Do not cross

The Criminal Justice and Licensing (Scotland) Act 2010 was passed by the Scottish Parliament on 30 June 2010 and received Royal assent on 6 August. The Act is wide ranging and has been brought into force in stages. The most recent commencement order (SSI 2011/178) has, amongst other provisions, brought part 6 of the Act into force. This provides a statutory framework for the Crown’s duties in relation to the disclosure of evidence and, separately, imposes a duty on the defence to lodge defence statements in solemn cases, and an option to lodge the same in summary proceedings. This article outlines the provisions and their effect on criminal proceedings at first instance, and considers their impact, particularly for the defence.

Part 6 came into force on 6 June 2011. It applies to all criminal proceedings in which first appearance in solemn procedure, or the recording of a plea of not guilty on summary complaint, occurs on or after that date. There are also extensive provisions relating to ongoing duties to disclose following a finding of guilt and during appeal proceedings, but these are beyond the scope of this article.

Equivalent common law rules relating to disclosure have been abolished, but any right of an accused at common law to seek disclosure or recovery of information, by means of procedure other than an application under the Act for a ruling on disclosure, for example recovery by commission and diligence, has been preserved by s 166.

Section 164 places a duty on the Lord Advocate to issue a code of practice providing guidance about part 6. Police forces, prosecutors and others engaged in any investigation of crime or sudden deaths, must have regard to this code. The code has been published and is on the COPFS public website. Criminal practitioners should familiarise themselves with the current code and its six core principles of both revelation and disclosure, together with the core duties and responsibilities imposed on police, other investigating agencies and the Crown generally.

Disclosure at first instance

The Crown’s duties in relation to disclosure prior to conviction can be found in ss 118 to 123 inclusive. In particular, s 121 outlines the prosecutor’s duty to disclose information. Section 116(1) defines “information” as “material of any kind given to or obtained by the prosecutor in connection with the proceedings”. As soon as practicable after the accused’s first appearance on petition, or following the recording of a not guilty plea, the prosecutor must, first, review all the information that may be relevant to the case for or against the accused and, secondly, disclose to the accused the information to which s 121(3) applies.

The prosecutor must disclose information if: (a) it would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; (b) it would materially strengthen the accused’s case; or (c) it is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused.

Accordingly, it can be seen that the prosecutor’s duty to disclose is wide and far reaching. In solemn cases, having complied with this primary duty, the prosecutor’s further duty is then to disclose any information not disclosable under the primary duty but which may be relevant to the case, unless it is regarded as “sensitive”. Information is “sensitive” if, as a result of disclosure, 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) causing serious prejudice to the public interest.

The prosecutor is entitled to disclose the information by any means (s 160). He can do so by allowing the accused to inspect the information at a reasonable time and in a reasonable place. Where any information is contained in a precognition, a victim statement or a statement given by a person whom the prosecutor does not intend to call to give evidence, or, in summary proceedings, in a statement given by a person whom the prosecutor intends to call, the prosecutor need not disclose the precognition or statement, but would comply with the duty by providing a summary of evidence. Notwithstanding this, the current COPFS guidelines confirm that usual practice will be to disclose statements.

In solemn proceedings, however, where the information is contained in a statement by a person whom the prosecutor intends to call, or a statement which the prosecutor intends to apply under s 259 of the 1995 Act to have admitted in evidence, a copy of the statement must be disclosed. Redaction of non-disclosable information remains permissible: ss 160, 161.

The duties of disclosure do not apply where a plea of guilty is recorded. The prosecutor need not comply with the requirement in so far as it relates to disclosure of information which, but for a plea of guilty, would have been likely to have formed part of the evidence to be led against the accused. Should a plea of guilty be withdrawn, the requirements of disclosure must then be observed (s 131).

Preserving confidentiality

Accused persons and their agents (“accused” is defined as including reference to a solicitor or advocate acting on behalf of the accused: s 167) must be live to the fact that disclosed information must not be used other than in accordance with s 162(3). This specifically states that an accused may use or disclose information (a) for the purposes of proper preparation and presentation of their case; (b) with a view to using the information in an appeal; or (c) for the purposes of the proper preparation and presentation of their case in any such appeal. The information may not be used for any other purpose unless it is in the public domain. Any person who knowingly uses or discloses information in contravention of s 162 commits an offence carrying a 12-month sentence on summary complaint, or two years on indictment.

Defence statements: solemn and summary

Sections 124-126 contain the provisions relating to defence statements.

The Act inserts a new s 70A in the 1995 Act, governing defence statements in solemn proceedings. The accused must lodge a defence statement at least 14 days before a first diet or preliminary hearing. Furthermore, at least seven days before a trial diet, an accused must either lodge a further defence statement where there has been a material change in circumstances relating to their defence, or where there has not, lodge a further statement stating that fact. On any subsequent material change of circumstances, a defence statement must be lodged before the trial diet begins unless, on cause shown, the court allows it to be lodged during the trial. A copy of any defence statement must be intimated to the prosecutor and any co-accused.

A “defence statement” sets out the following:

(a) the nature of the accused’s defence, including any particular defences on which they intend to rely;

(b) any matters of fact on which the accused takes issue with the prosecution, and the reason for doing so;

(c) particulars of the matters of fact on which the accused intends to rely for the purposes of their defence;

(d) any point of law which the accused wishes to take, with any authority on which they intend to rely;

(e) by reference to the accused’s defence, the nature of any information that the accused requires the prosecutor to disclose; and

(f) the reasons why the accused considers that such disclosure is necessary.

