceedings.

23.9.4

Factors to consider will include, but not be restricted to, whether the misuse of the information was for the purpose of intimidating a witness into changing their evidence, or whether the misuse has caused or was intended to cause distress or alarm to witnesses in the proceedings.

23.9.5

If the Crown is satisfied that a criminal offence has been committed, there is sufficient admissible evidence to prove it and it is in the public interest to prosecute, then, subject to the procedures set down below proceedings should be raised.

23.9.6

There is a general presumption that the appropriate forum for the crime will be the same or higher forum than that in which the original proceedings have been raised e.g. if the substantive case is proceeding in the Sheriff Summary court, then proceedings arising from the misuse of the disclosed information should at least be raised in the Sheriff Summary courts, if not on Petition. Determining the appropriate forum will depend very much on the nature and circumstances of the offence.

23.10 Procedure following misuse of disclosed information

23.10.1

Where satisfied that there is sufficient evidence of misuse of disclosed information, a report should be submitted to the Director of Serious Casework for Crown Counsel’s Instructions. This report should set out the following sections:

1. Background Information – this should detail the following:
• Details of when, where and how the disclosure was made;
• Details of witnesses corroborating the “knowingly” aspect of the charge i.e. those members of staff who witnessed the accused signing the necessary acknowledgments and/or being made aware of the legal obligations and implications under sections 162 and 163 of the Criminal Justice and Licensing (Scotland) Act 2010.
2. Details of the Offence and supporting evidence:
• The nature and the extent of the alleged offence
• The evidence that supports that the alleged offence has been committed by the accused
3. Recommendations – this should set out recommendations regarding whether criminal proceedings should be raised. Where criminal proceedings are to be recommended, a draft charge should be included.

23.11 Limitations on the cases in which an accused can be unrepresented

23.11.1

In terms of section 288C of the 1995 Act, an accused charged with a sexual offence to which section 288C applies is prohibited from conducting his or her defence in person in the following circumstances:

1. At or for the purposes of a preliminary hearing;
2. At the trial; or/and
3. At any victim statement proof relating to any such offence.

23.11.2

Section 288C applies to the following offences:

1. Rape (whether at common law or under s1(1) of the Sexual Offences (Scotland) Act 2009;
2. Sodomy;
3. Clandestine injury to women;
4. Abduction of a woman or girl with intent to rape;
5. Assault with intent to rape;
6. Indecent assault;
7. Indecent behaviour (including any lewd, indecent or libidinous practices or behaviour);
8. An offence under Section 311 (non-consensual acts) or Section 313 (persons providing core services: sexual offences) of the Mental Health (Care and Treatment) (Scotland) Act 2003;
9. An offence under any of the following provisions of the Criminal Law (Consolidation) (Scotland) Act 1995 –
1. Sections 1-3 (incest and related offences)
2. Section 5 (unlawful sexual intercourse with a girl under 13 or 16)
3. Section 6 (indecent behaviour towards a girl between 12 or 16
4. Section 7(2) and (3) (procuring by threats etc.)
5. Section 8 (abduction and unlawful detention)
6. Section 10 (seduction, prostitution, etc. of a girl under 16)
7. Section 13(5)(b) or (c) (homosexual offences);
10. An offence under any of the following provisions of the Sexual Offences (Scotland) Act 2009- Sections2,3,4,5,6,7,8,9,18,19,20,21,22,23,24,25,26,28,29,30,31,32,33,3 4,35,36,37,42,43,46
11. Attempting to commit any of the offences set out above;
12. Where in the case of any offence (other than one set out, above) the court is satisfied that there appears to be a substantial sexual element in the alleged commission of the offence, that it ought to be treated as the offences, above (in terms of section 288C(4)). The court shall, either on the application of the Crown or ex proprio motu, make an order.

23.11.3

Where an accused is being prosecuted for any of the offences listed at paragraph above, they will not be entitled to represent themselves and, accordingly, should not be provided with copies of any witness statements in the case, nor should they be allowed to view any productions in the case. This applies whether the case is a summary case or a case proceeding on indictment.

23.11.4

Where, in such cases, the accused does not engage a solicitor, then the court will appoint one. There is no authority to indicate that this practice is contrary to the accused’s right to a fair trial under Article 6 of the European Convention.

23.11.5

Section 288E of the 1995 Act, as inserted by section 6 of the Vulnerable Witnesses (Scotland) Act 2004, provides that an accused is prohibited from conducting his/her own defence at a preliminary hearing or trial in certain cases involving child witnesses under the age of 12. Except where the proceedings are commenced in the Justice of the Peace courts, an accused cannot represent him/herself where a child under the age of 12 on the date of the commencement of proceedings is to give evidence at or for the purposes of the trial and the accused is being prosecuted for any of the following offences:

1. Murder,
2. Culpable homicide,
3. Any offence which involves an assault on, or injury or threat of injury to, any person (including any offence involving neglect or ill-treatment of, or other cruelty to, a child) but it is not an offence to which section 288C applies,
4. Abduction
5. Plagium.

23.11.6

Section 288F of the 1995 Act further provides that the court, on the application of the prosecutor or ex proprio motu, can make an order prohibiting an accused from conducting his/her own defence in person at the trail where it is in the best interests of a vulnerable witness. As with section 288E, this section does not apply where proceedings are commenced in the district/JP courts. Equally it does not apply where section 288C or 288E applies.

23.11.7

Where an order in terms of sections 288E or 288F is made, an accused is not entitled to represent themself and, accordingly, should not be provided with copies of any witness statements in the case, nor should they be allowed to view any productions in the case. This applies whether the case is a summary case or a case proceeding on indictment.

23.12 Third party interests

23.12.1

From time to time third party interest groups may seek access to case related information on the basis that they are seeking to explore elements of a case, post conviction, on behalf of the accused, where there is no live appeal.

23.12.2

Any such requests should be reported to the Director of Serious Casework for Crown Counsel’s Instructions.

24.1 Introduction & definitions

24.1.1

This chapter provides guidance to all staff on the consideration of information obtained during a CAAP investigation where there is a related criminal prosecution.

24.1.2

For the purposes of this chapter, the following words and phrases have the following meanings:

CAAP investigation

Complaint against the police that has been reported to the Criminal Allegations Against the Police Division

CAAP complainer

Person who has made the complaint against the police – this can be either the accused in the related case or another party

CAAP case preparer

Person within the Criminal Allegations Against the Police Division who has been allocated the CAAP case for precognition

Material Information

Information that might materially weaken the prosecution case or materially strengthen the defence case

Prosecuting Office

The PF Office where the related criminal prosecution is being prosecuted/ precognosced

Related Criminal Prosecution

Criminal case arising from the same set of circumstances as those being investigated as part of the complaint against the police.

Relevant Information

Any information that appears to have some bearing on the related criminal prosecution, on any person being investigated, or on the surrounding circumstances unless it is incapable of having any impact on the case.

24.1.3

This guidance applies to those circumstances where the CAAP complainer is also the accused in the related criminal prosecution. It equally applies where the CAAP complainer is not the accused in the related prosecution but the prosecution bears directly on the same set of facts and circumstances as the CAAP case.

24.1.4

There will be circumstances where the guidance will differ depending on whether the complainer is the accused in the related criminal prosecution but this will be expressly stated in the guidance. If no difference is expressly stated, then the guidance will apply equally whether the complainer is also the accused or not.

24.2 The law

24.2.1

Our system of investigating complaints against the police has proceeded on the basis as set out by the court in McLeod v Tiffney (1994 J.C. 77; 1994 S.L.T 531) and endorsed in Normand v Ramage (2005 S.C.C.R 446) that information obtained from the complainer at interview must be kept entirely separate from all persons involved in the prosecution of the complainer, where that complainer is also the accused in an related criminal prosecution.

24.2.2

As stated by Lord Justice General (Hope) at page 539 in McLeod v Tiffney, “the essential point is that all information which is obtained in this way [through interview of the complainer] must be kept entirely separate, so that it is not disclosed to anyone except those involved directly in the investigation. Nobody involved in the investigation must take part in the trial of the person who has made the complaint”.

24.2.3

McLeod v Tiffney was determined before the Crown’s obligations of disclosure were crystallised. It is essential therefore that McLeod v Tiffney is applied having regard to the Crown’s obligations of disclosure.

24.2.4

The Crown’s obligation of disclosure provides that all information which meets the materiality test is disclosable i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused.

24.2.6

The accused’s right to a fair trial in terms of Article 6 of the Convention is unqualified and, as recognised by Lord Coulsfield in his Report on the Disclosure of Evidence in Criminal proceedings, information whose disclosure is necessary for a fair trial must always be disclosed. Accordingly, the principles set down in McLeod v Tiffney must be applied only insofar as they do not interfere with the obligation of disclosure.

24.2.7

Further, the Court, in McLeod v Tiffney, considered the disclosure policy then applied by the Crown in relation to information obtained during a CAAP investigation; namely, that, where there was information beneficial to the accused, irrespective of whether the accused was the complainer, a co-accused or any other individual, the Regional Procurator Fiscal would disclose that information to the complainer and to the relevant District Procurator Fiscal. The Court was satisfied with this approach.

24.3 The policy

24.3.1

It is essential that the approach adopted in relation to information obtained or generated during a CAAP investigation ensures that the accused receives a fair trial and is consistent with the 6 Core Principles of Disclosure. In particular, the 1st and 2nd Core Principles must be applied in relation to such information:

1. The Crown is obliged to disclose all material information (subject to any public interest immunity considerations). This relates to statements, but it also relates to all information of which the Crown is aware;
2. “Material” means information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused. (i.e. disclosable information);

24.3.2

It is essential therefore that there is process whereby all relevant information from the complaints investigation is provided to the prosecutor or Case Preparer in the related prosecution in order that they can they ensure compliance with the Core Principles of Disclosure by disclosing any of this relevant information which is also material information.

24.3.3

To ensure that this process is properly adhered to and to assist in ensuring that the CAAP complainer is not unduly prejudiced the following Core Principles of CAAPs Disclosure must also be adopted and applied:

1. Criminal Allegations Against the Police Division must consider all information obtained or generated during the CAAP investigation and identify all information that may be relevant to the related criminal prosecution and thereafter provide that information to the prosecutor along with an assessment of the materiality of each item of information;
2. Where there is no co-accused involved in the related criminal investigation, any precognition of the complainer (where the complainer is the accused in the related criminal prosecution) must not be provided to the prosecutor;
3. Where there is a co-accused involved in the related prosecution and the complainer is to be precognosced in relation to the complaint, the Case Preparer must first warn the complainer that any information obtained during the precognition which is relevant to the related criminal prosecution will be provided to the prosecutor and may be disclosed to all defence parties;
4. The prosecutor (or Case Preparer) in the related criminal case must then assess all relevant information provided by the CAAP Case Preparer and disclose all material information (subject to any public interest considerations), including any information already assessed as material by the Criminal Allegations Against the Police Division, in compliance with the 1st and 2nd Core Principles of Disclosure;
5. Statements, obtained during the CAAP investigation, of witnesses that Crown intends to call at trial in the related criminal prosecution fall to be disclosed in terms of the materiality test i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused and will only be disclosable where they contain material information;

24.3.4

Further guidance in relation to the application of these principles is detailed throughout this chapter.

24.3.5

Criminal Allegations Against the Police Division must ensure that information obtained during a CAAP investigation is properly considered and disclosed to the Prosecuting Office in any related prosecution so that relevant and material information can be disclosed to the accused’s legal representative by the Prosecuting Office. Annex N provides a summary of the steps to be considered and highlights who has responsibility for each step.

24.4 Establishing the existence of a related criminal prosecution

24.4.1

In order to ensure that the core principles set out above are appropriately applied, Criminal Allegations Against the Police Division must first establish whether there is a related criminal investigation or prosecution. This will usually be recorded in the case papers along with the relevant police, or PF, reference number.

24.4.2

Where there is a related criminal case, Criminal Allegations Against the Police Division must ensure that the Prosecuting Office is made aware of the existence of the CAAP case in order that this fact can be clearly marked in the case papers. This ensures that the Case Preparer or the prosecutor of the related criminal case is aware that there may be relevant information held in the CAAP case and that the core principles stated above apply.

24.4.3

If the related criminal case has not yet been reported to the PF Office, Criminal Allegations Against the Police Division should proactively arrange for the related prosecution report to be submitted as a matter of priority.

24.4.4

If, for any reason, there is a delay in the submission of the related prosecution report and, in the interim, the investigation into the complaint against the police has been concluded, then the Criminal Allegations Against the Police Division must ensure that they are advised by the Reporting Officer when the report is submitted in order that they can adhere to the core principles above.

24.4.5

It should be noted that Criminal Allegations Against the Police Division will investigate Criminal Allegations (including Counter Corruption Cases) made against Police Officers in Scotland acting in the course of their duty, cases against off duty officers will continue to be reported to local ICP teams and dealt with locally

24.5 Precognition of the CAAP complainer – warnings

24.5.1

On receiving a CAAP complaint for precognition, Criminal Allegations Against the Police Division, must first determine whether the complainer should be precognosced. If the complainer is to be precognosced, then consideration must be given to providing the complainer with a warning that information obtained during the interview may be disclosed.

24.5.2

In terms of the core principles detailed above, such a warning is only required where the related prosecution involves multiple accused and the complainer is an accused in the related prosecution. Where a warning is required, the following steps should be taken:

1. The initial letter inviting the complainer to attend for interview should clearly specify that any information obtained during the precognition that related to any outstanding related charge against the complainer would be provided to the prosecutor and, where it materially weakened the prosecution case or materially strengthened the defence case, it would be disclosed to all defence parties involved in the prosecution. The letter must also clearly specify that the complainer may wish to seek legal advice prior to attending and that the complainer is entitled to delay attending for interview until after resolution of the related criminal case.
2. If the complainer then attends for interview, the same warning should be given by the Case Preparer in person, prior to commencing the substantive interview.
3. If it has been confirmed that the complainer wishes to continue the interview, then they should be asked to sign a waiver confirming they have been advised that any information elicited during the interview will be provided to the prosecutor and, if material, will be disclosed to all defence parties. The waiver should further state whether the complainer has sought legal advice prior to signing.
4. If the complainer refuses to sign the waiver, then Criminal Allegations Against the Police Division may review the decision to precognosce the complainer. If the precognition is deemed necessary, then the interview should be postponed until after resolution of the criminal case.

24.6 Identifying information relevant to the criminal prosecution

24.6.1

When preparing a CAAP precognition (or afterwards, if the related prosecution report is not submitted until after conclusion of the CAAP case), Criminal Allegations Against the Police Division must identify all information obtained or generated during the CAAP investigation that may be relevant to the associated criminal prosecution.

24.6.2

Information is relevant if it appears to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances, unless it is incapable of having any impact on the case. Relevant information is not, therefore, restricted to material information.

24.6.3

Any statements obtained during the complaint investigation from witnesses that the Crown intends to call in the related criminal case fall within the class of information set out in Sinclair v HMA and will therefore always be both relevant and material information.

24.6.4

Statements obtained during the CAAP investigation which are taken from witnesses that the Crown does not intend to call at the related criminal prosecution will need to be considered on an individual basis to determine relevance.

24.6.5

Any information regarding findings of guilt against any police officer at a misconduct hearing who is (or is likely to be) a witness in the related criminal prosecution, either for the Crown or the defence, will always be relevant.

24.6.6

Where there is no co-accused involved in the related criminal prosecution and the complainer is the accused in the related prosecution, the precognition of the complainer will never be relevant. Statements obtained from the complainer by the police at the initial stages of their complaint, however, should be considered for relevance in the same way as any other information obtained or generated during the CAAP investigation. Similarly, where the related criminal case does contain multiple accused or the complainer is not an accused in the related prosecution, the precognition from the complainer must be considered for relevance in the usual way.

24.6.7

All relevant information must be passed to the prosecutor or Case Preparer in the related criminal prosecution, who will then assess the information for disclosure to the defence, applying the materiality test. To assist the prosecutor (or Case Preparer), Criminal Allegations Against the Police Division should make a preliminary assessment of the relevant information to determine materiality, as detailed in section 24.7 below.

24.6.8

After providing the prosecutor with all relevant information, Criminal Allegations Against the Police Division must keep revelation under review. Further guidance on this is contained in section 24.16 below.

24.7 Identifying information material to the criminal prosecution

24.7.1

Although the final decision on the materiality of information must rest with the prosecutor, Criminal Allegations Against the Police Division should make a preliminary assessment of the materiality of each item of information from the CAAP investigation that has been identified as being relevant.

24.7.2

Information will be disclosable if it meets the materiality test. Further guidance on the materiality test is contained in Chapter 2 of this manual.

24.7.3

Any statements obtained from witnesses that the Crown intends to call in the related criminal case will always meet the materiality test as set out in Sinclair v HMA.

24.7.4

Any information contained within the remaining statements obtained during the CAAP investigation will only be disclosable where it meets the materiality test laid down in statute i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused...

24.7.5

If the Head of the CAAP Division identifies information that is relevant and material to the criminal prosecution but considers that there is an important public interest justification for non-disclosure, then a report should be submitted to the Director of Serious Casework for Crown Counsel’s opinion on withholding the information, as set down in Chapter 25 of this Manual. The prosecutor must still be advised of this information, however, in order that any decision can be kept under review.

24.8 Providing relevant information to the prosecutor

24.8.1

Once the Criminal Allegations Against the Police Division has identified the relevant information, copies of this information should be provided to the prosecutor, along with a note setting out which of this information has initially been assessed as being material. Different procedures should be applied depending on whether the related prosecution is proceeding on petition or on summary complaint.

Related Solemn prosecutions

24.8.2

Where the related criminal case has been marked for solemn proceedings, the information should be passed to the Case Preparer allocated the associated case. In addition, the Case Preparer should be provided with a copy of a schedule listing each item of information, summarising why it is relevant and confirming whether the information has been assessed as being material information. Further guidance in relation to the schedule is contained at 24.9 below.

24.8.3

In addition, the relevant solemn legal manager should be advised that information from a CAAP investigation has been passed to the Case Preparer.

Related summary prosecutions

24.8.4

Where the related criminal case has been marked for summary proceedings, the information should be passed to the Summary Legal Manager who has responsibility for associating it with the criminal case papers and identifying the person who will be conducting the trial.

24.8.5

Only deputes who have received the mandatory training on Disclosure and CAAP cases should conduct the trial, both at summary and solemn level. The appropriate trial depute must be identified at an early stage in proceedings, whether the case is being tried summarily or before a Sheriff and Jury.

24.9 Schedule of relevant information obtained from a CAAP investigation

24.9.1

Where the related prosecution is proceeding on petition, Criminal Allegations Against the Police Division should prepare a schedule listing all relevant information from the associated complaint against the police investigation that is being provided to the Case Preparer of the related prosecution. Style template DISCCAPSCHEDULE.DOC must be used.

24.9.2

This schedule is separated into 2 sections: one which is completed by Criminal Allegations Against the Police Division and one which is completed by the related prosecution Case Preparer or Summary Legal Manager where applicable. The section to be completed by Criminal Allegations Against the Police Division includes the following columns:

• Material Type
• Description and Relevance
• Where held
• Sensitivity
• Assessment of materiality

24.9.3

Criminal Allegations Against the Police Division must complete this section in respect of each individual item of information from the CAAP case.

24.9.4

The material type column should be used to give a brief indication of what type of information the entry relates to, e.g. witness statements; police casualty surgeon’s report; CCTV footage, etc.

24.9.5

The description and relevance column should be used to provide a brief summary of what the information contains, providing an indication as to why the information is relevant and, if appropriate, why it is material.

24.9.6

The where held column should be used to state where the item is currently held. This should relate to the location of the original document and not to any photocopy or electronic version that has been generated, unless the original has never been obtained.

24.9.7

The Sensitivity column should be used to highlight whether the item of information is sensitive or non-sensitive, having regard to the guidance on sensitive and non-sensitive information, contained in chapters 34 and 35 of this Manual. It is essential that information is accurately assessed for sensitivity, as this is crucial to whether or not the existence of the information will be disclosed to the defence.

24.9.8

The Assessment of materiality column should be used to confirm whether or not Criminal Allegations Against the Police Division has assessed the information as being material. It is important that this column is accurately completed as if the entry states that the item of information is material it will be disclosed to the defence in the related prosecution. If Criminal Allegations Against the Police Division has submitted a report to the Director of Serious Casework for Crown Counsel’s opinion on the non-disclosure of a material item of information, on the grounds of public interest immunity, this should be clearly recorded here.

24.9.9

If when assessing an item of information as being material, Criminal Allegations Against the Police Division forms a particular view on the method of disclosure, e.g. considers that it should be by access only, this should be recorded in the Disclosure Action column of the schedule before it is passed to the prosecutor/ Case Preparer in the related case, who should then follow that instruction.

Role of the prosecutor/case preparer in related prosecution

24.10 Assessing relevant CAAP information for materiality in relation to the related prosecution

24.10.1

If a prosecution case has been marked as having a related CAAP case, the Case Preparer, in solemn cases, or the prosecutor allocated the trial, in summary cases, must ensure that they receive all information from Criminal Allegations Against the Police Division that is relevant to the criminal prosecution.

24.10.2

Once the Case Preparer/prosecutor has received all such relevant information, they should then consider whether it is disclosable in terms of the materiality test. In doing so, the Case Preparer/prosecutor will apply the same principles as if it were relevant information received from the investigating agency, i.e. determining whether it is information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused.

24.10.3

To assist in this process, Criminal Allegations Against the Police Division will have already carried out a preliminary assessment of the relevant information to identify the material information. As ultimate responsibility for disclosure lies with the prosecutor, a further separate assessment must also be carried out by the Case Preparer or prosecutor, in close consultation with the appropriate legal manager.

24.10.4

Any statements obtained from witnesses that the Crown intends to call in the related criminal case will always meet the materiality test (Sinclair v HMA). Any information contained within the remaining statements obtained during the CAAP investigation will only be disclosable where it meets the materiality test as laid down in statute i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused.

24.10.5

Any information assessed as being material by Criminal Allegations Against the Police Division and any other information assessed as being material by the prosecutor/ Case Preparer should then be disclosed to the defence in the usual way, subject to any public interest immunity considerations, as set down in Chapter 25 of this Manual, and subject to the principles of redaction set down in Chapters 15 and 29 of this Manual.

24.10.6

As with all other relevant information obtained or generated in respect of the criminal case, the disclosure (or non-disclosure) of relevant information from the CAAP investigation must be kept under review throughout the life of the case and beyond. Further guidance on this is contained in section 24.16 below.

24.11 Recording disclosure decisions in summary cases

24.11.1

Any disclosure decisions regarding relevant information from the related CAAP investigation must be carefully recorded on the case papers.

24.11.2

There is no requirement, however, in summary cases to advise the defence of the existence of relevant and non-sensitive information that is not being disclosed.

24.12 Recording disclosure decisions in solemn cases

24.12.1

When any relevant information from a CAAP investigation is provided to the Case Preparer in the related prosecution, a partially completed schedule listing all relevant information from the CAAP investigation will also be provided.

24.12.2

As detailed in section 24.9 above, Criminal Allegations Against the Police Division will complete the first section of this schedule. At the stage the relevant CAAP information is being considered for disclosure to the defence, the Case Preparer should complete the second section of the schedule. This section comprises 4 columns:

• Disclosure Action
• Comment
• Date Disclosed to the Defence
• Defence Advised of existence

24.12.3

The Disclosure Action column should be used to record the appropriate disclosure action of which there are 5 options:

• Disclose to the defence (by provision of a copy)
• Withhold meantime (e.g. pending a particular action such as precognition of a witness)
• Disclose by access
• Not disclosable (assessed as non-material)
• PII required

24.12.4

The Case Preparer must consider each piece of information and then insert the appropriate disclosure action in this column. Further information on carrying out this process is contained in Section 37.5 of this Manual.

24.12.5

The comments column allows the Case Preparer to include any relevant comment in relation to the disclosure action, e.g. if the statement has been redacted, then the Case Preparer can include a comment to this effect; if the disclosure action is “disclose by access”, then the Case Preparer should specify where and by whom this access will be facilitated.

24.12.6

The date disclosed to the defence column should be completed by a member of administrative staff at the stage the item of information is disclosed.

24.12.7

The Defence advised of existence column should be completed for each item of information that is not being disclosed to the defence. Criminal Allegations Against the Police Division will have assessed the sensitivity of each item of information and recorded this on the schedule. If an item is sensitive but is not being disclosed to the defence, the defence should not be advised of the existence of that item of information. If the item is not sensitive and is not being disclosed to the defence, the defence must be advised of the existence of the item of information, as detailed in paragraph 24.12.3 below.

24.12.8

This schedule must be included in the precognition behind the Disclosure Page.

24.13 Disclosure to the defence

24.13.1

Where information obtained or generated during the CAAP investigation is identified as being relevant and material it must be disclosed to the defence in the usual way, subject to any public interest immunity considerations as set down in Chapter 25 of this Manual.

24.13.2

In order to ensure that there is a clear audit trail, a production record should be created in the criminal case, for every production or statement disclosed. Further guidance on creating production records can be found in the Case Processing Manual.

24.13.3

If the case is subject to solemn procedure, the defence must also be advised of the existence of any non-sensitive relevant information from the CAAP case that is not being disclosed. This information can be extracted from the schedule referred to at section 24.9 and 24.12 above. If an item of information is listed in the schedule as having a disclosure action for ND for non-disclosable and the corresponding entry in the “sensitivity” column is marked as “non-sensitive”, then the defence must be advised of the existence of this information. This can be done in the form of a letter.

24.13.4

In addition, in all solemn cases, the Disclosure Page should be updated, with the disclosure action in relation to the information obtained/generated during the CAAP investigation.

24.14 Police misconduct information

24.14.1

As stated at paragraph 24.6.5 information regarding findings of guilt at a misconduct hearing of any police officer who is (or is likely to be) a witness in the related criminal prosecution, either for the Crown or the defence, will always be relevant. It will not necessarily follow, however, that the information is material.

24.14.2

Where the related prosecution is proceeding under solemn procedures, the Case Preparer must carefully consider the misconduct information, in close consultation with the relevant solemn legal manager. Regardless of whether the case is a likely High Court case or a Sheriff and Jury case, the Case Preparer must seek Crown Counsel’s instructions on disclosure of misconduct information. This should be done by including details of the misconduct behind the witness’s precognition and/or witness statement in the precognition and then including disclosure (or non-disclosure) recommendations in the Disclosure Page.

24.14.3

Where the related prosecution is proceeding summarily, then the trial depute must carefully consider the misconduct information, in close consultation with the summary legal manager. Any material misconduct information should be disclosed. In cases of doubt or sensitivity, a report should be submitted to the Director of Serious Casework for Crown Counsel’s instructions on disclosure.

24.15 Requests by complainers for copies of their statements/precognitions

24.15.1

If requested, a copy of any statement given to the police by the CAAP complainer in respect of the complaint against the police can be provided to the CAAP complainer. If the prosecutor or Case Preparer does not have a copy of such a statement (i.e. because Criminal Allegations Against the Police Division considers it to be irrelevant), then the request should be passed to the Criminal Allegations Against the Police Division to facilitate.

24.15.2

If requested, a complainer should not be provided with a copy of any precognition that has been obtained from him/her as part of the CAAP precognition process. Complainers in criminal proceedings are not provided with copies of their precognitions on the basis that they are confidential and have been filtered through the eyes of the Case Preparer. The same principle should be applied in relation to precognitions provided as part of any investigation into a complaint against the police.

24.16 The duty to keep relevancy and materiality under review

24.16.1

In any criminal investigation, the investigating agency must keep relevancy under review in light of any new or additional information obtained during the investigation (Criminal Justice and Licensing (Scotland) Act 2010, sections 118 and 120). Similarly, the Crown must keep materiality under review in light of any new or additional information obtained, including information regarding the line of the accused’s defence. Similar obligations will arise in relation to information obtained or generated during the associated CAAP investigation.

24.16.2

The CAAP investigator will provide the trial depute or Case Preparer with all information contained within the CAAP that may be relevant to the associated prosecution (Criminal Justice and Licensing (Scotland) Act 2010, sections 117 and 119). If, once this has initially been done, further information is obtained or generated during the CAAP investigation, then the CAAP investigator must assess this new information and any existing information held previously considered to be irrelevant and provide the trial depute/Case Preparer with any additional relevant information (Criminal Justice and Licensing (Scotland) Act 2010, sections 118 and 120).

24.16.3

If, at any stage of preparing the associated criminal case, the trial depute or Case Preparer obtains any information regarding the nature of the accused’s defence that could not be reasonably anticipated, then the Case Preparer should advise Criminal Allegations Against the Police Division of this new information to enable relevancy to be kept under proper review.

24.16.4

The trial depute or Case Preparer must keep decisions on materiality under review and, in particular, where there is an associated CAAP investigation, must:

1. Consider any new relevant information submitted by either the reporting/reviewing officer in the criminal investigation and/or the CAAP investigator in the associated CAAP case to determine whether it is disclosable in terms of the materiality test i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused; and
2. Review all previous decisions of non-materiality where new relevant information is submitted from either the reporting/reviewing officer in the criminal investigation and/or the CAAP investigator in the associated CAAP case.

24.16.5

In summary cases, it will be the responsibility of the trial depute, who should be identified at an early stage, to ensure that disclosure is kept under review before and during the trial.

24.16.6

In sheriff and jury cases, the Case Preparer, in close consultation with the relevant solemn legal manager will have responsibility to keep disclosure under review until such stage as the trial depute is identified. This should be done before the First Diet to ensure that the trial depute can also conduct the First Diet. Once the trial depute has been passed the papers for the First Diet, it becomes his/her responsibility to keep disclosure under review up to and during the trial.

24.16.7

In High Court cases, the Case Preparer, in close consultation with the relevant solemn legal manager will have responsibility to keep disclosure under review right up until the trial, at which stage this will become the responsibility of the Advocate Depute conducting the trial.

24.16.8

Any new information identified as relevant must be added to the schedule referred to at section 24.9 above. Any changes to the disclosure position of any item listed in the schedule must also be updated as required.

24.17 Duty of review where CAAP complainer is convicted prior to submission of CAAP report

24.17.1

Where the related prosecution concludes before the CAAP case is reported and it resulted in a conviction either of the CAAP complainer or any co-accused, Criminal Allegations Against the Police Division must consider whether there is any information within the CAAP case that could have, if known during the trial, materially weakened the prosecution case or materially strengthened the defence case.

24.17.2

Where such information does exist, Criminal Allegations Against the Police Division should submit a report for the attention of the Director of Serious Casework, seeking Crown Counsel's instructions on whether the information should now be disclosed. The report should include a preliminary assessment on the likelihood that, if disclosed earlier, there would have been a real possibility of a different outcome.

24.17.3

Thereafter, Crown Counsel will provide instruction on whether the information should be disclosed to the convicted person or persons.

25.1 General principles

25.1.1

The investigating agency must provide the Crown with details of all relevant information obtained or generated during the course of an investigation (Criminal Justice and Licensing (Scotland) Act 2010, sections 117 and 119). This will include information of a sensitive nature such as intelligence information. While such information must still be provided, care must be taken to ensure that it is properly safeguarded throughout the disclosure process.

25.1.2

Sensitive information is defined by Section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010 as information which if disclosed would be likely to:

1. Cause serious injury, or death, to any person;
2. Obstruct or prevent the prevention, detection, investigation or prosecution of crime; or
3. Cause serious prejudice to the public interest.

25.1.3

Depending on the nature of the sensitivity of a piece of information, it may also be categorised as being highly sensitive. Highly sensitive information is defined as information which if disclosed would be likely to:

1. Lead directly to the loss of life;
2. Directly threaten national security; or
3. Lead to the exposure of a CHIS (covert human intelligence source).

25.1.4

When an investigating agency submits sensitive information to the Crown, it will be given a protective marking under the Government Protective Marking Scheme (GPMS). Such information will, depending on the nature of its sensitivity, carry a marking of restricted or higher. Further guidance on the GPMS markings can be found in PF Eye.

25.1.5

It should also be noted that where information does not fall within the definition of highly sensitive detailed above but carries a GPMS marking above restricted, it can only be provided to staff within COPFS with the appropriate security clearance level, who, depending on the level of the GPMS marking, may be the Federation Head, functional lead or other vetted member of COPFS.

25.1.6

Accordingly, the investigating agency will provide such information using the procedures detailed below for highly sensitive information.

25.1.7

Further guidance on the type of information that might be considered to fall within the definition of sensitive information is contained in Chapter 35 of this Manual (in particular, at paragraphs 35.3.10 and 35.5.3).

25.2 Provision of sensitive information in summary proceedings

25.2.1

The Reporting Officer (or Reviewing Officer, if appointed) will decide whether information obtained or generated during the course of an investigation is relevant information, i.e. information that may have some bearing on the offence(s) under investigation, or any person being investigated, or on the surrounding circumstances, unless it is incapable of having any impact on the case.

25.2.2

Once the officer has determined that the information is relevant and therefore must be provided to the Crown, they will then assess whether the information falls within the definition of sensitive or highly sensitive information detailed above.

25.2.3

Any relevant information assessed as being sensitive will be referenced and, if appropriate, summarised in the remarks section of the SPR. If it is considered inappropriate to summarise the information in the remarks section of the SPR due to level of sensitivity then a separate subject sheet will be submitted to the appropriately vetted member of COPFS. If the information comes to the attention of the police after the submission of the SPR, such information will again be provided by subject report. The summary will include a description of the information and details of why the information is considered to be sensitive in nature. If the information has come from the Scottish Intelligence Database (SID), then a short description of the content of the sanitised log(s) should be included along with details of the 5x5x5 grading that has been applied to it and the date of its submission to the database.

25.2.4

Thereafter, if the accused pleads not guilty and the matter proceeds to trial, the investigating agency will submit all witness statements, S numbers and productions. This should include the sensitive information referenced in the SPR (or any subsequent subject sheet) where it is considered that it may have some bearing on the offence(s) under investigation, or any person being investigated, or on the surrounding circumstances, unless it is incapable of having any impact on the case. If the investigating agency does not submit any item of sensitive information, but the depute preparing the case or conducting the trial considers that the information should be submitted in order for it to be properly considered for disclosure, then the depute should liaise with the Reporting Officer to ensure that the information is submitted.

25.2.5

Once the relevant sensitive information has been provided to the Crown, it must be assessed to ascertain:

1. Whether it is material information and therefore disclosable; and, if so
2. Whether there is any reason in the public interest why the information should not be disclosed.

25.2.6

Further guidance in relation to these considerations is contained later in this chapter.

25.3 Provision of highly sensitive information in summary proceedings

25.3.1

If the Reporting (or Reviewing) Officer considers that the relevant sensitive information falls within the category of highly sensitive detailed above, then this information will be submitted to a member of staff with the appropriate security clearance level, who, depending on the level of the GPMS marking may be the Federation Head, functional lead or other vetted member of COPFS.

25.3.2

Similarly, if the sensitive information does not fall within the highly sensitive definition but carries a GPMS marking higher than RESTRICTED, e.g. CONFIDENTIAL or SECRET, then it will be treated as it if were highly sensitive information and will also be submitted to a member of staff with the appropriate security clearance, having regard to the level of the GPMS marking.

25.3.3

It should be noted that any information carrying a GPMS marking above RESTRICTED cannot be submitted to the PF electronically and must be submitted hard copy in line with the GPMS guidance.

25.3.4

As with all other relevant information provided to the Crown, any highly sensitive information provided must be assessed to ascertain:

1. Whether it is material information and therefore disclosable; and, if so
2. Whether there is any reason in the public interest why the information should not be disclosed.

25.3.5

Further guidance in relation to these considerations is contained later in this chapter.

25.4 Provision of sensitive information in solemn proceedings

25.4.1

Once appointed, using the 3 stage assessment process set out in section 3.9 of this Manual, the Reviewing Officer will decide whether information obtained or generated during the course of an investigation is relevant information, i.e. information that may have some bearing on the offence(s) under investigation, or any person being investigated, or on the surrounding circumstances, unless it is incapable of having any impact on the case.

25.4.2

Once the Reviewing Officer has determined that the information is relevant and therefore must be provided to the Crown, they will then assess whether the information falls within the definition of sensitive or highly sensitive information detailed above.

25.4.3

Sensitive information will then be listed on the Sensitive Schedule and provided to the Crown as set down in Chapters 16 and 35 of this Manual. Thereafter it will be assessed by the precognoscer in close consultation with the Solemn Legal Manager following the processes set down in Chapter 37 of this Manual.

25.5 Provision of highly sensitive information in solemn proceedings

25.5.1

If the Reviewing Officer considers that the relevant sensitive information falls within the category of highly sensitive detailed above, then this information will be listed on the Highly Sensitive Schedule and provided to the Crown as set down in Chapters 16 and 36 of this Manual. Thereafter it will be considered by the Federation Head, functional lead or other vetted member of COPFS in terms of Chapters 36 and 37 of this Manual.

25.6 Assessing sensitive & highly sensitive information for disclosure

25.6.1

Relevant sensitive and highly sensitive information must be considered for disclosure in the same way as non-sensitive information. If the information forms part of the prosecution case or might either materially weaken the Crown case or materially strengthen the defence case it must be disclosed to the defence unless there is a reason in the public interest why such information should not be disclosed.

25.6.2

If sensitive information is not material (i.e. is not likely to materially weaken the Crown case or materially strengthen the defence case) or does not otherwise form part of the prosecution case (i.e. is not information that the Crown will be leading at trial) there is no requirement to advise the defence of the existence of that information. The only exception to this is in relation to criminal history record information.

25.6.3

As Criminal History Information is considered to be sensitive personal data under the Data Protection Act 1998, it will always be considered to fall within the definition of sensitive information detailed above. However, as stated in Holland v HMA, previous convictions and outstanding charges are a class of information that is always disclosable. If a witness has a criminal history record and the Crown considers that parts of the record are not material, and therefore not disclosable, the information can be redacted. However, such redaction must be obvious on the face of the disclosed record. If the full record is considered to be not material and therefore not disclosable, the defence must still be advised of the existence of the record in order that they can properly consider whether to challenge the Crown’s determination of non-materiality.

25.7 Submission of highly sensitive schedules to Crown Office

25.7.1

Where the case is proceeding on petition and the information is highly sensitive, as stated in section 36.6 of this Manual, all highly sensitive schedules should be submitted, hard copy in line with the GPMS marking scheme, to the Director of Serious Casework, accompanied with a note setting out whether any of the information is disclosable.

