Sensitive personal records policy

1. During the investigation of any allegation that a serious offence has occurred, the Police Service of Scotland and COPFS may require to consider whether there is a need, and a sound basis on which, to recover ‘Sensitive Personal Records’. These records may provide evidence which will strengthen the prosecution case or, conversely, may contain evidence which undermines the prosecution case or supports the defence case.

2. This policy should be applied when seeking to recover ‘Sensitive Personal Records’ which include but are not restricted to the following types of record:

• Medical (GP or hospital)
• Psychiatric or Psychological
• Counselling
• Social Work
• Education
• Employment

3. However, this policy should not be applied when simply seeking to recover a discrete part of medical records required to evidence treatment for a physical injury sustained during, or as a consequence, of a criminal offence. For example, it is not necessary to apply the policy to recover the discrete part of medical records which show that the complainer attended hospital for treatment for an injury sustained as a consequence of an assault. In these circumstances, COPFS should continue to write to the holder of the records requesting the discrete part of the records which relate to the relevant hospital attendance. The authority for recovering such records is the petition warrant.

4. In order to determine whether it is appropriate to obtain records it is important to understand why the police and prosecutors are required to consider obtaining them, namely:

• Police Scotland has an obligation 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.¹
• COPFS has an obligation to ensure that all reasonable lines of enquiry, that may lead to the recovery of material evidence that supports or undermines the Crown case or supports the defence case, are pursued. Accordingly, as appropriate, COPFS may instruct the police to carry out particular lines of enquiry which may include the recovery of records.²

5. These records may contain a profoundly personal record of a witness’ life, much of which will be irrelevant to the matters under investigation. At the heart of this policy, therefore, is a recognition that: recovery should only be undertaken where necessary, i.e. where there are reasonable grounds to believe that the records may contain material information; recovery should be focussed and proportionate; and that witnesses deserve, and are entitled, to be told about why the police and/or the prosecutor and/or the defence may need to obtain their records and are able to make representations about the recovery of those records.

6. The witness’ rights in terms of Article 8 of the ECHR (the right to respect for family and private life) must be considered and balanced against the public interest in pursuing court proceedings and the accused’s rights in terms of Article 6 of the ECHR (the right to a fair trial) when considering if records should be obtained.

7. If the witness is a child, i.e. aged younger than 18, staff should have regard to the United Nations Convention on the Rights of the Child (UNCRC). In particular, Article 3 which mandates that the best interests of the child must be a primary consideration in all decisions and actions concerning children. This requirement is reflected in domestic law in section 1A(2)(d) of the Victims and Witnesses (Scotland) Act 2014 that “when dealing with victims who are children, the best interests of the child should be considered, taking into account the child's age, maturity, views, needs and concerns...” A child’s right not to be subjected to unlawful or arbitrary interference with his or her privacy, set out in Article 16 UNCRC, should also be considered.

8. In most cases it will not be appropriate for the police to recover records prior to a report being submitted to COPFS. Where the police believe that a particular set of records contains ‘relevant’ information the police should simply highlight this in the ‘Remarks’ section of the SPR and explain the reasons underpinning that belief. COPFS will then consider if the records should be recovered, applying the process set out in chapter 3 below. If COPFS decides that records should be recovered the police will be directed by COPFS to: recover the records; assess them for relevancy; and submit only the relevant parts of the records.

‘Relevant’ information is any information which appears to an investigator to have some bearing on the offence under investigation, or on any person being investigated, or on surrounding circumstances, unless it is incapable of having an impact on the case.³

9. The police should generally only seek to recover records without a direction from COPFS when: there is judged to be insufficient evidence to prove a serious offence; there are reasonable grounds to believe that the records may contain information which would cure that deficiency; and all other avenues of investigation have been exhausted. Wherever possible the police should only recover the distinct part of the records believed to contain the corroborating evidence. Where the police recover records prior to reporting the case to COPFS then they should contact the witness and advise him/her of:

• a) The police’s intention to recover the records
• b) The police’s reasons for recovering the records (including the information that the records are believed to contain)
• c) The police request that the witness provide written consent to recover the records;
• d) The witness’ right to refuse to consent
• e) The availability of time to consider the request and the availability of support and assistance

10. The police should provide the witness with the relevant COPFS/Police Scotland information leaflet and allow the witness time to consider their position. If the witness consents to recovery of his/her records then he/she should be asked to provide written consent and the police should proceed to recover the records. A separate form should be signed in respect of each distinct type of record that is sought. Having recovered the records, the police have a duty to consider the content and inform COPFS of the existence of relevant information contained therein by listing this in the ‘Sensitive Disclosure Schedule’. In summary cases the police should list details of the relevant records in a subject report.

11. If the witness refuses to consent to recovery of the records, and it is believed that recovering the records will result in sufficient evidence being established, and all other avenues of investigation have been exhausted, then the police should approach COPFS to seek a warrant to recover the records. COPFS should carefully consider if the recovery of records is likely to result in sufficient evidence being established. Generally, it will only be appropriate to seek to recover records via warrant in cases involving solemn level offending.

