Lord Advocate’s Guidelines on the provision of Body Worn Video evidence to the Procurator Fiscal in criminal cases

1. Body Worn Video (BWV) is an overt recording device worn by police officers and police staff. It can collect audio and video footage during police interaction with the public and provides enhanced evidence gathering capability at an incident or scene.

2. During police encounters with members of the public, BWV may be used to capture:

• the first accounts from victims, suspects or witnesses
• interactions with members of the public
• decisions and actions of the user
• the demeanour, physical and mental state of individuals
• the atmosphere during an incident
• actions of individuals
• location of evidence

3. BWV footage, provided promptly can:

1. enable prosecutors to make an informed marking decision
2. facilitate the early resolution of a case
3. support an effective prosecution

4. BWV footage can be an essential part of a prosecution: providing a rich source of real evidence including exculpatory evidence, but it can also capture a large amount of information which is (i) not relevant to the case, or (ii) which whilst relevant and which prosecutors should be told about, does not need to be submitted unless and until requested. There is a risk that officers could make the processes of revelation and disclosure more complicated and time-consuming, if for example, hours of footage are indiscriminately provided.

5. These Guidelines provide police officers with instructions on how to fulfil their obligations to make reports to the Procurator Fiscal under the Police and Fire Reform (Scotland) Act 2012 and to reveal the existence of (and if required, submit) relevant information under the Criminal Justice and Licensing (Scotland) Act 2010.

6. Nothing in these Guidelines undermines the officer’s duty to record, review, retain and reveal the existence of relevant information as set out in the statutory Code of Practice: Disclosure of evidence in Criminal Proceedings.

7. BWV footage which is considered by the officer to have evidential significance should be provided (together with a narrative of its content) at the same time as the SPR.

8. BWV footage will be deemed to have evidential significance where police assess that it is the important information which either makes up the case against the accused or exculpates them. Examples would be where the footage:

• directly captures the commission of the offence: for example, an assault on a police officer, or threatening or abusive conduct.
• captures the accused’s admission outwith the context of an interview (noting the interview should be audio visually recorded under normal course).
• captures a complainer’s distress, injuries, any res gestae/ de recenti statements or later disclosures about the offence. This will be particularly important in domestic abuse, sexual offending and stalking cases.
• captures a complainer’s injuries, or the scale and extent of the aftermath of the crime such as vandalism or road traffic accident, in a way which can’t be adequately described in words.

9. This is a non-exclusive list, and there may be other circumstance where an officer identifies that a recording may be of evidential value, for example where it is important that the Procurator Fiscal is able to review any exculpatory footage at the outset of the case.

10. Where such evidential footage is available, but cannot be provided with the SPR, officers must clearly note what is contained in the footage, why it is not available and provide a timescale for provision. The standard timescale for submission will be 14 days.

11. Failure to supply the correct footage and information for a marking decision may result in the prosecutor being unable to mark the case effectively or at all, leading to delays and difficulties with resolving cases as well as potentially leading to risk for vulnerable complainers and witnesses.

12. Where multiple versions of BWV footage are available (due to multiple officers having BW cameras), the guidance to officers is that not all of that footage requires to be provided with the SPR. Where the footage simply replicates the same information from another angle or does not add anything of evidential significance then only one set should be submitted. Where possible, where a search is being filmed for example, the police should nominate a lead officer to do the majority of the recording.

13. The caveat for officers however is that the decision of what footage to be provided must be made on a case-by-case basis, as it may be that similar but distinct footage has been captured, for example, where one set of footage captures an accused making threats and another captures an assault from a clearer angle. This is similar to the principle of a number of police officers attending an incident and not all would require to be treated as witnesses where speaking to the same set of circumstances. Additional footage should be submitted where the full contextual picture would otherwise be incomplete without it.

14. Officers do not require to submit both still images and BWV footage if they capture the same information. Still images would in general be preferred but it is noted that BWV may capture additional information and will therefore require to be submitted instead of images in those situations.

15. The provision of footage with evidential significance does not diminish the police officer’s obligation to tell the prosecutor about existence of all relevant information in terms of sections 117 – 119 of the Criminal Justice and Licensing (Scotland) Act 2010 (see the section on Revelation and Disclosure schedules below).

16. The police’s obligation is to provide relevant information.

17. Accordingly, manifestly irrelevant information should not be provided.

18. Police officers must not indiscriminately provide all the footage captured during a shift, an incident or an investigation.

19. Whenever footage is provided to the Prosecutor, officers must clip any footage provided to remove any irrelevant footage for example:

• pre incident arrival at scene footage, particularly if it includes personal discussions, radio exchange about unrelated incidents.
• footage relating to other unrelated incidents
• post incident footage
• victim welfare information (not relevant to the case)
• reference to addresses which are not relevant to the offence

20. An example would be if the accused makes an admission in a reply to caution and charge. The clip of that footage should include the caution and charge, the reply and the immediate events leading up to this. The footage of the transfer to the police station and the custody procedures is not required if there is nothing else of evidential significance within that footage.

21. Care should be taken in this example, to ensure the identities of unrelated individuals within the custody suite are not passed to the Procurator Fiscal if not relevant.

22. At all times the entirety of the original footage should be retained by the police to allow the officer to fulfil their ongoing duty of revelation, and to respond to enquiries from the Procurator Fiscal.