25.7.2

Where the Federation Head, functional lead or other vetted member of COPFS is seeking to withhold information that is considered to be material, a report for Crown Counsel’s instructions should also be submitted to the Director of Serious Casework along with the schedule. Further guidance on the content of the report is contained below in paragraph 25.8.11.

25.8 Non-Disclosure of material information

25.8.1

If relevant information forms part of the prosecution case or is otherwise considered as material information (i.e. information that might materially weaken the Crown case or materially strengthen the defence case), then it must be disclosed to the defence, unless there is a reason in the public interest why such information should not be disclosed.

25.8.2

Such a consideration will only arise where the relevant information is sensitive or highly sensitive. There should be no circumstances in which it would be in the public interest to withhold non-sensitive information.

Information forming part of the prosecution case

25.8.3

If information of a sensitive or highly sensitive nature is only disclosable because it forms part of the prosecution case (i.e. the Crown intends to lead it in evidence at trial in support of the prosecution case) and is not otherwise information that might weaken the Crown case or strengthen the defence case, it cannot be withheld from the accused. The only options available to the Crown in such circumstances are to either (a) disclose the information, notwithstanding the prejudice to the public interest or (b) not use the information at trial.

25.8.4

Determining the appropriate option is a careful balancing exercise between the competing public interests of protecting the sensitive (or highly sensitive) information and that of maintaining the prosecution against the accused.

25.8.5

In solemn proceedings, Crown Counsel’s instructions must be obtained on which public interest should take precedence, i.e. on whether the sensitive information should be disclosed or the proceedings should be discontinued (or a particular charge, where the information relates to only part of the charges on the indictment). Where the information is material and falls to be disclosed then instructions are required before any decision is taken to disclose the information concerned.

25.8.6

In summary proceedings, the Summary Legal Manager should seek the instructions of the Functional Lead, Summary on whether to disclose the sensitive information or discontinue proceedings (or a particular charge, where the information relates to only part of the charges on the complaint). In cases of doubt or complexity, the Functional Lead, Summary should submit a report to the Director of Serious Casework for Crown Counsel’s instructions. When submitting the report, it is essential that the method of transmission is consistent with the requirements of the GPMS guidance, e.g. if the information carries a marking above RESTRICTED the report must not be submitted electronically and should instead be submitted hard copy.

Information that materially weakens the Crown case or materially strengthens the defence case

25.8.7

Non-disclosure of material information should only arise in exceptional cases and will occur where the information is covered by public interest.

25.8.8

Material information may need to be withheld where there is a genuine concern that the disclosure of a piece of material information would:

1. Cause serious injury, or death to any person;
2. Directly threaten national security;
3. Obstruct or prevent the prevention, detection, investigation or prosecution crime; or otherwise
4. Cause serious prejudice to the public interest

25.8.9

In terms of section 122 of the 2010 Act, “sensitive information” is defined in respect of solemn cases as an item of information that if it were disclosed there would be a risk of –

1. causing serious injury, or death to any person;
2. obstructing or preventing the prevention, detection, investigation or prosecution of crime; or otherwise
3. causing serious prejudice to the public interest.

This section provides that where information falls within the above categories which may be relevant but is not material then the details of that information need not be disclosed by the prosecutor. In essence this confirms that the sensitive (or highly sensitive) schedules will not be disclosed to the defence and therefore only sensitive information which meets the materiality test will be considered for disclosure. The existence of potentially relevant sensitive information which does not meet the materiality test will not be revealed to the defence.

Non-disclosure of material information

25.8.10

The overriding obligation in respect of the criminal proceedings is to ensure that the accused has a fair trial. If the accused cannot have a fair trial without the disclosure of the information, then it must either be disclosed or the proceedings must be discontinued. Accordingly, any decision regarding the withholding of such information must, in all cases, be taken by Crown Counsel.

Reporting to Crown Counsel for instruction re non-disclosure

25.8.11

If, after close consultation with the relevant legal manager, an item of information is identified as being material and therefore disclosable as set down in section 121 of the 2010 Act and it is considered that disclosure would not be in the public interest for any of the reasons specified above, the legal manager should immediately refer the matter to the Federation Head or functional lead (High Court/Sheriff and Jury) for consideration of referral to the Director of Serious Casework for an application to be made in terms of section 145 of 2010 Act, to prevent or restrict disclosure.

25.8.12

If the Federation Head or functional lead (High Court/Sheriff and Jury) agrees that the item of information is material and that there is a likely prejudice to an important public interest if it were to be disclosed, then the Federation Head or functional lead (High Court/Sheriff and Jury) should then report the matter to the Director of Serious Casework for the attention of Crown Counsel. The report should include:

1. A brief summary of the case, including any known line of defence;
2. Details of the item of information, setting out why the information is material and the nature of the likely prejudice to an important public interest; and
3. An appropriate recommendation on whether:
1. To discontinue proceedings completely or in relation to a particular charge (or accused);
2. The information could be disclosed or partly disclosed in such a way that would protect the public interest while still ensuring that the accused received a fair trial, e.g. by redacting or removing parts of the information or by provides extracts or summaries of the information; or
3. To seek to invoke public interest immunity.

25.8.13

When submitting the report, it is essential that the method of transmission is consistent with the requirements of the GPMS guidance, e.g. if the information carries a marking above RESTRICTED the report must not be submitted electronically and should instead be submitted hard copy.

25.8.14

Where the Crown is not prepared to discontinue proceedings it is not entitled unilaterally to withhold the information from the defence. The question of whether the information should be disclosed will require to be decided by the Court in its determination of a request for restricted disclosure or non-disclosure in terms of section 145 of the 2010 Act. See for example Hemming v HM Advocate, (1997 J.C.), in which the court considered the public interest in disclosure of witness statements and also Friel v Chief Constable of Strathclyde, (1981 S.C. 1) and Parks v Tayside R.C. (1989 S.C. 38) in which the courts sought to balance various factors in terms of the public interest in the disclosure or otherwise of information.

25.9 Non-disclosure in the public interest

25.9.1

Where information meets the materiality test as set down in section 121 of the 2010 Act, the Crown must determine whether there are any reasons in the public interest why that information should not be disclosed to the defence.

25.9.2

If the Crown is satisfied that such reasons exist, then the Crown should not disclose the information meantime and should apply to the court for an order under section 145 of the 2010 Act to prevent or restrict disclosure. All applications for an order to withhold or restrict disclosure of information must be approved by the Director of Serious Casework.

25.9.3

Depending on the nature or type of information that the Crown is seeking to withhold the following orders should be sought:

1. Where disclosure of the nature or type of information that the Crown is seeking to withhold would not compromise the public interest that the Crown is seeking to protect under a non-disclosure order, then only a nondisclosure order under section 145 of the 2010 Act should be sought (This will be made on Form 7A.6 –C in Act of Adjournal (Criminal Procedure Rules Amendment No.4) (Disclosure) 2011).
2. Where disclosure of the nature or type of the information that the Crown is seeking to withhold is likely to cause a real risk of substantial harm or damage to the public interest that the Crown is seeking to protect, then a nondisclosure order under section 145) and an exclusion order under section 142(2)(b) or (3) of the 2010 Act (This will be made on Form 7A.6 – B in Act of Adjournal (Criminal Procedure Rules Amendment No.4) (Disclosure) 2011 ) should be sought; and
3. Where even the fact that the Crown is seeking to withhold information is likely to cause a real risk of substantial harm or damage to the public interest that the Crown is seeking to protect, then a non-disclosure order under section 145, an exclusion order and a non-notification order also under section 142 (This will be made on Form 7A.6 –A in Act of Adjournal (Criminal Procedure Rules Amendment No.)(Disclosure) 2011) should be sought. It should be noted that this combination can only be sought in solemn cases.

Non-disclosure order

25.9.4

Application for a non-disclosure order should be considered in any case, where there is information which the Crown wishes to withhold in the public interest, but the existence of the nature or type of information would not in itself compromise the public interest which the Crown is seeking to preserve.

25.9.5

A non-disclosure order may be applied for in any solemn or summary case and unless it is impractical to do so the application should be assigned to the same justice of the peace, sheriff or as the case may be, judge as has been assigned to the trial diet in those proceedings (Criminal Justice and Licensing (Scotland) Act 2010 section 158(3) and (4)(a)). This will, where possible, ensure that the fairness of the non-disclosure order can be kept under review throughout the trial.

25.9.6

Where the application relates to appeal proceedings which are continuing then the application should be assigned by the court, to the same judge as has been or is to be assigned to those proceedings (Criminal Justice and Licensing (Scotland) Act 2010 section 158(3) and (4)(b)).

25.9.7

When an application is made under section 141 of the 2010 Act, the court must consider whether it is possible to disclose, or partly disclose, the information in such a way that the public interest remains protected and the disclosure would still enable the accused to receive a fair trial. Where proceedings have concluded, consideration will be given to whether the accused would have been able to receive a fair trial in light of the non-disclosure.

25.9.8

Ways in which an item of information can be disclosed or partly disclosed include:

1. Providing the information after removing or obscuring parts of it, whether by redaction or otherwise.
2. Providing extracts or summaries of the information or part of it.

25.9.9

Where an application to withhold information has been made and is refused by the court, or part refused, the Crown must either disclose the information concerned or discontinue proceedings in respect of the charge or charges to which that item of information relates. It is however also open to the Crown to appeal against the refusal or part refusal of the application and the refusal of an exclusion or non-notification order. Pending the outcome of any such appeal, the Crown must not disclose the item of information to which the appeal relates.

25.9.10

Where an application for a non-disclosure order is being considered a report should be prepared and submitted to the Director of Serious Casework to seek approval for such an order to be sought.

25.9.11

The report for the Director of Serious Casework must contain a summary of the charges and circumstances of the case, the procedural history of the case, the nature and classification of the information that the Crown is seeking to withhold and details of the public interest that the Crown is seeking to protect. Details of whether the Crown case can proceed without this particular piece of information and whether it is believed that the accused can still receive a fair trial even if the information is not disclosed should also be included in this report. Recommendations in relation to whether it is felt appropriate to apply for an exclusion order and or non-notification order should also be included. Full details on these orders are contained below.

25.9.12

Thereafter instructions will be issued by Director of Serious Casework in respect of whether to proceed to make the application for non-disclosure and this will be allocated to an appropriately vetted member of staff to proceed with in court.

Exclusion order

25.9.13

Application for an exclusion order should be considered where there is information which the Crown wishes to withhold in the public interest, and the existence of the nature or type of information is likely to a cause real risk of substantial harm or damage to the public interest that the Crown is seeking to protect.

25.9.14

An exclusion order may be applied for in any case where a non-disclosure order is also being applied for and unless it is impractical to do so this will be assigned by the court, to the same justice of the peace, sheriff or as the case may be judge as has been assigned to the trial. This will, where possible, ensure that the fairness of the non-disclosure order can be kept under review throughout the trial.

25.9.15

If after giving the prosecutor the opportunity to be heard on the application the court is satisfied that the conditions in section 144 (5) are met the court may make an exclusion order.

25.9.16

The conditions to be considered by the court are

1. that disclosure to the accused of the nature of the information to which the application for the section 145 order relates would be likely to cause a real risk of substantial harm or damage to the public interest.
2. that, having regard to all the circumstances the making of an exclusion order would be consistent with the accused’s receiving a fair trial.

25.9.17

Where an application for an exclusion order has been made and is refused by the court, the Crown must then consider whether to proceed with the nondisclosure order application. The effect of the refusal of the exclusion order will be that the accused will be entitled to be present at the hearing to determine the nondisclosure order. It may be that the nature and type of the information that the Crown is seeking to withhold is such that it could be relayed to the court without full details being released. This would allow consideration of the non-disclosure order to be made without full details being relayed to the accused at the hearing. This will be dependent on the classification of the information in question and full instructions should be sought from the Director of Serious Casework before proceeding to a nondisclosure hearing where an exclusion order has been refused.

25.9.18

Where an application for an exclusion order has been made and is granted by the court then consideration will be given to the content of the non-disclosure order application. The accused will not be entitled to be present at such a hearing.

Non-notification order and exclusion order

25.9.19

Application for an non-notification order and exclusion order should be considered in solemn cases where the circumstances of even the fact that the Crown is seeking to withhold information is likely to cause a real risk of substantial harm or damage to the public interest that the Crown is seeking to protect.

25.9.20

A non-notification order and exclusion order may be applied for in any solemn case where a non-disclosure order is also being applied for. This application will be assigned by the court, unless it is impractical to do so, to the same sheriff or judge as has been assigned to the trial. This will, where possible, ensure that the fairness of the non-disclosure order can be kept under review throughout the trial.

25.9.21

In cases where the information is so sensitive that consideration is being given to making an application for a non-notification and exclusion order then this must be authorised by the Director of Serious Casework. The case should be referred to the Federation Head or functional lead (High Court/Sheriff and Jury) in the first instance who will arrange for a report in the terms outlined at 25.9.11 above to be submitted to the Director of Serious Casework as soon as possible.

25.9.22

In dealing with applications for non-notification, exclusion and non-disclosure orders the court may appoint a person referred to as special counsel, to represent the interests of the accused in relation to the determination of the application. The underlying test for the court is that it is considered that the appointment of special counsel is necessary to ensure that the accused receives a fair trial. Whilst there is no provision within the legislation for the Crown to pre-empt an appointment of special counsel, it should be borne in mind that if the situation arises and there is no mention of special counsel then it would be prudent to bring the provision to the attention of the court. It would not be in the public interest to allow such a hearing to go ahead without the accused’s article 6 rights being considered as this may have a detrimental effect on the outcome of any case.

Orders preventing or restricting disclosure appeal and review of orders

25.9.23

Where an application has been made to withhold information and this is refused or part refused then it is open to the Crown to appeal against the refusal or part refusal of the application and also any refusal of an exclusion or non-notification order. Pending the outcome of any such appeal the Crown must not disclose the item of information to which the appeal relates.

25.9.24

Appeals may be made by the Crown to the High Court against –

1. the making of a section 145 order under section 145(7) – non disclosure order partly refused,
2. the making of a section 146 order,
3. the making of a restricted notification order,
4. the making of a non-attendance order,
5. the refusal of an application for a non-notification order,
6. the refusal of an application for an exclusion order, or
7. the refusal of an application for a section 145 order.

25.9.25

Appeals may also be made by the accused, to the High Court against the making of –

1. an exclusion order under section 144 (4),
2. a section 145 order,
3. a section 146 order, or
4. a non-attendance order.

25.9.26

Appeals may be made by the appropriate Secretary of State to the High Court against –

1. the making of a section 146 order under section 146 (11)
2. the refusal of an application for a restricted notification order,
3. the refusal of an application for a non-attendance order, or
4. the refusal of an application for a section 146 order.

25.9.27

Where special counsel has been appointed in relation to an application for a non-notification order, appeals may be made by special counsel to the High Court against the making of –

1. the non-notification order, or
2. a section 145 order in relation to the same item of information.

25.9.28

Where special counsel has been appointed in relation to an application for a restricted notification order, appeals may be made by special counsel to the High Court against the making of –

1. the restricted notification order, or
2. a section 146 order in relation to the same item of information.

25.9.29

The accused is entitled to be heard in an appeal against the making or refusal of any of the orders mentioned above unless the court has made an order excluding them or restricting or withholding notification of the hearing.

25.9.30

An application for a review of a non-disclosure order may be made by the prosecutor, or as the case may be, special counsel or the accused where the court has made a non-disclosure order, and during the relevant period the prosecutor or accused becomes aware of information that was unavailable to the court at the time when the order was made.

25.9.31

The same persons who were entitled to be heard on the application for the non-disclosure order are entitled to be heard on the application for review. The exception being where a non-notification order has been granted in relation to the non-disclosure order which is under review. In this case the court may make an order prohibiting notification being given to the accused of the application for review.

25.9.32

Where an exclusion order was granted in relation to the non-disclosure order which is under review the court may, where the prosecutor or, as the case may be, special counsel or the accused applies for the review, exclude the accused from the review.

25.9.33

If the court is not satisfied that the following conditions are met –

1. that the prosecutor is required in terms of the legislation to disclose the item of information
2. that the information would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accuse or the information would materially strengthen the accused’s case,
3. that if the item of information were to be disclosed there would be a real risk of substantial harm or damage to the public interest,
4. that withholding the item of information would be consistent with the accused’s receiving a fair trial, and
5. that the public interest would be protected only if a non-disclosure order were to be made

may either recall the non-disclosure order or recall the non-disclosure order and make an order requiring disclosure to the specified extent.

25.9.34

An application may be made for a review of an order issued by the Court under section 146 – preventing or restricting disclosure providing that during the relevant period the Secretary of State, prosecutor, special counsel or accused becomes aware of information that was unavailable to the court at the time the order was made.

25.9.35

Where a restricted notification order was granted in relation to the order which is under review the court may, where the Secretary of State or, as the case may be the prosecutor or special counsel applies for a review, make an order prohibiting notification of the application for review being given to the accused.

25.9.36

Where a non-attendance order was granted in relation to the order which is under review the court may, where the Secretary of State, or as the case may be, the prosecutor, special counsel or the accused applies for the review, exclude the accused for the review.

25.9.37

The court if not satisfied that the following conditions are met –

1. that if the item of information were to be disclosed there would be a real risk of substantial harm or damage to the public interest,
2. that withholding the item of information would be consistent with the accused’s receiving a fair trial, and
3. that the public interest would be protected only if a section 146 order preventing the disclosure of the information were to be made,

may recall the order which is under review, or recall the order which is under review and make an order requiring the information to be disclosed or partly disclosed to the accused in the specified manner.

25.9.38

Where an order under section 145 or 146 of the 2010 Act has been made, the court must from time to time consider in relation to each order whether, having regard to the information of which the court is aware, the order continues to be appropriate. If the court considers that the order concerned may no longer be appropriate the court must appoint a hearing to review the matter.

25.9.39

Intimation of and attendance at such a hearing will be dealt with in the same manner as the original hearing at which the order was made.

25.10 Disclosure of witness statements

25.10.1

As stated in Sinclair v HMA, witness statements of those witnesses that the Crown intends to lead at trial, are a class of information which is always disclosable, i.e. will always be considered to be information that may materially weaken the prosecution case or materially strengthen the defence case.

25.10.2

However, in terms of COPFS policy and the Crown Practice Statement on Disclosure of Information in High Court Cases, all witness statements in the possession of the Crown are disclosed.

25.10.3

If a witness statement relates to a witness whom the Crown intends to lead at trial and is therefore disclosable in terms of Sinclair VHMA, but it is considered that its disclosure might prejudice an important public interest, then the process detailed above in section 25.8 should be followed.

25.10.4

Where the witness statement contains information of a confidential or sensitive nature which is either (a) irrelevant to the issues in the case; or (b) relevant to the issues in the case but does not contain any information which falls to be disclosed in terms of the materiality test i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused then it should be withheld if its disclosure would prejudice an important public interest consideration. As the information is not material and therefore not disclosable then Crown Counsel’s instructions will not be required.

25.10.5

In summary cases, the Summary Legal Manager should consider this. In cases of doubt Crown Counsel’s instructions should be sought on withholding the statement.

25.10.6

In solemn cases, Crown Counsel’s instructions should routinely be sought via the disclosure page at the stage the case is reported to Crown Office.

25.10.7

Further guidance in relation to the disclosure and withholding of witness statements is contained in Chapters 4 and 13 of this Manual.

25.11 Sensitive intelligence information held by another investigating agency

25.11.1

Where the police become aware that another police force or investigating agency holds intelligence information relevant to their investigation which might materially weaken the prosecution case or materially strengthen the defence case, the Reviewing Officer will contact the other force/ agency to obtain the information. Thereafter, it will be revealed in the usual way detailed above.

25.11.2

However, in certain circumstances the security level of the intelligence will prohibit the other investigating agency from providing the information to the police. In such circumstances, the police will formally request that the other agency submit the information directly to the Crown, at the appropriate security clearance level, usually the Federation Head, or functional lead (High Court/Sheriff and Jury/Summary).. The Federation Head or functional lead (High Court/Sheriff and Jury/Summary) should also be advised of the fact that the other investigating agency is in possession of intelligence information, the non-disclosure of which may impact on the Crown’s ability to ensure that the accused has a fair trial.

25.11.3

Where the other investigating agency declines to reveal the information directly to COPFS on a request from the police, then the Federation Head or functional lead (High Court/Sheriff and Jury/Summary) should, if considered appropriate, contact the other investigating agency directly and arrange for the information to be revealed and considered by the Crown.

25.12 Further guidance in relation to particular forms of intelligence information

25.12.1

Guidance in relation to the revelation and disclosure of intelligence information is contained in Annex N of this Manual.

26.1 General principles

26.1.1

The Crown’s disclosure duty, as required by Article 6, case law and now Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010, exists in perpetuity. (See Chapter 2, in particular, paragraphs 2.1.1 – 2.1.3.) Therefore it applies postconviction and even after the final disposal of the case, which includes appeal proceedings.

26.1.2

While previously the court only considered the Crown’s duty of disclosure in relation to trial proceedings, the principle enunciated there extends beyond that stage. (See paragraphs 8 and 9 of the Summary of the Crown’s Approach to Disclosure.)

26.2 The common law background

26.2.1

Prior to the Crown’s disclosure obligations in respect of appellate proceedings being placed on a statutory footing within Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010, the Appeal Court had, on occasion, considered applications for recovery of documents at the appeal stage. The decision of the Court in Hoekstra v HMA (No 1) ((2000) SCCR 263) was subsequently set aside, on account of comments made by one of the judges regarding the European Convention, however the court’s dicta (page 290) remains instructive and provides a useful background to what now forms the statutory framework:

“In general terms, this court should not order the Crown to disclose new material in the course of an appeal against conviction unless the court is satisfied that the material to be disclosed is likely to be of value for the purpose of evaluating the grounds of appeal and determining whether or not there has been a miscarriage of justice. The court may be prepared to consider ordering the production of new material which is shown to be of potential importance even if it is not material which is, on a strict reading, relevant to an existing ground of appeal, provided that, in that case, the material sought could provide the basis for a new or amended ground of appeal which the appellant should, at this late stage, be allowed to advance. In giving consideration to these issues in the present appeals the court must bear in mind that it is now almost three years since the convictions and that considerable indulgence has already been shown to the appellants in relation to the advancing of new grounds of appeal. The grounds of appeal now before this court are, as has been pointed out, not grounds for which leave was obtained under section 107 of the 1995 Act and they are entertained, though lodged very late, only by leave of the court. Furthermore, they have been added to, with the court's permission, at the appeal hearing itself.”

26.2.2

The court continued (page 294):

“Certain of the submissions made to us were to the effect that disclosure as sought should be ordered so that the appellants and their advisers could now scrutinise the whole investigatory antecedents (however remote) of the interception of the Isolda so that these might be investigated for any irregularities. No order for such a purpose would in our view be justified. To do so would be inconsistent with the ratio of McLeod v H.M. Advocate, by which we are bound. We shall therefore refuse to order the Crown to disclose the material referred to in heads 1, 2 and 3 (and of head 6 insofar as related to them) of the 'Schedule to the Devolution Minute'.”

26.2.3

The court returned to the issue in Hoekstra v HMA (No 5) ((2001) SCCR 121), the Lord Justice-General (Rodger) discussing McLeod and continuing (page 127):

“Both the Lord Justice-Clerk and Lord Hamilton expressed their agreement with the Lord Justice-General’s reasoning. This shows that they saw no inconsistency between their description of the approach to be followed and the description given by him. Nor do we. For present purposes it is sufficient to say that, as the advocate-depute indeed accepted, where, say, an accused intends to seek to have evidence excluded on the ground that it was obtained illegally, that is a matter which relates to the accused’s 'proposed defence' to the charge in question. It follows that the court may order the production of documents relating to that matter if they would be likely to be of material assistance to the proper preparation or presentation of that aspect of the accused's defence. Mutatis mutandis the same test would fall to be applied at the appeal stage. For these reasons we are satisfied that the test applied by the court in McLeod is not open to the criticism advanced by Dr Sjöcrona and in these circumstances we have not found it necessary to refer to the decisions of the European Court of Human Rights which he cited to us.”

26.2.4

In McDonald [AC] the Appeal Court again considered specifically the obligations of disclosure arising in appeals. The appellants McDonald and Dixon had each lodged a petition for recovery of documents in the following terms:

“1. All material in the possession of or under the control of the Lord Advocate which ought to have been (and ought to be) disclosed in terms of his (sic) obligation under Article 6(1) when read with Section 57(2) of the Scotland Act 1998.2. Failing principals, drafts, copies or duplicates of the above whether in paper or digital form.”

26.2.5

The court held, in line with its previous decision in Hoeskstra v HMA (No 5):

“McLeod, subject only to the specific refinements laid down in Sinclair and in Holland, remains the guiding authority in Scots law on the test for the extent of the Crown’s duty of disclosure.”

26.2.6

Significantly, the Judicial Committee of the Privy Council considered the current approach adopted by the Crown in relation to disclosure in appeals cases and confirmed that the Crown had correctly identified its obligation (paragraph 73), namely that:

“If when preparing for an appeal or at any other stage, the Crown became aware of any material which had not been disclosed and which ought to have been, the Crown would be obliged to provide it to the appellant who can then use it, if appropriate, to support an existing ground of appeal or to formulate a fresh ground of appeal. But that is very different from an obligation on the Crown actually to reinvestigate the entire position on disclosure in all solemn cases which are under appeal”.

26.2.7

Lord Rodger went on to confirm (paragraph 74) that:

“While the Crown need only prepare to meet the existing grounds of appeal, the duty of disclosure in terms of article 6(1) was not confined to material relevant to those grounds of appeal. It would extend to material which should have been disclosed at an earlier stage or which had become disclosable in the light of developments in the appeal or which was disclosable but had only come to the attention of the Crown since the trial. An obligation in these terms is already enshrined in the Crown Office Disclosure Manual paragraph 26.1.3”.

26.3 The statutory framework

26.3.1

The Crown’s statutory duty to disclose information after the conclusion of proceedings at first instance is now laid down in section 133 of the Criminal Justice and Licensing (Scotland) Act 2010. Subsection 5 of section 133 provides details of the type of proceedings to which this duty is applied.

26.3.2

As soon as practicable after the relevant act the prosecutor must review all information of which the prosecutor is aware that relates to the grounds of appeal in the appellate proceedings and disclose to the appellant any information which is:

1. information that the prosecutor was required to disclose in terms of the materiality test laid down in s121(2)(b) or 123(2)(b) of the Criminal Justice and Licensing (Scotland) Act 2010 but did not disclose,
2. information which, during the earlier proceedings, the prosecutor considered would not materially weaken or undermine the evidence likely to be led by the prosecutor, or materially strengthen the accused’s case but which the prosecutor now considers would do one or both of these things, or
3. information of which the prosecutor has become aware since the disposal of the earlier proceedings that, had the prosecutor been aware of during those proceedings, the prosecutor would have been required to disclose in terms of the materiality test laid down in section 121(2)(b) or 123(2)(b)

It should be noted that there is no need to disclose again anything which has already been disclosed in the course of the earlier proceedings (Criminal Justice and Licensing (Scotland) Act 2010 section 133(4)).

26.3.3

The Crown must disclose any such material information to the defence in advance of, and during the appeal proceedings, as part of its continuing obligation to ensure that there has been a fair trial. If the procedure as a whole has secured a fair trial, there will not have been a breach of Article 6. This statement of principle was set out in the speech of Lord Hope of Craighead in McDonald [PC], where he said (paragraph 37):

“I would only be willing to accept that it would be incompatible with the appellant’s rights under article 6(1) for the Lord Advocate to seek to support the conviction if the appellant was able to demonstrate that there was a reasonable possibility of unfairness as a result of the non-disclosure”.

26.3.4

It should be noted, however, that as set down in Section 2.5 of this Manual and as expressed by Lord Rodger in McDonald [PC] (paragraph 77), a failure to disclose a statement may, in itself, not result in an unfair trial if, for example, the witness did not depart from their statement when giving evidence (Kelly v HMA (2006 SCCR 9)). The court must consider the effect of any failure to disclose in the context of the circumstances as a whole.

26.3.5

In Botmeh and Alami v United Kingdom the European Court of Human Rights held:

“44. Given the extent of the disclosure to the applicants of the withheld material by the Court of Appeal, the fact that the court was able to consider the impact of the new material on the safety of the applicants' conviction in the light of detailed argument from their defence counsel and the fact that the undisclosed material was found by the court to add nothing of significance to what had already been disclosed at trial, the Court considers that ……..the failure to place the undisclosed material before the trial judge was in the particular circumstances of the case remedied by the subsequent procedure before the Court of Appeal.”

26.4 The extent of the disclosure obligations in appellate proceedings

26.4.1

Even where the Crown has complied with its duties of disclosure by reviewing all information, of which the prosecutor is aware, that relates to the grounds of appeal in the appellate proceedings and disclosing the relevant information to the defence as soon as practicable, (under the Criminal Justice and Licensing (Scotland) Act 2010 section 134(2)) the prosecutor must from time to time review all such information relating to the grounds of appeal and disclose to the defence any information which is –

1. information that the prosecutor was required to disclose in terms of the materiality test laid down in s121(2)(b) or 123(2)(b) of the Criminal Justice and Licensing (Scotland) Act 2010 but did not disclose,
2. information which, during the earlier proceedings, the prosecutor considered would not materially weaken or undermine the evidence likely to be led by the prosecutor, or materially strengthen the accused’s case but which the prosecutor now considers would do one or both of these things, or
3. information of which the prosecutor has become aware since the disposal of the earlier proceedings that, had the prosecutor been aware of during those proceedings, the prosecutor would have been required to disclose in terms of the materiality test laid down in section 121(2)(b) or 123(2)(b)

It should be noted that there is no need to disclose again anything which has already been disclosed whether in the course of the earlier proceedings or earlier in the appeal process (Criminal Justice and Licensing (Scotland) Act 2010 section 134(4)).

26.4.2

This continuing duty of disclosure begins with the prosecutor’s compliance to disclose under section 133 of the Criminal Justice and Licensing (Scotland) Act 2010 as set out at 26.1.3 above and until the relevant conclusion of the case. Depending on the nature of the appellate proceedings concerned, ‘relevant conclusion’ can mean:

1. the lodging of a notice of abandonment,
2. the disposal of the appeal, or
3. the setting aside of the conviction or sentence or, as the case may be, conviction and sentence

26.5 Limits of Crown duty

26.5.1

The Crown will not at the stage of appeal proceedings,

1. review the entire case material;
2. re-investigate the case; or
3. review the history of disclosure.

This approach was expressly endorsed by the Judicial Committee of the Privy Council in McDonald and is confirmed within sections 133 to 140 of the Criminal Justice and Licensing (Scotland) Act 2010.

26.6 Applications for further disclosure in appellate proceedings

26.6.1

At any time between the granting of leave to appeal and the beginning of the hearing of the appellate proceedings, or if allowed by the Court on cause shown, between the granting of leave to appeal and the ‘relevant conclusion’ of proceedings the appellant may lodge a further disclosure request (Criminal Justice and Licensing (Scotland) Act 2010 section 135). Depending on the nature of the appellate proceedings concerned, ‘relevant conclusion’ can mean:

1. the lodging of a notice of abandonment,
2. the disposal of the appeal, or
3. the setting aside of the conviction or sentence or, as the case may be, conviction and sentence

26.6.2

A request for further disclosure must be in writing and set out:–

1. by reference to the grounds of appeal, the nature of the information that the appellant wishes the prosecutor to disclose, and
2. the reasons why the applicant considers that disclosure of any such information is necessary

26.6.3

Following receipt of a request for further disclosure the prosecutor must, as soon as practicable, review any information of which the prosecutor is aware that relates to the request and then disclose to the appellant any of that information which is:

1. information that the prosecutor was required to disclose in terms of the materiality test laid down in s121(2)(b) or 123(2)(b) of the Criminal Justice and Licensing (Scotland) Act 2010 but did not disclose,
2. information which, during the earlier proceedings, the prosecutor considered would not materially weaken or undermine the evidence likely to be led by the prosecutor, or materially strengthen the accused’s case but which the prosecutor now considers would do one or both of these things, or
3. information of which the prosecutor has become aware since the disposal of the earlier proceedings that, had the prosecutor been aware of during those proceedings, the prosecutor would have been required to disclose in terms of the materiality test laid down in section 121(2)(b) or 123(2)(b)

It should be noted that there is no need to disclose again anything which has already been disclosed (Criminal Justice and Licensing (Scotland) Act section 135(4)).

26.7 Applications for court rulings on disclosure in appellate proceedings

26.7.1

If the appellant considers that, in responding to such a request for further disclosure, the prosecutor has failed to disclose an item of information which falls within the criteria set out at 26.6.3 above, then the appellant may apply for a Court Ruling on the matter (Criminal Justice and Licensing (Scotland) Act 2010 section 139(2)). The application will be assigned to the judges who are to hear the appellant’s appeal, unless it would be impracticable to do so.

26.7.2

An application for a Court Ruling must be made in writing to the Court before which the appeal is to be brought (Form 56.3 as per Act of Adjournal (Criminal Procedure Rules Amendment) (Miscellaneous) 2011), and must set out:–

1. the charge or charges to which the application relates
2. a description of the information in question, and
3. the grounds upon which the appellant considers that the information in question is disclosable

26.7.3

Upon receipt of such an application the Court must appoint a hearing to consider and determine the application (Criminal Justice and Licensing (Scotland) Act 2010 section 139(4)).

26.7.4

If an application does not comply with the criteria set out at 26.7.2. above or otherwise disclose any reasonable grounds for considering that the information in question is disclosable, the Court may dispose of the application without appointing any hearing.

26.7.5

Having given both the prosecutor and the appellant the opportunity to be heard, the Court must make a ruling on whether the information in question, or any part of it, is disclosable, and specify the charge or charges to which this fresh ruling relates.

26.8 Applications to review a Court Ruling on disclosure in appellate proceedings

26.8.1

Following determination by the Court that information is not disclosable, if the appellant:

1. becomes aware of secondary information which was not available to the Court at the time of making the ruling; and
2. considers that if the Court had been aware of this secondary information it would have made a ruling that the information in question was disclosable

the appellant may apply to the Court which made the ruling for a review, so long as the secondary information comes to the appellant’s attention in the period between the ruling being made and the relevant conclusion of the proceedings(Criminal Justice and Licensing (Scotland) Act 2010 section 140(2)). Depending on the nature of the appellate proceedings concerned, ‘relevant conclusion’ can mean:

1. the lodging of a notice of abandonment,
2. the disposal of the appeal, or
3. the setting aside of the conviction or sentence or, as the case may be, conviction and sentence

26.8.2

The application should be assigned to the judges who dealt with the application for the ruling which is to be reviewed, unless it is impracticable to do so.

26.8.3

The application for a review must be made in writing (Form 56.4 as per Act of Adjournal (Criminal Procedure Rules Amendment) (Miscellaneous) 2011) and must set out:–

• the charge or charges to which the application relates
• a description of the information in question and the secondary information; and
• the grounds upon which the appellant claims the information in question is disclosable

26.8.4

Having given both the prosecutor and the appellant the opportunity to be heard, the Court must determine the application by either affirming the original ruling or recalling that ruling and making a fresh ruling that the information in question, or any part of it, is disclosable, and specify the charge or charges to which this fresh ruling relates.

26.9 Disclosure requests where no appeal proceedings

26.9.1

If, following conviction, the prosecutor becomes aware of information which was not disclosed which falls within the materiality test laid down in s121(2)(b) or 123(2)(b) of the Criminal Justice and Licensing (Scotland) Act 2010, namely information which –

• would materially weaken or undermine the evidence that is likely to be led by the prosecutor;
• would materially strengthen the defence case; or
• is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused

and it is not a case in which the conviction has been up-held on appeal, then as soon as practicable after becoming aware of the information the prosecutor must disclose it to the convicted person (Criminal Justice and Licensing (Scotland) act 2010 section 137).

26.9.2

It should be noted that there is no requirement to review at this stage that information of which the prosecutor was already aware, or indeed to disclose again any information which has already been disclosed (Criminal Justice and Licensing (Scotland) Act section 137(4) and (5)).

26.9.3

If the person institutes appellate proceedings in relation to the conviction the prosecutor need not comply with this obligation during the period between the granting of leave to appeal and the ‘relevant conclusion’ of proceedings. Depending on the nature of the appellate proceedings concerned, ‘relevant conclusion’ can mean:

1. the lodging of a notice of abandonment,
2. the disposal of the appeal, or
3. the setting aside of the conviction or sentence or, as the case may be, conviction and sentence

The duties outlined above from 26.1.3 would become applicable instead.

26.10 Disclosure duties upon Crown appeal against acquittal

26.10.1

If the prosecutor lodges an appeal against the acquittal of a person and subsequently becomes aware of information which relates to the appeal and is:–

1. information that the prosecutor was required to disclose in terms of the materiality test laid down in s121(2)(b) or 123(2)(b) of the Criminal Justice and Licensing (Scotland) Act 2010 but did not disclose,
2. information which, during the earlier proceedings, the prosecutor considered would not materially weaken or undermine the evidence likely to be led by the prosecutor, or materially strengthen the accused’s case but which the prosecutor now considers would do one or both of these things, or
3. information of which the prosecutor has become aware since the disposal of the earlier proceedings that, had the prosecutor been aware of during those proceedings, the prosecutor would have been required to disclose in terms of the materiality test laid down in section 121(2)(b) or 123(2)(b)

then such information must be disclosed to the person as soon as practicable (Criminal Justice and Licensing (Scotland) Act 2010 section 138).

26.10.2

It should be noted that there is no requirement to review at this stage that information of which the prosecutor was already aware, or indeed to disclose again any information which has already been disclosed.

26.11 Disclosure duties when conviction upheld on appeal

26.11.1

The Crown’s disclosure obligation exists in perpetuity and therefore even where on appeal the High Court upholds a conviction the Crown must continue to comply with its disclosure duties in respect of any information it becomes aware of which is –

1. information that the prosecutor was required to disclose in terms of the materiality test laid down in s121(2)(b) or 123(2)(b) of the Criminal Justice and Licensing (Scotland) Act 2010 but did not disclose,
2. information which, during the earlier proceedings, the prosecutor considered would not materially weaken or undermine the evidence likely to be led by the prosecutor, or materially strengthen the accused’s case but which the prosecutor now considers would do one or both of these things, or
3. information of which the prosecutor has become aware since the disposal of the earlier proceedings that, had the prosecutor been aware of during those proceedings, the prosecutor would have been required to disclose in terms of the materiality test laid down in section 121(2)(b) or 123(2)(b)

26.11.2

Any such information of which the prosecutor becomes aware must be disclosed to the person as soon as practicable.