12. Should it be deemed appropriate to apply for a warrant the prosecutor should request that the Court fix a hearing to consider the application. The prosecutor should advise the Court of the witness’ views and specifically that the witness has not consented to recovery of the records but it is believed that they contain information material to the investigation of the offence. The police should intimate the date of the hearing to the witness so that they have the opportunity to make representations to the Court if they wish. However, SLAB have confirmed that the witness would not be entitled to Legal Aid to pay for a solicitor given that a petition or complaint would not have been served and thus criminal proceedings are not live.

13. For the purposes of this policy, reports detailing findings of forensic medical examinations should not be treated as ‘Sensitive Personal Records’ and accordingly this policy should not be applied when police officers are recovering such reports. Such examinations are specifically undertaken in order to gather evidence to be used during the criminal justice process and the reports detailing those findings require to be recovered in order facilitate the effective investigation and prosecution of crime. Further, in many instances the witness will have given their consent for the report to be shared with police and prosecutors.

3.1 Introduction

14. When COPFS is considering whether records need to be recovered and potentially disclosed, a 6-step approach should be adopted. The steps outlined below also set out who has the responsibility to complete each of the steps:

• a) Step 1:Deciding if records should be recovered– Senior Legal Manager (SLM)
• b) Step 2: Consulting the witness and seeking consent – VIA/SLM/ Case Preparer.
• c) Step 3: Recovering the records – SLM/Records Manager⁴/Police
• d) Step 4: Assessing the records for ‘Relevancy’ – Police Reviewing Officer
• e) Step 5: Assessing the records for ‘Materiality’ – Records Manager/Legal Member of Staff in accordance with SLM instructions⁵
• f) Step 6: Further consultation with witness prior to disclosure – Case Preparer & VIA

3.2 The 6-step approach

Step 1: Deciding if records should be recovered

15. COPFS should establish with the police whether the issue of recovery of records has been previously discussed with the witness and whether any such records have been obtained as part of the police investigation.

16. At the earliest opportunity in the proceedings, the Senior Legal Manager (SLM) must consider what records, if any, should be obtained by COPFS. The reason(s) for obtaining any records must be recorded in the case papers and electronic case directory.

17. The test for recovering records will be met when there are reasonable grounds to believe that the records may contain material information, i.e. information which:

• a) would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused;
• b) would materially strengthen the accused’s case; or
• c) is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused.

The records may ultimately yield such material information (which therefore requires to be disclosed) but they may not. It is not necessary to conclude that the records in question will contain material information; it is sufficient that there are reasonable grounds to believe that they may contain material information.

18. COPFS staff must be mindful that seizing records engages the Article 8 rights of the witness. Therefore, COPFS staff must establish that the recovery of records serves a proper purpose and is in the interests of justice, i.e. that the records may contain material information in relation to the charges that are in contemplation. Records must not be obtained on frivolous or speculative grounds and only the parts of the records necessary to fulfil the proper purpose should be recovered.

19. COPFS staff should have particular regard to the decision in JC Petitioner⁶. In that case the accused sought to recover the medical records of the complainer “relevant to any mental health issues, psychiatric conditions or anger management issues.” The accused sought the records on the basis that the complainer had made up the allegations and that one explanation may be the poor mental health of the complainer.

20. Overturning the decision of the judge at first instance to grant the defence petition, the Appeal Court highlighted that the test for recovery of documents is set out in McLeod v HM Advocate⁷: an accused person who seeks to recover documents requires to explain the basis on which the Court is asked to order the haver to produce the records and satisfy the Court that: the documents will serve a proper purpose; it is in the interests of justice to grant the order; the order for the particular documents would be likely to be of material assistance to the proper preparation and presentation of the accused’s defence; and that the documents relate to the charges and the proposed defence to them. In delivering the opinion Lord Turnbull stated:

“those who act for the accused appear not to possess any medical advice vouching the contention that the description of the complainer’s mental health…was consistent with any known medical condition which would manifest itself in a lack of reliability or truthfulness. There are no averments in the petition suggesting that she suffers from any particular condition, beyond the possibility that she may have a “personality disorder”. There are no averments to vouch the proposition that any particular personality disorder is known to cause those who suffer from it to lie or be unreliable. The first instance judge was presented with no medical opinion and appears to have been invited to proceed upon the proposition that mental illness of any nature equated to a propensity to lie or fantasise.”

21. Records should not be obtained where it is anticipated that the case will result in no further proceedings for a reason unrelated to obtaining the records, e.g. insufficient evidence. However, if it reasonably believed that seizing the records could well result in a sufficiency they should be recovered.

Step 2: Consulting the witness and seeking consent

22. Where COPFS identifies that records may contain material information then COPFS must, firstly, consult the witness and seek their written consent to recover the records. The witness should be invited to a meeting and have the opportunity to be accompanied by an advocacy or support worker or another person if they wish. If the witness does not wish to meet then matter may be discussed by telephone.

23. In order to ensure the witness properly understands their rights, what is being sought and is in a position to give informed consent, the following issues should be discussed with the witness:

Recovery of records sought

• a) The type of records that COPFS is seeking to recover and why (including the material information that the records are believed to contain).
• b) The process for recovery – involving contacting the holder of the records to establish if the records do contain the relevant information and, if so, to obtain the records.
• c) That COPFS will seek to obtain only the parts of the records which are believed to contain material information and will not seek to obtain the full records (unless that is necessary).
• d) That COPFS will examine the records and will only use and disclose to the defence the parts of the records which contain material information, including information we release which assists the defence or undermines the Crown case (see para 46 below).
• e) That COPFS will advise the witness about the nature of information that requires to be disclosed to the defence before it is disclosed.