Section 78 of the 1995 Act (notice in relation to special defences etc in solemn proceedings) no longer applies where the accused has lodged a defence statement and the defence consists of or includes a special defence.

A defence statement in summary proceedings must set out the same six specific parts as are required in solemn procedure. Whereas it is obligatory to lodge the statement in solemn proceedings, it appears to be optional in summary cases. The provisions apply where a plea of not guilty has been recorded, and during the relevant period (between the plea and conclusion of the proceedings) the accused lodges a defence statement.

For summary purposes, the defence statement should be lodged at least 14 days before the trial diet. At least seven days before trial, the accused must lodge a statement confirming any material change to his defence or alternatively that there is no material change. Accordingly, it is not directly required that the defence statement be lodged either in advance of, or at, an intermediate diet. Section 149B of the 1995 Act (notice of special defences in summary procedure) no longer applies where a defence statement is lodged at or before an intermediate diet or, where such diet is not to be held, where the statement is lodged no later than 10 clear days before the trial diet.

Court rulings on disclosure

Where an accused has lodged a defence statement and the defence considers that the prosecutor has failed to disclose an item of information to which s 121(3) applies, the accused can apply to the court under s 128 for a ruling on whether s 121(3) applies to the information in question. The application must be in writing and set out the charge or charges to which it relates, a description of the information sought, and the accused’s grounds for considering that s 121(3) applies to it.

On receiving an application, the court must appoint a hearing, though may dispose of the application without a hearing if it considers that the application is not in appropriate form, or does not disclose any reasonable grounds for considering that s 121(3) applies. Except where it is impracticable, the application should be assigned to the JP, sheriff or judge who is presiding, or is to preside, at the accused’s trial.

Where the court rules that s 121(3) does not apply, the accused may seek a review if they become aware of information that was unavailable to the court at the time, and consider that, had this information been available, the court would have made a ruling in their favour. The application must again be in writing and set out a description of the information in question. The court must appoint a hearing or otherwise dispose of the application without a hearing, the latter for the same reasons as before.

Following a ruling, either the prosecutor or the accused may within seven days appeal to the High Court. Where such an appeal is brought, the court of first instance or the High Court may postpone the trial, adjourn or further adjourn any hearing for such period as the court thinks appropriate, or direct that any period of postponement or adjournment is not to count toward any time limit applying in the case. The High Court may either affirm the ruling or remit the case back to the court of first instance with such directions as it thinks appropriate: s 130.

Impact of the provisions

These provisions will have far reaching consequences for both prosecution and defence. Their respective duties and obligations will be extensive. Disclosure is not a new concept for the Crown. In the majority of cases, no difficulty should be encountered. In detailed investigations, however, compliance will be more onerous. Indeed, it is difficult to envisage how the Crown will continually fulfil its duties and obligations given the current severe cutbacks, including reduction in numbers of qualified staff, within the procurator fiscal service.

For defence agents, it is clear that early preparation will be required. In all courts, the rules relating to defence statements represent a massive sea change in previous practice and procedure. The detail expected in a defence statement awaits to be seen. Styles are provided by SSI 2011/242.

Duties to disclose or lodge defence statements are nothing new in England. Indeed, the new Scottish procedures bear a remarkable, some might say uncanny, similarity to the existing English provisions, found in the Criminal Procedure and Investigations Act 1996, ss 3-11.

Practitioners are always loth to look to England, particularly when it comes to criminal law. In England, however, a defence statement is obligatory in Crown Court proceedings and discretionary in the magistrates’ court. The document is considered to be of great importance and can have consequences for the accused.

The defence case statement is expected to be “full and careful”. Unless the contrary is proved, there is a statutory presumption that the statement is deemed to have been given with the accused’s authority. Best practice is that the accused should show agreement with the contents of the statement by signing it. There is good reason for this.

In England, if the prosecutor considers a defence statement to be inadequate but the accused refuses or delays to clarify the defence case, the prosecutor can invite the court to give a statutory warning. Where clarification is provided late, and substantial additional cost is incurred, the prosecution can consider an application for a wasted costs order. More importantly, there is provision allowing fault, lack of disclosure, or a change of defence to attract an adverse inference at trial. To assist the court in deciding whether to allow comment to be made or the jury to draw inferences, the prosecutor is entitled to put the contents of the defence statement to the accused in cross examination, to elicit the differences between it and the actual defence relied on and any justifications for these differences.

Presently, under the new Scottish procedures, there appears to be no statutory sanction for failure to comply in lodging a full and careful defence statement. Presumably, however, failure to take issue with matters of fact, or failure to give notice of a point of law, could potentially lead to a bar in taking these points at trial. The statutory style proclaims that the defence statement should be “in succinct and articulate terms”. For many reasons, even in relatively straightforward cases, consideration and preparation of defence statements will require a great deal of care on the part of the agent. Might it not be good practice here for the accused either to countersign the statement, or at least for the agent to have a signed copy on file? The information that may be required in the defence statement could be in-depth, and the added duties and obligations may be hard for practitioners to cope with, particularly in summary proceedings. The preparation required could, in some circumstances, lead to considerable additional work which, in legally aided cases, will undoubtedly go unrecognised by way of appropriate remuneration.

Accordingly, given the current optional procedure in summary cases, it is unlikely that defence agents will embrace the concept of a defence statement with any real vigour. In solemn cases, agents will have to see how practice and procedure develop.