26.11.3

It should be noted that there is no requirement to review at this stage that information of which the prosecutor was already aware, or indeed to disclose again any information which has already been disclosed.

26.12 Disclosure requests from the Scottish Criminal Cases Review Commission (SCCRC)

26.12.1

With effect from 1 April 1999, SCCRC assumed the responsibility previously carried out by the Secretary of State in relation to the consideration of cases of alleged miscarriage of justice and the referral of appropriate cases to the High Court. In terms of Section 194F(6) of the Criminal Procedure (Scotland) Act 1995 as amended, the SCCRC is empowered to request the Lord Advocate to undertake such enquiries or obtain such statement, opinions and reports as SCCRC consider appropriate for assisting them in the exercise of their functions.

26.12.2

The High Court has held that SCCRC has a statutory duty to carry out a full and independent examination and that SCCRC are entitled to any material if it has a basis for believing that the documents and materials might assist them in the exercise of their functions (SCCRC Petitioners Unreported 30th August 2000).

Handling of requests

26.12.3

SCCRC will intimate their interest in a case to the Crown and this will be filtered through the Crown Office Appeals Unit. On receipt of this intimation Appeals Unit will contact the Procurator Fiscal Office where the case originated and arrange for all case papers and productions held by them to be retrieved and secured to prevent routine disposal or destruction. Thereafter a request for disclosure may be made by SCCRC. This will also be received through Crown Office Appeals Unit, who will arrange for Procurators Fiscal to convey all related papers to the Appeals Unit for consideration of appropriate disclosure.

Extent of disclosure

26.12.4

Unredacted copies of witness statements and witness precognitions along with unredacted documentary productions should be disclosed along with any factual information and results of enquiries, opinions and reports instructed by SCCRC. In appropriate cases the Crown will arrange for SCCRC to have access to productions for examination or analysis by persons instructed by them.

26.12.5

Care should be taken to ensure that disclosure of an address of a witness or any other information contained within witness statements or precognitions is not likely to place a witness in danger.

26.12.6

There should be NO disclosure of comment or opinion of members of COPFS staff contained within the papers.

26.12.7

On occasion it may be appropriate to consider disclosure of the History of the Accused and/or the Narrative contained within the precognition. If this is being considered then the matter must be considered by the Crown Agent or Director of Serious Casework and instructions obtained as to whether it would be appropriate to so disclose.

26.12.8

Consideration may have to be given to the disclosure of internal COPFS correspondence. This is particularly appropriate where there is correspondence between COPFS and third parties in relation to the accused, or internal memorandums. Prior to the disclosure of such correspondence, approval must be obtained from the Crown Agent or Director of Serious Casework.

Restriction on use of disclosed information

26.12.9

When information is disclosed to SCCRC, a covering letter should be included outlining that the information is being provided on the understanding that it will not be disclosed to any third party without prior discussion with the Crown. In the event of any referral to the High Court, SCCRC have undertaken to contact the Crown in advance of any hearing in order to identify any information that requires to be redacted from the documents provided.

26.13 Response to disclosure requests

26.13.1

The Crown is entitled, before responding to a request from the defence for disclosure on appeal, to have a reasoned explanation justifying disclosure. The extent of such explanation will depend on circumstances. The Crown is also entitled to ask the defence to:

1. confirm that they did not have the information at the trial stage;
2. identify what information was disclosed at the trial stage;
3. advance a specific justification for the request.

26.13.2

In the absence of such justification, the request, unless there are exceptional circumstances, will normally be refused.

26.13.3

The Crown need not disclose again anything that has already been disclosed to the accused in relation to the same matter (whether because the same matter has been the subject of an earlier petition, indictment, or complaint or otherwise) (Criminal Justice and Licensing (Scotland) Act 2010 section 127).

26.14 Significance of disclosure

26.14.1

Disclosure at appeal stage of information which was not disclosed at trial stage does not involve any concession by the Crown:

1. that the non-disclosure has prejudiced a fair trial;
2. that the information disclosed or the non-disclosure would justify a new ground of appeal;
3. that the court should allow a new ground of appeal to be received; or
4. that there has been a miscarriage of justice.

26.15 Reconciliation of disclosed information

26.15.1

At the stage of submitting a report in any appeal (other than an appeal against sentence), or if otherwise requested by the Crown Office Appeals unit, the Procurator Fiscal should, so far as possible, provide an inventory of information already supplied to the appellant.

26.16 Records of disclosed information

26.16.1

Where disclosure of additional information is made in the course of an appeal, an inventory will be prepared of all items disclosed.

26.16.2

A Disclosure Log will be maintained in all solemn conviction appeals, and a note kept in that of any information (by reference to the inventory if appropriate), to whom it was passed, and the date. This will form a cumulative summary of what is in the inventories. Copies of each inventory will be kept filed with the Disclosure Log.

26.16.3

Completion of Disclosure Logs and inventories is the responsibility of the staff in the Crown Office Appeals Unit dealing with the case.

27.1 Duty to review disclosure

27.1.1

The prosecutor must keep disclosure under review. The Crown’s disclosure duty persists in perpetuity. Throughout the life of the prosecution, any subsequent appeal proceedings, and even after the final disposal of the case, decisions may be taken to disclose or to withhold information. The Crown must regularly review disclosure to ensure that any decision to withhold information remains the correct decision as provided in part 6 of the 2010 Act and in light of common law (McLeod v HMA, McDonald).

27.1.2

In particular, disclosure will require to be reconsidered and reviewed if the defence lodge a new line of defence, or advise of a change in the line of defence.

27.2 Unused Information – Witness Statements

27.2.1

During a case, a decision might be taken by the prosecutor:

1. not to obtain, what appears at the time to be, irrelevant information from the investigating agency; or
2. not to disclose irrelevant information held by the Crown to the defence.

27.2.2

Notwithstanding the disclosure duty on the Crown to disclose all statements of all witnesses on the Crown and defence lists, the investigating agency must submit to the Crown every statement obtained during the course of an investigation. This means that any information which has not been submitted by the investigating agency, will normally be limited to door-to-door enquiry forms and pro forma questionnaires which are irrelevant, and do not relate to witnesses on the Crown or defence lists, or other persons from whom a statement has been obtained in the course of the investigation.

27.2.3

Where such information exists, however, the Crown must still be advised of its existence (along with a brief indication of the general nature of the content) in order to take a decision on whether or not it requires, on the grounds of relevancy, to be submitted to the Crown, and, thereafter, disclosed to the defence if it falls within the parameters of the materiality test i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused.

27.2.4

It is essential that the Crown continues to keep the relevancy of such information under review. While at the start of the precognition process, such information might be irrelevant, it is possible that the relevancy of the material will change as the case progresses, especially as the Crown becomes more aware of the nature of the defence.

27.2.5

Accordingly, where such information is not submitted by the police, it is vital that the prosecutor is aware of what information has not been submitted on the basis that it is irrelevant, in order to keep disclosure under review.

27.2.6

Where immaterial sensitive information has been redacted from statements, or a statement has been withheld completely on this basis, such decisions should be reviewed during the life of the case, to ensure that the redacted information or the statement does not become material.

27.2.7

Where information which has been redacted from a statement later becomes material, this information should be disclosed to the defence as soon as reasonably possible, unless a public interest issue arises.

27.3 Unused information – criminal history records

27.3.1

Where the criminal history of a witness is obtained but is not considered material and is therefore not disclosed, this decision must be kept under review. If it becomes clear that the information is material and should be disclosed, this should be provided to the defence. An example of when this might arise is where a witness in a housebreaking charge speaks only to the house being secure and then broken into and property stolen but the defence indicate that their position is that while the house might have been broken into no property was stolen or that the house was never secure.

27.3.2

Similarly, if a particular conviction or outstanding charge is redacted from a disclosed criminal history schedule, this may need to be reviewed once the nature of the defence becomes clear. An example of this might arise where a conviction for indecent assault has been redacted but the defence position in an assault case is that the accused only punched the witness because the witness attempted to sexually assault the accused.

27.4 Schedules of Information in Solemn Proceedings

27.4.1

The schedules submitted by the investigating agency in solemn proceedings will list all the information obtained or generated by the investigating agency during the course of the investigation. Once completed by the Crown, it will also provide an up to date record of all the information disclosed – and not disclosed – to the defence.

27.4.2

It is essential that the schedules are kept under review throughout the proceedings to ensure that the decision not to disclose an item of information remains the appropriate decision.

27.4.3

Whenever new information comes to the attention of the Crown, from the investigating agency, the defence or any source, the precognoscer or trial depute must consider whether this new information has any impact on a previous assessment of a piece of information as being immaterial.

27.4.4

If information previously listed in the schedules becomes material information at a later stage in proceedings, then, subject to any public interest immunity considerations, the information should be disclosed to the defence. In addition, the schedule on which that item of information is listed must be updated to record the new disclosure action. If the schedule is a non-sensitive schedule, a copy of the updated schedule should also be provided to the defence.

27.4.5

Guidance on updating schedules is contained in Sections 37.11 and 37.12 of this Manual.

28.2 Solemn cases

28.2.1

Legal Staff and Case Preparers working on Sheriff & Jury and High Court Cases must ensure that there is full disclosure in advance of the first diet/preliminary hearing of all statements, PCOCs and other material likely to be of assistance to the defence, to ensure compliance with the Principles of Disclosure, the Disclosure Manual and, in every potential High Court case, the Crown Practice Statement on Disclosure in High Court Cases and that the Crown’s disclosure obligations are fulfilled.

28.2.2

All staff must be wholly familiar with the Principles of Disclosure, the Disclosure Manual and the Crown Practice Statement in order to properly discharge the Crown’s disclosure duty and complete all necessary steps in the disclosure process. Staff should alert the Solemn Legal Manager to any difficulty in complying with any part of the COPFS disclosure guidance, or where there have been any material developments that may require the case to be reviewed for the purpose of disclosure.

28.2.3

Support staff working on solemn cases have standard objectives to ensure that there is full disclosure as instructed by the Case Preparer or legal manager and that the procedures for reconciliation and tracking of material disclosed to the defence are followed and the details recorded on COPFS within the Disclosure Page.

28.3 Best practice for solemn legal managers

28.3.1

Solemn Legal Managers already have responsibility for the strategic direction of a precognition investigation and will usually set this following consideration of the statements in the case. It is best practice for the Solemn Legal Manager to ensure that such an exercise takes place at the earliest opportunity so that consideration can be given at the same time to disclosure issues. It is also best practice to commence identification of evidence that may be the subject of agreement at this point.

28.3.2

The Solemn Legal Manager should therefore carry out the exercise of considering statements in a High Court or Sheriff and Jury case as soon after first appearance as possible, and, as part of that exercise, ensure that issues of (i) strategic direction of a precognition, (ii) agreement of evidence and (iii) disclosure are considered at the outset of the precognition process. The Quality Assurance Checklist for SLMs will assist with this. It may be possible in some offices to commence this exercise at the stage where statements are being considered for the purpose of full committal -this is best practice where it can be achieved. In particular, it is unnecessary to deal with the disclosure of a provisional list of witnesses and of witness statements in two stages, if it is possible to disclose witness statements within 14 days of first appearance.

28.3.3

Investigating agencies should assist the disclosure process by providing quality witness statements that have been the subject of some consideration on the issue of confidentiality, operational security and sensitivity prior to submission to the Procurator Fiscal.

28.3.4

It is best practice for the Solemn Legal Manager to make early contact with the Reviewing Officer in every potential High Court case to ensure that there is a full and mutual understanding of the disclosure issues in the case, in particular, any matters that may affect the Crown’s capacity to disclose witness details, statements and productions in accordance with the Principles of Disclosure, the Disclosure Manual, and the Crown Practice Statement on Disclosure in High Court Cases.

28.4 Summary cases

28.4.1

Legal staff preparing summary cases for ID or trial or conducting summary trials must ensure that there is full disclosure in advance of the diet of all statements, criminal history records and other material likely to be of assistance to the defence in accordance with the Crown’s disclosure obligations and COPFS guidance on disclosure and transmission.

28.4.2

A record of disclosure made must be kept within the case papers and the COPFS electronic record updated.

28.4.3

Administrative staff in offices preparing summary cases for ID and/or trial must ensure that there is full disclosure of all statements, criminal history records and other material as instructed by the Depute.

28.4.4

Administrative staff must ensure that the most up-to-date version of the Publication Report from the Secure Disclosure Website is printed out and placed in the case papers prior to each calling of the case in Court.

29.1 General principles

29.1.1

Prior to disclosing any production, considered to be material evidence, it must be checked and where appropriate redacted. Section 161 of the Criminal Justice and Licensing (Scotland) Act 2010 allows the prosecutor to redact information prior to disclosure. Non-disclosable information, namely that which does not meet the materiality test and therefore is information which is not likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused, may be obscured by the prosecutor prior to disclosure.

29.1.2

The Crown may redact any production to obscure information of a confidential nature contained within the production, provided that the information redacted is not material.

29.1.3

Any such redaction of a production must be obvious on the face of the production. The relevant text should be blacked out. Under no circumstances should the text simply be deleted from the disclosable copy of the production so that the redaction is not apparent on the face of the production.

29.1.4

There are various types of information within a production that may require to be redacted. These are considered further below. However, the question of redaction must always be considered in light of and subject to the Crown’s obligation of disclosure in terms of the materiality test outlined at paragraph 29.1.1 above.

29.1.5

In any case of doubt, staff should consult the appropriate legal manager.

29.1.6

Care must be taken to check the entirety of the production to ensure that only appropriate information is disclosed.

29.1.7

Where productions have been obtained from defence witnesses and these are being disclosed to the defence, the same principles of redaction apply.

29.2 Personal details

29.2.1

Before disclosing any production, any personal data that is not relevant to the case should be redacted.

29.2.2

If a production states the address of a witness it should be redacted if:

1. The witness is the victim of an offence of a sexual nature;
2. Where the witness fears reprisals or intimidation;
3. Where the witness is speaking to matters arising from his/her employment (such witnesses should be designated and cited at their places of employment); or
4. The witness otherwise indicates that their address should not be disclosed.

29.3 Witness Telephone Numbers

29.3.1

If these are present in a production they should always be redacted unless:

1. The information is already known to the accused, for example in a domestic matter; or
2. It is essential to proving the charge.

29.4 Witness occupation & place of work

29.4.1

If this is mentioned in a production it should not be redacted unless:

1. Redaction is considered necessary in order to ensure the safety of a witness, for example where the complainer is the victim of a housebreaking (thus the accused knows their address) and their occupation is a police officer, COPFS employee, prison officer etc.;
2. Disclosure of the occupation may lead to the location of the workplace and that information is irrelevant to the offence.

29.4.2

Similarly, if the witness’s place of work is mentioned in a production it should be redacted unless it is relevant to the offence.

29.5 Witness next of kin/ family history details

29.5.1

There is a presumption that this information should be redacted if contained in a production and should not be disclosed unless the defence advance a case that is based upon such features in any way.

29.6 Witness medical information

29.6.1

This should be redacted unless it is directly material to the case, for example where there are injuries sustained by a complainer in an assault case, or where it is relevant to explaining the behaviour of a witness.

29.6.2

Again, this position should be reviewed if the defence advance a case that is based upon such features in any way.

29.7 Security Information

29.7.1

Occasionally information in a production could potentially reveal security aspects of domestic or business premises. This information may be relevant to the crime but very often it is not and disclosure would be inappropriate.

29.7.2

Where such information is contained within a production, and is irrelevant, it should be redacted. For example, information on where a witness stores valuables or keys or dates on which a property will be empty.

29.8 Operational information

29.8.1

A production may sometimes reveal information about an ongoing investigating agency operation which, if it were to be known to the accused, may prejudice that operation.

29.8.2

An example would be a production that disclosed what the accused had said to a witness about his/her involvement in the crime, e.g. his/her movements or his/her involvement with a production. It may be necessary, prior to redaction, to check with the Reporting Officer whether or not the line of enquiry that this information may have produced has been completed or whether it would be necessary to consider withholding or redacting the production until such time as that has been done.

29.8.3

Another common example is where the investigating agency have been engaged in surveillance operations that implicate the accused but are not necessarily needed to prove the case against the accused. In those circumstances, the revelation of the existence of the details of the surveillance may prejudice a larger operation of which the case in point may only be a small part.

29.8.4

It is also relevant to consider whether or not disclosure of operational information might place a member of the public, who is not a witness, at risk, e.g. disclosure of an observation point in a member of the public’s home.

29.8.5

If the information is not relevant to the case against the accused, then it is not disclosable under the test and the information may properly be redacted. If it is relevant to the case against the accused but does not fall within the Crown’s obligation of disclosure (e.g. because any relevance which it might have would be wholly incriminatory of the accused), the Crown may redact the production to obscure that information. If there is any doubt about what information should be redacted the appropriate legal manager should be consulted.

29.8.6

If the information would fall to be disclosed in terms of the materiality test, the Crown has two options:–

1. to discontinue proceedings; or
2. to seek a non-disclosure/non-notification/exclusion order as appropriate. Full guidance on these orders can be found in Chapter 25 of this Manual.

29.8.7

If the Crown is not prepared to discontinue proceedings, it is not entitled unilaterally to withhold the information from the defence. The question of whether the information is disclosable i.e. material can be ruled upon by the Court. However if the summary/solemn legal manager deems the information to be disclosable but considers that disclosure would not be in the public interest the matter should be referred initially to the Federation Head or the functional lead (High Court/Sheriff and Jury/Summary). Thereafter the matter should be reported to the Director of Serious Casework for the attention of Crown Counsel, with an appropriate recommendation, for a decision as to how the issue should be addressed.

29.9 Issues of materiality and admissibility

29.9.1

Issues of materiality and admissibility should not be considered as part of the redaction process. Thus potentially irrelevant material such as hearsay evidence or statement of opinion should be disclosed unless there is any other reason to withhold or redact it. In no case should information which is likely to materially weaken the Crown case or materially strengthen the defence case be redacted.

29.10 Criminal History Records

29.10.1

Care must be taken to check for references in a production to a witness’s CHR. CHS information in a production must be redacted if it has been redacted in the copy of the witness’s CHR, disclosed to the defence. (Information on the redaction of Criminal History Records is in Chapter 19 of the Manual).

29.11 Review of Decisions

29.11.1

Any decision to redact information should be reviewed: (a) if the defence request access to the redacted information by way of a defence statement or otherwise; or (b) if it becomes apparent, in light of any new information or other developments in the case, that the appropriateness of the redaction should be revisited.

29.11.2

Any such review of a decision to redact information should be taken by the appropriate Legal Manager, depending on the type of case. If there is any doubt about what information should be redacted / disclosed, the matter should be reported to the Director of Serious Casework for Crown Counsel’s instructions.

29.12 Compelling reason not to disclose

29.12.1

If a particular production contains material information, i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused, and there is a compelling reason why it should not be disclosed, the Crown has two options:–

1. to discontinue proceedings; or
2. to seek a non-disclosure/non-notification/exclusion order as appropriate. Full guidance on these orders can be found in Chapter 25 of this Manual.

29.12.2

If the Crown is not prepared to discontinue proceedings, it is not entitled unilaterally to withhold the production from the defence. The question of whether the production is disclosable i.e. material can be ruled upon by the Court. However if the summary/solemn legal manager deems the production to be disclosable but considers that disclosure would not be in the public interest the matter should be referred initially to the Federation Head or the functional lead (High Court/Sheriff and Jury/Summary). Thereafter the matter should be reported to the Director of Serious Casework for the attention of Crown Counsel with an appropriate recommendation, for a decision as to how the issue should be addressed.

29.13 Copies of redacted productions

29.13.1

Where a statement has been redacted the case preparer should consider whether, due to the nature of the information being redacted, a copy of the redacted version is placed behind the full statement in the precognition. Full guidance is contained in Chapter 21.

30. This section has been withdrawn.

31.1 Introduction

31.1.1

As was re-emphasised by the Privy Council in McDonald [PC] it is essential that the Crown is in a position to demonstrate to the Court that the necessary procedures in place to ensure that the Crown discharges its disclosure obligations have been followed.

31.1.2

The Disclosure Page, alongside the Reconciliation Inventories and the Disclosure Reconciliation Checklist, is designed to provide the trial Depute with a snapshot record in relation to compliance with these procedures.

31.1.3

The Disclosure Page sits between the f107 Observations Page and the Witness Non-Availability sheet in the precognition and should be completed in all solemn cases, including Sheriff and Jury reports.

31.1.4

The purpose of the disclosure page is to:

1. serve as an overall summary of all disclosure actions, e.g. to record that precognitions have been considered against the witness statements and any material additional/different information disclosed;
2. Record decisions taken to withhold information and the reasons for the decision in order that it can be kept under review throughout the life of the case;
3. Highlight any problems or potential problems encountered or envisaged by the Case Preparer/solemn legal manager;
4. Seek and record Crown Counsel’s instructions in regard to the disclosure of criminal history records of witnesses (and where there are none to note this); and
5. Provide a summary of the reconciliation process carried out as part of the scheduling process.

31.1.5

The Disclosure Page, like the f107 Observations Page, is a living document and must be regularly updated as disclosure decisions are taken, reconsidered and reviewed. Further guidance in relation to updating the disclosure page is set down in section 31.8 below.

31.1.6

It should be noted that it is not necessary to duplicate the information provided in the Disclosure Schedules which serve a different – but complementary – purpose:

1. Disclosure Schedules – provide (a) detailed lists of all information obtained or generated during the investigation that may be relevant, (b) a record of what information has been submitted to the PF for consideration and (c) a record of the disclosure action in respect of each individual item of information; and
2. Disclosure Page – provides a record of disclosure decisions and a high level summary of all disclosure actions and is used to seek and record CCIs in relation to any disclosure issues at the stage the precognition is submitted to Crown Office.

31.2 Layout of the disclosure page

31.2.1

The disclosure page is separated into 6 sections:

1. Statements;
2. Productions;
3. Issues at Precognition;
4. Criminal History Records;
5. General Issues/Observations; and
6. Schedules Summary and Reconciliation Record

31.2.2

Each section should include certain information and further details on how to complete each section is detailed below. The examples given here are by no means prescriptive or exhaustive.

31.2.3

It is essential that the information provided under each section is clear and concise as the disclosure page must be an accurate form of reference throughout the life of the case.

31.3 Statements

31.3.1

The general practice adopted by the Crown in relation to the provision of statements to the accused’s representatives is set out in this Manual.

31.3.2

In terms of the policy set down in section 4.2 of this Manual, the defence should be provided with copies of all statements of all witnesses that are in Crown’s possession. It should be noted that, as stated in paragraph 4.2.1, this is not limited to those witnesses that the Crown intends to call at trial.

Recording disclosure of statements

31.3.3

In High Court cases, it is not necessary to record in detail in the disclosure page that disclosure of statements has been carried out as this will be recorded in the associated schedules. However, as a matter of best practice in both High Court and Sheriff and Jury cases, a summary of key disclosure dates should be recorded, e.g. initial disclosure of statements made on x date; further disclosure of statements of witnesses on section 67 notice made on x date.

31.3.4

Where disclosure is carried out in a manner that is not the normal manner, this should also be recorded here, e.g. where due to the scale of the statements, they are disclosed to the defence on a CD, in which case a copy of the CD should also be retained for auditing purposes.

Recording Decisions to withhold statements completely or temporarily

31.3.5

Statements may be withheld where the Crown proposes to disclose a statement but further steps are necessary before disclosure is made, e.g. statements of vulnerable witnesses (particularly where the case involves sexual offences) and/or child witnesses where the Crown intends to precognose these witnesses prior to their statements being disclosed to the defence. In exceptional circumstances, the Crown may withhold a statement completely.

31.3.6

Where a statement has been withheld in whole or in part, completely or meantime, that decision must be kept under review. New information and other developments in the case may require the question of disclosure to be revisited.

31.3.7

It is critical to this process, therefore, that a record is kept of all decisions not to disclose statements or to withhold them meantime. To allow the decision to be kept properly under review this must include the date the decision was made, by whom and the reasons behind it. Where the material has been withheld temporarily, the record should clearly state the action upon which disclosure is dependent, e.g. precognition of the witness.

31.3.8

Where instructions from Crown Counsel are sought regarding nondisclosure, this should be recorded along with the date of submission of any related report. Where Crown Counsel has provided instructions, this should also be recorded. It is equally important to record receipt of instructions and effect on disclosure.

Recording any issues/problems with statements

31.3.9

Any issues or problems that have been identified in relation to witness statements should also be recorded here along with any action taken in respect of them. The most common examples would be where:

1. a statement has not yet been submitted by the investigating agency;
2. material discrepancies have been identified between a handwritten statement and the typescript version;
3. a typescript version of the statement was disclosed to the defence but the officer who took the statement subsequently identifies an error in the typescript version and, as a result, a further updated version of the statement is disclosed to the defence;
4. The witness has subsequently stated that they made up the information contained within their statement.

Seeking Crown Counsel’s instructions

31.3.10

Where CCIs are sought in relation to the disclosure of a statement, e.g. on whether to withhold a statement completely, then this should be recorded in this section of the disclosure page.

Redacted statements

31.3.11

Where a statement is redacted (see chapter 29) and the information which is redacted does not simply relate to the personal details of a witness or third party, the case preparer will include a copy of the redacted statement in the precognition behind the relevant full statement. Having done this a note will be added to the Disclosure Page to reflect the redaction of the statement and the nature of the redaction. Below is an example of a completed statement section of the disclosure page:

Statements and present position:

• Initial disclosure of statements – Date disclosed
• Statement of witness xxxx still to be received from the investigating agency – Date requested
• Statement of witness xxxx not disclosed – Disclosure withheld, reason, date and person making decision
• Statement of witness xxxx redacted – Redactions relate to non-relevant medical condition of the witness.
• Statement of witness xxxx redacted – Redaction relate to non-relevant evidence of security of address of witness

31.4 Productions

31.4.1

The general practice to be adopted by the Crown in relation to the provision of productions to the accused’s representatives is set out in chapters 6, 22 and 29 of this Manual.

31.4.2

Unless expressly stated otherwise, any references to productions should be interpreted as including both documentary and label productions.

31.4.3

In all solemn cases, the Case Preparer must decide, in close consultation with the relevant Solemn Legal Manager, what productions should be disclosed to the defence and whether it should be by provision of a copy or by access. A record of decisions taken should be kept in the Disclosure Page of the precognition and where it is not clear whether a production should be disclosed, a recommendation on disclosure should be sought from Crown Counsel.

31.4.4

In particular, in High Court cases, the Crown Practice Statement on Disclosure in High Court Cases commits the Crown to disclosure to the defence of copies of certain documents as soon as practicable.

31.4.5

The Crown will order all necessary productions in accordance with the timescales set out at paragraph 22.10.3 in this Manual. The timescales in respect of forensic science reports are subject to different timescales agreed between COPFS and Police Scotland and SPA and these can be accessed in the National Forensic Science Protocol Accessing Forensic Science Services in Scotland.

Recording disclosure of productions

31.4.6

Where productions are disclosed to the defence, a summary in relation to this should be included in this section, e.g. all productions listed on the indictment disclosed on x date.

31.4.7

Where a decision is taken that disclosure of any production is to be done by providing a witness with access to it, rather than by providing them with a copy, then this must be clearly recorded here. If the production is of a type or in a format that is usually disclosed through provision of a copy, then the reason for providing access only should be listed here, e.g. DVD provided by access as relates to child witness interview – agent attended and viewed at office on x date.

Recording decisions to withhold material productions completely or temporarily

31.4.8

Where a production is assessed as being both relevant and material then, in terms of the materiality test i.e. it is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused, it should be disclosed to the defence. If, however, the production is sensitive (under section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010) and it would not be in the public interest to disclose it, then Crown Counsel’s instructions must be obtained.

31.4.9

Where CCIs are sought this should be recorded in this section of the disclosure page along with the recommendation being made. Where Crown Counsel instruct that the material should be withheld, then this should be carefully recorded along with the date of the instructions and the reason for the non-disclosure.

31.4.10

Where the production is being withheld temporarily, the record should clearly state the action upon which disclosure is dependent.

Recording any issues/problems with productions

31.4.11

Any issues or problems that have been identified in relation to productions should also be recorded here along with any action taken in respect of them. The most common examples would be where:

1. a production has not yet been submitted by the investigating agency;
2. the production is still being forensically/expertly examined and is not available for disclosure;
3. a production is only available in a particular format that makes disclosure by access the only option, e.g. where on a hard drive;

Seeking Crown Counsel’s instructions

31.4.12

Where CCIs are sought in relation to the disclosure of a production, e.g. on whether to withhold a production completely, then this should be recorded in this section of the disclosure page.

Example

31.4.13

Below is an example of a completed production section of the disclosure page:

Productions and present position:

• All productions disclosed – date disclosed
• Label No 5. (DVD) – Defence advised in writing and by phone on x date that video available for viewing – not yet attended to view

31.5 Issues at precognition

31.5.1

Lord Rodger of Earlsferry confirmed in McDonald [PC] that the obligation to routinely disclose statements does not extend to precognitions but does extend to information contained within a precognition. In Harvey v HMA (2008 HCJAC 46) the Appeal Court reaffirmed that the confidential status of a precognition and the fact that it did not fall to be disclosed. However any new or additional material information elicited at precognition which may demonstrate material inconsistencies in a witness’s evidence, or otherwise fall within the parameters of the materiality test i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused will be disclosable. Where such information is found, it must be disclosed to the defence (usually in the form of a letter containing an extract of this material information).

31.5.2

Once the case preparer has obtained a precognition from a witness, consideration must be given as to whether or not there is any information in the precognition which should be disclosed. This should be done by comparing the precognition with all witness statements obtained from the witness.

31.5.3

Material discrepancies between the contents of an investigating agency statement and the witness’ position at precognition may bear on the witness’ credibility and/or reliability and would fall to be disclosed. Similarly, any material additional information i.e. information which is likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused must be disclosed.

31.5.4

Where information is disclosed to the defence, a record of this having been done should be made in this section of the precognition, referring to the letter sent to the defence advising them of the material information and the date the letter was issued.

31.5.5

Where there are no issues, then that fact should also be recorded in this section, in order that the Crown has a record of the fact that the precognition was carefully considered to determine whether any material information required to be disclosed. If a new line, or a change in the line of defence is intimated within a defence statement, the Crown should consider whether there is now information contained within the precognition which was not previously considered disclosable, which should now be disclosed in light of the new line of defence. Full guidance in relation to defence statements and the associated disclosure obligations can be found in Chapter 42 of this Manual.

Example

31.5.6

Below is an example of a completed issues section of the disclosure page:

Issues at precognition and present position:

• Witnesses 1-4 precognosed
• [Wit 4 – material variation from investigating agency statement – CCIs instructions sought re disclosure] – [Date report submitted to CC – no instructions issued yet]
• [Witness 2 – material variation from investigating agency statement] – [Details of variation sent to defence in letter dated X]
• No issues arising from precognitions of witnesses 1 & 3.

31.6 Criminal history records

31.6.1

The Crown must obtain criminal history records for all witnesses that the Crown intends to cite. This applies to all cases and to all witnesses listed on the indictment whether they are civilian, police or professional/ expert/ official witnesses. Thereafter, the criminal history records must be considered to ascertain whether there are any convictions, pending cases, children’s hearing appearances and/or direct measures (including fixed penalties issued by the police or other specialist reporting agency) contained within the record which meet the materiality test i.e. likely to materially weaken or undermine the evidence that is likely to be led by the prosecutor; materially strengthen the defence case; or form part of the evidence to be led by the prosecutor in the proceedings against the accused, and therefore fall to be disclosed. Guidance on the redaction of criminal history records is contained in Chapter 19 of this Manual.

31.6.2

In all solemn cases, criminal history record information should not be disclosed until the stage the indictment is served. Crown Counsel’s instructions must be sought using this section of the disclosure page.

High Court cases

31.6.3

The criminal history records should be requested at the same time as witness statements are requested in order that they can properly be considered during the precognition process.

31.6.4

If the witness is precognosed, then in terms of paragraph 10.7.2 of this manual, the case preparer must advise the witness that details of their criminal history record must be disclosed. Additionally, they must canvass with the witness if there are any grounds for non-disclosure, as set out in Chapter 17 of this Manual.

31.6.5

Where the witness does specify grounds for non-disclosure of a part of their record, this should be clearly recorded in this section along with details of the reasons for non-disclosure.

31.6.6

When preparing the precognition, the Case Preparer should include a copy of the criminal history record behind the precognition and statement of the witness.

31.6.7

Thereafter, the Case Preparer must summarise the witnesses’ criminal history record and make a recommendation as to which records within the CHR are immaterial and sensitive and seek Crown Counsel’s instructions on whether they should be redacted prior to disclosure of the record.

31.6.8

Crown Counsel must take the final decision about what information requires to be redacted. Their instructions will be given at the same time as instructions on proceedings are given. If instructions have been sought but not provided, then a further request should be submitted via the Deputy Head of the High Court Unit.

31.6.9

Once Crown Counsel’s instructions have been received, the disclosure page should be updated to record the instructions. Thereafter, they should be further updated to record when any records are disclosed.

31.6.10

Where a witness has no CHR, then that fact should also be recorded in this section, in order that the Crown has a record of this fact.

Sheriff and Jury cases

31.6.11

The criminal history records should be requested at the same time as witness statements are requested in order that they can properly be considered during the precognition process.

31.6.12

If the witness is precognosed, then in terms of paragraph 10.7.2 of this manual, the Case Preparer must advise the witness that details of their criminal history record must be disclosed. Additionally, they must canvass with the witness if there are any grounds for non-disclosure, as set out in Chapter 17 of this Manual.

31.6.13

Where the witness does specify grounds for non-disclosure of a part of their record, this should be clearly recorded in this section along with details of the reasons for non-disclosure.

31.6.14

When preparing the precognition, the Case Preparer should include a copy of the criminal history record behind the precognition and statement of the witness.

31.6.15

Thereafter, the Case Preparer must liaise with the Solemn Legal Manager to determine whether any of the records contain immaterial and sensitive information and then the actions detailed below should be taken.

31.6.16

If the witness has a record that also contains immaterial and sensitive convictions etc, then this should be recorded in this section of the disclosure page at the stage the precognition is submitted to Crown Office.

31.6.17

Thereafter, it should be updated to record, at the stage the indictment is served, that the record has been disclosed:

1. If the witness has a record that also contains immaterial and sensitive convictions etc, this should be recorded, detailing which are immaterial and sensitive and therefore not being disclosed at that stage.
2. If the witness has a record that contains material criminal history information that you wish to withhold, then Crown Counsel’s instructions should be sought, under the procedures detailed in section 25.8 of this Manual, to allow the material parts of the record to be withheld. This should be recorded in this section and should be updated once CCIs are received.

31.6.18

Where a witness has no CHR, then that fact should also be recorded in this section, in order that the Crown has a record of this fact.

Example

31.6.19

Below is an example of a completed criminal history record section of the disclosure page:

CHRs and present position:

Witness 2

• Wit 2 has CHR containing 2 pending RTA offences; 3 convictions for dishonesty offences; and 1 conviction for assault. Recommend disclosure of dishonesty convictions and assault conviction on basis of materiality. Recommend that pending cases are also disclosed on basis that although they are immaterial they are not sensitive, having regard to the material convictions being disclosed.
• Crown Counsels instructions are now sought on these recommendations

Witness 1

• Wit 1 has 1 conviction for indecent assault – 20 years old - although technically material on basis that relates to assault, it is historical and relates to under age sex – no obvious link to this defence of self-defence. Wit owns a shop near a school and is worried his business might suffer if knowledge of conviction gets out.
• Recommend non-disclosure
• A report has been prepared by the Federation Head, Federation functional lead (PF/Asst PF High Court/ Sheriff and Jury) and submitted for Crown Counsels instructions.

Other witnesses

• All remaining witnesses have no CHRs
• No action required

31.7 General issues/observations

31.7.1

This section is used to detail any other disclosure issues that do not properly fall into any of the sections above.

31.7.2

An obvious example would be where the defence have lodged a defence statement (Criminal Justice and Licensing (Scotland) Act 2010 sections 124-126)

31.7.3

Where the defence has lodged a defence statement, in respect of solemn or summary proceedings (Criminal Justice and Licensing (Scotland) Act 204), and considers that the prosecutor has failed, in their response to that statement, to disclose an item of information which is disclosable in terms of the materiality test, namely information which:–

• Would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,
• Would materially strengthen the accused’s case, or
• Is likely to form part of the evidence to be led by the prosecutor

the accused may apply (under the Criminal Justice and Licensing (Scotland) Act 2010 section 128(2)) to the Court for a ruling on whether the information in question falls within the ambit of the test. Guidance on applications for such rulings can be found in Chapter 39 of this Manual.

31.7.4

Where such an application is lodged, this should be recorded in this section of the disclosure page and the result of the application should be recorded once known.

Example

31.7.5

Below is an example of a completed general issues/observation section of the disclosure page:

General issues/observations and present position

1st application

• Application for Court Ruling re social work records of complainer lodged
• Ruling that no part of the social work records is disclosable on x date

2nd application

• 2nd Application for Court Ruling re medical records of Wit 2 (corroborating eye-witness) sought –defence looking to attack reliability of witness on basis of medical history
• Hearing fixed for x date

31.8 Schedules summary and reconciliation record

31.8.1

This section consists of a table, divided into 3 sub-sections;

1. Schedules summary
2. Reconciliation process checklist
3. Disclosure of non-sensitive schedules to the defence

31.8.2

The Schedules Summary sub-section will provide a summary of all non-sensitive and sensitive schedules submitted by the police. This summary consists of providing:

1. The number of non-sensitive schedules and the date each of these has been submitted;
2. The number of sensitive schedules and the date each of these has been submitted; and
3. The date of the most recent undertaking by the Reviewing Officer that all information that may be relevant has been provided (revealed) to the Crown.

31.8.3

Below is an example of a completed part of the schedules summary and reconciliation table in relation to this subsection:

SCHEDULES SUMMARY

Non-sensitive schedules

• No. of Non-sensitive schedules submitted = 3
• Date(s) submitted –
1. 18 March 2009
2. 6 June 2009
3. 5 January 2009

Sensitive schedules

• No. of Sensitive schedules submitted = 1
• Date submitted – 18 March 2009

Most recent undertaking

• Date of most recent undertaking from RVO that all relevant information has been submitted – 5 January 2009

31.8.4

The Reconciliation Process Checklist sub-section will provide confirmation that all information submitted by the investigating agency, as listed in the schedule(s) has been received and that all information received by the investigating agency has been listed in one of the schedules submitted.