The witness’ rights and opportunities for support/advice

• f) That they have the right to refuse consent
• g) That they can have time to consider the request and may wish to consider seeking independent advice about the matter, including legal advice
• h) The availability of support should be discussed and referrals to other agencies for support offered (VIA should make such referrals)

Other relevant information

The possible consequences of refusing to consent to the records being recovered namely:

• i) COPFS seeking to obtain the records without consent via a formal application to the court; the witness’ right to tell the court that they object; and the witness’ right to obtain Legal Aid to pay for legal advice and representation in relation to that court process (as long as a petition/complaint has been served and thus criminal proceedings are live)⁸;
• j) COPFS may not be able to continue with a particular charge; or
• k) COPFS may not be able to continue with the whole prosecution.
• l) The right of the witness (if they are a complainer) to review a decision to discontinue a prosecution.

24. COPFS staff should communicate with witnesses in clear and easy-to-understand language and take into account any personal characteristics of the person which may affect their ability to understand the communication and be understood in responding. COPFS staff should provide the witness with the relevant information leaflet detailing the process and allow the witness time to make a decision. Another meeting or telephone call with the witness should be scheduled after an appropriate interval at which time the witness can intimate whether they wish to consent or not.

25. Contact with the witness in this way is important given the spirit of the Court of Session’s decision in the case of WF v Scottish Ministers⁹; a Judicial Review of the Scottish Ministers’ decision not to provide Legal Aid for a complainer whose records were being sought by the defence. The key point of Lord Glennie’s determination is found at paragraph 45:

“Though there is no provision in statute that requires intimation of the petition on the complainer, or any other party to whom the records relate, such a person has the right to have the petition for recovery intimated to her and has the right to appear or be represented in opposition to recovery of her records either before an order is made or at least before the documents are handed over to the party seeking them.”

26. If the witness has concerns about the recovery of certain records, it is important to explore those concerns and to identify if they can be alleviated. Information provided by the witness must be carefully considered as it may also alter the initial assessment as to the materiality of and need to obtain certain records. The following re-assurances can be given to the witness:

• a) Before recovering records COPFS will ask the holder if the records contain information about the issue in question.
• b) COPFS will apply a focussed, proportionate approach when obtaining records and full records will only be obtained if necessary.
• c) COPFS has a duty to ensure that only material information is disclosed to the defence.
• d) Prior to disclosing the material information to the defence COPFS will inform the witness of the nature of the information which must be disclosed and ask them for their views.
• e) The court has a duty to exclude evidence that is not relevant to the question of the guilt or innocence of the accused person.

27. On the other hand it is important to be realistic with the witness so the following caveats should be made clear:

• a) Assurances that specific information will never be disclosed cannot be given in case that information becomes material at a future date.
• b) Decisions about disclosure can only be taken once records have been obtained and considered; if information contained in records is judged to be ‘material’ it must be disclosed if the case is to continue.
• c) Decisions about what evidence is allowed at trial are for the court and, therefore, assurances cannot be given that specific information will remain confidential.
• d) Even where records are not obtained by COPFS, the defence may try to obtain the records. In that situation, the question of recovery will be determined by the Court. The witness would be notified of this and would be able to obtain Legal Aid to object to the recovery of his/her records.

Child Witnesses

28. Article 12 of the UNCRC requires that a child, who is capable of forming his or her own views, should be given the right to express those views freely in all matters affecting the child and the views of the child should be given due weight in accordance with the age and maturity of the child.

29. Witnesses aged 12 and younger should not normally be asked to consent to recovery of records. Contact should be made with the parent or guardian of the witness in order to seek consent. If, after exhaustive efforts, a parent or guardian cannot be identified or contacted an application to the Court should be made seeking authority to recover the records. The same approach should be adopted if an adult witness is deemed not to have capacity to consent to recovery of their records.

30. Witnesses aged between 13 and 15 should normally be invited, along with their parent/guardian, to discuss the recovery of records. Having explained the process it will be necessary to judge on a case by case basis whether the child understands what is proposed and has the capacity to consent. If they do not, then the child’s parent/guardian should be asked to provide consent.

31. There may be circumstances (e.g. if after exhaustive efforts, the parent or guardian cannot be identified or contacted; or if the parent or guardian is the accused person; or the witness states that there is information contained within the records that he/she does not wish his/her parent or guardian to know) which justify seeking consent from the child witness without the involvement of a parent/guardian. However, if it is apparent that such a witness lacks the capacity to consent, an application to the Court should be made seeking the authority to recover the records.

32. Witnesses aged 16 and 17 should be approached directly to seek consent to recover records. If it is apparent that such a witness lacks capacity to consent it will be appropriate to seek consent from a parent/guardian. Alternatively, an application to the Court should be made seeking the authority to recover the records.

Authority to obtain records if the witness consents

33. If the witness is willing to consent, they should be asked to sign a consent form, confirming that s/he consents to COPFS:

• a) contacting the holder to ask if the records contain references to the issue(s) in question; and
• b) to recovery of the relevant records, should the holder confirm that they contain such references.