23. In criminal cases BWV footage will generally be provided via the Digital Evidence Sharing Capability (DESC). In cases where there is no Standard Prosecution Report (SPR) it is anticipated that BWV footage may require to be provided on DVD or encrypted pen drive.

24. Highly Sensitive Information should never be provided via DESC, it will (if necessary) require to be submitted (as with other digital media) on encrypted discs to suitably authorised personal.

25. At all times, whenever BWV clips are submitted, whether with the SPR, or if it requires to be submitted later by way of an ancillary report, officers must confirm that they have reviewed the clip before submission.

26. Where the length of the individual clip of footage exceeds ten minutes, officers must explain why it has not been possible to clip to a shorter length.

27. In all cases, officers must provide a detailed summary within the SPR of what the BWV footage captures which:

• clarifies whether the recorded material captures all or part of an incident
• clearly identifies the relevant section of the footage by reference to start and finish points
• describes who and what is seen (or heard), including the relevant actions of all relevant individuals
• explains if relevant, the basis upon which the suspect can be identified from the recording, including what clothing was worn
• if salient evidence is recorded audibly, then this should be highlighted to ensure its significance is appreciated, and audio is enabled in playback

28. Officers should also indicate if other BWV footage of the incident is available and must confirm if there is any exculpatory evidence which has not been submitted.

29. In the SPR, unless there is any particular sensitivity, this detail should be included in the “Description of Event” section, which will be automatically disclosed to the defence.

30. Where the footage is captured in public, or at an address known to the accused, officers should describe the geographic location of the footage in the "Description of Event” section of the SPR.

31. Where the footage was recorded in a private address which is not the locus and /or is not known to the accused, the location where the footage was captured must not be included in the "Description of Event” section of the SPR. It should be recorded in the non-disclosable “Remarks” section instead.

32. Additionally, in the non-disclosable “Remarks” section (and any subsequent ancillary report/ memo), where relevant, officers should:

1. outline where the footage was recorded if recorded in a private dwelling.
2. highlight if the footage contains sensitive information which has not been redacted, for example:
   1. Addresses, contact numbers and email addresses where these are not known to the accused, or are essential to proving the charge (i.e. it is the locus).
   2. Personal details - Next of kin, family history, medical information (other than injuries suffered).
   3. Presence of drugs/ evidence of sexual activity/ other items which may be relevant, and which prosecutors should be alert to.
   4. The presence of children in the footage.
   5. Extreme violence or evidence of extreme violence.
   6. Depictions of sexual activities.
   7. Security/ intelligence information.

33. In addition, where the footage includes extreme violence of evidence of extreme violence, or depictions or descriptions of sexual activity then a content warning must be added to the footage on DESC.

34. If the Police Scotland Standard Operating Procedure is followed and the footage is appropriately clipped, it is anticipated that officers should not require to redact footage as a matter of course.

35. Officers must consider the need for redaction in all cases but as a minimum must ensure that the following irrelevant information is never provided to the Procurator Fiscal:

• Sensitive police tactics, including the identity of Covert Human Intelligence Sources.
• Sensitive locations, for example the addresses of refuges.
• Security Information - for example passwords/ pass codes.
• Footage capturing children in a state of undress (unless it specifically relates to an offence against that child, such as child neglect in which case it would be relevant)

36. Where the footage includes extreme violence of evidence of extreme violence, or depictions or descriptions of sexual activity then a content warning must be added to the footage on DESC.

37. As well as providing evidentially significant footage to enable prosecutors to effectively consider a case, under the Criminal Justice and Licensing (Scotland) Act 2010 and the Code of Practice - Disclosure of Evidence in Criminal Proceedings, officers have a statutory duty to reveal and where appropriate, provide to the Crown all information which may be relevant and has been obtained or generated during an investigation. This includes BWV footage, which is both incriminating and exculpatory.

38. In summary cases, the SPR will be the tool through which the prosecutor is told that BWV footage is available.

39. In Solemn level prosecutions, officers are additionally required to submit Disclosure Schedules which should provide details of all BWV footage that is considered relevant (including any already provided with the SPR).

40. It is crucial that the Disclosure Schedules detail all of the relevant footage captured and that the footage is adequately described to enable the prosecutor to make an informed decision on disclosure.

41. Disclosure Schedules must be completed in a form which not only reveals sufficient information to the prosecutor, but which demonstrates a transparent and thinking approach to the police’s duty of revelation. Footage which meets the statutory definition of being sensitive in terms of s.122(4) of the Criminal Justice and Licensing (Scotland) Act 2010 must be included on the sensitive schedule.

42. The completion of the Disclosure Schedule process enables defence practitioners to become appraised of relevant material at the appropriate stage of the investigation and is a crucial step in the prosecution process.

43. Prosecutors may, on consideration of the SPR, or Disclosure Schedule, instruct that further footage be submitted. Such requests may be informed by discussion with the accused and their representative. The standard timeframe for officers to respond to the request and provide any additional footage will be 14 days.

44. Sharing excessive and irrelevant information with the Procurator Fiscal risks creating delays in case marking and disclosure and breaching the police’s own data protection and human rights obligations.

45. Officers must ensure they reviewed the footage they submit, and that they have clipped it to the relevant section.

46. The Lord Advocate expects that Police Scotland will put in place systems to monitor individual and collective compliance with these Guidelines by officers.

47. The Guidelines and compliance with them will be reviewed on an annual basis.