31.8.5

Below is an example of a completed part of the schedules summary and reconciliation table in relation to this subsection:

RECONCILIATION PROCESS CHECKLIST

(X to confirm completed)

CONFIRM

• All information submitted by investigating agency (as listed in the schedule(s) referred to above) has been received
• X

CONFIRM

• All information received by investigating agency is listed in one of the schedules referred to above
• X

31.8.6

The Disclosure of Non-Sensitive information to the defence sub-section will provide confirmation of the date that each non-sensitive schedule in the case has been disclosed to the defence, along with details of the date that any updated schedule has been disclosed.

31.8.7

Below is an example of a completed part of the schedules summary and reconciliation table in relation to this subsection:

DISCLOSURE OF NON-SENSITIVE SCHEDULES TO DEFENCE

Schedule reference and date disclosed to the defence:

• GR09001023 KCID NS 1 –
• 27 March 2009
• Updated versions disclosed 19 April 2009 & 27 May 2009
• GR09001023 KCID NS 2 – 13 June 2009
• GR09001023 KCID NS 3 – 14 January 2009

31.9 Updating the disclosure page

31.9.1

The disclosure page must be completed in all solemn cases and must be updated with all changes that are relevant to disclosure. It is imperative that this document is available within the case papers to ensure that there is an accurate record of the position which can be presented to the court if a point is raised by the defence.

31.9.2

If a new line, or a change in the line, of defence is intimated via a defence statement the Crown must consider whether there is information which was not previously considered disclosable which should now be disclosed in light of the new line of defence.

31.9.3

Accordingly, where, after the precognition has been submitted to Crown Office, there is a change to the disclosure position set out in the hard copy disclosure page included with the precognition (e.g. further statements are taken by the investigating agency, submitted by the investigating agency and/or disclosed to the defence), then the Case Preparer must update the electronic version of the disclosure page stored in SOS-R. 31.9.4 In addition, in High Court cases an updated hard copy should be sent to Crown Office (or other appropriate location depending on the stage of the case, e.g. where the papers have been transmitted to another office in advance of the preliminary hearing or trial taking place there) for inclusion in the Advocate Depute’s papers. In Sheriff and Jury papers, an updated hard copy should be slotted into the precognition.

31.9.5

It is the responsibility of the Case Preparer and the Solemn Legal Manager in supervision of the Case Preparer to ensure that the disclosure page is updated in SOS-R and that an up-to-date hard copy version is included with the Advocate/ trial Depute’s papers.

31.10 Disclosure Court Minute Sheet – Solemn proceedings

31.10.1

In terms of sections 11.6 and 11.7 of this Manual, in any solemn proceedings, any disclosure of information in court (either by provision of copies or access) must be recorded on the Disclosure Court Minute Sheet.

31.10.2

After court, this Disclosure Court Minute Sheet must be returned to either High Court Registry or the relevant solemn administrative staff, who should then transfer the information contained within this minute sheet into the electronic copy of the Disclosure Page. This updated Disclosure Page should then be printed off and inserted into the precognition.

32.1 General principles

32.1.1

The disclosure of material information in cases should be approached in line with the guidance within this manual and the Best Practice Guide for summary cases.

32.1.2

While some of the information that is submitted by the reporting agency must be carefully considered prior to disclosure (e.g. witness statements, criminal history records), certain categories of information can be disclosed automatically, i.e. without being considered first by a member of staff to confirm:

1. That the information should be disclosed,
2. Whether the information or any part of it is sensitive; or
3. Whether the information requires to be redacted prior to disclosure.

32.1.3

This chapter contains a guide on the information that may be automatically disclosed. For the avoidance of doubt, if material is not listed here, decisions on whether or to what extent the material should be disclosed must be taken by a legal member of staff in summary cases or by the Case Preparer in solemn cases, in consultation (as needed) with the Solemn Legal Manager.

32.1.4

This guidance is the maximum amount of information that can be subject to automatic disclosure. It is a matter for local discretion, however, whether the material listed here is considered prior to disclosure.

32.1.5

Under no circumstances should any information ever be automatically disclosed to an unrepresented accused. Further guidance in relation to a case where there is an unrepresented accused is contained in Chapter 23 of this Manual, in particular, at section 23.20.

32.2 Summary cases

32.2.1

Guidance on various timelines and requirements for disclosure of evidence is contained in COPFS Best Practice Guide in Summary Cases. Disclosure of any of the information listed below at paragraph 32.4 and 32.5 is subject to the standards, timescales and procedures contained in that guidance.

32.3 Solemn cases

32.3.1

It is anticipated that it is less likely that information will fall to be disclosed automatically in a solemn case. It is the responsibility of the solemn legal manager to ensure that staff comply with local guidance in relation to automatic disclosure in solemn cases. The examples listed below at paragraph 32.4 may be considered for automatic disclosure in accordance with local systems where solemn proceedings have been initiated.

32.4 Information suitable for automatic disclosure

32.4.1

In general, and where appropriate according to the type of case, copies of the following information can be automatically disclosed to the defence where proceedings have been commenced against the relevant accused:

• Device print-outs in relation to contraventions of Section 5(1)(a) or (b) of the Road Traffic Act 1988 (‘drink driving’ or ‘drunk in charge’ cases) – although this only needs to be disclosed/served where the accused/defence did not accept service of a copy of the print-out from the investigating agency at the time of the procedure;
• Drink driving forms (Forms 4:8:1 and 4:8:2);
• Tachograph Charts;
• Certificates of analysis of blood and urine for drugs and alcohol and related doctor’s certificates;
• Identification parade forms (note: VIPER DVDs must not be copied and disclosed);
• Arrest forms;
• Detention forms (both parts A & B);
• Voluntary Attendance Forms;
• Video operator’s certificate (Section 283 Certificate) in relation to video/digital evidence;
• Certificates of accuracy in speeding cases and other related documentation including photos and videos/DVDs;
• Investigating agency interview tapes/DVDs – the tapes/DVDs of an accused’s interview can be automatically disclosed to that accused/defence only. Where it relates to a person who is now a witness or a co-accused, the tape must be considered by a legal member of staff prior to disclosure as there may be redaction considerations that must be taken into account;
• Transcripts of investigating agency interviews – again only where they relate to accused persons against whom proceedings have been taken;

32.4.2

For the avoidance of doubt, information listed above should only be disclosed automatically to a defence agent if it relates to the accused whom they are representing. Where the information relates to a witness or an accused who was not proceeded against it must be considered by a legal member of staff or the Case Preparer in consultation with the Solemn Legal Manager in order to determine whether it meets the disclosure test.

32.5 Additional information suitable for automatic disclosure in summary cases

32.5.1

In addition to the information listed at 32.4 above, search warrants relating to the premises for which proceedings are being taken can be automatically disclosed in summary proceedings.

32.5.2

Where the investigating agency provides details of any other search warrant that is relevant to the proceedings, then a legal member of staff must consider the search warrant and consider whether it should be disclosed to the defence in terms of the materiality test, namely information which:–

• Would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,
• Would materially strengthen the accused’s case, or
• Is likely to form part of the evidence to be led by the prosecutor

32.6 CCTV/ Video/DVD Evidence

32.6.1

CCTV, video and DVD evidence should never be disclosed automatically and must always be considered by a legal member of staff or the case preparer to determine whether:

1. It should be disclosed; and
2. To what extent, (where only certain parts of the CCTV etc. evidence is material, then only that part of it should be disclosed);

32.6.2

It is essential that, in order to comply with the data protection principles and the article 8 rights of individuals, only relevant and material CCTV etc footage is disclosed.

32.7 Witness statements and criminal history records

32.7.1

Witness statements should never be disclosed without being checked. The only exception to this rule is where the case is being prosecuted summarily and there are only police witnesses involved in the case.

32.7.2

Where the case is proceeding summarily and there are civilian witnesses, a member of staff (legal or administrative) should consider the statements prior to disclosure to ensure that there is no sensitive/personal information that should be redacted in terms of Chapter 15 of this Manual.

32.7.3

Where the case is proceeding under solemn procedures all statements must be considered by a legal member of staff, usually the solemn legal manager to ensure that there is no sensitive/personal information that should be redacted in terms of Chapter 15 of the Manual.

32.7.4

There is further detailed guidance about disclosure of statements and Criminal History Records in Chapters 13 - 20 of this Manual.

32.7.5

Similarly, criminal history records must never be disclosed automatically. Where the case is proceeding summarily, a member of staff (legal or an experienced member of administrative staff who has attended the Disclosure Training) should consider the criminal history record prior to disclosure to ensure that all immaterial convictions/pending cases are appropriately redacted.

32.7.6

In all High Court cases, the Case Preparer, in consultation with the legal manager, should consider the record and make recommendations in the Disclosure Page of the precognition as to what information should be disclosed. Disclosure should then be carried out in terms of Crown Counsel’s instructions at the stage the indictment is served.

32.7.7

In all Sheriff and Jury cases, the Case Preparer, in consultation with the legal manager, should seek Crown Counsel’s instructions in the Disclosure Page of the precognition where you are seeking to withhold material information. Disclosure should then be carried out in terms of Crown Counsel’s instructions at the stage the indictment is served.

32.7.8

In any case where there is a serious issue or concern surrounding disclosure then a report should be submitted to Crown Counsel seeking instructions in relation to this before disclosure is made.

33.1 Introduction

33.1.1

In all cases where there is VIA involvement, irrespective of the extent to which they are involved, it is important to remember that any communication with witnesses and information obtained from them is subject to consideration for disclosure.

33.1.2

Guidance in relation to the application of the provisions of the Vulnerable Witnesses (Scotland) Act 2004 is contained within Chapter 22 of the Book of Regulations.

33.1.3

Further guidance can also to be found within Crown Office Circulars 3/2005, 5/2006, 3/2007 and 14/2008.

33.2 Vulnerable Witness Summary Report

33.2.1

A Vulnerable Witness Summary Report is usually prepared by VIA staff during their discussions with vulnerable witness to ascertain the applicability of special measures. Although VIA staff should restrict their discussions to the information required for completion of the Vulnerable Witness Application, it is entirely feasible that the witness will provide information that may require to be disclosed to the defence in terms of the materiality test under section 121(3) of the Criminal Justice and Licensing (Scotland) Act 2010, i.e. information which would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; would materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor

33.2.2

VIA staff will inform the witness at the time of these discussions that there is a duty on the prosecution to disclose information that is relevant and material to the defence i.e. meets the materiality test outlined at paragraph 33.2.1 above.

33.2.3

The Vulnerable Witness Summary Report should not be disclosed to the defence as a matter of routine. There remains, however, a duty to disclose any information within the report that meets the materiality test, i.e. information which would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; would materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor. Accordingly, should the Vulnerable Witness Summary Report disclose: (a) any alteration or inconsistency by a witness on a material matter; or (b) information which either undermines the Crown case or materially assists the defence case, this must be disclosed to the defence in advance of trial in order to fulfil the Crown’s disclosure obligations.

33.2.4

Any disclosure issues relating to the Vulnerable Witness Summary Report should be included in the Disclosure Page of the Precognition. Guidance in relation to completion of the Disclosure Page can be found in Chapter 31 of this Manual.

33.2.5

Further details of the use and applicability of the Vulnerable Witness Summary Report are contained in Crown Office Circular 14 of 2008: Vulnerable Witnesses (Scotland) Act 2004: Adult Vulnerable Witnesses in Summary Cases.

33.3 VIA interviews

33.3.1

Where a witness has been interviewed by a member of VIA staff it is important to note that any information obtained as a result of this interview must be recorded and included within the vulnerable witness report. This information must be considered to determine whether there is any information which falls to be disclosed in terms of the materiality test, i.e. information which would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; would materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor. It is the responsibility of VIA to bring this information to the attention of the Case Preparer or the summary legal manager in order that they can assess the disclosability of the information.

33.3.2

Where information is obtained at or immediately prior to the case calling in court then this should be passed to the legal member of staff in court who must consider whether such information falls to be disclosed to the defence. Where the material is disclosed in court, then this should be clearly recorded in the Disclosure Court Minute Sheet in solemn proceedings or in the case papers if the case is proceeding summarily.

33.3.3

Where contact with the witness is by telephone, any information obtained by VIA staff also falls to be considered for disclosure purposes as it would if it were a personal interview.

33.3.4

Where there is any doubt as to whether information is material and disclosable this must be referred to the relevant legal manager for consideration who, if necessary, will seek Crown Counsels Instructions.

33.4 Consideration and disclosure of information to the defence: Responsibilities of staff

33.4.1

Where information is obtained during the processes referred to above that may be material, VIA staff must bring this to the attention of the Case Preparer in solemn proceedings or the summary legal manager in all summary cases.

33.4.2

Thereafter, it is the responsibility of the Case Preparer in consultation with and under the supervision of the solemn legal manager to determine whether the information must be disclosed to the defence in terms of the materiality test, i.e. information which would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; would materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor. In summary proceedings, this responsibility will lie with the Summary Legal Manager.

34.1 Overview

34.1.1

The non-sensitive schedule will contain all information that does not meet the definition of sensitive information under Section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010, i.e. is not information, which if it were to be disclosed, would risk:

1. Causing serious injury, or death, to any person,
2. obstructing or preventing the prevention, detection, investigation or prosecution of crime; or
3. Causing serious prejudice to the public interest.

If the information does not meet any of these 3 criteria, then it should be listed in the non-sensitive schedule.

34.1.2

This will be the most commonly used schedule and at least one schedule will be completed in respect of every case that is commenced on petition. In large volume cases, it is highly likely that multiple non-sensitive schedules will be completed. In many cases, only a non-sensitive schedule will be required.

34.1.3

Given the nature of the type of information listed in these schedules and given that they will be routinely disclosed to the defence, non-sensitive schedules will carry a “Not Protected” GPMS⁸ marking and will be submitted by the investigating agency electronically.

34.1.4

The non-sensitive schedule will be considered by the Case Preparer in close consultation with the appropriate solemn legal manager.

34.1.5

Only the non-sensitive schedule(s) will be disclosed to the defence.

34.2 Format of the non-sensitive schedule

34.2.1

Like both the sensitive and the highly sensitive schedules, the non-sensitive schedule has 2 distinct sections, the first of which is completed by the Reviewing Officer.

34.2.2

The second section, which lists the appropriate disclosure decision, will be completed by the Case Preparer in close consultation with the appropriate solemn legal manager. Further guidance in the consideration and completion of the schedules is contained in Chapter 37 of this Manual.

34.3 The Investigating agency section of the schedule

34.3.1

The Investigating agency section comprises 7 columns:

• URN
• Material Type
• Description and Relevance
• Where lodged
• Note
• Date of Submission to PF
• Exculpatory Yes/No Guidance in respect of each of these columns is provided below.

34.3.2

The URN is the unique reference number which the investigating agency will allocate to each item of information obtained/generated during the investigation. This number is for internal investigating agency purposes, but will provide a sequential record of items for COPFS staff.

34.3.3

The material type column will give a brief indication of what type of information the entry relates to, e.g. witness statement; forensic report; detention form.

34.3.4

The description and relevance column will provide a concise summary of what the information contains, which will provide an indication as to why the Reviewing Officer considers that item of information to be relevant. The investigating agency must provide details of all the information that may be relevant to the case for or against the accused (Criminal Justice and Licensing (Scotland) Act 2010 section 117(1)). As indicated in Chapter 16, the schedules will list all information that may be relevant but not all of this information will necessarily be submitted to the PF office for consideration. Accordingly, it is essential that the description provided here is sufficiently detailed and accurate so as to allow the Case Preparer to properly assess whether there is a need to obtain and consider the actual piece of information.

34.3.5

An example of a description would be “Questionnaire from John Smith who was present at the locus on the night of the incident. He did not witness the incident as was in the bar area at the time and incident occurred in another room. He cannot identify anyone involved in the incident”.

34.3.6

Where an item of information listed in the schedule is not disclosed to the defence, on the grounds that the Case Preparer does not consider that it is material in nature, this description and relevance column will also be significant to the defence in determining whether, in their view, the information may be of material assistance to the proper preparation and presentation of the defence.

34.3.7

Accordingly, it is essential that this column is correctly completed by the Reviewing Officer. Where the description is insufficient, the Case Preparer should return the schedule to the Reviewing Officer with a written instruction regarding the amendments required to improve the description.

34.3.8

The where lodged column will detail where the information is currently held. This will relate to the location of the original document and not any electronic version that has been generated. Accordingly, for example, the location of the original manuscript statement will be listed here. By accurately listing the location of the item here, this ensures that any requests by the PF for viewing either by them or the defence can be efficiently facilitated.

34.3.9

The Note column will be used by the investigating agency to include any note regarding the piece of information listed. A numeric list of generic notes has been prepared and is attached at Annex K. These notes will provide Case Preparers with additional information about the piece of information that has been listed, e.g. this material contains sensitive information and may require redaction prior to disclosure; or, this production has been forwarded to SPSA for forensic examination.

34.3.10

In addition to the generic notes, listed in Annex K, the Reviewing Officer can, where necessary, create additional notes which can be numbered and added to this generic list.

34.3.11

A copy of the list of notes, whether it consists only of the generic notes or generic and additional notes, will always be submitted along with any schedule. This list should then be disclosed to the defence along with the schedule.

34.3.12

The date of submission column will detail the date that the piece of information has been submitted to the PF. Witness statements and productions will usually always be submitted (unless they have been submitted to the forensic laboratory for examination). If the piece of information has not been submitted then this section should be left blank.

34.3.13

Where the Solemn Legal Manager has discussed and agreed with the Reviewing Officer that information need not be submitted, then a note to this effect should be included in the note field (by adding the relevant numbered note from the generic list of notes), e.g. house to house or other questionnaires.

34.3.14

The exculpatory Y/N column must be completed in respect of each item of information. As part of the reviewing and assessment process specified in chapter 16 of this Manual, the Reviewing Officer must review and assess each item of information to determine whether it is information that might materially weaken the Crown case, materially strengthen the defence case, or otherwise exculpate the accused and then insert Y or N in this column.

34.3.15

The final decision, however, on what constitutes material evidence will lie with the Case Preparer (working in close consultation with the Solemn Legal Manager). Where, however, the Case Preparer disagrees with the Reviewing Officer’s assessment of the information as being exculpatory, then the Case Preparer should discuss the case with the Reviewing Officer before reaching a final decision on the materiality of the information. If the schedule entry is “Y” but the Case Preparer, after consultation with the Reviewing Officer, determines that the item of information is, in fact, not potentially exculpatory and, therefore, not disclosable, then the non-sensitive schedule should be amended prior to disclosure to the defence.

34.4 Listing witness statements

34.4.1

Where a witness statement listed on the schedule is also submitted to the PF Office then the description and relevance section should not provide a summary of the content of the statement and will instead provide the following information:

• Name of the witness
• Sequential number of the statement
• Age of the witness
• Date and time the statement was obtained

34.4.2

If the Reviewing Officer has identified that a particular witness statement contains information that might materially weaken the prosecution case or materially strengthen the defence case, then the description and relevance section should also give a brief summary setting out why the statement is exculpatory.

34.4.3

Where the witness statement has not been submitted to the PF Office, e.g. because it is a house to house questionnaire, then a summary of the content of the statement must still be provided in order that (a) the prosecutor can keep the materiality of that statement under review and (b) the defence can give informed consideration to whether the statement may be of material assistance to the defence. Note: The Reviewing Officer must seek express authority from the SLM not to submit a witness statement.

34.5. Listing productions

34.5.1

In relation to each production, the Reviewing Officer must provide the following minimum information in the description and relevance column:

• Description of item
• Who the item was seized from (if applicable)
• The exact location where the item was found (although if the item was seized from a witness’s home which is not the locus of the offence, this should be specified as “at witness X’s home” rather than by specifying the actual address)
• Date the item was seized
• Details of the officer seizing the item
• Production register number

34.5.2

Only where the above information is not sufficient to demonstrate the relevance of the production need the Reviewing Officer provide any further information within the schedule. If, however, the Reviewing Officer has identified that a particular production might materially weaken the prosecution case or materially strengthen the defence case, then the description and relevance section should also give a brief summary setting out why the production is exculpatory.

34.6. Listing actions

34.6.1

An Action is a documented instruction to an Officer to carry out a particular line of enquiry. Actions will generally be raised from a document, which has been submitted to a major incident room.

34.6.2

The Reviewing Officer will consider each action on an individual basis to assess whether it may be relevant. However, it has been agreed that, as actions are usually raised from a source form or document , where an action results in the obtaining of an other item of information, for example a production or witness statement, which is listed elsewhere on a schedule, there is no requirement to list that action on the schedule.

34.6.3

However, if the action might materially weaken the prosecution case or materially strengthen the defence case, it should always receive a separate entry on the schedule, setting out in the description and relevance column why it is exculpatory.

34.6.4

Where an action does not result in the generation or obtaining of an item of information and the Reviewing Officer considers it to be relevant information, it should be recorded on the schedule. However, consideration may be given to including a block entry to cover multiple actions in such circumstances. The final decision of the appropriateness of a block entry rests with the Solemn Legal Manager who must be satisfied that a block description of multiple items still enables the Crown to keep the materiality of each item under review.

34.7. Listing messages

34.7.1

A message form is used to record information entering a major incident room, whether by telephone, verbally or written. The message records the details of the person providing the information, the content and details of the person recording the information.

34.7.2

The Reviewing Officer will consider each message on an individual basis to assess whether it may be relevant. Where the message results in another item of information being obtained and listed on the schedule, there is no requirement to list that message separately.

34.7.3

However, if the message might materially weaken the prosecution case or materially strengthen the defence case, it should always receive a separate entry on the schedule, setting out in the description and relevance column why it is exculpatory.

34.7.4

Where a message does not result in the generation or obtaining of an item of information and the Reviewing Officer considers it to be relevant information, it should be recorded on the schedule. However, consideration may be given to including a block entry to cover multiple messages in such circumstances. The final decision of the appropriateness of a block entry rests with the Solemn Legal Manager who must be satisfied that a block description of multiple items still enables the Crown to keep the materiality of each item under review.

34.8. Listing internal communications between the investigating agency and the Crown

34.8.1

As stated in Hanif v HMA (2009 SCCR 38) internal communications between the Crown and investigating agency are not usually disclosable (paragraph 24):

“A matter of internal communication between those concerned with the prosecution of [an] alleged crime … was not evidential material which could properly be regarded as disclosable”.

Accordingly, there is no requirement for the investigating agency to list any internal communications on a schedule.

34.8.2

If, however, the internal communication sets out information that might materially weaken the prosecution case or materially strengthen the defence case that is not contained elsewhere, e.g. in a witness statements, prosecution report etc, then the communication should be listed along with a summary setting out why the information might be exculpatory.

34.9 The Crown Section of the Schedule

34.9.1

The COPFS section of the schedule comprises 3 columns:

• Disclosure action
• Comment
• Date disclosed to the defence Guidance in respect of each of these columns is provided below.

34.9.2

The disclosure action column is where the Case Preparer will record the appropriate disclosure action of which, on the non-sensitive schedule, there are 4 options:

• Disclose to the defence (by provision of a copy)
• Withhold meantime (e.g. pending a particular action such as precognition of a witness)
• Disclose by access
• Not disclosable (assessed as non-material)

34.9.3

The Case Preparer must consider each item of information and then insert the appropriate disclosure action in this column.

34.9.4

The comment column allows the Case Preparer to include any relevant comment in relation to the disclosure action. For example, if the disclosure action recorded in the previous column is “withhold meantime”, the action that is required prior to disclosure must be included in this comment; if the disclosure action is “disclose by access”, then the appropriate place for the access to take place should be entered here, e.g. at PF Office; at Forensic lab etc; if the item of information is only to be disclosed in a redacted form, this should be inserted here.

34.9.5

It should be noted that it may be necessary to list more than one comment, e.g. where disclosure is to be by access at the PF Office and that access is to be to a redacted version of the piece of information.

34.9.6

The date disclosed to the defence column will be completed by a member of administrative staff at the stage the piece of information is disclosed (e.g. date uploaded to the website).

34.9.7

Where disclosure of any piece of information is by access, then the comments column should be updated once the defence have viewed the information to reflect the date that access was facilitated.

34.10 Content of the non-sensitive schedule

34.10.1

The Reviewing Officer will take the initial decisions regarding the sensitivity of any piece of information and information not considered to be sensitive will be listed on the non-sensitive schedule.

34.10.2

Information is considered to be sensitive if the disclosure of that information would risk:

1. Causing serious injury, or death, to any person;
2. Obstructing or preventing the prevention, detection, investigation or prosecution of crime; or
3. Causing serious prejudice to the public interest.

34.10.3

This will require an assessment of the content of each item of information. However, if considered to be information that may be relevant, the following type of information would usually be listed in the non-sensitive schedule:

• Witness statements (including anything that gives an account of the what the witness says in whatever format it is held, e.g. pro forma questionnaires; SOLO (Sexual Offence Liaison Officer) Reports)
• PI Tapes and Transcripts
• Notes of interviews with witnesses
• Visually recorded interviews with witnesses or accused
• Fingerprint forms
• ID Parade forms
• Forensic Reports
• TSU Examination Reports
• Detention Forms
• Voluntary Attendance Forms
• Arrest Forms
• Ballistic Examination Reports
• Post Mortem Reports
• Other Expert Reports
• Plans/Videos of crime scenes
• Custody records (for accused)
• Production Logs
• Records of Searches
• Incident logs
• Crime report
• Police Notebooks
• Media releases
• Questionnaires
• DNA or other forensic material
• Drink Driving Forms
• Device Print-outs under RTA
• Tachograph Charts
• Certificates of Accuracy
• Certifications of analysis of blood and urine
• Video Operator’s certificate re video/digital evidence
• Police Casualty surgeon reports for accused
• Medical examinations Forms for suspects
• Hospital Records relating to the accused
• Dental Records relating to the accused
• Lay Visitors police cell reports
• Surveillance/Observation Logs (Except where the content of such logs is sensitive or the existence of such surveillance is itself sensitive, having regard to the definition of sensitive set down in paragraph 34.1.1)

34.10.4

This list is not prescriptive and, depending on the actual information contained within each individual item, it may, on occasion, be appropriate for it to be listed on the sensitive schedule. However, this list will act as a guide to assist reviewing officers in determining the appropriate schedule.

34.10.5

Further, the appearance of items of information on this list above is not an indication that this type of information is routinely relevant. It remains the case that only witness statements and criminal history records are always routinely relevant. All other information obtained or generated during the course of the investigation must be assessed for relevance. Thereafter, if it is deemed to be information that may be relevant, this table will assist in determining the appropriate schedule in which to list the information.

34.10.6

Guidance on what to do if the Case Preparer disagrees with categorisation of information as non-sensitive is contained in paragraph 37.2.3 of this Manual.

34.11 Recording disclosure decisions

34.11.1

As stated above, the disclosure decision regarding each item of information listed in this schedule will be recorded in the disclosure action column. This will then enable the Case Preparer and the trial depute to properly keep this decision under review throughout the life of the case.

34.11.2

In addition, this record will be the main reference point in all solemn appeal cases for establishing what information was disclosed to the defence during the initial proceedings.

34.12 The Crown Non-Sensitive Schedule

34.12.1

Where the Case Preparer has obtained relevant information from a source other than the investigating agency, this information must be assessed, having regard to paragraph 34.9 above. The Case Preparer should then prepare a Crown Non-Sensitive schedule listing this information.

34.12.2

The Crown non-sensitive schedule has 6 columns, similar in nature to the investigating agency non-sensitive schedule:

• Information type
• Description & Relevance
• Where held
• Disclosure Action
• Comment
• Date disclosed to the defence.

34.12.3

The Case Preparer should complete all columns, except the date disclosed to the defence column. Guidance on completion of these sections is contained in Chapter 37 of this Manual.

34.12.4

Administrative staff will complete the last column at the stage any information listed within the schedule is disclosed to the defence.

34.13 Disclosure to the defence

34.13.1

As previously stated, any non-sensitive schedules, including non-sensitive Crown schedules will be routinely disclosed to the defence. This gives the defence details of all relevant, non-sensitive information held by the Crown that it considers does not meet the materiality test, i.e. information which would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; would materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor.

34.13.2

The non-sensitive schedule, including any prepared non-sensitive Crown schedule should be disclosed to the defence along with statements, i.e. no more than 28 days after CFE. Any additional schedules received thereafter should be disclosed as soon as it is reasonably practicable so to do.

34.13.3

As the schedule provides a description of each piece of relevant information, its disclosure to the defence also enables the defence to make an informed decision on whether they think that the undisclosed information would materially assist the defence. This in turn allows them to make informed decisions when considering whether to lodge an application for a court ruling on whether or not certain relevant information is or is not material. Further guidance on applications for court rulings can be found in Chapter 39 of this Manual.

35.1 Overview

35.1.1

The sensitive schedule will contain all information that the disclosure of which, if compromised, would risk:

1. Causing serious injury, or death, to any person,
2. Obstructing or preventing the prevention, detection, investigation or prosecution of crime; or
3. Causing serious prejudice to the public interest.

The Criminal Justice and Licensing (Scotland) Act 2010 provides the definition of “information” (s.116) and “sensitive” (s.122(4)) as follows:

Information, in relation to criminal proceedings relating to a person, means material of any kind given to or obtained by the prosecutor in connection with the proceedings.

Information is deemed to be sensitive if, were it to be disclosed, there would be a risk of one or more of the consequences outlined at paragraph 35.1.1 above. If the information does not meet any of these 3 criteria, then it should be listed in the non-sensitive schedule.

35.1.2

If the information is assessed as sensitive and it is also assessed as being information which, if compromised, is likely to:

1. Lead directly to the loss of life;
2. Directly threaten national security; or
3. Lead to the exposure of a CHIS

then the information should be listed in the Highly Sensitive schedule. In addition, information that does not fall under these 3 heads may be listed on the highly sensitive schedule if it carries a GPMS⁹ marking of confidential or higher. Further guidance on this schedule is contained in Chapter 36 of this Manual.

35.1.3

Given the nature of the type of information listed in the sensitive schedules they will carry a GPMS restricted marking and will be electronically submitted by the investigating agency. A document with a GPMS Marking of restricted or below can be e-mailed. If higher, it should be submitted hard-copy. In very limited circumstances, a confidential marking may be appropriate in which case the schedule must be submitted hard copy. However, usually where the mere listing of the information in a schedule would make that schedule confidential, it is expected that the information will be listed in the highly sensitive schedule.

35.1.4

The sensitive schedule will be considered by the Case Preparer in close consultation with the appropriate solemn legal manager.

35.1.5

The sensitive schedule(s) will not be disclosed to the defence.

35.2 Format of the sensitive schedule

35.2.1

Like both the non-sensitive and the highly sensitive schedules, the sensitive schedule has 2 distinct sections, the first of which is completed by the Reviewing Officer.

35.2.2

The second section, which lists the appropriate disclosure decision, will be completed by the Case Preparer in close consultation with the appropriate solemn legal manager. Further guidance on the consideration and completion of the schedules is contained in Chapter 37 of this Manual.

35.3 The Investigating Agency Section of the Schedule

35.3.1

The Investigating Agency section comprises 8 columns:

• URN
• Material Type
• Description and Relevance
• Where lodged
• Reason for Sensitivity
• Note
• Date of Submission to PF
• Exculpatory Yes/No Guidance in respect of each of these columns is provided below.

35.3.2

The URN is the unique reference number which the investigating agency will allocate to each item of information obtained/generated during the investigation. This number is for internal investigating agency purposes but will provide a sequential record of items for COPFS staff.

35.3.3

The material type column will give a brief indication of what type of information the entry relates to, e.g. witness statement; criminal history record; medical records.

35.3.4

The description and relevance column will provide a concise summary of what the information contains, which will provide an indication as to why the Reviewing Officer considers that item of information to be relevant. The investigating agency must provide details of all the information that may be relevant to the case for or against the accused (Criminal Justice and Licensing (Scotland) Act 2010 section 117). As indicated in Chapter 16, the schedules will list all information that may be relevant but not all of this information will necessarily be submitted to the PF office for consideration. Accordingly, it is essential that the description provided here is sufficiently detailed and accurate to allow the Case Preparer to properly assess whether there is a need to obtain and consider the actual piece of information.

35.3.5

An example of a description would be “Criminal History Record for John Smith”.

35.3.6

Where intelligence information from the Scottish Intelligence Database (SID) is listed on the schedule, the description and relevance entry should provide the following information:

1. Date and time the intelligence was submitted;
2. The grading in terms of the 5x5x5 system; and
3. A sanitised text.

35.3.7

It is essential that this column is correctly completed by the Reviewing Officer as it may be used by Case Preparers to determine whether an item of information may be material. Where the description is insufficient, the Case Preparer should return the schedule to the Reviewing Officer with a written instruction regarding the amendments required to improve the description.

35.3.8

The where lodged column will detail where the information is currently held. This will relate to the location of the original document and not any electronic version that has been generated. Accordingly, for example, the location of the original manuscript statement will be listed here. By accurately listing the location of the item here, this ensures that any requests by the PF for viewing either by them or the defence can be efficiently facilitated.

35.3.9

The reason for sensitivity column will detail why the Reviewing Officer has assessed the information as being sensitive in terms of the criteria set down in paragraph 34.1.1 above.

35.3.10

Information may be sensitive if it relates to any of the following criteria:

1. Information relating to national security;
2. Information received from intelligence and security agencies;
3. Information relating to intelligence from foreign sources revealing sensitive gathering methods;
4. Information received by the investigating agency on an undertaking by them that the information is received in confidence;
5. Information relating to the use of a telephone system and supplied for intelligence purposes only;
6. Information relating to informants, undercover investigating agency officers and others at risk if identified;
7. Information revealing investigating agency surveillance location(s) or the identify of any person allowing that location to be used;
8. Information revealing techniques and investigative methods relied upon by the investigating agency;
9. Information that facilitates the commission of other offences or hinders the prevention and/or detection of crime;
10. Information contained within internal investigating agency communications;
11. Information upon the strength of which search warrants were obtained;
12. Information regarding the personal details of ID Parade participants;
13. Information generated by an official concerned with the regulation of corporate bodies or financial activities;
14. Information generated by social services, and (area) child protection committee or other party and relating to a child or young person;
15. Investigating agency intelligence information;
16. Restricted personal information such as addresses, telephone and vehicle numbers;
17. Information relating to the private life of a witness, e.g. medical or social work records; criminal history records etc; and
18. Investigating agency misconduct information

35.3.11

The information detailed above has been reproduced in a numeric list by the investigating agency. If the information falls within any of these listed categories, the reviewing officer will insert the corresponding generic sensitive note number into the reason for sensitivity column.

35.3.12

If the information does not fall within any of the criteria listed at paragraph 35.3.10 and contained within the corresponding list of generic sensitive notes, then the Reviewing officer must instead insert a full explanation for the categorisation of the information as sensitive.

35.3.13

The Note column will be used by the investigating agency to include any note regarding the piece of information listed. A numeric list of generic notes has been prepared and is attached at Annex K. These notes will provide Case Preparers with additional information about the piece of information that has been listed, e.g. the S number has been inserted into section 4 of the NSS.

35.3.14

In addition to the generic notes, listed in Annex K, the Reviewing Officer can, where necessary, create additional notes which can be numbered and added to this generic list.

35.3.15

A copy of the list of notes, whether it consists only of the generic notes or generic and additional notes, will be submitted along with the schedule.

35.3.16

The date of submission column will detail the date that the item of information has been submitted to the PF. Witness statements and productions will usually always be submitted (unless they have been submitted to the forensic laboratory for examination). If the piece of information has not been submitted then this section should be left blank.

35.3.17

Where the Solemn Legal Manager has discussed and agreed with the Reviewing Officer that information need not be submitted, then a note to this effect should be included in the note field (by adding the relevant numbered note from the generic list of notes).

35.3.18

The exculpatory Y/N column must be completed in respect of each item of information. As part of the reviewing and assessment process specified in Chapter 16 of this Manual, the Reviewing Officer must review and assess each item of information to determine whether it is information that might materially weaken the Crown case, materially strengthen the defence case, or otherwise exculpate the accused and then insert Y or N in this column.

35.3.19

The final decision, however, on what constitutes material evidence will lie with the Case Preparer (working in close consultation with the Solemn Legal Manager). Where, however, the Case Preparer disagrees with the Reviewing Officer’s assessment of the information as being exculpatory, then the Case Preparer should discuss the issue with the Reviewing Officer before reaching a final decision on the materiality of the information.

35.3.20

Where the Reviewing Officer assesses information as being sensitive and exculpatory and the officer has concerns about the information being disclosed (i.e. believes there to be public interest immunity considerations), then the Reviewing Officer should bring this to the attention of the Case Preparer at the earliest opportunity.

35.3.21

Further guidance on the listing of witness statements, productions, actions, messages and internal correspondence between the PF and the investigating agency is contained in sections 34.4 to 34.8 of this Manual.

35.4 The Crown Section of the schedule

35.4.1

The COPFS section of the schedule comprises 3 columns:

• Disclosure action
• Comment
• Date disclosed to the defence

Guidance in respect of each of these columns is provided below.

35.4.2

The disclosure action column is where the Case Preparer will record the appropriate disclosure action of which, on the sensitive schedule, there are 5 options:

• Disclose to the defence (by provision of a copy)
• Withhold meantime (e.g. pending a particular action such as precognition of a witness)
• Disclose by access
• Not disclosable (assessed as non-material)
• PII required

35.4.3

The Case Preparer must consider each piece of information and then insert the appropriate disclosure action in this column. Further information on carrying out this process is contained in chapter 37 of this Manual.

35.4.4

The comment column allows the Case Preparer to include any relevant comment in relation to the disclosure action. For example, if the disclosure action recorded in the previous column is “withhold meantime”, the action that is required prior to disclosure must be included in this comment; if the disclosure action is “disclose by access”, then the appropriate place for the access to take place should be entered here, e.g. at PF Office; at Forensic lab etc; if the piece of information is only to be disclosed in a redacted form, this should be inserted here.

35.4.5

It should be noted that it may be necessary to list more than one comment, e.g. where disclosure is to be by access at the PF Office and that access is to be to a redacted version of the piece of information.

35.4.6

The date disclosed to the defence column will be completed by a member of administrative staff at the stage the piece of information is disclosed (e.g. date uploaded to the website).

35.4.7

Where disclosure of any piece of information is by access, then the comments column should be updated once the defence have viewed the information to reflect the date that this was done.