A separate form should be completed for each distinct type of record that is being sought. The records should be recovered in accordance with the process set out at Step 3 below.

Authority to obtain records if the witness does not engage

34. If the witness is uncontactable or consistently fails to engage despite repeated efforts (including efforts to engage through agencies offering support to the complainer) then Crown Counsel’s instructions (CCI) should be sought about whether the records should be obtained. The authority of the court to seize the records should be sought, unless Crown Counsel directs otherwise. The Crave should specify the need for a hearing to allow the witness to make representations to the Court. COPFS should intimate the application and date of the hearing to the witness by recorded delivery or by personal service. If authority to seize the records is granted then the records should be recovered as set out at Step 3 below.

Authority to recover records if the witness does not consent

35. Where the need to recover the records has been explained to the witness and the witness has had an opportunity to consider the matter but has refused to provide consent, careful consideration must be given to any reasons provided by the witness for refusing consent and whether those reasons change the assessment by COPFS in relation to the need to recover the records, i.e. they indicate that the information is not, in fact, material.

36. Where those reasons do not change that assessment, there are three available options:

1. a court order may be sought to recover the records without the witness’ consent;
2. the prosecution as a whole shall be discontinued; or
3. prosecution of the particular charges, to which the information in the records relates, shall be discontinued.

37. In some exceptional cases, service of the public interest may require recovery of the records without the witness’ consent, e.g. if discontinuation is the outcome of not recovering the records and the accused is believed to pose a significant risk to the complainer or the public. Records should only be recovered without the witness’ consent after efforts to obtain consent have been exhausted and Crown Counsel’s instructions have been obtained.

38. Where Crown Counsel directs that the records should be recovered without the witness’ consent, the SLM in collaboration with VIA should advise the witness that:

• a) COPFS intends to apply for a court order to recover the records;
• b) They will have the right to tell the Court that they object to recovery of their records;
• c) The witness has a right to Legal Aid to pay for legal advice and representation in order to tell the Court that they object;
• d) The Court will decide whether or not to grant authority to recover the records;
• e) If the Court refuses authority to recover the records then all or part of the prosecution may have to be discontinued.

39. COPFS should then apply to the court for authority to recover the records in one of the following ways:

• a) In solemn proceedings, where the accused has appeared on petition but the indictment has not yet been served, COPFS should apply to the Sheriff for a common law warrant to seize the records. It is not considered appropriate to use the petition warrant to recover records as this will not allow the witnesses to make representations to the Court should he/she object to seizure of the records.
• b) In solemn proceedings where the indictment has been served, or in summary proceedings where the accused has answered the complaint, COPFS should apply to the Court in terms of section 301A(3)(b) Criminal Procedure (Scotland) Act 1995 for an order for the production of the records.

40. Regardless of which option is applicable, COPFS should:

• a) request in the crave that the Court fix a hearing on the matter (to allow the witness to make representations to the Court);
• b) intimate the application and date of the hearing to the witness by recorded delivery or by personal service so that the witness can instruct a solicitor to attend on their behalf.

Unless absolutely necessary, applications to recover records should not be submitted to the Court prior to the service of a petition or a complaint. If the petition or complaint has not been served the witness will not be entitled to Legal Aid should they wish to oppose the application. If applying to the Court for a warrant to recover records the SIO within Police Scotland should be advised so that any risk to the witness can be managed.

41. If the Court refuses the Crown application then careful consideration must be given to the future of the proceedings, including whether the whole case or some of the charges must be discontinued. Discontinuation will be necessary if the records are believed to contain information which supports the defence case or undermines the Crown case. If a case or significant charge is to be discontinued the SIO within Police Scotland should be advised so that any risk to the witness can be managed. In exceptional cases, it may be possible to continue the entirety of proceedings without disclosing the material information if:

• a) on any view the material information only supports the Crown case;
• b) this evidence is not led at trial; and
• c) there remains sufficient evidence without this information.

However, this approach will undoubtedly weaken the Crown case. If the Crown application is granted the records should be recovered as set out at Step 3 below. The outcome of any such application and the consequences should be discussed with the witness.

Step 3: Recovering the records

42. Having obtained the consent of the witness or the authority of the Court to recover the records, COPFS should write to the holder. The letter will ask the holder to confirm if the records contain any references to the issue(s) in question and, if so, to make the relevant extract(s) of the records available. It is important that COPFS staff provide a clear description of the issues in question to ensure that the holder understands what information he/she is being asked to look for and to provide. If the records do not contain references to the issues in question the holder should complete the form, enclosed with COPFS’ letter, confirming that this is their assessment. If the records do contain references to the issues in question then the holder is invited to confirm that this is the case and to prepare the records for collection.

43. In the majority of cases it will be appropriate to recover only a discrete part of the witness’ records. Care must always be taken to ensure that only those records which are within the scope of the stated purpose/court order are requested and recovered.

44. Once the holder has confirmed that the records are ready for collection, COPFS should instruct the reporting police officer to physically collect the records and assess them for relevant information. Records should not be submitted directly to COPFS to ensure that the police can properly carry out their statutory duty to keep relevancy of information under review¹⁰.