35.5 Content of the sensitive schedule

35.5.1

The Reviewing Officer will take the initial decisions regarding the sensitivity of any piece of information.

35.5.2

Information is considered to be sensitive if the disclosure of that information would risk:

1. Causing serious injury, or death, to any person;
2. Obstructing or preventing the prevention, detection, investigation or prosecution of crime; or
3. Causing serious prejudice to the public interest.

35.5.3

This will require an assessment of the content of each item of information. However, if considered to be information that may be relevant, the following type of information would usually be listed in the sensitive schedule:

• Criminal History Records
• Investigating Agency Misconduct material
• SIO Policy Log
• Family Liaison Logs
• Operational briefings
• Debriefing sheets
• Vulnerable witness profiles
• Crimestoppers Records
• Internal Wanted/ Missing reports
• Warrant application reports (for both search & arrest warrants)
• Dental Records for witnesses
• Medical Records for witnesses
• Information from Social Services/ Local Authorities
• Force Intelligence bureau information
• Policy Files
• Custody Records for witnesses
• Port Warnings
• Sanitised CHIS reports
• RIPSA supporting documentation
• Information held by Social Services/ Local Authorities
• Offender profiles

35.5.4

This list is not prescriptive and, depending on the actual information contained within each individual item, it may, on occasion, be appropriate for it to be listed on the non-sensitive schedule. However, this list will act as a guide to assist Reviewing Officers in determining the appropriate schedule.

35.5.5

Further, the appearance of items of information on this list above is not an indication that this type of information is routinely relevant. It remains the case that only witness statements and criminal history records are always routinely relevant. All other information obtained or generated during the course of the investigation must be assessed for relevance. Thereafter, if it is deemed to be information that may be relevant, this table will assist in determining the appropriate schedule in which to list the information.

35.5.6

Guidance on what to do if the Case Preparer disagrees with categorisation of information as sensitive is contained in paragraph 37.2.3 of this Manual.

35.6 Recording disclosure decisions

35.6.1

As stated above, the disclosure decision regarding each item of information listed in this schedule will be recorded in the disclosure action column. This will then enable the Case Preparer and the trial depute to properly keep this decision under review throughout the life of the case.

35.6.2

In addition, this record will be the main reference point in all solemn appeal cases for establishing what information was disclosed to the defence during the initial proceedings.

35.7 The Crown Sensitive Schedule

35.7.1

Where the Case Preparer has obtained relevant information from a source other than the investigating agency, the sensitivity of this information must be assessed, having regard to paragraph 34.5 above. The Case Preparer should then prepare a Crown Non-Sensitive schedule listing this information.

35.7.2

The Crown non-sensitive schedule has 6 columns, similar in nature to the investigating agency non-sensitive schedule:

• Information type
• Description & Relevance
• Where held
• Disclosure Action
• Comment
• Date disclosed to the defence.

35.7.3

The Case Preparer should complete all columns, except the date disclosed to the defence column. Guidance on completion of these sections is contained in Chapter 37 of this Manual.

35.7.4

Administrative staff will complete the last column at the stage any information listed within the schedule is disclosed to the defence.

35.8 Disclosure to the defence

35.8.1

As previously stated, any sensitive schedules (including Crown sensitive schedules) will not be disclosed to the defence. It is essential, therefore, that the assessment of undisclosed relevant information is properly assessed as the existence of non-sensitive information is intimated to the defence in the form of disclosure of the non-sensitive schedule. Therefore, Case Preparers must particularly take care to ensure that any information classified as sensitive that is deemed not to be disclosable, has been properly classified.

35.8.2

When in doubt regarding the sensitivity of an item of information, Case Preparers must consult in the first instance with the relevant Solemn Legal Manager. If still in doubt, Crown Counsel’s instructions should be obtained.

36.1 Overview

36.1.1

Under Section 122(4) of the Criminal Justice and Licensing (Scotland) Act 2010 sensitive information is any information that the disclosure of which, would risk:

1. Causing serious injury, or death, to any person,
2. Obstructing or preventing the prevention, detection, investigation or prosecution of crime; or
3. Causing serious prejudice to the public interest.

36.1.2

Once information has been assessed as sensitive, it must then also be assessed to ascertain whether it is “highly sensitive” information. Information is classified as highly sensitive where it is assessed as being information which, if compromised, is likely to:

1. Lead directly to the loss of life;
2. Directly threaten national security; or
3. Lead to the exposure of a CHIS.

If information is so classified, then it must be listed in the Highly Sensitive schedule.

36.1.3

In addition, there may be information that might not fall under these 3 headings, but due to the GPMS marking that the information attracts, it cannot be revealed to a Case Preparer or legal manager because they do not hold the required security clearance. Such information must be included in the Highly Sensitive schedule and only revealed to a person with the required level of security clearance, i.e. the Federation Head and/or Functional Lead (High Court/ Sheriff and Jury/ Summary) or the Head or Deputy Head of SOCD.

36.1.4

The number of cases that will involve obtaining or generating information of a highly sensitive nature will be very small and is most likely to arise in cases involving serious and organised crime or terrorism.

36.1.5

Given the nature of the type of information listed in the highly sensitive schedules they will carry a GPMS¹⁰ marking of Confidential, Secret or Top Secret. Accordingly these schedules must be submitted hard copy.

36.1.6

Only police officers within the intelligence arena will complete the highly sensitive schedules and they will only be revealed to staff within COPFS with the appropriate security clearance level, who, depending on the level of the GPMS marking, may be the Federation Head and/or Functional Lead (High Court/ Sheriff and Jury/ Summary) or the Head or Deputy Head of SOCD.

36.1.7

The highly sensitive schedule(s) will not be disclosed to the defence.

36.2 Format of the Highly Sensitive schedule

36.2.1

Like both the non-sensitive and the sensitive schedules, the highly sensitive schedule has 2 distinct sections, the first of which is completed by the Reviewing Officer.

36.2.2

The second section, which lists the appropriate disclosure decision, will be completed by the the Federation Head and/or Functional Lead (High Court/ Sheriff and Jury/ Summary) or the Head or Deputy Head of SOCD as appropriate in terms of security clearance. Further guidance on the consideration and completion of the schedules is contained in Chapter 37 of this Manual.

36.3 The Police Section of the Schedule

36.3.1

The police section of the Highly Sensitive schedule is comprised of the same 8 sections as for the Sensitive schedule. Further information on the completion of the police section is contained in section 35.3 of this Manual.

36.3.2

As with all information listed on any of the schedules, although the Reviewing Officer will make an initial assessment of its materiality, the final decision on what information contained within the Highly Sensitive schedule constitutes material evidence will lie with the Federation Head and/or Functional Lead (High Court/ Sheriff and Jury/ Summary) or the Head or Deputy Head of SOCD as appropriate in terms of security clearance.

36.4 The Crown section of the schedule

36.4.1

The COPFS section of the schedule comprises 3 columns:

• Disclosure action
• Comment
• Date disclosed to the defence

Guidance in respect of each of these columns is provided below.

36.4.2

The disclosure action column is where the (or identified deputy) will record the appropriate disclosure action of which, on the highly sensitive schedule, there are 5 options:

• Disclose to the defence (by provision of a copy)
• Withhold meantime (e.g. pending a particular action such as precognition of a witness)
• Disclose by access
• Not disclosable (assessed as non-material)
• PII required

36.4.3

The Federation Head and/or Functional Lead (High Court/ Sheriff and Jury/ Summary) or the Head or Deputy Head of SOCD as appropriate in terms of security clearance will consider each piece of information and then insert the appropriate disclosure action in this column. Further information on carrying out this process is contained in chapter 37 of this Manual.

36.4.4

The entitlement to disclosure of material information is not an absolute right and there may be competing interests, such as national security or the need to protect witnesses from the fear of reprisals, this must be weighed against the right of the accused to receive a fair trial (Rowe and Davis v U.K. 2000 30 E.H.R.R. 1).

Accordingly, there may be circumstances where highly sensitive information may require to be disclosed. If a decision is taken, usually after consultation with the Reviewing Officer, that an item of highly sensitive information should be disclosed, then the date disclosed to the defence column will be completed at the stage the item of information is disclosed. The information should also be provided to the trial depute, once identified.

36.4.5

Where disclosure of any item of information is by access, then the comments column should be updated once the defence have viewed the information to reflect the date that access was facilitated.

36.5 Content of the Highly Sensitive schedule

36.5.1

As stated above, the highly sensitive schedule will contain any information of such a sensitive nature (as detailed in section 35.5.3 of this Manual) that it can only be revealed to staff within COPFS with the appropriate security clearance level.

36.6 Reporting to Crown Office

36.6.1

In order to ensure consistency of approach under this new system, all highly sensitive schedules should be submitted, hard copy in line with the GPMS marking scheme, to the Director of Serious Casework, accompanied with a note setting out whether any of the information is disclosable.

36.6.2

Where the Federation Head and/or Functional Lead (High Court/ Sheriff and Jury/ Summary) or the Head or Deputy Head of SOCD is seeking to withhold information that is considered to be material, a report for Crown Counsel’s instructions should also be submitted to the Director of Serious Casework along with the schedule.

36.7 Disclosure to the defence

36.7.1

As previously stated, any highly sensitive schedules will not be disclosed to the defence. Equally, they will not be disclosed to the Case Preparer or trial depute.

37.1 Overview

37.1.1

When considering information for disclosure in any solemn case, it is essential that this is done in conjunction with the schedules of relevant information prepared and submitted by the Reviewing Officer.

37.1.2

The schedules must be used by the case preparer as follows:

1. Ascertain whether information has been correctly classified as either sensitive or non-sensitive;
2. Confirm that all information purporting to have been submitted by the police or other investigating agency has in fact been received;
3. Where the information listed has not been submitted, determine whether there is sufficient information contained with the schedule to make a determination on the appropriate disclosure action;
4. If there is insufficient information to make determination, request submission of the relevant information;
5. Determine the appropriate disclosure action;
6. Record the appropriate disclosure action for all information listed on the schedule;

Annex L provides a flowchart setting out the process to be followed by the case preparer when considering the schedules.

37.1.3

Each of these steps must be carried out in order to ensure that the Crown properly carries out its disclosure obligations in solemn proceedings. By carrying out this process, the Crown will be better placed to satisfy the Court that it has disclosed all relevant and material information to the defence.

37.1.4

On some occasions, it will not be possible to identify the schedule as being incorrectly completed until the stage at which the information itself is actually being considered for disclosure.

37.1.5

Once the case preparer has identified the appropriate disclosure action, the schedules should be passed to the appropriate member of administrative staff to implement. Thereafter, the “date disclosed to the defence” column should be completed by the Fiscal Officer and the non-sensitive schedule should then be disclosed to the defence. Full guidance in relation to the business processes is contained in the Case Processing Manual. It is essential that the business processes detailed there are followed as these have been designed to ensure that the Crown is in a position to satisfy the court, if requested, that there is a full audit trail and record of all information disclosed to the defence.

37.2 Ensuring that the schedules have been accurately completed

37.2.1

As only the non-sensitive schedule is disclosed to the defence, it is essential that information is listed in the correct schedule. If the information is listed in the sensitive schedule when it is in fact non-sensitive and this is not amended, the Crown will not have carried out its disclosure obligations correctly or effectively.

37.2.2

It is essential that the defence is advised of all non-sensitive relevant information that the Crown has not disclosed, as where the defence considers that the prosecutor has failed to disclose an item of information which is disclosable in terms of the materiality test (Criminal Justice and Licensing (Scotland) Act 2010 section 121), namely information which:–

• Would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,
• Would materially strengthen the accused’s case, or
• Is likely to form part of the evidence to be led by the prosecutor

the defence may apply (under the Criminal Justice and Licensing (Scotland) Act 2010 section 128(2)) to the Court for a ruling on whether the information in question falls within the realms of the test. Guidance on applications for such rulings can be found in Chapter 39 of this Manual.

37.2.3

Where the case preparer believes that information has been wrongly classified, then they should consult their solemn legal manager first. If the manager agrees with this assessment, the case preparer should discuss this with the Reviewing Officer to ascertain why they classified the information in the way that they did. If, after this discussion, the case preparer remains satisfied that the information has been inappropriately classified, the schedules should be returned to the Reviewing Officer, with a covering letter (or e-mail) clearly specifying what corrections are required, e.g. On assessment, the SIO Policy Log is not sensitive information. Accordingly, please delete this from the sensitive schedule and add it to the non-sensitive schedule. Thereafter, please resubmit both these schedules as a matter of priority”.

37.3 Reconciling what has been submitted with what has been received

37.3.1

Where the investigating agency have submitted any item of information to the PF Office, the date of submission will be entered into the appropriate column in the schedule. If there is no date of submission entered for an item of information, then it has not been submitted. After receiving the schedules, the case preparer (or an appropriately identified member of administrative staff) should check all information held by the PF Office against the schedules to confirm that all the information listed in the schedules as having been submitted to the PF Office has in fact been received there.

37.3.2

If the schedule identifies information as being submitted, but it has not been received by the PF’s Office, then the case preparer (or administrative member of staff) should immediately contact the Reviewing Officer to arrange for a copy to be submitted, or (where it was the original that was purported to have been submitted) to assist in locating that item of information.

37.3.3

In addition, if the case preparer (or administrative member of staff) identifies any additional item of information that has not been listed in any of the schedule the Reviewing Officer should be contacted to confirm that the item of information is in fact relevant information in relation to the proceedings. If it is not relevant, it should be returned to the investigating agency as it has been submitted in error. If the item of information is relevant, the case preparer must confirm the classification of the information (i.e. sensitive or non-sensitive) and should then return that corresponding schedule to the Reviewing Officer for the item of information to be properly listed on the schedule. Again, this should be accompanied by a covering letter (or e-mail) setting out the nature of the amendment required.

37.3.4 Where the responsibility for reconciling what has been submitted with what has been received is delegated to an appropriately identified member of administrative staff, it remains the responsibility of the case preparer to ensure that this process has been carried out.

37.4 Information listed on the schedule which has not been submitted

37.4.1

After the reconciliation process has been completed, the case preparer must consider all entries in the sensitive and non-sensitive schedules where the item of information listed has not been submitted to the PF Office to determine whether the information needs to be submitted for consideration for onward disclosure to the defence.

37.4.2

Where the Reviewing Officer has identified that item of information as being potentially exculpatory (i.e. may materially weaken the prosecution case or materially strengthen the defence case), it must always be submitted to the case preparer for consideration.

37.4.3

Where the Reviewing Officer has identified the item of information as not being potentially exculpatory (i.e. will not materially weaken the prosecution case or materially strengthen the defence case), the case preparer should then consider the description and relevance entry in respect of this item of information to ascertain whether there is sufficient information contained there to make a determination on the materiality of that item of information.

37.4.4

If the case preparer is satisfied, from that description that the information is not material, then no further action is required and the disclosure action “ND” for “Not Disclosable” should be entered into the “disclosure action” column of the schedule. As a matter of best practice, a comment should be entered into the “comment” column to the effect that the decision was taken without actually viewing the item of information.

37.4.5

If the case preparer takes the view, from the description and relevance entry, that the information may be material, i.e. information which would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; would materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor (and therefore disclosable), then the Reviewing Officer should be contacted immediately and arrangements made for that item of information to be submitted in order that a full assessment of its materiality can be considered. Under section 118(3) of the Criminal Justice and Licensing (Scotland) Act 2010 provides that “as soon as practicable after being required to do so by the prosecutor, the investigating agency must provide the prosecutor with any of that further information that the prosecutor specifies in the requirement”

37.4.6

If the case preparer is not satisfied that the description and relevance section of the schedule provides sufficient detail to take a preliminary view on the materiality of that item of information, then they should immediately contact the Reviewing Officer and (i) arrange for the item of information to be submitted (in order to avoid any delay in determining its disclosabiity) and (ii) where the information is listed on the non-sensitive schedule, arrange for the schedule to be returned and then resubmitted with a more detailed “description and relevance” entry.

37.4.7

Where the case preparer has arranged for the submission of any item of information, either because there is a preliminary assessment that it may be material or because there is insufficient detail about the item in the schedule to make such a preliminary assessment, the case preparer should then consider that item of information, along with all other items of information submitted in respect of the case, in order to determine the appropriate disclosure action.

37.4.8

Although the process listed above in this section should be carried out by the case preparer, this must be done in close consultation with the appropriate solemn legal manager.

37.5 Determining the appropriate disclosure action

37.5.1

The case preparer should then consider each item of information in his/her possession to ascertain, firstly, whether it is disclosable. An item of information will be disclosable if it meets the materiality test, i.e. is information which would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; would materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor.

Practitioners are reminded that Section 116 of the Criminal Justice and Licensing (Scotland) Act states that information in relation to criminal proceedings is material of any kind given to or obtained by the prosecutor in connection with the proceedings. For appellate cases, information is material of any kind which was given to or obtained by the prosecutor in connection with the appellate proceedings or the earlier proceedings.

37.5.2

Information will materially weaken or undermine the prosecution case or materially strengthen the defence case where:

1. It points to the conclusion that no crime has been committed or that no crime was committed on the date(s) or at the place(s) libelled;
2. Contradicts evidence (real or oral) on which the Crown case will rely;
3. It may cast doubt on the credibility or reliability of the Crown witnesses;
4. It may be inconsistent with scientific or other expert evidence on which the Crown will rely or with inferences that may be drawn from such evidence;
5. It may point to another person as the perpetrator; or
6. It may reduce the degree of seriousness of the offence.

37.5.3

If the case preparer assesses the information as being non-disclosable, then they should enter the disclosure action “ND” for “Not Disclosable” into the “disclosure action” column of the schedule.

37.5.4

If the case preparer assesses the information as being disclosable, the following must be considered:

1. Whether there are any reasons that it would not be in the public interest to disclose the information, notwithstanding the disclosability of that item of information;
2. Whether there is any reason why information should be withheld meantime;
3. Whether there is any non-material information contained within the item of information which should be redacted prior to disclosure; and
4. Whether the information should be disclosed by provision of a copy of the information or by access only.

Public interest reasons for non-disclosure

37.5.5

As set down in Chapter 25 of this Manual, there may be exceptional cases where there is information which in terms of the materiality test, is material and ought to be disclosed but for good public interest reasons should not in fact be disclosed. This may be because the information is covered by public interest immunity or raises Convention Rights issues, such as where there is a threat to the life or limb of a witness or other persons.

37.5.6

Such information will only ever be listed in the sensitive or highly-sensitive schedules.

37.5.7

Where the case preparer identifies that there is a potential public interest reason for withholding disclosable information, this should be drawn to the attention of the appropriate solemn legal manager, who will in turn consult the Federation Head, Federation Functional Lead (PF/Asst PF High Court/ Sheriff and Jury/ Summary’Head or Deputy Head of SOCD). As set down in Chapter 25, if the Federation Head, Federation Functional Lead (PF/Asst PF High Court/ Sheriff and Jury/ Summary) agrees that there is a good reason to withhold the information, then a report will be prepared for the attention of the Director of Serious Casework seeking Crown Counsel’s instructions on the withholding of the information.

37.5.8

Similarly, if the information is contained in a Highly Sensitive schedule submitted directly to the Federation Head, Federation Functional Lead (PF/Asst PF High Court/ Sheriff and Jury/ Summary/Head or Deputy Head of SOCD) as appropriate in terms of security clearance., and s/he considers the information to be disclosable but considers there to be a good reason not to disclose the information, then s/he will prepare a report for the attention of the Director Of Serious Casework seeking Crown Counsel’s instructions on the withholding of the information.

37.5.9

If, in either situation, Crown Counsel agrees that the information must be withheld, then the information must not be disclosed meantime and consideration given to applying for a Non-disclosure order. Where it was listed in the sensitive schedule, the case preparer will then enter “PII” in the “disclosure action” column and will insert the date that Crown Counsel’s instructions were received in the comment column. If CCI do not include full instructions in terms of non-disclosure orders, the case preparer must discuss the matter in full with the appropriate Solemn Legal Manager with a view to re-report to the DSC’s Office seeking full instructions regarding any application for a non-disclosure order. Where the information was listed in the highly sensitive schedule, the Federation Head, Federation Functional Lead (PF/Asst PF High Court/ Sheriff and Jury/ Summary/ Head or Deputy Head of SOCD) as appropriate in terms of security clearance will have responsibility for entering this information into the schedule and liaising with DSC’s officer regarding any application for a nondisclosure order. Full details on the non-disclosure orders available in such circumstances and how to handle applications to the Court for such orders is contained within Chapter 25 of this Manual.

Withholding the information meantime

37.5.10

As set down in section 13.2 of this Manual, witness statements may be withheld meantime where the Crown proposes to disclose a statement but further steps are necessary before disclosure is made, e.g. the Crown may seek to precognose a vulnerable/child witness prior to the disclosure of their statement.

37.5.11

Where the case preparer does consider it appropriate to withhold a statement meantime, s/he must confirm this course of action with the appropriate solemn legal manager first.

37.5.12

Information may also be marked as “WM” for “withhold meantime” where it is not practicable for the information to be disclosed immediately, e.g. if it is a production that is at the forensic laboratory for analysis, the defence may not be able to access/ view that production until after that analysis is completed.

37.5.13

Where information is being withheld meantime, then the case preparer should enter the disclosure action “WM” for “withhold meantime” into the “disclosure action” column of the schedule. In addition, the case preparer should detail in the “comments” column the action upon which disclosure is dependent, e.g. disclose after precognition of witness.

37.5.14

Thereafter, it is essential that the case preparer ensure that a structured review process is in place to ensure that the information is disclosed as soon as practicable. If, for example, disclosure is dependant on a particular action the date of which is known, such as the precognition of a witness, then the decision must be reviewed as soon as this date is passed. If disclosure is dependant on an action for which no specified date is known, e.g. forensic analysis being completed, the case preparer must regularly review the decision to determine whether the action is completed and the information can be disclosed.

37.5.15

Once the period for withholding the information has expired, the case preparer should consider whether it is now appropriate to disclose the information. If it is now appropriate to disclose, the disclosure action should be updated on the schedule. If it is listed on the non-sensitive schedule, then that updated version of the schedule should also be disclosed to the defence.

Redaction of non-material sensitive information

37.5.16

As set down in Chapters 15 and 29 of this Manual, all items of information disclosed to the defence (subject to those items of information suitable for automatic disclosure as detailed in Chapter 32), must first be considered to ascertain whether there is any confidential or sensitive information contained within it that is non-material and therefore not disclosable.

37.5.17

Further, any redaction of a piece of information, e.g. witness statement, criminal history record or copy production, must be obvious on the face of it and should comply with the redaction guidance set down in Chapters 15, 19 and 29 of this Manual.

37.5.18

Any final decision on the redaction of witness statements or productions in solemn proceedings must be taken by a legal member of staff. Accordingly, case preparers must consult the appropriate solemn legal manager in relation to any redaction decisions. Once the level of redaction has been approved and a redacted copy prepared, the case preparer should then consider the appropriate method of disclosure. A comment should also be entered into the comments section confirming that it is a redacted version that has been disclosed.

37.5.19

Where a redacted version of a production is being disclosed, then a redacted copy, suitably certified in terms of Schedule 8 of the 1995 Act, should also be lodged as a production. Further guidance in relation to lodging redacted manuscript witness statements is contained in section 6.6 of this Manual.

Method of disclosure

37.5.20

As stated by the Appeal Court in Thomson v Burns (2009 SLT 645), the Crown is under a duty to disclose information, which can be recorded in many forms. The Crown will satisfy this obligation by providing the information as opposed to the document/item in which the information is held, e.g. where something is elicited at precognition which is disclosable, the obligation is to disclose that piece of information and not the precognition itself. The only exception to this is where the form is considered to be a class of information that is always disclosable, e.g. witness statements, as stated in Sinclair v HMA. Further, there is no obligation on the Crown to create information in a particular form for the purposes of disclosure. Section 160 of the Criminal Justice and Licensing (Scotland) Act 2010 provides that the prosecutor may disclose the information by any means.

37.5.21

As recently highlighted in Hanif v HMA (2009 SCCR 38) , the Crown can discharge its disclosure obligations either by provision of a copy of the information or by offering the facility of inspection of the information in advance of trial.

37.5.22

Where the accused is represented, information capable of being copied will be disclosed to the defence by the provision of a copy of the item of information [See Chapter 11 for guidance on the transmission of information to the defence]. Where the information is sensitive, then it may be more appropriate to provide a facility for inspecting the information, either at the PF Office or the investigating agency office. There is further guidance in relation to those productions where copies should not be provided in Chapter 6 of this Manual, e.g. visual recordings of child witness interviews; DVDs from Video Identification Parades; and indecent images of children. Where information is disclosed to the accused’s agent, there is an assumption that the agent will show that information to the accused (R v Botmeh and Alami [2001] EWCA Crim 2226; 2008 46 E.H.R.R. 31).

37.5.23

Where the accused is unrepresented, and therefore not subject to Article 11 of the Law Society Code of Conduct in Criminal Work, it is anticipated that there will be a greater use of disclosure by access to the information rather than by provision of copies. Paragraph 23.6.9 of this Manual lists all the information that should only ever be disclosed to the unrepresented accused by access to that information.

37.5.24

If in doubt about the appropriate method of disclosure, or where the information is particularly sensitive, the case preparer should consult with the appropriate solemn legal manager.

37.5.25

If disclosure is to be by provision of a copy of the item of information, then the case preparer should enter “D” for “disclose to the defence” into the “disclosure action” column. If disclosure is to be by access to the information, “DA” for “disclose by access” should be entered here. In addition, the case preparer should insert a comment regarding where the access will be facilitated (e.g. police office, PF Office) and contact details of the appropriate person who will organise this (e.g. Reviewing Officer; case preparer).

37.5.26

Where disclosure is by access, the comments column should be updated after this has been facilitated to show that the information has now been viewed and the date on which this occurred.

37.6 Recording the appropriate disclosure action

37.6.1

As stated above, it is the case preparer’s responsibility to complete the “disclosure action” and “comment” columns on the schedules. Guidance on how this should be done is contained in the Case Processing Manual.

37.7 Information obtained directly by the case preparer

37.7.1

As highlighted in section 16.12 of this Manual, the case preparer may obtain information directly from source, rather than instructing the Reporting Officer to obtain it. Examples might include:

• Medical records;
• Social work records;
• Housing records;
• Photographs or sketches provided directly by a witness;
• Judicial examination tapes;
• Post mortem reports

37.7.2

It is imperative, when considering whether to request such records, that careful consideration is given to the Policy on Obtaining and Disclosing Sensitive Personal Records in the Investigation and Prosecution of Sexual Crime Cases.

37.7.3

In order for the scheduling process to be effective, such information must be listed on a schedule. Accordingly, where the Crown obtains information directly from source, the case preparer must list this information on one of two Crown schedules of relevant information:

1. Non-sensitive Crown schedule; or
2. Sensitive Crown schedule.

37.7.4

Accordingly, at each of the key milestones in relation to disclosure of schedules, the case preparer should consider whether s/he has obtained any information directly which does not appear on any of the police schedules. If such information does exist then the case preparer should:

1. Consider whether the information is sensitive or non-sensitive (based on the guidance provided in chapters 34 and 35 of this Manual);
2. If the information is non-sensitive, prepare a Crown non-sensitive schedule, the template for which is stored in FOS templates [template DISCCROWNNONS.DOC refers], and add the information to the schedule (if the schedule has already been created, any additional information can be added to the existing schedule);
3. If the information is sensitive, prepare a Crown sensitive schedule, the template for which is stored in FOS templates [template DISCCROWNSS.DOC refers], and add the information to the schedule (if the schedule has already been created, any additional information can be added to the existing schedule;
4. Consider the appropriate disclosure action, following the guidance in section 37.5 above and record this disclosure action on the schedule;
5. Pass the schedule to an appropriately identified member of administrative staff to implement the disclosure actions and disclose the Crown non-sensitive schedule (or any updated version of it) to the defence.

Note: In relation to all Forensic Reports the Reviewing Officer will obtain a copy and will enter it on to a schedule. There is no requirement, therefore, for the forensic report to be listed in any Crown schedule.

37.8 Disclosing information to the defence

37.8.1

It is absolutely crucial to the Crown’s disclosure duties that the Crown can satisfy the court, if required, that disclosure has taken place on a specified date (Murray & O’Hara v HMA (2009 S.C.C.R 624)). The Case Processing Manual provides full details of the business processes that must be followed when disclosing information to the defence to ensure that there is a clear audit trail and record of all information disclosed.

37.8.2

Once the case preparer has updated the appropriate disclosure action in respect of each item listed on each of the schedules, including any Crown schedules, the completed schedules should be passed to an appropriately identified member of administrative staff to implement these disclosure actions.

Where information is marked to be disclosed to the defence by provision of a copy (i.e. marked “D” for disclosable), the administrative member of staff should arrange for that information to be copied for disclosure. Where it is a redacted version that has to be disclosed, care should be taken to ensure that it is the redacted copy that is copied for disclosure.

37.8.3

Thereafter, all copies of information marked for disclosure should be disclosed to the defence. Guidance on the method of transmission of disclosable information to the defence is contained in Chapter 11 of this Manual.

37.8.4

The “date disclosed to the defence” should be populated as required in each of the schedules. Guidance on how this should be done is contained in the Case Processing Manual.

37.8.5

Where information listed in any of the schedules is marked for “disclose by access”, the member of administrative staff should advise the defence by letter that the information is available for viewing. This letter should also provide details of the person the defence should contact to arrange the viewing. Thereafter, the date of that letter should be included in the “date disclosed to the defence” column as the date that item of information has been disclosed. The style letter for this is available in the FOS templates on the intranet (DISCBYACCESS)

37.8.6

Thereafter, the non-sensitive schedule and any Crown non-sensitive schedules should also be disclosed to the defence. Again, this should follow the guidance on the method of transmission set down in Chapter 11 of this Manual.

37.9 Undertakings provided by the investigating agency

37.9.1

As set down in chapter 16, the Reviewing Officer will provide schedules by the following key milestones:

• 21 days after CFE
• 14 days before the case is reporting to Crown Office
• 14 days before the first Preliminary Hearing or First Diet
• 14 days before the Trial

37.9.2

At the initial key milestone of 21 days after CFE, the Reviewing Officer will also submit a subject sheet confirming that to the best of their knowledge and belief there has been full revelation of all relevant information. If the case only required a non-sensitive schedule, then this subject sheet will also confirm this fact.

37.9.3

If, at any of the further key milestones, no further information has been obtained or generated since the previous schedule has been submitted, then the Reviewing Officer, will submit a further subject sheet again confirming to the best of their knowledge and belief there has been full revelation of all relevant information and there is no further information to reveal.

37.9.4

If, at any of the further key milestones, a further schedule is required, the Reviewing Officer must submit this along with another subject sheet confirming that to the best of their knowledge and belief there has been full revelation of all relevant information.

37.9.5

At each of the key milestones, it is the responsibility of the case preparer to ensure that the subject sheets containing this undertaking have been submitted and to confirm that they have received all schedules submitted by the Reviewing Officer.

37.10 Submission & disclosure of additional schedules

37.10.1

When the Reviewing Officer does submit additional schedule(s), the case preparer must carry out the same process set out above in relation to the new information listed.

37.10.2

In addition, the Reviewing Officer must review all previous decisions in relation to disclosure. Where information has been previously marked as being “not disclosable”, it must be considered in the context of the new information received to confirm whether this remains the appropriate disclosure action.

37.10.3

If the disclosure action remains correct, then a note should be inserted into the Disclosure Page to confirm that this review has been carried out.

37.10.4

If the item of information being reviewed is now considered to be material, then the schedule on which that item is listed should be updated and the information disclosed.

37.10.5

If that information was listed in a non-sensitive schedule, then once it has been updated, then the updated schedule should be disclosed to the defence.

37.11 When existing schedules should be updated

Schedules prepared and submitted by the investigating agency

37.11.1

After schedules have been considered by the case preparer and the COPFS section completed by the case preparer and the appropriate member of administrative staff, it should only ever be amended for the following reasons:

1. If the disclosure action is subsequently changed; or
2. If the disclosure is by access and that access has now occurred.
3. If an additional accused is subsequently added to the case – in this circumstance the recording of the disclosure action in respect of the new accused for each item should be recorded and dated in brackets alongside the new accused’s initials on the existing schedule(s) next to the disclosure action for the existing accused.

There are no other reasons whereby a schedule that has been completed would require to be amended.

A change in the disclosure action

37.11.2

The disclosure action can change for one of 3 reasons:

1. The action was originally recorded as “withhold meantime”, but the information is now assessed as being ready for disclosure;
2. The case preparer or court depute has reviewed the disclosure decision previously recorded and now considers, in light of new information either from the investigating agency, defence or other source, that the information is now disclosable; or
3. The defence have successfully applied to the Court for an order to instruct disclosure.

37.11.3

Where any of these 3 scenarios occur, the case preparer must either update or arrange for the schedule to be updated appropriately.

Disclosure by access

37.11.4

Although, in terms of Hanif v HMA (2009 S.C.C.R. 38), the Crown meets its disclosure obligations at the stage it offers the facility to inspect an item of information, it is important that the Crown maintains an accurate record of when this inspection has taken place as this may be significant in any subsequent court hearings in respect of the case, both in the initial case and at any subsequent appeal hearing. Where access has been facilitated by the investigating agency, the reporting officer will submit a subject report confirming that access has been carried out and by whom. A signed receipt from the defence will also be submitted. Both the receipt and the subject report should be retained. If the defence refuses to sign the receipt, this will be detailed in the subject sheet, along with any reason provided by the defence for refusing to sign.

Crown Schedules prepared by the Case preparer

37.11.5

Crown schedules should be updated:

1. If the disclosure action is subsequently changed;
2. If the disclosure is by access and that access has now occurred; or
3. If the case preparer directly obtains any further information that needs to be recorded on a Crown schedule.

Where the investigating agency obtain additional relevant information after a schedule has been submitted, the Reviewing Officer will prepare an additional schedule detailed this additional information. It will not be added to the schedule already submitted. Any additional investigating agency non-sensitive schedules should be disclosed to the defence.

37.11.6

Where, however, the case preparer directly obtains additional information (not through the investigating agency), this should be added to the relevant Crown schedule already prepared. If the Crown non-sensitive schedule has already been disclosed to the defence, then any updated version should also be disclosed.

37.12 How to update existing schedules

37.12.1

Guidance on how to update existing schedules is contained in the Case Processing Manual.

37.13 Including schedules in the precognition

37.13.1

Copies of all schedules prepared in respect of a case should be included in the precognition behind the Disclosure Page. This will include schedules prepared and submitted by the police and any Crown schedules prepared by the case preparer.

37.13.2

Additionally, copies of all schedules should be included at the start of the disclosure bundles.

37.13.3

Where additional schedules are submitted or prepared, these should be added to the precognition and the disclosure bundles.

37.14 The Disclosure Page

37.14.1

The Disclosure Page should continue to be used in conjunction with the scheduling system to provide an overall summary of all disclosure actions; highlight problems or potential problems and to seek Crown Counsel’s instructions in respect of any disclosure issue.

37.14.2

An additional section on schedules has been added to the Disclosure Page providing an overview in relation to the schedules. This should be used to set out a summary of all non-sensitive and sensitive schedules received; the dates received; and to confirm the results of the reconciliation process. Full guidance on completion of this section of the Disclosure Page is contained in Chapter 31 of this Manual.

37.14.3

In multiple accused cases there should be a separate Disclosure Page prepared for each accused.

37.15 The Disclosure Checklist

37.15.1

The Disclosure Reconciliation Checklist should be completed only where the reconciliation inventories are used and should not be completed where the scheduling system set down in Chapters 16 and 34-37 is used.

38.1 Introduction

38.1.1

To assist staff in ensuring that the Crown satisfies its disclosure obligations, particularly in relation to solemn cases, there are a number of different FOS Reports that can provide information in relation to disclosure.

38.1.2

These reports can be divided into 2 types of reports:

1. Case Level Reports – These can provide specific information in respect of a particular case and will be of particular assistance to Case Preparers and administrative staff; and
2. Office Level Reports – These can provide information in respect of all cases within an office that fall into a specific category, e.g. all petition cases, and will be of particular assistance to solemn managers.

38.1.3

FOS reports can be created using the Reports Generator feature that staff can access from their Desktop. These reports will extract the information that has previously been entered into PROMIS. For the avoidance of doubt, these reports can be created at any stage of the case – whether it is still in FOS or not.

38.1.4

Guidance on how to run the FOS Reports detailed above is contained in the Case Processing Manual.

38.2 Production records

38.2.1

As stated above, FOS reports will extract information that has previously entered into PROMIS. Accordingly, to ensure accuracy of the Reports, the records contained within PROMIS must also be accurate. In particular, there must be a separate production record for each witness statement submitted.

38.2.2

The investigating agency should submit statements individually in the form of the NSS. Where statements are submitted electronically with each statement as an individual document, a production record for the statement will be automatically created in PROMIS for that statement.

38.2.3

An automatic production record will not be created in PROMIS where a statement has been submitted by any of the following means:

1. In one document containing a batch of statements;
2. Attached to a subject sheet;
3. Under a different PF Reference Number (e.g. associated death, CAP, or criminal case);
4. Hard copy only, e.g. statements from Scenes of Crime Officers, Forensic Scientists etc.; and/or
5. On CD-Rom.

38.2.4

Accordingly, where a statement is submitted using one of the above methods, administrative staff must add a manual production record for that statement. This is an essential step in the reconciliation process as the electronic reports (referred to below) that must be produced in each case extracts information from these production records. Guidance on how to add a manual production record is contained within the Case Processing Manual.

38.3 Case level reports

38.3.1

The following reports can be created to assist Case Preparers in ensuring that all statements purporting to have been submitted by the investigating agency have been received:

1. List of all statements held in FOS – this report details all the statements in a case that are held in FOS and includes the date and time the statement was obtained from the witness (this list will only be required where, for whatever reason, at the stage of considering the schedules, the case is still in FOS, e.g. where the case has been retained in FOS to enable redaction to be carried out in FOS).
2. List of all statement production records – this report details all the statements in the case for which there is a production record (thus, it is essential that manual production records are created where the statement has been submitted in one of the ways described above at section 38.2). The report includes details of whether or not the statement has been disclosed; the disclosure status of the statement; witness information (first initial and surname); the date and time the statement was obtained and a note field.
3. ‘Do not disclose statement’, or ‘do not disclose statement meantime’ production records – this report details all the statements in the case which have a disclosure status of ‘do not disclose’ or ‘do not disclose meantime’. The report includes details of the disclosure status; witness information; date and time the statement was obtained and a note field.
4. Disclosed witness statements to defence agents (revised) – this report details all the statements that have been disclosed to the defence and confirms details of when the statement was obtained from the witness and when it was disclosed to the defence.

38.4 Office level reports

38.4.1

There are 2 main types of reports in PROMIS that Solemn Legal Managers should use in order to ensure that both the local investigating agency and the Crown are complying with the disclosure timescales. The timescales are that:

1. The investigating agency should submit statements within 21 days of CFE; and
2. The Crown should disclose statements within 28 days of CFE.

38.4.2

The Solemn Legal Manager has overall responsibility for ensuring compliance with these timescales. FOS Reports at an office level can be run in relation to 3 different categories of solemn case:

1. All petition cases;
2. All petition cases given a provisional marking on PROMIS for Sheriff and Jury; and
3. All petition cases given a provisional marking on PROMIS for High Court.

Thus, in offices where there are separate Legal Managers for Sheriff and Jury cases and High Court cases, it will still be possible to run the appropriate reports.

38.4.3

Where there is a Federation High Court Team, or a High Court Team covering more than one office, it is not possible to run these reports at Federation level and separate reports will need to be run in relation to each office that the Unit covers.

38.4.4

The reports that should be used by solemn legal managers to monitor compliance with targets are as follows:

1. PE^*(All): No witness statements production records 21 days after CFE – this report details all the petition cases (regardless of whether they have been given a provisional marking on PROMIS of PESJ or PEHC) in a particular office where statements have not been received within 21 days of CFE. This report will check for production records so, where statements have been manually submitted or submitted in a batch document within 21 days of CFE but no manual record has been added yet, this will show in the report as a case where no statements have been submitted.
2. PE (Only): No witness statement production records 21 days after CFE – as for the last report but this will only include those cases with a PE marking in PROMIS. It will not include cases with a PESJ or PEHC marking.
3. PESJ: No witness statement production records 21 days after CFE – as for the above report but this will only include those cases with a PESJ marking in PROMIS. It will not include cases with a PE or a PEHC marking.
4. PEHC: No witness statement production records 21 days after CFE – as for the last report but this will only include those cases with a PEHC marking on PROMIS. It will not include cases with a PE or PESJ marking.
5. PE^*(All): Non disclose witness statements production records 28 days after CFE – this report lists all the petition cases (regardless of whether they have been given a provision marking on PROMIS of PESJ or PEHC) in an office in which statements (or some statements in a case) have been received from the investigating agency but have not yet been disclosed to the defence.
6. PE (Only): Non disclose witness statements production records 28 days after CFE – as for the last report but this will only include those cases with a PE marking in PROMIS. It will not include cases with a PESJ or PEHC marking.
7. PESJ: Non disclose witness statements production records 28 days after CFE – as for the above report but this will only include those cases with a PESJ marking in PROMIS. It will not include cases with a PE or a PEHC marking.
8. PEHC: Non disclose witness statements production records 28 days after CFE – as for the last report but this will only include those cases with a PEHC marking on PROMIS. It will not include cases with a PE or PESJ marking.

38.4.5

Solemn Legal Managers should create the relevant report(s) on a weekly basis and identify those cases which have passed the disclosure stage for the case (i.e. it is more that 28 days since the accused was committed for further examination) but no statements have been disclosed. The Solemn Legal Manager should then make enquires to ascertain why disclosure has been delayed and take immediate steps to rectify this.

39.1 General Principles

39.1.1

Disclosure of information to the defence is a crucial and integral component of the criminal justice system in Scotland. A failure, by the Crown, to disclose information which falls within the materiality test, i.e. information which would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; would materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor may prejudice the fairness of the trial and may result in a breach of Article 6 of the Convention, as set down in section 2.5 of this Manual.

39.1.2

During the course of proceedings, the defence may challenge actions and decisions taken by the Crown in relation to disclosure through:

1. Applications for Court Rulings
2. Common law points raised at preliminary hearing/ first diet/ intermediate diet;
3. Compatibility Issues
4. Petition for Commission and Diligence / Recovery of Documents

39.1.3

Any debates, Compatibility Issues or applications for Court rulings on disclosure issues must be handled and conducted by experienced legal members of staff who have received the mandatory disclosure training.

39.1.4.1

Further, debates and hearings should be marked for advance notice preparation in order to ensure that the depute conducting the debate or hearing is properly prepared for it, and the appropriate legal manager should be informed of it.

39.2 Applications for Court Rulings

39.2.1

Where an accused has lodged a defence statement, in respect of solemn (Criminal Procedure (Scotland) Act 1995 section 70A) or summary proceedings (Criminal Justice and Licensing (Scotland) Act 2010 section 125), and considers that the prosecutor has failed, in their response to that statement, to disclose an item of information which is disclosable in terms of the materiality test, namely information which:–

• Would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,
• Would materially strengthen the accused’s case, or
• Is likely to form part of the evidence to be led by the prosecutor

the accused may apply (under section 128(2) of the Criminal Justice and Licensing (Scotland) Act 2010) to the Court for a ruling on whether the information in question falls within the realms of the test.

39.2.2

The application should be assigned to the Justice of the Peace, Sheriff or Judge who is presiding, or is to preside, at the accused’s trial unless it is impracticable to do so.

39.2.3

Such an application must be made in writing (On Form 56.3 per Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) 2011) and must set out:

• Where the accused is charged with more than one offence, the charge or charges to which the application applies
• A description of the information in question
• The grounds upon which the accused claims the information is disclosable

39.2.4

No less than 48 hours before the application is lodged the accused must intimate a copy to the prosecutor (as per Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) 2001 56.3).

39.3 The hearing

39.3.1

The Court, on receipt of an application, must appoint a hearing (Under section 128(4) of the Criminal Justice and Licensing (Scotland) Act 2010), at which both the prosecutor and the accused must be given an opportunity to be heard. If the Court considers that the application does not specify the details outlined above or otherwise disclose any reasonable grounds for considering that the information in question meets the materiality test the Court may dispose of the application without appointing a hearing.

39.3.2

At the hearing the prosecutor will be called upon to explain the reasoning behind the initial decision not to disclose the information in question, i.e. why COPFS consider that the information in question does not meet the materiality test. It is therefore crucial that all decisions in relation to disclosure and the explanation for them are meticulously recorded.

39.3.3

In solemn cases all such decisions and explanations should be recorded on the Disclosure Page of the precognition. In summary cases they should be clearly noted on the Minute sheet within the papers.

39.4 Court determination of the original application

39.4.1

The Court must in determination of the application:–

• Make a ruling on whether the information in question, or any part of it, is disclosable, i.e. does it meet the materiality test, and
• Where the accused is charged with more than one offence, specify the charge or charges to which the ruling relates

39.5 Application to review the Court’s ruling

39.5.1

Where the court has made a determination that information is not disclosable i.e. does not meet the materiality test and the accused:

1. becomes aware of secondary information which was not available to the Court at the time of making the ruling; and
2. considers that if the Court had been aware of this secondary information it would have made a ruling that the information in question did meet the materiality test and was therefore disclosable

the accused may apply to the Court which made the ruling for a review. However this secondary information must have come to the attention of the accused in the period between the ruling being made and the conclusion of the proceedings against the accused.

39.5.2

Proceedings are taken to be concluded if –

1. a plea of guilty is recorded against the accused,
2. the accused is acquitted,
3. the proceedings against the accused are deserted simpliciter,
4. the accused is convicted and does not appeal against the conviction before the expiry of the time allowed for such an appeal,
5. the accused is convicted and appeals against the conviction before the expiry of the time allowed for such an appeal,
6. the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed, or
7. the complaint falls or is for any other reason not brought to trial, the diet is not continued, adjourned or postponed and no further proceedings are in contemplation.

39.5.3

The application for a review must be made in writing (on Form 56.4 per Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) 2011)) and set out:–

• Where the accused is charged with more than one offence, the charge or charges to which the application applies
• A description of the information in question and the secondary information
• The grounds upon which the accused claims the information is disclosable

and should be assigned to the Justice of the Peace, Sheriff or Judge who dealt with the original application for a ruling unless it is impracticable to do so.

39.6 The review hearing

39.6.1

The Court on receiving an application must appoint a hearing (under section 129(4) of the Criminal Justice and Licensing (Scotland) Act 2010) at which both the prosecutor and the accused must be given an opportunity to be heard, unless the application does not specify the details outlined above or otherwise disclose any reasonable grounds for considering that the information in question meets the materiality test.

39.6.2

At the review hearing the prosecutor may be called upon to explain the reasoning behind the initial decision not to disclose the information in question, i.e. why COPFS consider that the information in question does not meet the materiality test. It is therefore crucial that all disclosure decisions and the explanation for them are meticulously recorded.

39.7 Court determination of an application for review

39.7.1

On determining the application for review the court may:

• affirm the original ruling or
• recall that ruling and make a fresh ruling that the information in question, or any part of it, is disclosable i.e. meets the materiality test and specify the charge or charges to which this ruling relates.

39.7.2

It is important to note that a Court ruling that information is disclosable, is not per se a ruling to disclose the information. In circumstances where the Crown continues to be of the view that it is not in the public interest to disclose the information (even in a redacted form) a report should be submitted urgently to the Director of Serious Casework for Crown Counsel’s Instructions as to whether or not the case at hand merits risking the Crown being held to have breached it’s disclosure obligations. It should be remembered that breach of the Crown’s disclosure obligations will not always result in an unfair trial in terms of Article 6 ECHR. This approach should only be followed in exceptional circumstances and under the authority of the Director of Serious Casework and Crown Counsel.

39.8 Appeals against the Court’s ruling on disclosure

39.8.1

Within a period of seven days, beginning with the day on which a ruling is made, the prosecutor or the accused may appeal against the ruling to the High Court of Justiciary.

39.8.2

When marking such an appeal, or upon receipt of intimation that an accused has marked such an appeal, the matter must be referred timeously to the Appeals Unit within Crown Office (On Form 56.5 per Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) 2011) for the matter to be progressed and the case allocated to an Advocate Depute.

39.8.3

Where an appeal is brought, either the High Court or the Court of First Instance may:–

• Postpone any trial diet that has been appointed for such period as it thinks appropriate
• Adjourn, or further adjourn, any hearing for such period as it thinks appropriate
• Direct that any such period of postponement or adjournment (or any part of such period) does not count towards any time limits applicable to the case

39.8.4

In disposing of an appeal against a Court ruling on disclosure, the High Court may:–

• affirm the original ruling, or
• remit the case back to the Court of first instance with such directions as felt appropriate

39.9 Common law points on disclosure issues: Solemn proceedings

39.9.1

As stated in section 71 of the 1995 Act, the purpose of a first diet is to ascertain the state of preparation of both the prosecutor and the defence. In addition, the court will consider, under subsection 2, any preliminary plea or preliminary issue of which the parties have given notice, not less than 2 clear days before the first diet, to the court and to other parties.

39.9.2

Section 72 of the 1995 Act provides that the duty of the preliminary hearing in High Court cases is to ascertain parties’ readiness for trial and to deal with any preliminary issues of which the parties have given notice, not less than 7 clear days before the preliminary hearing, to the court and to the other parties.

39.9.3

It is not uncommon, at these diets, for issues of disclosure to arise. In particular, a defence agent may argue that they are not prepared for trial on the basis that the Crown has not complied with its disclosure obligations. Also, the defence may choose to make a common law plea seeking disclosure of certain information setting out that non-disclosure of the information amounts to oppression, e.g. HMA v G.B (2006 S.C.C.R. 692).

39.9.4

Where the defence do raise such a common law plea in relation to a disclosure issue, the preliminary hearing/ first diet depute should first ascertain whether the issue has already been the subject of a Court ruling on whether or not the information sought is disclosable, and if so obtain the Minutes of the hearing.

39.9.5

If the Court has previously ruled that the information is disclosable, the court depute must ascertain whether it is the Crown’s position that this information has now been disclosed, through reference to the Disclosure Page and the schedules of relevant information. If the Crown accepts that the information has not yet been disclosed, and that it should have been, or is otherwise unable to satisfy the Court that it has been, then the Crown should seek a continued preliminary hearing/ first diet in order to check the position and disclose as soon as possible, if appropriate, after the hearing.

39.9.6

It is important to remember that a Court ruling that information is disclosable, is not per se a ruling to disclose the information. In circumstances where the Crown continues to be of the view that it is not in the public interest to disclose the information (even in a redacted form) a report should be submitted to the Director of Serious Casework for Crown Counsel’s Instructions as to whether or not the case in hand risks the Crown being held to have breached it’s disclosure obligations. Breach of the Crown’s disclosure obligations will not always result in an unfair trial in terms of Article 6 ECHR and therefore it does not always follow that a Court ruling that information is disclosable will be followed by disclosure of that information.

39.9.7

Accordingly, it is essential that the Court depute is fully prepared and is aware of all previous debates, hearings, decisions, including the reasoning for all such decisions, and any Crown Counsel’s Instructions already obtained and is in a position to confirm what information has been disclosed to the defence and at what stage in the proceedings that disclosure took place. It is therefore imperative that, in solemn proceedings, the Disclosure Page is kept fully up-to-date as regards all disclosure decisions and instructions.

39.9.8

If the common law plea in bar of trial alleges the non-disclosure of information which in the view of the defence is material (but which the Crown, and perhaps the Court, has previously assessed as being immaterial), then the court depute should resist being put in a position of arguing the merits of the nondisclosure decision at the preliminary hearing/ first diet where it has not previously been intimated to the Crown. If the court orders the disclosure of the information following a common law plea without hearing the parties in argument, the Crown should seek leave to appeal that decision as set down below.

39.9.9

If the alleged failure of the Crown relates to the wider criteria of nondisclosure of information that might have a legitimate bearing on the issues at trial, the defence should be invited, in the first instance, to submit an application to the court for a ruling on whether the information is disclosable. The procedure for applications for Court Rulings on Disclosure is outlined fully at paragraphs 39.2 – 39.8 above.

39.10 Common law points on disclosure issues: Summary proceedings

39.10.1

As stated in section 148 of the 1995 Act, the purpose of an intermediate diet is to ascertain the state of preparation of the prosecutor and of the accused for the trial. Again, it is not unusual for issues of disclosure to arise at the intermediate (or even the trial) diet, specifically where defence agents argues that they are unprepared for trial due to a failure on the part of the Crown in relation to disclosure.

39.10.2

In such circumstances, the role of the court depute is the same as if the issue were raised in a first diet or preliminary hearing. In the first instance, the depute should confirm the nature of alleged failing. If it relates to a core disclosure requirement as referred to in paragraph 39.2.4 above, then the depute should address the Court on this and, if necessary, seek a continued intermediate diet in order to effect disclosure. Again, therefore, it is essential that the Court depute is fully prepared and is aware of what information has been disclosed to the defence, at what stage in the proceedings that information was disclosed and the reasoning behind any decisions not to disclose certain information. It is therefore vital that in summary proceedings the Minute Sheets contain full details and reasoning of disclosure issues and decisions taken in respect of those issues.

39.10.3

If the alleged failure of the Crown relates to an item of information that the Crown has considered and deemed to be immaterial, the matter should not be argued at the intermediate diet. Instead the defence should be invited, in the first instance, to submit an application for a Court Ruling. The procedure for applications for Court Rulings on Disclosure is outlined fully at paragraphs 39.2 – 39.8 above.

39.10.3

The court depute should resist being put in a position of arguing the merits of the non-disclosure decision at the intermediate diet. If the court orders the disclosure of the information, the Crown should consider advocating that decision, by reporting the matter to the Appeals Unit.

39.11 Common law points: Appealing the decision of the Court

39.11.1

In solemn proceedings, under section 74 of the 1995 Act, the Crown can appeal against a decision in regard to a preliminary plea (defined in section 79(2)(a)(iii) as including a plea in bar of trial) taken at the first diet or preliminary hearing. Such an appeal must be taken within 2 days of the court’s decision. Leave to appeal must be sought at the preliminary hearing or first diet. If leave is refused (or if the 2 day time limit has been missed), the matter should still be reported to the Appeals Unit for consideration of a Crown Bill of Advocation. Section 75 of the 1995 Act provides that where the last day of the 2 day time limit falls on a Saturday, Sunday or court holiday, then the period will extend to and include the next day which is not a Saturday, Sunday or court holiday.

39.11.2

In summary proceedings, the Crown can appeal by Bill of Advocation against a decision in regard to a common law issue taken at the intermediate diet. Leave to appeal is not required, nor is there a time limit for lodging the Bill of Advocation. However, the matter should be reported to the Appeals Unit for consideration of a Bill of Advocation within 7 days.

39.11.3

Accordingly, it is essential that a report is submitted to the Appeals Unit immediately following the decision. This should be done initially by telephone and then followed up by a report. The report should be prepared by the depute who appeared in court. If, however, this is not possible, reports should not be delayed. The report should provide the following information:

• Identify relevant court depute;
• Provide a brief summary of the offence(s);
• Provide a procedural history of the case;
• Provide a note of the disclosure history of the case;
• Note the salient points of the defence and Crown arguments presented to the court;
• Note of the Court’s determination; and
• Submissions on why the appeal should be supported
• Certified copies of the court minutes form the lower court

39.11.4

Pending the determination of such an appeal, the information should not be disclosed to the defence. If, however, the Appeals Unit determine that an appeal is not appropriate, then the information should be disclosed as soon as reasonably practicable after this decision has been intimated. The disclosure page and schedules or the case papers should then be updated accordingly.

39.12 Recovery of documents: Overview

39.12.1

As noted above the appropriate method by which the defence can seek disclosure of information that the Crown considers immaterial is by application for a Court Ruling on the matter – as described at paragraphs 39.2 to 39.8 above.

39.12.2

However, as recognised by the Appeal Court in Al Megrahi v HMA ([2009] HCJAC 1; Appeal Number XC524/07), the test to be applied by the court in petitions for recovery of documents is a wider test than the one that is applied when determining whether information falls to be disclosed by virtue of the Crown’s disclosure duty in terms of article 6 of the Convention (where the criteria is whether the information would meet the materiality test) (McDonald [PC]):

“There was a distinction between the class of documents which are “disclosable” (in the sense of items which either materially weaken the Crown case or materially strengthen the appellant’s case) and the potentially wider class of documents which are likely to be of material assistance to the proper preparation and presentation of the appeal.”

Where, therefore, the defence are seeking information that does not meet the materiality test, they should make an application for recovery rather than an application for a Court Ruling under section 128(2) of the Criminal Justice and Licensing (Scotland) Act 2010.

39.13 Recovery of documents: Solemn proceedings

High Court proceedings

39.13.1

Where the case is proceeding in the High Court and the defence seek to recover documents, this should be done through the common law remedy of commission and diligence for the recovery of documents.

39.13.2

If the defence application is refused, the defence may in certain circumstances seek to petition the Nobile Officium to effectively appeal the decision. McLeod v HMA 1998 SCCR 77 provides authority for the proposition that the appropriate method of appealing petitions for recovery in High Court proceedings is the common law method of Petitioning the Nobile Officium. Leave to appeal is not required. If, however, the petition was heard as a preliminary issue in terms of section 79(2)(b)(vi) of the 1995 Act, then the decision can be appealed by virtue of section 74(1), in which case the defence must seek leave to appeal and the appeal must be taken within 2 days of the decision of the court. Section 75 of the 1995 Act provides that where the last day of the 2 day time limit falls on a Saturday, Sunday or court holiday, then the period will extend to and include the next day which is not a Saturday, Sunday or court holiday.

39.13.3

If the defence application is granted or partially granted, the Crown may also in certain circumstances seek to petition the Nobile Officium to appeal the decision. Again, leave to appeal is not required. Again, if the petition was heard as a preliminary issue in terms of section 79(2)(b)(vi) of the 1995 Act, the decision can be appealed by the Crown by virtue of section 74(1). Leave to appeal will be required and the appeal must be taken within 2 days of the decision of the court. Accordingly, where leave to appeal is sought and granted, a report should be immediately submitted to the Appeals Unit for consideration. Section 75 of the 1995 Act provides that where the last day of the 2 day time limit falls on a Saturday, Sunday or court holiday, then the period will extend to and include the next day which is not a Saturday, Sunday or court holiday.

Sheriff and Jury proceedings

39.13.4

In Sheriff and Jury proceedings, the defence can apply to the Sheriff Court for an order granting commission and diligence or an order for the recovery of documents by virtue of section 301A of the 1995 Act. Under subsection (4), this can only be done after the indictment has been served on the accused or the accused has been cited under section 66(4)(b) of the 1995 Act.

39.13.5

Under section 301A(5), any decision made by the Sheriff can be appealed to the High Court, who can uphold, vary or quash the decision of the Sheriff as appropriate. No leave to appeal is required (Harvey v HMA [2008] H.C.J.A.C. 46) however the appeal must be lodged within 2 days in terms of Rule 27A.1 of the Act of Adjournal (Criminal Procedure Rules) 1996. Under the rule, where the last day of this period falls on a Saturday, Sunday or court holiday, then the period is extended to and will include the next day which is not a Saturday, Sunday or a court holiday.

39.13.6

Where an application for an order granting commission and diligence or an order for recovery of documents is lodged, care must be taken to ensure that the indictment remains live during that period and, if necessary, adjournments of the first diet should be sought to await the outcome of the petition along with any necessary extensions of the time bar.

39.14 Recovery of documents: Summary proceedings

39.14.1

In summary proceedings, the defence can apply to the Sheriff Court for an order granting commission and diligence or an order for the recovery of documents by virtue of section 301A of the 1995 Act. Under subsection (4), this can only be done after the accused has answered the complaint.

39.14.2

Under section 301A(5), any decision made by the Sheriff can be appealed to the High Court, who can uphold, vary or quash the decision of the Sheriff as appropriate. No leave to appeal is required (Harvey v HMA) however the appeal must be lodged within 2 days in terms of Rule 27A.1 of the Act of Adjournal (Criminal Procedure Rules) 1996. Under the rule, where the last day of this period falls on a Saturday, Sunday or court holiday, then the period is extended to and will include the next day which is not a Saturday, Sunday or a court holiday.

39.14.3

Where an application for an order granting commission and diligence or an order for recovery of documents is lodged, care must be taken to ensure that the complaint remains live during that period and, if necessary, adjournments of the intermediate (or trial) diet should be sought to await the outcome of the petition.

39.15 Recovery of documents: Preparation and appearance in Court

39.15.1

Where a petition for an order granting commission and diligence or an order for recovery is made, it should not necessarily be assumed that it must proceed to a court hearing. The information contained within the application should first be considered to ascertain whether it provides sufficient information to satisfy the Crown that the information that the defence is seeking to recover is material and therefore disclosable.

Solemn proceedings

39.15.2

On receipt of a petition for an order granting commission and diligence or an order for recovery of documents, the precognoscer, in close consultation with the appropriate solemn legal manager, should first consider the terms of the application, which will specify the reasons why the defence consider the information to have a legitimate bearing on the case to determine whether the information being sought may materially weaken the prosecution case or materially strengthen the defence case. If the precognoscer is satisfied that the information does meet the materiality test, then it should be disclosed to the defence without proceeding to a court hearing.

39.15.3

Where it has been determined that the information being sought is not material and therefore not disclosable, the petition should proceed to adjudication by the Court.

39.15.4

Where a petition for an order granting commission and diligence or an order for recovery of documents relates to a number of different pieces of information, then each item of information should be considered separately and disclosed if appropriate. Where some of the items are still considered not to meet the materiality test, then the petition should continue in respect of those items.

39.15.5

In High Court cases, the petition will be argued by an Advocate Depute.

39.15.6

In Sheriff and Jury proceedings, the debate should be allocated to an experienced depute at the earliest opportunity in order that the circumstances of the case and the disclosure position generally can be considered carefully. As part of the preparation for the debate, the depute should consult with the case preparer and the appropriate solemn legal manager to determine whether, based on the information provided by the defence in the petition, the information being sought is material and therefore disclosable. If the depute is satisfied that the information does meet the materiality test then it should be disclosed to the defence without proceeding to a court hearing.

39.15.7

In cases of particular difficulty or sensitivity, a report should be submitted to the Director of Serious Casework for Crown Counsel’s instructions on whether to disclose the information or to proceed to a court hearing for adjudication on the disclosability of the information.

39.15.8

It is also essential that the depute is fully aware of the Crown’s disclosure policy and the legal obligations in respect of disclosure as the Court may ask the Crown to address them on either or both of these issues.

39.15.9

When preparing the debate, the depute should also carefully consider, in close consultation with the appropriate legal manager whether an appeal would be appropriate if the petition is granted or partially granted by the Court.

39.15.10

If, after arguments, the petition is granted or partially granted, the depute should arrange for the relevant information to be disclosed to the defence as soon as reasonably practicable, unless the decision is to be appealed. The Disclosure Page and the appropriate schedule listing the information should both be updated accordingly. If an order granting commission and diligence is made, an experienced person should be made ready to deal with the necessary arrangements and an appropriate haver should be made ready to attend the hearing before the commissioner.

Summary Proceedings

39.15.11

In summary proceedings, the debate should be allocated to an experienced depute at the earliest opportunity in order that they can familiarise themselves with the circumstances of the case and the disclosure position generally. As part of the preparation for the debate, the depute should consult with the summary legal manager to determine whether, based on the information provided by the defence in the petition, the information being sought is material and therefore disclosable. If the depute is satisfied that the information does meet the materiality test then it should be disclosed to the defence without proceeding to a court hearing.

39.15.12

Where a petition for recovery of documents relates to a number of different pieces of information, then each item of information should be considered separately and disclosed if appropriate. Where some of the items are still considered not to meet the materiality test, then the petition for recovery should continue in respect of those items.

39.15.13

In cases of particular difficulty or sensitivity, a report should be submitted to the Director of Serious Casework for Crown Counsel’s instructions on whether to disclose the information or to proceed to a court hearing for adjudication on the disclosability of the information.

39.15.14

It is also essential that the depute is fully aware of the Crown’s disclosure policy and the legal obligations in respect of disclosure as the Court may ask the Crown to address them on either or both of these issues.

39.15.15

When preparing the debate, the depute should also carefully consider, in close consultation with the appropriate legal manager whether an appeal would be appropriate if the petition is granted or partially granted by the Court.

39.15.16

If, after arguments, the petition is granted or partially granted, the depute should arrange for the relevant information to be disclosed to the defence as soon as reasonably practicable, unless the decision is to be appealed. The disclosure of the information should be carefully recorded in the case papers. If an order granting commission and diligence is made, an experienced person should be made ready to deal with the necessary arrangements and an appropriate haver should be made ready to attend the hearing before the commissioner.

39.16 Recovery of documents: Appealing the decision of the Court

39.16.1

Where a petition for an order granting commission and diligence or an order for recovery is successful or partly successful, the Crown can appeal for a review of that decision:

1. In High Court cases, by lodging a petition to the Nobile Officium;
2. In Sheriff and Jury cases under section 301A(5) of the 1995 Act; and
3. In Summary proceedings under section 301A(5) of the 1995 Act.

39.16.2

Leave to appeal need not be sought (Harvey v HMA). However, the intention to appeal must be intimated within 2 days of the decision being appealed (In terms of Rule 27A.1 of the Act of Adjournal (Criminal Procedure Rules) 1996). Accordingly, it is essential that a report is submitted to the Appeals Unit immediately following the decision. This should be done initially by telephone and then followed up by a report. The report should be prepared by the depute who appeared in court. If, however, this is not possible, reports should not be delayed. The report should provide the following information:

• Identify relevant court depute;
• Provide a brief summary of the offence(s);
• Provide a procedural history of the case;
• Provide a note of the disclosure history of the case;
• Note the salient points of the defence and Crown arguments presented to the court;
• Note of the Court’s determination; and
• Submissions on why the appeal should be supported
• Certified copy of court minutes from the lower court

39.16.3

Pending the determination of such an appeal, the information should not be disclosed to the defence. If, however, the Appeals Unit determine that an appeal is not appropriate, then the information should be disclosed as soon as reasonably practicable after this decision has been made. The disclosure page and schedules or the case papers should then be updated accordingly.

39.17 Compatibility issues: Overview

39.17.1

The issue of the fairness of the trial is usually not considered until after the trial has been completed. However, as highlighted in the cases of Transco plc v HMA (No. 2) (2004 SCCR 553) , Dyer v Von, Dyer v Hume (2008 SCCR 265) and Thomson v Burns (2009 S.L.T. 645), the Courts may consider this issue in advance of trial prospectively. In such circumstances, however, as stated by Lord Nimmo Smith in Thomson v Burns “a high test falls to be applied to the question whether it can be said, in advance of trial, that an accused person will not receive a fair trial”. In addition, Lord Nimmo Smith stated that it is for the accused to show that the proceedings would necessarily be a breach of Article 6 of the Convention or would inevitably result in the proceeding as a whole being unfair. Further, the fairness of a trial can only ever be determined pre-trial in the most exceptional and blatant cases.

39.17.2

Notwithstanding this, the defence may still, on occasion, choose to raise a compatibility issue in respect of non-disclosure of information pre-trial. It should be noted, however, that in practice most compatibility issues will be capable of being formulated in terms of a common law plea, such as oppression. Proceeding by way of a compatibility issue, however, will enable the minute to be referred to the High Court and Supreme Court where appropriate.

39.17.3

Under section 36(2) of the Scotland Act 2012 acts or failures to act by the Lord Advocate in prosecuting any offence or as the head of the system of criminal prosecutions will not be rendered ultra vires by virtue of section 57(2) of the Scotland Act 1998. Section 36(4) of the Scotland Act 2012 amends the definition of a devolution issue so that it does not include questions arising in criminal proceedings in Scotland which relate to the compatibility with any of the Convention rights or with EU law of an Act of the Scottish Parliament or any provision of the Scottish Parliament, or a function, the purported or proposed exercise of a function or a failure to act. These are compatibility issues which are defined as questions arising in criminal proceedings about EU law and ECHR issues or challenges to Acts of the Scottish Parliament on ECHR or EU compatibility grounds.

39.17.5

The criteria for disclosure of information referred to in a compatibility issue are narrower than the criteria for recovery of documents. The criterion for disclosure under article 6 of the Convention is whether or not the information would materially weaken the Crown case or materially strengthen the defence case. The criterion in recovery of documents is whether the information is likely to be of material assistance to the proper preparation or presentation of the defence and it is for the defence to show how the documents relate to the charge or charges and the proposed defence to be led at the trial.

39.17.6

It should usually be clear whether the defence is seeking disclosure in terms of Article 6 or whether the agent is seeking the information under the wider test.

39.17.7

Where the defence seeks to stop a trial on the basis that it would be unfair to proceed any further without the disclosure of the information, it would be appropriate for the defence to raise a compatibility issue. This will most generally apply to cases where witness statements or criminal history information have not been disclosed.

39.17.8

As set out in General Minute to Legal Staff No. 25/03, General Minute No 12/2006 and Operational Instruction No. 9 of 2013 the Appeals Unit should be notified of all compatibility issues. However, a report need only be submitted where the point raised is considered novel, high profile or sensitive or Crown Counsel’s instructions are otherwise sought on any point.

39.18 Compatibility issues: Solemn proceedings

39.18.1

In Solemn proceedings, where a party proposes to raise a compatibility issue written notice of the intention to do so will be submitted by minute in Form 40.2. This minute must be lodged with the Clerk of Court and served on the other parties no later than 14 clear days before the preliminary hearing or as the case may be the first diet. The minute can be lodged later than this period on cause shown. In proceedings on appeal where the issue is being raised for the first time, where a party proposes to raise a compatibility issue this will be done in the note of appeal.

39.18.2

As specified in Rule 40.6, the compatibility issue must specify the facts and circumstances and contentions of law.

39.19 Compatibility issues: Summary proceedings

39.19.1

In Summary proceedings, where a party proposes to raise a compatibility issue notice shall be given in written report to do so by minute in Form 40.3. The minute must be lodged before the intermediate diet or no later than 14 clear days before the trial diet. The minute can be lodged later than this period on cause shown. In proceedings on appeal where the issue is being raised for the first time, where a party proposes to raise a compatibility issue that shall be done in the application for a stated case.

39.19.2

As specified in Rule 40.6, the compatibility issue must specify the facts and circumstances and contentions of law.

39.20 Compatibility Issues: Preparation and Appearance in Court

39.20.1

Where a compatibility issue relating to non-disclosure of information is raised, it should not necessarily be assumed that it must proceed to a court hearing. The information contained within the application should first be considered to ascertain whether it provides sufficient information to satisfy the Crown that the information that the defence is seeking to recover is material and therefore disclosable.

39.20.2

Where the compatibility issue relates to the non-disclosure of a number of different pieces of information, then each item of information should be considered separately and disclosed if appropriate. Where some of the items are still considered not to meet the materiality test, then the minute should continue in respect of those items.

39.20.3

Where it has been determined that the information being sought is not material and therefore not disclosable, the minute should proceed to adjudication by the Court.

39.20.4

The debate, whether it be under summary or solemn procedure must be allocated to an experienced depute at the earliest opportunity in order that the circumstances of the case and the disclosure position generally can be considered. It is essential that the depute is fully aware of the Crown’s disclosure policy and the legal obligations in respect of disclosure as the Court may ask the Crown to address them on either or both of these issues. As part of the preparation for the devolution debate, the depute should consult with the appropriate legal manager to determine whether, based on the information provided by the defence in the minute, the information being sought is material and therefore disclosable. If the depute is satisfied that the information does meet the materiality test then it should be disclosed to the defence without proceeding to a court hearing.

39.20.5

In cases of particular difficulty or sensitivity, a report should be submitted to the Director of Serious Casework office for Crown Counsel’s instructions on whether to disclose the information or to proceed to a court hearing for adjudication on the disclosability of the information.

39.20.6

When preparing the debate, the depute should also carefully consider, in close consultation with the appropriate legal manager whether an appeal would be appropriate if the minute is granted or partially granted by the Court.

39.20.7

If, after arguments, the compatibility issue is upheld or partially upheld, the depute should arrange for the relevant information to be disclosed to the defence as soon as reasonably practicable, unless the decision is to be appealed. If the case is being prosecuted on indictment, the Disclosure Page and the appropriate schedule listing the information should both be updated accordingly. Where it is a summary case, the case papers should be updated accordingly.

39.21 Compatibility issues: References to the High Court or Supreme Court

39.21.1

Subs (1) of section 288ZB of the Criminal Procedure (Scotland) Act 1995 states that instead of determining the compatibility issue a Court may refer the issue to the High Court. Subs (2) states that the Lord Advocate or the Advocate General for Scotland, if party to criminal proceedings before a Court may require the Court to refer to the High Court any compatibility issue which has arisen in the proceedings. Subs (3) states the High Court may, instead of determining a compatibility issue which has been referred to it, refer the issue to the Supreme Court. Subs (4) states that where a compatibility issue has arisen in criminal proceedings before a Court consisting of two or more judges of the High Court otherwise than by reference then the Court may instead of determining the compatibility issue refer it to the Supreme Court. Subs (5) states that the Lord Advocate or the Advocate General for Scotland if a party to criminal proceedings before a court consisting of two or more judges of the High Court, may require the court to refer to the Supreme Court a compatibility issue which has arisen in the proceedings otherwise than on a reference.

39.21 Compatibility Issues: Appealing the Decision of the Court

39.21.1

Subs (1) of section 288AA of the Criminal Procedure (Scotland) Act 1995 states that an appeal can be taken against a determination in criminal proceedings by a court of two or more judges of the High Court. Subs (2) states that the power of the Supreme Court will be exercisable only for the purpose of determining the compatibility issue and for that purpose the Supreme Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice. Subs (5) indicates that the appeal lies only with the permission of the High Court or, failing that, the permission of the Supreme Court unless it is an appeal by the Lord Advocate or the Advocate General where they have previously referred the case to the High Court.

39.21.2

Where the application is to be made to the High Court under subs (5) it must be made using Form 40.9 and must be made within 28 days of the date of the determination against which the appeal lies or a longer period which the High Court considers equitable having regard to all of the circumstances. Where the application is to be made to the Supreme Court under subs (5) the appeal must be made within 28 days of the date on which the High Court refused permission or within such longer period as the Supreme Court considers equitable having regard to all the circumstances.

39.21.3

It is essential that a report is submitted to the Appeals Unit immediately following any decision which may be appealed. This should be done initially by telephone and then followed up by a report. The report should be prepared by the depute who appeared in court. If, however, this is not possible, reports should not be delayed. The report should provide the following information:

• Identify relevant court depute;
• Provide a summary of the offence(s);
• Provide a procedural history of the case;
• Provide a note of the disclosure history of the case;
• Note the salient points of the defence and Crown arguments presented to the court;
• Note of the Court’s determination; and
• Reasons why the appeal should be supported
• Certified copy court minutes from the lower court.

39.21.5

If the appeal is in respect of a petition for the recovery of documents or any other form of disclosure, the information sought by the defence should not be disclosed pending the determination of the appeal., If Crown Counsel determines that an appeal is not appropriate, then the specified information that the defence were seeking should be disclosed as soon as reasonably practicable. The disclosure page and schedules or the case papers should then be updated accordingly.

39.22 Information withheld in the public interest

39.22.1

In some circumstances, the defence may seek the recovery of information that the Crown has assessed as being material information but has withheld on the basis that its disclosure would jeopardise an important public interest, e.g. information covered by public interest immunity, or which raises Convention issues, such as where there is a threat to the life or limb of a witness or other persons. See Swinney v Chief Constable of Northumbria, ((1999) 11 Admin. L.R. 811), in which the court considered the duty owed by the police to informers to take reasonable care in preventing confidential information from being disclosed to the public. See also Osman v Ferguson, ([1993] 4 All ER 344), in which the court stated that the existence of a general duty on the police to suppress crime did not carry with it liability to individuals for damage caused to them by criminals whom the police had failed to apprehend when it was possible to do so. Further guidance on dealing with such issues is contained in Chapter 25 of this Manual.

39.22.2

Where the terms of a preliminary plea, petition for recovery of documents or compatibility issue is seeking the recovery of such information, this should immediately be referred to the Federation Head or Functional Lead (High Court / Sheriff & Jury / Summary) to prepare a report for Crown Counsel’s instructions. This should be submitted through the Director of Serious Casework.

40.1 General principles

40.1.1

As set out in Chapter 3 of this Manual, under the Criminal Justice and Licensing (Scotland) Act 2010 the police and other investigating agencies must provide the Crown with all relevant information which is capable of having an impact on the case. The investigating agency will hold information relating to the professional misconduct by serving officers. In order to ensure that the investigating agency comply with their obligation to provide all relevant information to the Crown, therefore, it is essential that this includes details of misconduct information that may affect the reliability or credibility of any investigating agency witness.