Step 4: Assessing the records for ‘relevancy’ – Police Scotland

45. The police will obtain records either at their own discretion or when instructed to do so by COPFS. In either case, the police must inform the prosecutor about all information obtained or generated during an investigation, which may be relevant. The police should, therefore, review records to determine whether there is any information contained within the records which meets the “relevancy” test (see paragraph 8).

46. The guidance to police is to err on the side of caution. Unless information is incapable of having any impact on the case, it should be revealed to COPFS by the police. Any records which meet the relevancy test should, in solemn cases, be listed in the ‘Sensitive Disclosure Schedule’ and should be submitted to COPFS by the police. In Summary cases the police should list details of the relevant records in a subject report.

47. Throughout the life of the case, the police have a statutory duty to keep relevancy under review, so when additional information is obtained or generated the police must consider the relevancy of the new information and review any information previously assessed as being irrelevant to decide if it is now relevant. Therefore:

• a) If records, or any part of them, have been assessed as irrelevant this assessment must be kept under review.
• b) If records are obtained during the life of a case then the police must review any other information which has previously been assessed as irrelevant in order to assess whether that information becomes relevant in light of the information contained within the records. If COPFS has obtained any records direct from source, rather than through the police (this should only occur in exceptional cases), then COPFS must ensure that the reporting police officer is aware of the content in order that they can effectively comply with their obligation of continuous review.

Step 5: Assessing the records for ‘materiality’ – COPFS

48. The question of disclosure to the defence should be considered fully and carefully to ensure that the information disclosed goes no further than COPFS’s obligations to secure a fair trial in terms of Article 6 of the ECHR. Disclosure, which is not necessary in order to prove the charges or for the protection of the Article 6 rights, risks infringement of the witness’ Article 8 right to private and family life.

49. All information, including records, submitted by the police should be reviewed and assessed by COPFS to establish whether or not any information therein meets the “materiality” test¹¹:

COPFS has a legal obligation to disclose to the defence any information which:

• a) would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; or
• b) would materially strengthen the accused’s case; or
• c) is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused.

The Process

50. In High Court cases the SLM will: a) provide detailed instructions on the type of information that would be material in the case; and b) instruct the Records Manager to assess the records for such material entries. The Records Manager will provide a synopsis of the content of the material parts of the records and the content of any proposed redactions thereto. The synopsis will then be checked and signed off by the SLM and Case Preparer prior to disclosure to the defence.

51. In Sheriff and Jury cases the Case Preparer (if a legal member of staff) or SLM or other legal member of staff (if the Case Preparer is not a legal member of staff) must review all records submitted by the police and determine whether the information meets the materiality test. In summary cases, a legal member of staff must review all such records submitted by the police. A note of the parts of the records deemed to be material should be made.

52. When parts of the records are assessed as material all immaterial information should be redacted from the records prior to disclosure. If only a small part of the records are material consideration should be given to preparing an extract of the records containing only the relevant part.

53. If COPFS is satisfied that the records, or part of the records, do not meet the materiality test, COPFS should not disclose the immaterial information to the defence except as a result of a court order, e.g. following a ruling on materiality under section 128 of the Criminal Justice and Licensing (Scotland) Act 2010 or following a successful defence petition for recovery of documents.

Disclosure & Admissibility

54. Obtaining records does not mean that those records will necessarily be disclosed to the defence or, if they are disclosed, that the information contained in them will be admissible evidence at trial.

55. In determining whether information is likely to be admissible (which will assist in determining if information is disclosable) regard should be had to the circumstances in which the courts have been prepared to admit evidence relating to sexual history. COPFS staff are reminded that Section 274 is intended to extend (but not replace) the general rule at common law prohibiting evidence which is irrelevant. As such, it may be that evidence not specifically prohibited by section 274 is nevertheless inadmissible at common law. Accordingly, when approaching questions of admissibility, consideration should be given in the first instance to whether the line is admissible at common law. Where the line of questioning is not admissible at common law because it is irrelevant (or collateral) the questioning should be prohibited on that basis.

56. Section 275 permits the leading of evidence excluded by section 274 where the Court is satisfied that the following three stage test is met:

• a) the evidence relates only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating—
• (i) the complainer's character; or
• (ii) any condition or predisposition to which the complainer is or has been subject; and
• b) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and
• c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.

Note: all three conditions must be satisfied before the exception in section 275 can apply.

57. However, a decision by COPFS to disclose information does not necessarily mean that COPFS agrees that the information is admissible. COPFS may oppose an application in terms of section 275 despite having decided that the evidence which the defence seek to admit was considered to be material for the purposes of disclosure. See, for example, (CJ)M v HM Advocate.¹²

Finely Balanced Decisions on Materiality

58. In some cases it will not be possible to determine with certainty whether information contained in records meets the materiality test. In such cases, the SLM should seek the views of the PF/Assistant PF for the relevant Function. In cases of real doubt, Crown Counsel’s Instructions should be sought, with an analysis of the issues and recommendations.