40.1.2

Only misconduct admitted or proved at a hearing is relevant for the purposes of consideration for disclosure.

40.1.3

Professional misconduct by police officers is regulated by the Police (Conduct) (Scotland) Regulations 1996. Schedule 1 of the Regulations provides a list of conduct which will constitute misconduct. This list includes a broad spectrum of conduct ranging from minor misconduct such as uniform irregularities to neglect of duty.

40.1.4

There are six separate options for Forces in dealing with allegations of misconduct. The first five are used for minor misconduct which should not normally have any bearing on the credibility or reliability of the officer involved. These options consist of:

1. No action;
2. Action outwith the Conduct Regulations, e.g. counselling
3. Warning in terms of Regulation 5(2) – allows for an allegation that is of a minor or trivial nature to be formally concluded without first taking direction from a Deputy Chief Constable;
4. Warning in terms of Regulation 5(3) – allows for an allegation, which has been referred to the DCC, to be dealt with by means of a preliminary enquiry rather than the appointment of an investigator. This process is not limited to minor or trivial allegations;
5. Warning in terms of Regulation 6(6) – this is the most serious form of statutory warning given to a police officer and will be considered where the DCC has decided that the allegation is of sufficient gravity to formally appoint an investigating officer in terms of the Regulations:
6. Misconduct hearing

40.1.5

For the purposes of consideration for disclosure, only the sixth outcome above is considered as potentially relevant as it may include conduct which, if known, may impact on issues of reliability and credibility at trial. Significantly, it is also the only option open to Forces where, unless admitted, an allegation of misconduct is tested in a quasi-judicial setting.

40.1.6

For the avoidance of doubt, where a hearing concludes that there has been no misconduct on the part of the officer, then the circumstances of the alleged misconduct should not be obtained or considered for disclosure purposes.

40.2 Defence requests for information relating to misconduct warnings

40.2.1

As stated above, all findings of guilt at a misconduct hearing should be proactively obtained by the Crown and, if material, disclosed to the defence, without the requirement of a request from the defence for such information.

40.2.2

If, however, the defence requests details of any misconduct information which did not result in a misconduct hearing, i.e. details of any warnings issued in terms of the Regulations specified above in 40.1.2 at paragraphs (iii)–(v), then the request should be referred to the Director of Serious Casework for consideration. The referral should provide an assessment on whether the request appears justified, as opposed to speculative and should include a recommendation on whether the information should be obtained from the police, having regard to the issues at trial.

40.2.3

If the Director of Serious Casework is satisfied that information about warnings issued may be relevant and material to the issues at trial, then the information should be obtained and then considered for disclosure. Any material warnings should then be disclosed to the defence.

40.3 Revelation of misconduct information by the investigating agency

40.3.1

Having regard to the general principles above, misconduct hearing findings (or admissions) of guilt will be revealed to the Crown for consideration for disclosure, as appropriate, in accordance with the materiality test, i.e. information which would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; would materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor. Records of other misconduct warnings - dealt with by Forces by any of the other five options - will not be routinely revealed. However, where Crown Counsel consider that a defence request for this information is justified, the Crown should instruct the police to submit details of all relevant misconduct dealt with in terms of the Regulations (i.e. as specified in paragraphs (iii)-(v) above. Thereafter, the Crown must consider this information to determine whether it should be disclosed in accordance with the materiality test.

40.3.2

Misconduct allegations that resulted in no action being taken or action being taken outwith the regulations will not be considered for relevancy by the police. Similarly, where a hearing was held which did not result in a finding of guilt, then the misconduct which was considered at the hearing will not be routinely submitted to the Crown.

40.4 The police officer misconduct database

40.4.1

It is recognised that it would be very resource intensive for Professional Standards Units to carry out a check every time an officer is cited as a witness in a summary case or appears on the list of witnesses in a solemn case. Accordingly, procedures have been put in place to ensure that the Crown meets its disclosure obligations, while also ensuring that the information is obtained efficiently.

40.4.2

COPFS holds and maintains a database, which can only be viewed and accessed by a limited number of staff in ISD (COPFS Information Systems Division), detailing all serving police officers with a finding of guilt before a misconduct hearing. This database, which is updated regularly based on information provided by Professional Standard Units, is checked automatically whenever an SPR or witness report is submitted to the Procurator Fiscal. A witness report is a separate subject sheet submitted electronically by the police subsequent to the submission of the SPR which includes the details of witnesses not originally included in the SPR.

40.4.3

In order to ensure confidentiality and satisfy data protection principles, police officers are referred to in the database by their URN rather than their name. If a police officer does not have a misconduct finding, his/her URN will not appear on the table. Whenever a police officer is listed in an SPR as a witness, his/her URN is also included in the report. This is mandatory and no police officer can be listed as a police witness unless his/her URN is inserted.

40.4.4

On receipt of the SPR or witness report, POLIN (the COPFS computer system that enables the Crown to receive electronic reports) will automatically access the database and ascertain whether any of the URNs in the database match any of the URNs in the police report. If there are any matches, POLIN insert a misconduct ‘flag’ into the SPR or witness report.

40.4.5

Where an officer listed in the SPR as a witness, is also listed in the COPFS database, this misconduct ‘flag’ will be populated automatically in sections 1.3 and 8.1 of the SPR, thus enabling COPFS staff to request details of the misconduct finding directly from the appropriate Professional Standards Unit (i.e. the Professional Standards Unit within the Force where the case originates). Where an officer listed in a witness report as a witness is also listed in the COPFS database this misconduct ‘flag’ will be populated automatically on the witness report itself enabling COPFS staff to request details of the misconduct finding directly from the appropriate Professional Standards Unit (i.e. the Professional Standards Unit within the Force where the case originates).

40.4.6

For the avoidance of doubt, the misconduct flag only highlights that an officer has a finding of guilt against them at a misconduct hearing. It will not identify those officers who have received a warning or warnings under the Regulations. Accordingly, if the defence request this information, the database cannot be used to extract this information. The procedures where the defence request information about warnings is contained below at section 40.7.

40.5 Updating the database

40.5.1

Professional Standard Units within Police Scotland have responsibility for advising ISD of any updates to the database, for example, when a police officer listed in the database leaves the Police Force, or a police officer has been found guilty at a misconduct hearing and requires to be added to the database.

40.5.2

Although the 1996 Regulations are silent on how long this finding should be retained, the Police (Scotland) Regulations 2004 state that the finding must be expunged from the officer’s record after 3 years clear of default. In effect this means the finding is ‘live’ for 3 years. However, it has been agreed that if any Force record is held of a misconduct finding then this must be revealed to the Crown.

40.6 Obtaining and Scheduling Details of the Misconduct Finding in Solemn Proceedings

40.6.1

Where a case is proceeding on petition and therefore subject to the scheduling system as set down in Chapters 16 and 34–37 of this Manual, it is essential that any findings of guilt at a misconduct hearing for any police witnesses are included in the sensitive schedule.

40.6.2

Where a misconduct ‘flag’ appears in the SPR or in a witness report in respect of a relevant witness i.e. a witness that the Crown intends to lead at trial, the precognoscer should immediately generate a letter for transmission to the relevant Professional Standards Unit, requesting the preparation of a sensitive schedule detailing the misconduct that resulted in a finding of guilt before a hearing. Template letter DISCPSSSCHEDULE.DOC which is available on the FOS/SOS-R templates should be used for requesting the schedule. Once received, the PSU Sensitive Schedule should be considered in accordance with the guidance contained in Chapter 37 of this Manual.

40.7 Obtaining details of the misconduct finding in summary proceedings

40.7.1

Where a misconduct ‘flag’ appears in the SPR or in a witness report in respect of a witness marked for citing in FOS/PROMIS in summary cases, a letter should be generated for transmission to the relevant Force Professional Standards Unit, requesting details of the misconduct that resulted in a finding of guilt before a hearing. This should be sent at the same stage as statements and CHS records are being requested in the case. Template letter DISCPSSUM.DOC which is available on the FOS/SOS-R templates should be used for requesting the information. It is the responsibility of the case marker at the stage the case is marked for proceedings to ensure that an instruction to this effect is included in the summary instruction case preparation sheet.

40.7.2

Forces will thereafter reveal this information by way of an appropriately marked subject sheet.

40.8 Defence requests for information

Requests for misconduct information in relation to a disposal less than a finding of guilt before a hearing

40.8.1

Where the defence request the disclosure of the misconduct record of a particular officer and Crown Counsel agree that the request is reasonable, a letter should be generated for transmission to the relevant Professional Standards Unit, requesting revelation of relevant misconduct information. Template letter DISCPSDEFREQ.DOC should be used for requesting the information in solemn cases and letter DISCPSDEFREQSUM.DOC in summary cases.

40.8.2

In solemn cases Professional Standards Units will prepare and complete a sensitive schedule detailing the officer’s misconduct record. For summary cases revelation will be achieved by the completion and submission of an appropriately marked subject sheet.

Requests for further information regarding misconduct resulting in a finding of guilt

40.8.3

In addition, where details of a finding of guilt before a misconduct hearing have been disclosed, the defence may request further information in relation to that misconduct. Again, such requests must be justified by the defence as being necessary for the proper preparation and presentation of the defence.

40.8.4

If satisfied that the request is reasonable, then the Case Preparer or depute should consult with the Professional Standards Unit and request any further relevant information regarding the misconduct. Thereafter, this information should be carefully considered for disclosure.

40.8.5

If the case preparer or depute is content that the additional information is not material, then the defence should be advised that it is not being disclosed. Where the defence considers that the prosecutor has failed to disclose an item of information which is disclosable in terms of the materiality test the defence may apply (Criminal Justice and Licensing (Scotland) Act 2010 section 128(2)) to the Court for a ruling on whether the information in question falls within the realms of the materiality test. Guidance on applications for such rulings can be found in Chapter 39 of this Manual.

40.8.6

If the case preparer or depute, after close consultation with the appropriate legal manager considers the additional information to be material (either in full or in part), then a report should be submitted to the Director of Serious Casework for Crown Counsel’s instructions on disclosure.

40.9 Assessing the materiality of misconduct information

40.9.1

Once the details of a misconduct finding – or other relevant misconduct information - have been obtained for an investigating agency witness, a member of legal staff should consider the record and determine, in terms of the principles set out below, whether any of the material requires to be disclosed.

40.9.2

Misconduct information may be relevant and material for one of two reasons:

• It potentially bears on an issue in the case; or
• It may legitimately be used to attack the credibility or reliability of the witness.

40.9.3

The Crown should assess each misconduct finding and any other misconduct information revealed and determine whether or not each piece of information is material on one of these grounds. If the Crown does not consider that the information is material that information should not be disclosed. But the Crown should not take an unduly restrictive approach to the assessment of materiality. Where the issue of disclosure is one of fine judgement or balance, then Crown Counsel’s instructions should be obtained.

40.9.4

However, disclosure of misconduct information does not reflect an admission or concession that the information is relevant either to the issues in the case or to the credibility or reliability of the witness. Deputes should, where appropriate, take objection to reliance on the misconduct record of a police witness where there are good grounds for doing so.

Misconduct finding bearing on an issue in the case

40.9.5

Although it is likely to be rare, misconduct information which bears on an issue in the case should always be disclosed. For example, where the integrity of productions is a live issue in a case, the fact that a police witness has been found guilty of misconduct for wilful or careless damage to property within the care of the police of the complainer should be disclosed, since it may be material.

Misconduct finding bearing on credibility

40.9.6

More commonly, misconduct information which could reasonably be considered to bear on the credibility of the witness should be disclosed. The question in any case is whether or not the information could legitimately be relied upon by the defence in an attack on the credibility of the witness at trial. For example, a misconduct finding for corrupt practice will always require to be considered for disclosure. Other information which could be founded upon to attack the general character of the witness should also be considered for disclosure.

Misconduct finding bearing on reliability

40.9.7

Misconduct information which could legitimately be used to attack the reliability of the witness should also be disclosed. So for example, a recent misconduct finding of being unfit for duty due to alcohol may be disclosable, since it may provide a basis for cross-examination as to whether the witness was under the influence of alcohol at the time of the incident and whether this affected the witness’s reliability.

40.10 Disclosing misconduct information

Solemn proceedings

40.10.1

Misconduct information in solemn proceedings will not be disclosed to the defence until the stage the indictment is served, and the police witness is confirmed as being listed on the indictment.

40.10.2

Misconduct information should not be disclosed in solemn proceedings without Crown Counsel’s instructions. This applies equally to cases indicted in the High Court and cases in the Sheriff Court. Recommendations and requests for instructions should be carefully recorded on the Disclosure Page.

40.10.3

Where disclosure is instructed, this should be done in the form of a letter to the defence setting out the nature of the misconduct, the regulation under which the misconduct was deemed to be found and the result.

Summary Proceedings

40.10.4

All decisions to disclose misconduct information must be approved by the Summary Legal Manager. In cases of doubt or difficulty, the Summary Legal Manager should submit a report to the Director of Serious Casework for Crown Counsel’s instructions.

40.10.5

Thereafter, the material misconduct information should be disclosed to the defence immediately after the intermediate diet.

40.10.6

Disclosure of any material misconduct should be in the form of a letter to the defence setting out the nature of the misconduct, the regulation under which the misconduct was deemed to be found and the result.

40.11 Keeping the position under review

40.11.1

Where a decision has been made not to disclose all or part of the misconduct record of a witness on the ground that it is not material, the position must be kept under review. In particular, issues may arise at trial which require disclosure of misconduct information which until then has not been considered to be material.

40.11.2

While there is a duty to keep the materiality of misconduct information under review, there is no obligation to routinely obtain updated information from Professional Standards Units regarding an officer’s misconduct record. Such updates should be request only where the Crown is in receipt of information, either from the defence or other sources, that reasonably indicates that there is new misconduct information that is material in nature.

40.12 Additional witnesses not included in SPR

40.12.1

Where details of additional police witnesses are provided hard copy in another format the police misconduct database system referred to above at section 38.3 will not be activated. Accordingly, the case preparer or depute preparing the case in summary proceedings, must proactively contact the relevant Professional Standards Unit within Police Scotland to ascertain whether any additional police witness has any findings of guilt against him or her at a misconduct hearing. If so, the procedures detailed in sections 40.5 or 40.6 above should be followed, depending on whether the case is proceeding on indictment or summarily.

40.13 Police officers as defence witnesses

40.13.1

Where a police officer is detailed on a defence list of witnesses, there is no obligation in summary proceedings to obtain details of his or her misconduct record, including findings of guilt before a hearing.

40.13.2

Where the case is proceeding on indictment, details of material misconduct findings for police witnesses who are detailed on the defence list of witnesses should be disclosed.

41.1. Introduction

41.1.1

The Fatal Accidents And Sudden Deaths Inquiry (Scotland) Act 1976 (‘the Act’) and the Fatal Accidents And Sudden Deaths Inquiry Procedure (Scotland) Rules 1977 make provision for holding of FAIs in respect of fatal accidents, deaths of persons in legal custody, sudden, suspicious and unexplained deaths and deaths occurring in circumstances giving rise to serious public concern.

41.1.2

However, the Act, which is now over 30 years old, does not include provisions in relation to the disclosure of information to other parties involved in the inquiry.

41.1.3

It is also important to note that a FAI may be required in order to satisfy obligations under Article 2 of the European Convention. In the case of R (on the application of Goodson) v HM Coroner for Bedfordshire and Luton Coroner ([2006] 1 WLR 432 (at 450)) the Court held that:

“Where State agents potentially bore responsibility for the death, including potential liability in negligence, the events relating to the death should be subject to an effective investigation.”

Effectively, the State consists first and foremost of:

• Central government
• regional and local government
• bodies carrying out governmental functions in the public sphere

41.1.4

Where any of these bodies potentially bear responsibility for a death, it is essential therefore, to satisfy obligations under Article 2, that there is an independent and effective investigation which is open to a sufficient element of public scrutiny and appropriately involves the nearest relatives. Disclosure of information in the possession of the Crown that either (i) the Crown intends to lead at the inquiry or (ii) may otherwise be material to the issues which will be relevant to the inquiry is a key part of ensuring an effective investigation.

41.2 Disclosure to legally represented parties

41.2.1

Once a decision has been taken to hold a Fatal Accident Inquiry, all information which the Crown intends to lead at the inquiry should be disclosed as early as possible to agents. The information to be disclosed will include the police statements, productions and any expert reports which the Crown intends to lead at the Inquiry, subject to any redaction of sensitive and personal information.

41.2.2

Where the FAI follows criminal proceedings in respect of the same subject matter and the same agents are involved, it is important to note that, notwithstanding the fact that the information may have already been disclosed to the agents, the information will require to be disclosed again in the context of the civil proceedings. This is on the basis that, in relation to the earlier disclosure, the agent is governed by the Law Society Code of Conduct in Criminal Work and is only entitled to use the information for the proper preparation and presentation of the criminal case.

41.2.3

As Article 11 of the Code of Conduct in Criminal Work does not extend to civil proceedings, it is essential that, prior to disclosure, the solicitor provides an undertaking to the effect that the information is provided on the basis that:

1. Such material, or any information contained in it, will not be used or disclosed other than for the purpose of the preparation and conduct of the Inquiry;
2. Copies of the material will not be provided to interested party or to any other party without the express agreement in writing of the Procurator Fiscal; and
3. In the event that you cease to act for the interested party, that any such material will be returned to the Procurator Fiscal

A copy of the template undertaking is available in the FOS templates on the intranet [DISCUNDCIVPROCESS.DOC]

41.3 Disclosure to self-represented and non-legally represented parties (including those represented by a solicitor who is not qualified in Scotland)

41.3.1

In order to ensure compliance with the Data Protection Act, information which the Crown intends to rely on at the FAI must only be disclosed to a non-legally or self-represented party under the authority of a court order.

41.3.2

In such circumstances, the court should be petitioned for an order specifying the manner in which information should be disclosed to these parties and the purpose for which the information can be used.

41.3.3

Once agreement has been reached regarding the manner of disclosure, the non-legally or self represented party should be required to sign an agreement similar to a protective order in relation to criminal proceedings. Whilst this does not carry the same sanction as that provided by the Criminal Procedure (Scotland) (Act) 1995, if the Sheriff confirms the party’s understanding of the undertaking and issues a warning to the party about breaching same, then the Sheriff could deal with any breach of this undertaking by way of a contempt of court in a similar manner to that applicable in the ordinary cause rules (section 4(7) Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976). A style undertaking is attached at Annex P and can be accessed in the FOS Templates.

41.4 Unused information

41.4.1

Where the Procurator Fiscal is in possession of information which the Crown does not intend to lead at the inquiry, this information should be disclosed to the other parties where the information may be material to the issues which will be relevant to the inquiry. Examples of this would be the statement of a further witness where several witnesses are led in relation to the same issue and an expert report where the author is unavailable to give evidence.

41.5 Criminal history records

General principles

41.5.1

Any criminal history records in the possession of the Crown in respect of any witnesses that the Crown intends to lead at the inquiry should be considered for disclosure in order to ensure an effective investigation and satisfy the Crown’s Article 2 obligations. Unlike in criminal proceedings, however, there is no obligation to routinely obtain such records for consideration.

41.5.2

Only previous convictions should be considered to determine whether or not they should be considered for disclosure. For the avoidance of doubt, outstanding charges, children’s hearing appearances and fixed penalties should not be considered for disclosure.

41.5.3

Previous convictions should only be disclosed if they relate either to the subject matter of the FAI (e.g. health and Safety convictions) or where they relate to the credibility of the witness, as set down in paragraphs 19.6.3 – 19.6.8 of this Manual.

Non-disclosure of material convictions

41.5.4

As the disclosure of any previous conviction is in the context of civil proceedings, then the Rehabilitation of Offenders Act 1974 must be applied. Accordingly, any spent convictions should not be disclosed, even where they are material. Further guidance on the application of the 1974 Act is contained in Annex Q to this Manual.

41.5.5

Notwithstanding the material nature of a previous conviction, however, circumstances may exceptionally arise where the Crown considers that public interest immunity should be claimed, e.g. where disclosure of the information could create a threat to life and limb of a witness or other persons. Where this arises the matter should be referred initially to the Head of the Scottish Fatalities Investigation Unit. Thereafter the matter should be reported to the Director of Serious Casework for the attention of Crown Counsel, with an appropriate recommendation, for a decision as to how the issue should be addressed.

41.5.6

Disclosure of witness previous convictions should only be made to the interested party’s legal representative. Where the interested party is unrepresented the procedure at 41.3 above should be followed.

42.1 Introduction

42.1.1

Section 124 of the Criminal Justice and Licensing (Scotland) Act 2010 inserts section 70A into the Criminal Procedure (Scotland) Act 1995. Section 70A provides that in the course of all solemn cases, following service of the indictment, the defence must lodge a defence statement at least 14 days before the first diet/preliminary hearing and thereafter must, at least 7 days before the trial diet either lodge another defence statement or a statement intimating that there has been no material change in circumstances since the previous defence statement was lodged.

42.1.2

Defence statements may also be lodged in summary cases but this is not mandatory.

42.2 What is a defence statement?

42.2.1

Defence Statement is the term given to a document prepared and lodged by the defence setting out –

1. the nature of the accused’s defence, including any particular defences on which the accused intends to rely,
2. any matters of fact on which the accused takes issue with the prosecution and the reasons for doing so,
3. particulars of the matters of fact on which the accused intends to rely for the purposes of the accused’s defence,
4. any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose,
5. the nature of any information that the accused requires the prosecutor to disclose by reference to the accused’s defence, and
6. the reasons why the accused considers that disclosure by the prosecutor of the information outlined at (v) above is necessary

42.2.2

It is important not to confuse these documents with defence witness statements.

42.3 Lodging of defence statements in solemn proceedings

42.3.1

Defence statements are now mandatory in all solemn cases and shall be in the prescribed form (Form 56.2-A as laid down by Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) 2011).

42.3.2

Where a defence statement is lodged and the defence consists of or includes a special defence, the statutory requirement to lodge and intimate such a special defence does not apply (Criminal Procedure (Scotland) Act 1995 section 78).

42.3.3

In the course of a solemn case, following service of the indictment, the defence must either lodge a defence statement or a statement intimating that there has been no material change in circumstances in relation to the accused’s defence since the last defence statement was lodged. This must be done at the following stages:

1. at least 14 days before the first diet or preliminary hearing
2. at least 7 days before the trial diet

42.3.4

If after lodging a defence statement, at one or both of the key stages outlined above, there is a material change in circumstances in relation to the accused’s defence, a further defence statement must be lodged. This will be in the prescribed form (Form 56.2-A as laid down by Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) 2011). This additional defence statement must be lodged before the trial begins unless the Court has, on cause shown, allowed it to be lodged during the course of the trial.

42.3.5

As soon as practicable after lodging a defence statement or a statement intimating that there has been no material change in circumstances in relation to the accused’s defence since the last defence statement was lodged, the accused must send a copy of the statement to the prosecutor and any co-accused.

42.4 Prosecutor’s duty to review

42.4.1

The prosecutor is under a statutory obligation to review all the information not previously disclosed that may be relevant to the case for or against the accused of which the prosecutor is aware. This must be done as soon as is practicable following receipt of a defence statement.

42.4.2

The legislation places the responsibility on the prosecutor. However reviews of information previously considered irrelevant will have to be achieved through communication of the content of the defence statement with the Reviewing Officer in the case. The Reviewing Officer will be aware of all information held and particularly information which was previously considered to be manifestly irrelevant and not revealed to the prosecutor.

42.4.3

In order to comply with the statutory obligation the case preparer, in close consultation with the SLM, must review the content of the defence statement and consider whether it raises any issue(s) which merit a review to be carried out by the police of information previously deemed to be manifestly irrelevant by them. In making this assessment, consideration should be given to factors such as, but not limited to, whether any fresh lines of enquiry are raised, additional witnesses are referred to, lines of defence intimated which require further investigation e.g. alibi or incrimination.

42.4.4

If there is any doubt regarding whether or not the content of a defence statement merits a review by the police of all the information previously considered manifestly irrelevant then, erring on the side of caution, the defence statement should be urgently passed to the police for review.

42.4.5

Where necessary intimation of the content of the defence statement should be made to the reviewing officer as soon as possible to allow a full review to be carried out. It is important to be aware that this has the potential to be a time consuming process and depending on when the defence statement was received it may be impractical to achieve this prior to the next scheduled calling of the case.

42.4.6

Where an adjournment of the case is needed to allow time for the necessary review this will need to be explained to the court. It is necessary therefore to seek a realistic timescale for completion of the review from the Reviewing Officer in advance of that hearing. It is important to be aware of the time bar of cases in such circumstances and to seek an extension if required.

42.4.7

In solemn cases revelation would be accomplished in the normal way i.e. submission of a non-sensitive, sensitive and/or highly sensitive schedule.

42.4.8

The Crown has a duty, which exists in perpetuity, to provide to the defence all material information, namely that information which:

1. would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,
2. would materially strengthen the accused’s case, or
3. is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused

42.4.9

Thus, upon receipt of a defence statement, the Crown has a statutory obligation to review all potentially relevant information held i.e. all information revealed to the prosecutor by the police/investigating agency which was not previously considered material and therefore disclosable.

42.4.10

All information which was not previously disclosed must therefore be reviewed in order to ascertain whether it should now be considered material and disclosable in light of the contents of the defence statement.

42.4.11

Where it is decided that information does not require to be disclosed in light of a defence statement, this decision and the reasons for it should be highlighted, in solemn cases, in the Disclosure Page in the precognition, and in summary cases, recorded in the case papers.

42.4.12

Full details on the process for submitting defence statements to the police can be found in the Case Processing Manual.

42.5 Prosecutor’s duty to disclose

42.5.1

Following the revelation by the police/investigating agency of all additional information that may be relevant to the case for or against the accused i.e. submission of additional disclosure schedule(s), the prosecutor must, as soon as practicable, disclose to the accused material information, namely information which:

1. would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused,
2. would materially strengthen the accused’s case, or
3. is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused

42.6 Lodging of defence statements in summary proceedings

42.6.1

Whilst it is not mandatory that a defence statement is lodged in respect of summary cases there may be cases in which it is appropriate to do so (Section 125 of the Criminal Justice and Licensing (Scotland) Act 2010). Where a defence statement is to be lodged it has to be in the prescribed form (Form 56.2-A as laid down by Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) 2011).

42.6.2

A defence statement may be lodged at any stage during the “relevant period”. This relevant period is defined as the period beginning with the recording of the accused’s plea of not guilty and ending with the conclusion of the proceedings to which the plea relates. Proceedings are taken to be concluded if:

1. a plea of guilty is recorded against the accused,
2. the accused is acquitted,
3. the proceedings against the accused are deserted simpliciter,
4. the accused is convicted and does not appeal against the conviction before the expiry of the time allowed for such an appeal,
5. the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed, or
6. the complaint falls or is for any other reason not brought to trial, the diet is not continued, adjourned or postponed and no further proceedings are in contemplation.

42.6.3

Where a defence statement is lodged

• at or before an intermediate diet, or
• where such a diet is not to be held, is lodged no later than 10 clear day before the trial diet, and
• the line of defence consists of or includes a special defence, a defence which may be made out by leading evidence calculated to exculpate the accused by incriminating a co-accused, a defence of automatism or coercion, or a defence of consent in a prosecution for certain sexual offences (section 288C of the Criminal Procedure (Scotland) 1995)

the statutory requirement to lodge and intimate a notice of defence does not apply (section 149B of the Criminal Procedure (Scotland) Act 1995).

42.6.4

Defence statements must however be lodged in summary proceedings before the accused can seek recourse to the court for a court ruling on disclosure (section 128 of the Criminal Justice and Licensing (Scotland) Act 2010). See Chapter 39 for full guidance in Court Rulings.

42.6.5

When lodging a defence statement in respect of a summary case, the document must set out –

1. the nature of the accused’s defence, including any particular defences on which the accused intends to rely,
2. any matters of fact on which the accused takes issue with the prosecution and the reasons for doing so,
3. particulars of the matters of fact on which the accused intends to rely for the purposes of the accused’s defence,
4. any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose,
5. the nature of any information that the accused requires the prosecutor to disclose by reference to the accused’s defence, and
6. the reasons why the accused considers that disclosure by the prosecutor of the information outlined at (v) above is necessary

42.6.6

If an accused lodges a defence statement at least 14 days before the trial diet in summary proceedings, then no less than 7 days before the trial:

1. where there has been a material change in circumstances a further defence statement must be lodged; or
2. where there has been no material change in circumstances, a statement confirming that must be lodged.

This will be in the prescribed form (Form 56.2-B as laid down by Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) 2011)

42.6.7

If after lodging a defence statement, there is a material change in circumstances in relation to the accused’s defence, a further defence statement must be lodged. This additional defence statement must be lodged before the trial begins unless the Court has, on cause shown, allowed it to be lodged during the course of the trial.

42.6.8

As soon as practicable after lodging a defence statement in summary proceedings the accused must send a copy of the statement to the prosecutor and any co-accused.

42.7 Prosecutor’s duty to review

42.7.1

As with solemn cases the prosecutor is under a statutory obligation to review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware. This must be done as soon as is practicable following receipt of a defence statement.

42.7.2

The guidance regarding reviews of information following receipt of a defence statement at 42.3 above applies equally to summary cases and should be adhered to when handling defence statements in respect of summary proceedings.

42.8 Prosecutor’s Duty to Disclose

42.8.1

As with solemn cases the prosecutor is under a statutory obligation to disclose all material information which comes to light following a review to the defence.

42.8.2

With the exception of the reference to disclosure schedules, the guidance regarding disclosure of material information following a review at 42.4 above applies equally to summary cases and should be adhered to when handling defence statements in respect of summary proceedings.

42.9 Further guidance

42.9.1

Prosecutors dealing with issues as they arise in Court in relation to:

1. the late lodging of a defence statement
2. refusal to lodge a defence statement
3. the lodging of a defence statement which is lacking in specification

are directed to Operational Instruction 1 of 2013 for further guidance.

43.1

The Double Jeopardy (Scotland) Act 2011 came into force on 28th November 2011 and places the existing rule against a person being prosecuted twice for events arising out of the same acts or omissions on a statutory footing. This rule promotes certainty and protects the accused from being subjected to repeated trials.

43.2

The Act, however, provides three exceptions to the rule against double jeopardy:–

1. Where there is a tainted acquittal (section 2)
2. Where there is an admission subsequent to acquittal or discovered after acquittal (section 3);
3. Where, in High Court cases, there is new evidence (section 4)

43.3

This policy will relate to High Court cases. Full guidance in respect of the new provisions can be found in Crown Office Circular 6 of 2012.

43.4 Disclosure on an application to prosecute anew

43.4.1

The application process is a new procedure and the disclosure obligation relates to disclosing all information of which the prosecutor is aware that relates to the double jeopardy application.

43.4.2

Sections 140A – 140F of the Criminal Justice and Licensing (Scotland) Act 2010 provide that the principles and procedures laid down in part 6 of that Act apply in the same way to double jeopardy applications as they do to any other criminal proceedings.

43.4.3

Section 140B places an obligation on the prosecutor to review and disclose all information of which the prosecutor is aware that relates to the double jeopardy application which also includes:

1. information which is disclosable in terms of the materiality test which was not previously disclosed
2. information which it was deemed could not materially weaken the crown case or strengthen the defence case in the first proceedings but which the prosecutor now thinks could
3. information of which the prosecutor has become aware since the disposal of the first proceedings that had the prosecutor been aware of during or after those proceedings would have been disclosable in terms of the materiality test
4. information, other than that referred to in (iii) above, of which the prosecutor has become aware since the disposal of the first proceedings which:
1. would materially weaken or undermine the evidence that is likely to be led or relied on by the prosecutor in the double jeopardy proceedings
2. would materially strengthen the respondent (i.e. previous accused)’s case, or
3. is likely to form part of the evidence to be led or relied on by the prosecutor in the double jeopardy proceedings

43.5. Cold Case Review Unit

43.5.1

On 9th November 2011, COPFS launched the COPFS Unresolved Homicide Database which is operated by the Cold Case Review Unit of the Serious and Organised Crime Division. The database records all unresolved homicides known to COPFS.

43.5.2

The agreed database definition of “an unresolved homicide” is:

“a death where there is clear evidence of homicide or there is a suspicion that the death has resulted from the homicidal act of another person in respect of which:(a) no suspects are identified(b) a suspect has been identified but not charged(c) a suspect has been identified and charged but not placed on petition(d) a suspect has appeared on petition but no indictment served due to there being considered an insufficiency of evidence at that time(e) a suspect has been indicted and the case has not proceeded to a conclusion due to the failure of the accused to appear, the indictment not being called or being deserted pro loco et tempore(f) a suspect has been indicted and a trial concluded which has resulted in an acquittal(g) a suspect has been convicted but acquitted on appeal and no fresh prosecution has been authorised by the appeal court”

43.5.3

All acquittals of homicides after trial or following a successful appeal will be included on the database and subject to review.

43.6 Retention of papers and productions

43.6.1

In respect of any acquittal after trial or appeal in a homicide case which will be included in the Unresolved Homicide Database all case papers and relevant productions, i.e. all productions listed on the original indictment, must be retained. Consideration should also be given to any other productions it would be appropriate to retain. Clear instruction should be provided in the case file indicating that the productions are not to be destroyed or returned. The SIO should also be given clear instructions about retention and storage of the productions in the case, particularly those that may require to be stored in a temperature controlled environment

43.6.2

It is important to remember that all information, including productions, contained on the original disclosure schedules will be relevant (even if a decision has previously been taken that it is not material) and careful consideration must be given as to whether to retain these relevant productions.

43.6.3

It is important to remember that there may be cases in the High Court other than homicides where, following an acquittal, there are grounds for considering the retention of productions and papers for the possibility of a review under one of the exceptions to the double jeopardy rule.

43.7 Retention of samples

43.7.1

In terms of section 18(3) of the 1995 Act, samples and information derived therefrom must be destroyed on acquittal. There is, however, a provision in section 18A to allow samples to be retained for 3 years in cases where there was an acquittal for sexual or violent offences. Retention after 3 years for additional periods of 2 years at a time can be authorised by a Sheriff on the application of the Chief Constable, if there are reasonable grounds for doing so. All cases which are included on the Unresolved Homicide Database will be notified to the police such that the relevant section 18A applications will be made and all samples kept.

43.8 Disclosure implications

43.8.1

To ensure consistency, disclosure in all criminal proceedings should be governed by the same statutory framework. This includes any applications for a fresh prosecution under the Double Jeopardy (Scotland) Act 2011.

43.8.2

The disclosure provisions within part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 were amended to take account of the 2011 Act. Therefore the statutory disclosure principles laid down therein apply equally to information given to or obtained by the prosecutor in connection with the proceedings (including any appellate proceedings or other appeal) in or as a result of which the respondent was convicted or acquitted; the application under the Double Jeopardy (Scotland) Act 2011 for authority to prosecute anew; and any subsequent retrial which arises.

43.10 Continuing Duty of Prosecutor

43.10.1

Section 140C ensures that the prosecutor has a continuing duty to disclose information during the application stage. This section provides that where the prosecutor has complied with the obligation to disclose in respect of the double jeopardy application proceedings as outlined above, and has since then (but prior to disposal or abandonment of the double jeopardy application proceedings) become aware of disclosable information, in terms of (i) – (iv) above), the prosecutor must disclose that information to the respondent.

43.10.2

Nothing in section 140C requires the prosecutor to carry out a further review of information of which the prosecutor was already aware.

43.11 Applications for further disclosure

43.11.1

Section 140D provides that the prosecutor must respond to properly framed requests from the respondent for further disclosure during the application process.

43.11.2

Section 140D(2) specified that requests for further disclosure must set out:–

1. the nature of the information that the respondent wishes the prosecutor to disclose, and
2. the reasons why the respondent considers that such further disclosure by the prosecutor is necessary

43.11.3

Upon receipt of such a request the prosecutor must, as soon as practicable, review any information of which the prosecutor is aware that relates to the request, and disclose anything which is disclosable in terms of (i) – (iv) above.

43.12 Court Ruling on Disclosure

43.12.1

Section 140E allows the respondent to apply to the court for a ruling on a disputed issue of whether particular information should or should not be disclosed.

43.12.2

If following a request for further disclosure the respondent considers that the prosecutor has failed, in responding to the request, to disclose information which is disclosable in terms of (i) – (iv) above, the respondent may apply to the court for a ruling.

43.12.3

An application for such a ruling must be in writing and must set out a description of the information in question and the grounds for considering that the information is disclosable. Both the prosecutor and the respondent must be given the opportunity to be heard at any such hearing before determining the application. Except where it is impracticable to do so, the application for a ruling is to be assigned to the same judge(s) who are to hear the double jeopardy application proceedings.

43.12.4

Upon receipt of such an application the Court must appoint a hearing at which the application is to be considered and determined. If the court considers that the application does not comply with the conditions noted above or does not otherwise disclose any reasonable grounds upon which to consider that the information in question is disclosable, the court may dispose of it without appointing a hearing.

43.12.5

In determining an application the court must make a ruling on whether the information in question, or any part of it, falls to be disclosed in terms of (i) – (iv) above.

43.12.6

Section 140F lays down the procedures upon which the respondent may apply for a review of a court ruling.

43.13 Disclosure schedules

43.13.1

To assist prosecutors in ensuring that they are in a position to satisfy the Court that COPFS has met its disclosure obligations, in all solemn proceedings the investigating agency will provide the Crown with schedules detailing all information obtained or generated during the investigation that they consider may be relevant.

43.13.2

Schedules were introduced initially for all High Court cases in which the investigation commenced on or after 5th October 2009 and for all Sheriff and Jury cases in which the investigation commenced on or after 4th May 2010.

43.13.3

However, the Disclosure of Evidence in Criminal Proceedings Code of Practice which was laid before the Scottish Parliament in terms of section 164 of the Criminal Justice and Licensing (Scotland) Act 2010 provides, at paragraph 19.1 that:

Where a case has been identified as one that will be prosecuted under solemn procedure, in order to satisfy their obligation under sections 117(2) and 118(2) of the 2010 Act to provide the Crown with details of all information that may be relevant, the police (or other reporting agency) must prepare and complete schedules listing all the information obtained or generated during the investigation that may be relevant.

This Code of Practice applies in respect of all criminal investigations conducted by police officers, which begin on or after the day on which this Code comes into force, namely 6th June 2011.

43.13.4

The disclosure provisions within Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 were amended to take account of the Double Jeopardy (Scotland) Act 2011. Therefore the statutory disclosure principles laid down therein, including the Code of Practice made under section 164, apply equally to information given to or obtained by the prosecutor in connection with the proceedings (including any appellate proceedings or other appeal) in or as a result of which the respondent was convicted or acquitted; the application under the Double Jeopardy (Scotland) Act 2011 for authority to prosecute anew; and any subsequent retrial which arises.

43.13.5

Thus all double jeopardy matters will fall within the scheduling regime.

43.13.6

Early discussion should take place between the Senior Investigating Officer and the Solemn Legal Manager in order to ensure that the requirement for disclosure schedules is understood.

Background

The obligation of the police and other investigating agencies to submit relevant information to the Crown

44.1 The law

44.1.1

In order for the system of disclosure to function correctly the Crown, the police and other investigating agencies must fulfil certain fundamental obligations:

“Ultimately, the correct functioning of any system of disclosure depends on the diligence and sense of duty of everyone involved, starting with the police and going on up through the Procurator Fiscal service to the Crown Office and the Lord Advocate herself.” (McDonald [PC] at paragraph 61)

44.1.2

The police and other investigating agencies are under an obligation to submit all relevant information to the Crown. The court in Smith v HMA (1952 JC 66) set out that it is the duty of the police,

“to put before the Procurator-fiscal everything which may be relevant and material to the issue of whether the suspected party is innocent or guilty. We repeat, it is not for the police to decide what is relevant and material but to give all the information which may be relevant and material.”

44.1.3

In relation to solemn cases, section 117 of the Criminal Justice and Licensing (Scotland) Act 2010 provides that:

1. “where in a prosecution –
1. an accused appears for the first time on petition, or
2. an accused appears for the first time on indictment (not having appeared on petition in relation to the same matter).
2. as soon as practicable after the appearance, the investigating agency must provide the prosecutor with details of all information that may be relevant to the case for or against the accused that the agency is aware of that was obtained in the course of investigating the matter to which the appearance relates.
3. As soon as practicable after being required to do so by the prosecutor, the investigating agency must provide the prosecutor with any of that information that the prosecutor specifies in the requirement.”

44.1.4

In relation to summary cases, section 119 of the Criminal Justice and Licensing (Scotland) Act 2010 provides that:

1. this section applies where a plea of not guilty is recorded against an accused charged on summary complaint.
2. as soon as practicable after the recording of the plea, the investigating agency must inform the prosecutor of the existence of all the information that may be relevant to the case for or against the accused that the agency is aware of that was obtained (whether by the agency or otherwise) in the course of investigating the matter to which the plea relates.
3. As soon as practicable after being required to do so by the prosecutor, the investigating agency must provide the prosecutor with any of that information that the prosecutor specifies in the requirement.

44.1.5

It should be noted that in both summary and solemn cases this obligation on the investigating agency to submit relevant information is a continuing duty until the conclusion of proceedings against the accused (Criminal Justice and Licensing (Scotland) Act 2010, s118 (solemn) and s120 (summary)). Therefore if during proceedings the investigating agency becomes aware of further information that may be relevant to the case for or against the accused they must inform the procurator fiscal of the existence of this information and, where required, provide him with details of it. Proceedings are taken to be concluded if:

1. a plea of guilty is recorded against the accused,
2. the accused is acquitted
3. the proceedings against the accused are deserted simpliciter
4. the accused is convicted and does not appeal against the conviction before the expiry of the time allowed for such an appeal,
5. the accused is convicted and appeals against the conviction before the expiry of the time allowed for such an appeal, (in which case there are provisions for disclosure during live appeals – see chapter 26 herein)
6. the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed, or
7. the complaint/ indictment falls or is for any other reason not brought to trial, the diet is not continued, adjourned or postponed and no further proceedings are in contemplation (Criminal Justice and Licensing (Scotland) Act 2010, s118(5) (solemn) and s120 (5) (summary)).

44.1.6

Clearly, in reporting the results of their investigation, the police and other investigating agencies must exercise a power of selection. But a cautious officer will remember that he is not the judge of what is relevant and material and will tend to err on the safe side. If he is in doubt, he should consult the Procurator Fiscal. He will also remember that, as he and he alone has the opportunity of the initial investigation in the public interest, he must put the result of his investigations fairly before the Fiscal in order that the Crown may have a fair basis on which to decide whether or not to prosecute.

44.1.7

In the course of their investigation the police and other investigating agencies will retain information which may be relevant, which includes anything that appears to the police to have some bearing on any offence under investigation, or any person being investigated, or on the surrounding circumstances, unless it is incapable of having any impact on the case. Thereafter, the police will submit to the Procurator Fiscal details of all relevant information, or in other words, all information which is not manifestly irrelevant. In relation to a law enforcement operation resulting in multiple cases being reported to COPFS relevance should be assessed against evidence ingathered in the course of the whole operation.

44.1.8

A failure on the part of the police or other investigating agencies to fulfil this obligation may result in a miscarriage of justice and/or breach of Article 6. For examples of cases in which non-disclosure of information by the police to the Crown gave rise to difficulties, see HMA v. Johnston (2006 SCCR 236) and HMA v G.B. (2006 SCCR 692).

44.2 Duty of the law enforcement agency

44.2.1

It therefore goes without saying that achieving fair and proper disclosure is dependent on the maintenance of full and accurate records of all relevant requests and actions taken during the course of an investigation followed by timely revelation of all such relevant records and material generated by, or acquired during the course of the investigation to the Crown.

44.2.3

Accordingly the schedules of information submitted to the Crown by law enforcement in all solemn cases must be detailed, clear and accurate (see Chapters 16, 34, 35 and 36).

44.2.4

The general rule is that all material ingathered in the course of an investigation requires to be examined in its entirety for relevance to ensure that law enforcement complies with the now statutory obligations under section 117 of the 2010 Act. If there are separate but linked cases reported under one operational name law enforcement should consider the need to appoint one Principal Reviewing Officer to consider all material in the linked/related cases to ensure that all relevant information is revealed to the Crown. It will not be sufficient for material in related cases to be considered in isolation.

44.3 Definition of a large and/or complex case

44.3.1

Without being overly prescriptive, a case should be considered large and/or complex having regard to:

1. the likely length of the trial,
2. the nature of the evidence to be adduced at the trial,
3. the legal issues likely to arise at the trial and
4. whether it forms part of a large, long running operation – each reported case on its own may not satisfy the 3 criteria above but collectively the operation does.

44.3.2

In long running and more complex enquiries the following information is likely to be considered by law enforcement for the purposes of revelation to the Crown:

• Witness statements;
• Forensic evidence;
• Electronic evidence;
• Financial evidence;
• Directed Surveillance Authorities;
• Surveillance management records;
• Surveillance log books;
• Material obtained under search warrants;
• Material obtained under International Letter of Request (ILOR) and mutual legal assistance (MLA) procedures;
• Material obtained under Production orders;
• Material obtained covertly (e.g. CMP (Covert Monitoring Post) evidence).

44.3.3

Examples of large and complex cases are set out below. This list is illustrative rather than exhaustive and will usually involve the generation of a substantial amount of material for consideration in the course of the investigation:

• Long running specialist operations targeting those involved in the supplying of controlled drugs – this may involve significant importation, manufacture or supply, particularly with an international dimension;
• Significant and complex economic crime including but not restricted to share fraud, VAT fraud, insider trading, money laundering and other acquisitive crimes, and other cases in which there is a significant economic element or economic benefit to the accused (and a significant proceeds of crime interest) or where there have been a substantial number of victims or incidents;
• Large scale human trafficking;
• Terrorist investigations;
• Some homicide investigations;
• Operations focussing on serious and organised crime groups or networks who feature on organised crime mapping – this may include multiple cases under the umbrella of one operational name;
• Cases involving complicated public interest immunity (PII) or other non disclosure issues;
• Cases involving the analysis for evidential purposes of information retrieved from communication service providers (CSPs)
• Cases involving deployment of Covert Monitoring Posts (CMP) and retrieval of audio product;

44.4 Difficulties in ensuring compliance with the disclosure regime that arise in such cases

44.4.1

Large and complex investigations involving multiple accused, multiple trials and sometimes linked investigations can raise particular disclosure issues. In cases of greater complexity there can be severe difficulty in managing the amount of information recovered in an investigation.

44.4.2

One of the principal difficulties in ensuring compliance with the disclosure obligations is that in cases involving multiple trials or multiple accused, investigations are often lengthy, may be “interlinked” with other associated investigations and consequently the quantity of material produced during the investigation can be significant. It is not unusual therefore, particularly where there are multiple accused, for issues impacting on the Crown’s duty of disclosure to only emerge or become relevant as the trial approaches, or even only after the trial begins.

44.4.3

In large and complex cases, ensuring that exculpatory material is reliably defined and identified can present challenges both for law enforcement agencies when considering their duties of revelation, and for the Crown when considering their duties of disclosure.

44.4.4

Relevant factors include:

1. The significant volume of potentially relevant and disclosable material;
2. Investigation and evidence gathering may continue after accused have appeared on petition and often right up to and including trial itself;
3. The existence and status of what might at first seem irrelevant and non disclosable material could change as the investigation (and possibly the trial) progress;
4. Due to the size and complexity of a case, numerous pre-trial applications and hearings which may be necessary, defence statements may only be served relatively close to the commencement of the trial (if at all);
5. There may be an overlap and of issues between the prosecution and different accused and/or different trials;
6. Issues which are relevant may only emerge or develop at a later stage in the proceedings (sometimes during the trial itself);

44.4.5

In the context of the large and complex case, it is imperative that there has been close law enforcement and Crown collaboration from a very early stage in the operation, when milestones for the investigation have been identified and law enforcement have decided on an investigation strategy. In order to ensure that the Crown is fully sighted and can take a decision in early course about how disclosure is to be managed, the relevant Functional Lead or the Head or Deputy Head of SOCD should have been advised in writing of:

• The Principal subjects of the operation;
• Major associates;
• Background Information about the operation, including but not restricted to:
• Offence(s) under investigation
• General intelligence picture
• Previous operations against this criminal enterprise/subject(s) and result.
• Links to other ongoing operations
• Operational objective(s) i.e. what the Reporting Agency would deem to be sufficient to conclude the operation;
• Anticipated duration of operation;
• Resources allocated to the enquiry including Reviewing Officer details;
• Whether there have been any financial enquiries conducted into the main subjects i.e. is it anticipated that there will be a money laundering enquiry, has there already been a request submitted to the Serious and organised Crime Division at Crown Office for designation as a money laundering enquiry, investigation into assets etc, research into the financial history, current financial status, financial profile(s) etc.
• Planned operational tactics i.e. Directed Surveillance, Intrusive Surveillance
• International/Cross Border aspects including but not restricted to:
• assessment of involvement with organised criminal networks (OCN) based elsewhere in UK;
• assessment of involvement with OCNs based abroad;
• likely requirements in terms of International Letters of Request (ILORs);
• identification of likely criminal justice partner agencies, both UK and abroad.

44.4.6

The role of the Crown in such cases will go beyond merely providing legal advice on investigative techniques such as

• search warrants;
• surveillance;
• undercover deployments;
• use of CHIS and Participating Informants;
• use of assisting offenders under sections 91 – 97 of the Police, Public Order and Criminal Justice (Scotland) Act 2006

and early engagement is therefore vital to ensure that, having regard to the scope of the investigation, the targets of the investigation and the case strategy what is proposed in these large and complex investigations is manageable or feasible from a prosecution perspective. It may be helpful to liaise with law enforcement to produce a disclosure plan, especially if law enforcement hold material stored digitally.

44.4.7

It is essential that liaison between COPFS and law enforcement is such that the Crown can be satisfied that investigating and reviewing officers are fully aware of their obligations to reveal everything relevant to the Crown. This is particularly the case in relation to use of covert techniques or CHIS issues, such as use of participating informants or undercover officers.

44.5 Cross-agency investigations

44.5.1

Particular care requires to be taken in cases which are the product of joint or separate investigations by multiple reporting agencies, different divisions within a police force or separate police forces [pre April 2013]. This may arise from the outset of the investigation or the conjoined interests or overlapping enquiries may become apparent only after the investigation has commenced or even, in extreme cases, after the case has been reported.

44.5.2

The relevant SIOs and disclosure officers appointed by each force/agency should be encouraged to work closely together. It is particularly critical that, in their assessment of relevance, they consider what information held may be relevant to the overall case and not only to the charges which stem from their own investigation/operation.

44.5.3

As is set out above if there are separate but linked cases reported under one operational name, law enforcement should consider the need to appoint one Principal Reviewing Officer to consider all material in the linked/related cases to ensure that all relevant information is revealed to the Crown. It will not be sufficient for material in related cases to be considered in isolation, or for law enforcement to reveal all information to the Crown without an assessment for relevance.

44.5.4

Particular care needs to be taken where cases are associated in part, with some accused and incidents being associated and prosecuted together and others considered separately. In those cases, there should be a clear understanding that the assessment of relevance relates only to those charges, and those persons, who are being proceeded against. If an accused later incriminates another person who was also the subject of investigation the relevance of any information relating to them must be reconsidered.

e.g. Accused A and B are prosecuted on the same indictment. In addition to those charges on which both A and B appear, there are a number of charges on which A appears alone and is libelled as acting alone. Those charges were the product of a separate investigation into the separate and joint conduct of A and C. There was insufficient evidence against C and a decision was taken not to prosecute those charges on which A and C were suspected to have been acting together. The conduct of C, and investigation of C, is not relevant to the indictment as it relates to entirely separate matters. If C is later incriminated, the information held in relation to him may be relevant and so must be revealed to the prosecutor and assessed for materiality. If the information relating to C’s criminality and the statements of the witnesses who speak to C’s criminality are considered to be material then they should be assessed for sensitivity and listed in the appropriate disclosure schedule. In that example, the information about C is unlikely to be material, and therefore disclosable, as A is libelled as acting alone and there is no evidence of C being involved in those charges despite the fact that C was operating a similar scheme.

e.g. Accused D and E are prosecuted on the same indictment and are libelled as acting along with other persons. G is one of those other persons but is not being prosecuted. G’s involvement related to victims who are not libelled on the list of witnesses and whom the Crown does not intend to lead in evidence. These victims are highly vulnerable. The indictment discloses the fact that D and E acted with other persons. Other information disclosed, including police interviews with D and E, reveal that G was involved in their criminality. G has not been incriminated. Information relating to G, including the statements of the witnesses speaking to Gs criminality (whom the Crown does not intend to lead in evidence) may be relevant, however and therefore must be revealed to the prosecutor and assessed for materiality. If considered material, the information relating to G should be assessed for sensitivity and listed on the appropriate disclosure schedule. The information about G’s criminality is unlikely to be material, and therefore disclosable, and thus should be listed on the schedule as “statement taken from witness on [date] at [hours]” and marked as “WM – relates to witness not on the indictment and not otherwise material”. If G is later incriminated, disclosure should be reconsidered.

44.5.5

At the time of reviewing information, law enforcement should anticipate, as far as possible, any persons from the case who might be incriminated. It may be helpful to keep a separate record of any information which may require to be reconsidered in the event that they are incriminated to speed the review process.

44.5.6

It is worth remembering the prosecutor’s duty to review following receipt of a defence statement. Upon receipt of a defence statement, the prosecutor must, as soon as practicable, review all the information that may be relevant to the case for or against the accused of which the prosecutor is aware. The legislation places the responsibility on the prosecutor however this will have to be achieved through communication of the content of the defence statement with the Reviewing officer in the case who will be aware of all information held and particularly information which was previously considered to be manifestly irrelevant. Further information on defence statements and the process to be followed upon receipt can be found in Chapter 42 of this manual.

44.6 Spontaneous duty of disclosure

44.6.1

The decision of the Supreme Court in McDonald v HMA (2010 JCPC 1) makes it clear that for Article 6 purposes the Crown’s spontaneous duty of disclosure extends only to material of which they are, or become, aware while discharging their primary prosecuting function:

• It does not include the carrying out of potentially extensive and time-consuming investigations as dictated by the defence. It is not open to the defence to produce a “wish list” of inquiries which they would like to see carried out, and then to instate that the prosecution be delayed and disrupted – perhaps to no useful purpose – while such inquiries proceed (Ramzan + 1 v HMA ([2011] HCJAC 103)).
• As a rule and in the absence of highly exceptional circumstances, the question whether there has been a breach of the “fair trial” guarantee contained within Article 6 can only be judged in retrospect once a trial has taken place. The Crown’s continuing duty of disclosure is one to be performed spontaneously as circumstances develop from time to time, and neither the manner nor the timing of such performance is normally to be directed or enforced by any order of the court.

44.7 Issues which can arise

44.7.1

Because of the nature of some law enforcement operations, it is imperative that the Crown is advised at the initial stages of any sensitivity around certain aspects of the evidence, disclosure of which during preparation of the initial reported cases could prejudice the ongoing operation. Through early contact, steps can be taken to safeguard the law enforcement position while still ensuring that the Crown meets its disclosure obligations. This would allow an opportunity to consider:

• Delaying disclosure of certain witness statements or productions. The Crown would require as much information as possible prior to making this decision as invariably the issue may require to be reported to Crown Counsel for consideration. In the normal course of events we would be looking to fulfil our disclosure obligation between 21 and 28 days following committal for further examination. The decision to delay disclosure could however take place where for example there are further enquiries ongoing or there is for example surveillance evidence relating to other suspects who have not yet appeared before the court and indeed may not realise that they are under suspicion;
• Redaction of the relevant statements or copy productions. Each case needs to be looked at carefully and much will depend upon what it is that is being redacted. There is no point in a redaction if the reader would be able for example to “read between the lines” or make a link to the sensitive information through consideration of other disclosed information.
• Applying to the court for a Non Disclosure Order, an Exclusion Order and/or a Non Notification Order, depending upon the nature of the material involved. See Chapter 25 of the Disclosure Manual.
• If there is a financial investigation into assets for the purposes of confiscation, the reviewing officer will have to ensure that material ingathered for the purposes of the financial investigation is reviewed with a view to considering whether any of it is relevant to the original criminal case.

44.8 Assessment for relevance

44.8.1

In general terms, and in accordance with ACPOS guidance, the reviewing and assessing process will involve examining inspecting and viewing or listening to all the material that has been obtained or generated during the course of the investigation to determine relevance.

44.8.2

In order that law enforcement do not carry out unnecessary examination of material for the purposes of revelation, and in the context of early engagement it is imperative that where large volumes of information are ingathered, categories of information are identified which are deemed by their category to be manifestly irrelevant to the investigation, so that page by page examination of that category of information will not be necessary.

44.8.3

In order that this exception can be utilised it is essential that the relevant law enforcement agency in consultation with the relevant SLM –

1. Identify the relevancy criteria in respect of the investigation;
2. Set down thereafter categories of the documentation/information ingathered which they consider will be relevant to the prosecution and that which will be exculpatory;
3. Identify the category or categories of information that they have deemed manifestly irrelevant, thereafter, record details of the information ingathered and retained which has not been examined and the basis on which that category of information has been ruled manifestly irrelevant.

44.8.4

That record will thereafter be held as an audit trail should there be any subsequent requirement for referral to the information or to the basis on which it was not examined. This is of particular importance against the background of early engagement and continuous review.

44.9 Information not on mass media storage devices

44.9.1

Dealing firstly with all information ingathered which at the point of seizure is not held on a mass media storage device; it would not be acceptable to the court, as a general policy, that the material ingathered in the course of a criminal investigation on the strength of investigative orders and voluntary surrenders by witnesses, be scanned to disc and thereafter for law enforcement to apply search criteria to determine relevance.

44.9.2

That approach would present the prosecution with two potential difficulties:–

1. That a proportion of information ingathered would be ruled by law enforcement as manifestly irrelevant without ever having been examined; and
2. If no assessment of the hard copy material was carried out first, law enforcement may have no comprehensive idea of the information ingathered and that the formulation of search criteria to be applied could be flawed.

44.9.3

Accordingly, subject to the exception re manifestly irrelevant material referred to above, a page by page examination of all documentation ingathered in the course of the investigation requires to be carried out. Any potential departure from the page by page search should be discussed with the appropriate functional lead.

44.10 Mass media storage devices

44.10.1

In relation to information which at the point of seizure is held on a mass media storage device, difficulties can be presented where these devices contain huge volumes of information much of which may be manifestly irrelevant.

44.10.2

The likelihood is that documents, images, correspondence (email) etc. will be stored on computers and other digital storage media rather than exist in a paper based format. As a consequence, the burden on law enforcement to recover material from computers, etc. is increasing.

44.10.3

Computer hard disks now routinely have a storage capacity measured in hundreds of gigabits. The ensuing common types of files often result in an average number of pages per gigabyte. A modern computer has a hard disk average of 500GB:

Document Type

Microsoft Word:

• 8 average pages/doc
• 64,782 average pages/GB
• 32,391,000 number of files fit on 500 GB hard disk

Email:

• 1.5 average pages/doc
• 100,099 average pages/GB
• 50,049,500 number of files fit on 500 GB hard disk

Text:

• 20 average pages/doc
• 677,963 average pages/GB
• 338,981,500 number of files fit on 500 GB hard disk

Image:

• 1.4 average pages/doc
• 15,477 average pages/GB
• 7,738,500 number of files fit on 500 GB hard disk

44.10.4

Although different types of documents produce different numbers of pages per gigabyte, the average number of pages produced compared to the size consumed by the initial documents remains consistent, making it possible to supply estimates as to the number of pages that would likely result if documents were printed.¹¹

44.10.5

The ability of specialist law enforcement units to examine all documents and images on a computer, etc. is made very difficult by the volume of such material. As a consequence a process has been adopted as standard whereby searches of computer storage media are undertaken based on parameters determined by the Senior Investigating Officer (SIO) or Investigating Officer (IO) in consultation with COPFS.

44.11 Standard practice for the examination of computers and allied digital storage media

44.11.1

The following practice has been agreed between ACPOS and COPFS and should be implemented as standard:

• Computer, etc. seized as evidence;
• Computer etc to be imaged and original retained pending further discussion with the Crown;
• The SIO / IO will determine ‘narrow’ search parameters, based on key words or images, as a basis for which the computer etc will be examined, to recover documents or images which inculpate the accused or which exculpate the accused or otherwise undermine the prosecution case;
• The SIO / IO must record and reveal to COPFS their search parameters and their reasoning for setting these. They should also record any reasons why they did not extend their search parameters. A record must be kept of all searches made.
• Following the submission of any documents or images recovered from a computer to COPFS, once examined, COPFS may instruct the SIO / IO to undertake a further search of the computer, etc. based on new search parameters. Again these should be narrowly defined, based on knowledge of the case. There should be no blanket requests from COPFS for an examination of a computer, etc. based on wide ranging criteria.
• COPFS may wish to hold a case conference with the SIO in Solemn cases to determine these (second stage) search parameters.
• The defence should be contacted and asked to indicate any particular searches they wish to have made of digital material held by law enforcement;
• The defence should also be asked to confirm whether there is any material on the device/computer which could attract a claim of legal confidentiality;
• Following receipt of a ‘Defence Statement’ COPFS may instruct that a further search of the device be undertaken. Again this (third stage) examination should be based on specific search criteria outlined by the Accused or Defence.
• Should an Accused or the Defence ask for a wide ranging search (which would impact negatively on the capacity or capability of the specialist unit) then the unit will invite the Defence to undertake their own examination of the hard disk within a controlled law enforcement environment or pay law enforcement to ‘image’, i.e. copy the hard disk or other digital storage media and undertake their own examination. When doing this Care should be taken to consider potential problems of disclosure of sensitive/confidential material, especially in relation to co-accused or third parties.
• There will be no ‘imaging’ of a hard disk or other storage media in a case of sexual crime as this may entail passing indecent or paedophile images outwith law enforcement, in some instances to those who are suspected of committing the offence. It should also be noted that in cases of non sexual crime there may be sexual images held on computer hard disk – the nature of the case should not be the sole determining factor re whether or not an image of the hard disk should be provided to the accused, rather the initial assessment of what is contained on the hard disk.
• If the Accused or Defence undertake their own examination, they must notify COPFS of any documents or images that they discover on the computer, etc. upon which they intend to rely in a further ‘Defence Statement’. The specialist unit will then recover such documents or images from the original media.

44.11.2

On that basis an exception can be made to the basic rule of page by page examination of material. This exception arises out of the non divisibility of the hard disk/mass media storage device at the point of seizure.

44.12 Recovery and retention of material

44.12.1

In respect of these items, law enforcement should be instructed consider whether it is viable to image and return the image of the device to the person from whom it was seized as, depending on the case, the device may be used for legitimate purposes in the course of a business for example and requests have been made to the Crown to return material to the suspect/accused to allow that legitimate business to continue to operate. Law enforcement should be advised to:–

1. Record the capacity of the device together with the volume of information held. Determine in the light of that whether it is feasible to examine every file contained on an individual storage item. If the volume held is such that it is feasible to examine every item, all files should be examined. Even where every file on a particular storage device is to be examined there will, in any event, be a key word search of that device to examine the free space.
2. Determine whether the volume of information is so great that it is not feasible to examine each individual file, and if so key word search should be applied to the storage device. It is essential that the extent of the word search is drawn to reflect the relevance criteria established. The results of the key word search should be recorded to demonstrate the number of hits against each individual word. Examination of each of the key word hits should then be undertaken to determine relevancy.
3. Communicate with Crown. In due course the key word search and record of hits will be disclosed to the accused and any co accused. The Defence will have the opportunity to request further searches to be carried out. In the event of such requests including a “Trojan” key word, consultation should take place with the Crown to determine the extent of examination of information produced.

44.13 Information recorded in a language other than English

44.13.1

It is not necessary that all material held is fully translated in a language other than English. In the first instance, information held in a language other than English should be reviewed by the reporting agency with the assistance of an interpreter.

44.13.2

Statements should be taken from the interpreter detailing their involvement and the material reviewed with their assistance.

44.13.3

If a police officer involved in the investigation is fluent in the language in which the information is recorded, he or she may review it without the assistance of an interpreter. Particular caution should be exercised here and any question of doubt as to relevance should be assessed in the accused’s favour. It would be appropriate to have an audit trail to demonstrate the checks which have been made to be satisfied that the police officer is actually sufficiently fluent to undertake this type of unassisted translation work.

44.13.4

It is critical that for each item of information reviewed a synopsis, in English, of the content of the document is noted and the assessment of relevance is carefully recorded. Any items of information which it is considered may be relevant should be translated in full and provided to the Procurator Fiscal to consider whether it is material and therefore requires to be disclosed.

44.13.5

Independent translation may be required following this initial review for the purposes of revelation to the Crown.

44.14

44.14.1

Although, strictly speaking, there is no obligation on the Crown to obtain information held in a foreign jurisdiction for the purposes of disclosure, if the Crown become aware of information being held in a foreign jurisdiction which may be relevant consideration should be given to disclosing to the accused the existence of that information to enable him/her to consider whether to obtain the information by way of International Letter of Request (ILOR).

44.14.2

There may be circumstances where, in order to preserve a trial diet and avoid delay to the proceedings and substantial inconvenience to victims and witnesses, it may be considered appropriate to assist to seek an ILOR to obtain the information, notwithstanding that it is not intended to lead it in evidence at trial given the channels which exist for international co-operation between prosecuting authorities. The accused should be advised of this and also that the sole purpose of seeking the information by ILOR is to assist the accused and to expedite its recovery and not that it is being sought to fulfil the Crown’s disclosure obligations.

44.15 Witness protection

44.15.1

Section 82 of the Serious Organised Crime and Police Act 2005 (SOCPA) makes provision for the protection of witnesses and certain other persons involved in investigations or legal proceedings. Arrangements for protection under section 82 may be made by protection providers.¹² Other powers to provide protection are not affected. This means that persons who are not protection providers will still be able to provide protection to witnesses and others under their existing powers. It also means that protection providers may continue to use other powers. For example, if the only protection required is the provision of a security lock or a panic alarm, a protection provider may think it appropriate to use his existing powers rather than rely on section 82.

44.15.2

In determining whether to make arrangements for protection under section 82(1), or to vary or cancel arrangements made under that subsection, a protection provider must, in particular, have regard to:

1. the nature and extent of the risk to the person's safety,
2. the cost of the arrangements,
3. the likelihood that the person, and any person associated with him, will be able to adjust to any change in their circumstances which may arise from the making of the arrangements or from their variation or cancellation (as the case may be), and
4. if the person is or might be a witness in legal proceedings (whether or not in the United Kingdom), the nature of the proceedings and the importance of his being a witness in those proceedings.

44.15.3

In cases where any witnesses are subject to formal protection measures under SOCPA or where any witness is vulnerable, particular care should be taken in relation to disclosure. Any information which might disclose:

• their current whereabouts
• the location or approximate location of any safe-house in which they might have been placed; or
• any information in relation to a national identity change should be redacted unless that information is essential to proving the charge.

44.16 Potential incriminees

44.16.1

In cases involving multiple suspects, not all of whom are proceeded against, there is the potential for a suspect who has not been proceeded against to be incriminated.

44.16.2

Difficulties can arise where the precognoscer identifies a potential incriminee at an early stage but defence do not lodge a notice of intimation until much later.

44.16.3

Evidence held by the Crown requires to be assessed for disclosure whether a notice of incrimination has been lodged or not.

44.16.4

In cases of doubt or difficulty or where an issue of sensitivity arises, a report should be submitted to the DSC recommending that instructions be sought from Crown Counsel as to whether any evidence tending to implicate the potential incriminee should be disclosed prior to any notice of incrimination being lodged.

44.17 Managing disclosure

44.17.1

It is essential that consideration is given to how disclosure will be managed within COPFS as this is likely to be resource intensive both in terms of the volume of work (especially dealing with schedules which may run to hundreds of pages) and consideration of how to deal with complicated and/or sensitive issues such as withholding of disclosure on PII grounds.

44.17.2

In addition it is likely to be necessary to plan how disclosure is to be achieved, i.e. whether this can be done via the disclosure web-site or whether it will be necessary to use pen or hard drives. If there is a very large quantity of material to be disclosed thought should be given to how the material can be “packaged” so as to be comprehensible to the defence and prosecutors should be amenable to liaising with the defence to assist them, if requested, to place disclosure in context and provide guidance as to significance of particular items disclosed.

44.18 Telephone records – call data records

44.18.1

Telephony evidence and call data records are often used in large and complex cases to assist in considering the attribution of telephones/numbers to certain individuals. To do this analysts will consider the call data to produce call statistics, behavioural patterns and, in conjunction with “cell site” analysis, regularly frequented locations.

44.18.2

It is therefore time consuming, expensive and can be complex. Given these factors, it is only used in the most serious crimes, and, in the context of cell site, generally only in the investigation and prosecution of homicides and significant organised crime investigations.

44.18.3

The Crown's duty of disclosure does not extend to disclosing irrelevant telephone numbers (and those which seem to have no connection to the events which are the subject of the criminal proceedings). Telephone numbers can constitute “personal data” as defined within the Data Protection Act 1998 (and set out below) and care must be taken when disclosing information, even within the framework of a criminal case.

44.18.4

The Data Protection Act 1998 does not provide authority to disclose information in the absence of a specific legal authority to make such a disclosure, which would constitute “processing” within the meaning of section 1 of the Act. Therefore conformity with the Principles and provisions of the Act does not ensure that the disclosure itself was lawful, it simply provides the framework regulating the manner in which the disclosure can be made.

44.18.5

The DPA works in two ways:

• Anyone who records and uses personal information (data controllers) must be open about how the information is used and must follow eight principles of ‘good information handling’;
• It also gives individuals (data subjects) certain rights, including the right to see information that is held about us and to have it corrected if it is wrong.

44.18.6

The Data Protection Act applies to ‘personal data’ that is, data about identifiable living individuals. Section 1 of the Act defines “personal data" as data which relate to a living individual who can be identified –

• From those data, or
• From those data and other information which is in the possession of, or is likely to come into the possession of, the data controller. In this case it is important to note that if the Crown holds information which could be cross referred with call data records to lead to the identification of living individuals, the information in the records could constitute personal data, which requires to be processed in accordance with the DPA.

44.18.7

In Michael John Durant v Financial Services Authority ([2003] EWCA Civ 174 Court of Appeal (Civil Division)) the court provided a further guide to what constitutes personal data and concluded that:

‘personal data’ “is information that affects [a person’s] privacy, whether in his personal or family life, business or professional capacity”.

44.18.8

The concept of privacy is therefore clearly central to the definition of personal data.

44.18.9

The Act requires that personal data be processed “fairly and lawfully”. Personal data will not be processed fairly unless certain conditions are met.

44.18.10

The Data Protection Act makes specific provision for sensitive personal data. Sensitive data is defined in section 2 of the Act and includes: racial or ethnic origin; political opinions; religious or other beliefs; trade union membership; health; sex life; criminal proceedings or convictions. Sensitive data can only be processed under strict conditions, which include:

• Having the explicit consent of the individual;
• Being required by law to process the data for employment purposes;
• Needing to process the information in order to protect the vital interests of the data subject or another;
• Dealing with the administration of justice or legal proceedings.

44.18.11

Any information obtained by the Crown in connection with the prevention and detection of crime, or the apprehension and prosecution of offenders should only be disclosed in the following circumstances:

• For the purposes for which the information was imparted; or
• If the disclosure of such information is in accordance with a statutory duty or a common law authority – the Crown formerly had the common law authority under McLeod and now has a statutory authority under the 2010 Act

44.18.12

Disclosure to the defence of any extraneous call data (which could be linked to other data held by the Crown and could therefore identify living individuals), where the Crown has satisfied its statutory disclosure obligation could be a breach of the Data Protection Act and subject to sanction by the Information Commissioner's Office.

44.18.13

Telephony evidence comes in two basic forms:

• results of the examination of the telephone itself, and
• use of data held by communication service providers (the telephone companies themselves – CSPs)

and is used for two purposes, namely:

• to confirm (broadly) contact between two persons, and
• to place an individual at or in a location or sector.

44.18.14

For both purposes, the holder of the data concerned – the CSP – will require to provide data held by it for another purpose, and will do so under a RIPA authorisation. To this end, the police will now routinely ask witnesses to provide a telephone number in the course of their statements. Such telephone numbers may after full investigation, turn out to be:

1. Irrelevant;
2. Relevant insomuch as they can be used to establish attribution to an accused/suspect’s phone;
3. Relevant as calls or messages to and from that number form part of the Crown case and the content is itself evidence; or
4. Relevant as the making of that telephone contact allows us to site the accused.

44.18.15

Examination of any individual’s mobile telephone will inevitably involve “collateral intrusion” which is unwarranted or unauthorised intrusion into the privacy of third parties or intrusion into the privacy of the subject/accused for purposes other than that necessary for the investigation.

44.18.16

This will involve:

• the content of texts, e-mails and other messages;
• revealing of numbers and attribution to irrelevant third parties; and
• revealing details of third parties who are necessary to attribute the telephone to the accused (or occasionally third party)

44.18.17

At the time the SLM reads and redacts the statement for disclosure, it is likely that the status of telephone numbers and their potential relevance to the case is unknown. Therefore telephone numbers should be redacted save for the last 4 digits, meaning if the number falls into category i above, no harm is done, and if it falls into any of ii, iii or iv, sufficient detail is disclosed to allow identification of that number.

44.18.18

The reason for disclosure of the last 4 digits of these "irrelevant numbers" is to contextualise the telephone billing for the assistance of the defence and to allow them to identify frequently called numbers which may open up particular lines of enquiry. This practice therefore allows for protection of irrelevant data yet still allows meaningful perusal of a statement, and later attribution to an individual if this is necessary.

44.18.19

If there is any suggestion that 2 or more numbers in the records end with the same last 4 digits, the approach above should be amended to extend the number disclosed to the last 5 digits and so on as appropriate.

Cell site data

44.18.20

Cell site analysis is a technique performed by an experienced analyst using call data stored by CSPs. Call Data Records can be analysed to investigate where a mobile phone handset or SIM card could have been located in relation to a past call event, therefore where the location of an accused at a particular time or his movements are relevant for proof of the Crown case, then an expert report can be sought and produced from a specialist company.

44.18.21

Even if a named individual is recorded by the CSP as being the owner of the account, this does not necessarily mean that they were the user of the mobile phone/SIM card at a particular date and time. Detailed analysis of the call data records over an extended period of time can help to establish who could have been the user of the handset or SIM at a particular time. Therefore it should be noted that attribution of the phone to a particular user will not form part of the analyst’s report, and is assumed for that purpose from information supplied by the police.

44.18.22

The process broadly is:

• the police have specialised units that can access the same information that CSPs themselves access (using a RIPA authority). The investigating force is sent the information usually as an excel spreadsheet, or PDF. This allows the groundwork to be done. Once the Crown decides to evidence the information, a formal request is made to each CSP, who provide certified copy of the data required. The CSP usually provides this hard copy, via e-mail as a PDF or excel spreadsheet and occasionally on a disc;
• An intelligence report is then provided, on the basis of the information the police themselves obtained, then a final report based on the certified records from the CSP direct;
• The specialist report and the spreadsheets/pdf with the information attached are all disclosed to the defence hard copy. The raw data will be redacted to take out all but the last 4 digits of the remaining phone numbers. This redaction will not apply to the critical numbers (e.g. accused’s). The technical data, such as azimuth, northing and easting (which relate to geographic coordinates) will appear intact.

44.18.23

What should therefore be disclosed to the defence to satisfy the Crown’s statutory obligation of disclosure under the 2010 Act is:

• the report from the specialist company;
• the raw data on which it is based, hard copy, redacted as above; and
• attribution statements

44.18.24

Accordingly the defence will generally receive a copy of the report that is redacted to exclude so much of the irrelevant and sensitive information as possible. Messages sent via mobile phones can contain astonishing amounts of highly sensitive personal detail and the assumption is that if an individual sends a message and is not committing a crime, there is a degree of privacy surrounding that message.

44.18.25

Any requests from the defence which would require a deviation from this policy, such as requests for access to the discs containing the raw data, should be referred to the appropriate Federation High Court lead, or in relation to an SOCD case, the Head of SOCD, for decision and action.

44.18.26

When it comes to the indictment the redacted copy records shall be listed and lodged as the productions unless there is good reason to believe that a witness would be hindered in the evidence they could give by being provided with the redacted copy in the witness box. If such circumstances arise a report should be submitted to the DSC's office for Crown Counsel’s instructions about which version to add to the indictment.