Public Interest Considerations

59. Where there is information, which is considered to be material, but to disclose the information would cause a real risk of substantial harm or damage to the public interest, e.g. disclosure would result in a threat to the life or safety of a witness or other persons, the PF/Assistant PF for the relevant Function should be consulted. If they agree that there is a good reason to withhold the information, then a report seeking Crown Counsel’s instructions, copying in the Deputy Crown Agent for Serious Casework, should be submitted.

60. If Crown Counsel instructs that the material information must be withheld, then the information should not be disclosed. The prosecution, or the relevant charges, must be discontinued or the Deputy Crown Agent for Serious Casework should be consulted with a view to obtaining an order in terms of section 145 of the Criminal Justice & Licensing (Scotland) Act 2010 (along with exclusion and non-notification orders where appropriate).

Recording Decisions

61. Having obtained records, all decisions to disclose or not to disclose information and the reasons for those decisions, e.g. that the information is not material or there is a public interest reason for non-disclosure, must be clearly recorded in the case papers and electronic case directory.

Reviewing Decisions

62. Throughout the life of a case, COPFS has a duty to keep materiality under review, so when the police provide details of any further relevant information, COPFS must review any information previously considered to be immaterial in order to assess whether it is now material.

Step 6: Further consultation with the witness prior to disclosure

63. Having obtained the records and decided which information is material, the witness should be informed of the nature of the information that requires to be disclosed. (COPFS staff should not discuss the nature of immaterial information contained within the records with the witness).

64. If the witness is content that the information be disclosed then COPFS should disclose the information to the defence and proceedings should continue as normal. If the witness opposes disclosure of the material information, COPFS should explore the witness’ concerns and, where appropriate, make efforts to assuage those concerns. The availability of support should be discussed with the witness and referrals to relevant agencies should be made. It should be explained that COPFS has a duty to disclose all material information. Therefore, if all of the evidence is to be led and proceedings are to continue, it is essential that the material information is disclosed to the defence.

65. There may be rare occasions when information is deemed to be material so must be disclosed but COPFS intends to oppose the admissibility of that information. If this scenario arises then the witness should be advised but with the caveat that the Court will determine if the information is admissible.

66. If the witness continues to oppose disclosure of the material information contained within the records, COPFS will have to decide if the public interest is better served by continuing with the prosecution (and thus disclosing the information against the witness’ wishes) or discontinuing the prosecution as a whole or discontinuing the particular charges to which the material information relates (and withholding the material information). If a case or significant charge is to be discontinued the SIO within Police Scotland should be advised so that any risk to the witness can be managed. The following list of relevant factors is not exhaustive nor may all of these factors be present in every case but describes the types of issues which must be considered:

Factors relating to the witness:

• The witness’ Article 8 rights to private and family life.
• The views of the witness including their reasons for not wishing the information to be disclosed and whether any steps can be taken to allay their concerns.
• The vulnerability of the witness and whether any support or other measures can be put in place to address any vulnerability.
• Any available information about the risk to, or likely impact on, the health or wellbeing of the witness arising from disclosure. Regard may be had to information from a range of sources including from the witness, a support and advocacy worker, any healthcare professional or other person with relevant information.
• The nature and sensitivity of the information in question.
• Any potential risk to the witness arising from disclosure of the information.
• Whether the witness’ unwillingness to consent appears consistent with the known dynamics of abuse whereby witnesses may be reluctant due to fears of further abuse.
• Where the witness’ unwillingness to consent appears to be consistent with the known dynamics of ‘honour-based violence’ whereby witnesses may be reluctant due to a perception that they owe a duty to the accused and the shame that they may feel.

Other relevant factors:

• Nature and severity of the offending behaviour
• The strength of the evidence and prospect of conviction should the prosecution continue.
• Whether the case relies on the Moorov doctrine and the impact of withholding the information and discontinuing in relation to one complainer on the ability to prosecute for offences against another complainer.
• The risk or likelihood that the accused will re-offend – in assessing this regard should be had to many of the factors listed here, including the nature of the offence and criminal history, but also whether the accused is a repeat offender (against the complainer) or a serial offender (against multiple complainers)
• Safety and risk considerations for the complainer and other members of the public arising from disclosure or discontinuing proceedings
• Criminal history of the accused
• History of the relationship and any previous abusive behaviour by the accused – including whether the offending is part of a course of conduct

67. In exceptional cases, it may be possible to continue the entirety of proceedings without disclosing the material information if:

• a) on any view the material information only supports the Crown case;
• b) this evidence is not led at trial; and
• c) there remains sufficient evidence without this information. However, this approach will undoubtedly weaken the Crown case.

4.1 Circumstances in which it is appropriate to disclose

68. COPFS should only disclose information to the defence:

• a) Where COPFS assesses that the materiality test, set out above, has been satisfied and there is no reason in the public interest why the information should not be disclosed;
• b) Where a court has ruled that the information is material as a result of an application in terms of Section 128 of the Criminal Justice & Licensing (Scotland) Act 2010, subject to any public interest concerns; or
• c) Where a court orders disclosure following a successful defence application under a petition for recovery of documents.

4.2 COPFS responses to defence requests

69. If COPFS holds the information requested by the defence but an assessment of materiality has not yet been carried out then this should be undertaken and a decision about whether or not to disclose the material parts of the records should be made.

70. If COPFS holds the information but has assessed that it does not meet the materiality test then the defence should be asked to provide the basis upon which they believe the evidence is material (if they have not already done so). In light of any additional information COPFS should re-consider the materiality of the information requested. If, after that assessment, COPFS is still of the view that the information does not meet the materiality test the defence should be informed.

71. If COPFS does not hold the information, then COPFS should consider whether it is information that should have been obtained during the investigation, i.e. could the information be material? The defence should be invited to provide the basis for the request before a decision is made. Remember, a defence request for information does not oblige COPFS to obtain the information if they do not already hold it.¹³

72. If it is determined that COPFS should hold the information, but does not, then ‘the 6 Step Approach’ set out in Chapter 2 above should be followed.

73. If it is determined that COPFS does not and should not hold the information the defence should be so advised. It is open to defence to make an application to the Court for authority to obtain the information from the holders.

74. A decision not to provide the defence with information should be kept under review, in the same way as all disclosure decisions must be continually reviewed. In particular, such decisions should be reviewed in response to a defence statement being lodged (see sections 4.3 & 4.4 below).

4.3 Defence statements

75. Under section 70A of the 1995 Act, in all solemn cases, the defence are obliged to lodge a defence statement at least 14 days before the First Diet or Preliminary Hearing. Thereafter, a further defence statement or a statement intimating that there has been no material change in circumstances in relation to the accused’s defence must be lodged at least 7 days before the trial diet. Where there is a material change in the accused’s defence after lodging any defence statement, the accused must lodge a further defence statement.

76. Amongst other things, the defence statement must set out the nature of the accused’s defence, including any particular defences on which the accused intends to rely; any matters of fact with which the accused takes issue with the prosecution and the reasons for doing so; the nature of any information that the accused requires the prosecutor to disclose by reference to the accused’s defence; and the reasons why the accused considers that disclosure by COPFS to be necessary.

77. On receipt of a defence statement COPFS must:

• a) Advise the police of the content of, or provide them with, a copy defence statement in order that the police can carry out a similar review of information previously assessed as irrelevant to determine if that information is now relevant in light of the information contained within the defence statement;
• b) Assess the materiality of any information provided by the police now meeting the relevance test (in light of the defence statement);
• c) Consider if the information previously assessed as immaterial is now material in light of the information contained within the defence statement;
• d) Consider if any information specifically sought by the defence meets the materiality test;

4.4 Information sought by the defence in the defence statement

78. The fact that the defence are seeking information under a defence statement does not automatically entitle the defence to that information. The information must be assessed against the materiality test in the usual way.

79. It is essential to check whether a deliberate decision has previously been taken not to disclose the information to the defence, particularly in response to a previous defence request for information.

80. Where a deliberate decision has been taken previously, this does not automatically mean that the information does not need to be disclosed now. The defence statement may provide more detailed – or even different – reasons why the information should be disclosed, so COPFS must, in such circumstances, review the decision.

4.5 Refusal to provide information to the defence

81. There are 3 options open to the defence if they are dissatisfied with COPFS’ decision not to disclose information to them:

• a) Seek a ruling on materiality in terms of section 128 of the Criminal Justice & Licensing (Scotland) Act 2010 (or section 139 in relation to appellate proceedings).
• b) Seek an order for ‘Commission and Diligence’ for the recovery of documents.
• c) Seek an order for the recovery of documents in terms of section 301A of the Criminal Procedure (Scotland) Act 1995

4.6 Section 128 of the Criminal Justice & Licensing (Scotland) Act 2010

82. Where the defence seek a ruling in terms of section 128 of the 2010 Act, a hearing will be appointed and both parties can be heard on the issue, after which the court will rule on whether the information meets the materiality test and in relation to which charges on the indictment. The court can only rule on whether the information meets the materiality test, it cannot order COPFS to disclose the information.

83. If the court rules that the information meets the materiality test, COPFS should consider if: an appeal should be marked; or if a non-disclosure order and appropriate associated orders should be sought. If neither of these options is appropriate COPFS should make contact with the victim and follow the process outlined at Step 6 above.

Note: the defence can only make an application under section 128 after a defence statement has been lodged.

4.7 Petition for recovery of documents

84. It is open to the defence to apply to the Court to recover documents either by: making a common law application for an order granting ‘Commission and Diligence’ or by lodging a petition for an order for recovery documents in terms of section 301A of the Criminal Procedure (Scotland) Act 1995.

85. As highlighted above, the decision in WF v Scottish Ministers means that the witness is entitled to have any such application intimated on him/her and be represented at any hearing considering an application to seize his/her records. Therefore all defence applications for the recovery of documents relating to records must be intimated to the witness.

86. On receipt of a defence application in a High Court case, the Clerk of Justiciary will obtain the address of the witness from the High Court Sitting Manager at Glasgow and the Clerk of Justiciary will then serve the application on the witness. In Sheriff Court cases, the Sheriff Clerk will obtain the address of the witness from the appropriate Procurator Fiscal’s office and the Sheriff Clerk will serve the application on the witness. The Sheriff Clerk will email the request to the Procurator Fiscal’s office from an email address ending ‘@scotcourts.pnn.gov.uk’. Before providing the witness’s address the COPFS member of staff dealing with the request should telephone the Sheriff Clerk to confirm that the request is legitimate. Having confirmed that the request is legitimate the witness’ address should be emailed to the Sheriff Clerk. Witness’ addresses should never be provided to the Sheriff Clerk over the telephone. The COPFS staff member should also contact the SLM in the team dealing with the case to alert them to the defence application. The SLM should ensure that appropriate contact is made with the person whose records are sought, in line with the paragraphs below.

87. Having been made aware of a defence application to recover records the designated VIA officer should make contact with the witness by letter to:

• Intimate a copy of the defence application (if available)
• Explain what the defence are seeking to obtain
• Explain that the witness has a right to object to his/her records being recovered
• Explain that the witness may wish to contact a solicitor who will provide advice about this matter
• Explain that the witness is eligible for Legal Aid and thus will not have to pay for this legal advice

88. Prior to the hearing the designated VIA Officer should contact the witness to:

• Inform the witness of the date, time and place of the hearing
• Establish the witness’ views about recovery of his/her records
• Establish if the witness has instructed a solicitor to represent him/her at the hearing

89. Where an application is made to recover documents the Court will consider whether¹⁴:

• The order will serve a proper purpose and be in the interest of justice to grant;
• The order for the production of the particular documents would be likely to be of material assistance to the proper preparation or presentation of the accused’s defence; and
• The documents relate to the charges and the proposed defence to them.

90. Regardless of the witness’ views COPFS should carefully scrutinise the defence application and should oppose the recovery of information which does not meet the test set out above. Staff should have particular regard to the decision in JC Petitioner¹⁵, referred to in paragraph 17 above, when deciding whether to oppose defence applications.

91. COPFS’ disclosure obligations apply equally to represented and unrepresented accused, i.e. all accused must be provided with copies of, or suitable access to, all material information that COPFS is aware of.

92. In the case of ‘Sensitive Personal Records’ COPFS should fulfil its disclosure obligations by providing unrepresented accused with supervised access to the material information contained within the records. The accused should not be given access to any part of the actual records. Rather, the material information should be extracted and the accused given access to that extracted information. If a diagram, drawing or photograph etc. is deemed to be material then the accused should be given access to a photocopy. The accused should not be permitted to make copies of any of the information presented to him/her. COPFS staff should put in place measures to ensure the safety of those staff meeting with the accused, e.g. two members of COPFS should be present; or the presence of the reporting police officer should be requested; or the meeting should take place in a police office or prison.

93. If the unrepresented accused instructs an expert witness who requires to view the records in order to inform his/her opinion, the expert should be offered supervised access to the material parts of the records within a COPFS building.

94. COPFS staff should be aware of the limitations placed on the ability of accused persons to conduct their own defence in sections 288C, s288DC, 288E & 288F of the Criminal Procedure (Scotland) Act 1995. In such instances, accused persons require to be represented and so must not be provided with copies of, nor given access to, material information.

95. There may be cases, such as those which involve section 17 of the Sexual Offences (Scotland) Act 2009, in which COPFS requires to instruct expert witnesses to prepare a report about the witness’ capacity to consent to sexual activity. In order to reach their expert opinion it may be necessary for COPFS to provide such experts with records in order to provide the necessary background and context. The 6 step approach detailed above should be followed when recovering records for this purpose.

96. In some cases it may be possible for COPFS staff to assess the records and determine which parts are relevant to the question(s) that has been asked of the expert witness. In such cases the relevant parts of the records should be provided to the expert and should, in turn, be disclosed to the defence.

97. In other cases it may not be possible for COPFS staff to assess which parts of the records are relevant to the question(s) asked of the expert witness. In such cases the expert should be provided with all of the records and asked to highlight in his/her report: a) the parts of the records which he/she relied on to make his/her report; and b) any other parts of the records that are also relevant to the question(s) posed. Those records should be disclosed to the defence.

98. In addition to the views of the expert as to which records are relevant to the question that he/she was asked to report on, COPFS staff must disclose to the defence any other parts of the records which meet the materiality test. In such circumstances, it is of particular importance that the consultation with the victim, outlined in step 6 of Chapter 2 above, is followed and that the victim fully understands the reasons for the decision.

99. Where disclosure of records, or relevant extracts thereof, is made to the accused’s representatives, there are safeguards in place to ensure that the disclosed information is used only for the proper preparation and presentation of the defence case, namely:

• Section 163 of the Criminal Justice and Licensing (Scotland) Act 2010 makes it a criminal offence, punishable by up to two years imprisonment, to use or disclose information in any way that does not accord with the reason(s) the information was disclosed.
• Articles 11 and 12 of the Law Society Code of Conduct in relation to Criminal Work set clear guidelines for solicitors regarding the use, storage, retention and destruction of information that they receive from COPFS.

100. If COPFS staff become aware that records have been lost, stolen, disclosed to the wrong person etc. they should, in the first instance, complete a ‘Security Incident Form’ and email this to the COPFS Departmental Security Officer and the Information Governance Manager.

101. If COPFS staff become aware that an offence in terms of section 163 of the 2010 Act may have been committed they should, in the first instance, direct Police Scotland to investigate the matter. If, after the investigation, there is sufficient evidence to prove an offence COPFS staff should submit a report to the Deputy Crown Agent for Serious Casework for Crown Counsel’s instructions.