Court, not Crown, controls access to productions, appeal judges rule
Interview recordings that are also label productions in a prosecution are subject to the control of the court, not the Crown, and it is for the court to decide on any application by the defence to remove them for the purposes of copying or inspection by an expert, appeal judges have ruled.
In a decision given last September for which written reasons have only now been published, Lord Justice Clerk Carloway, Lady Smith and Lady Clark of Calton refused a Crown appeal against a judge's decision to order disclosure to the defence by delivering copies of disc recordings of police and social work joint investigative interviews, amounting to about six hours, of two young boys, complainers in relation to sexual abuse charges against accused aged 16 and 15.
The discs and transcriptions were listed as productions in the indictment. The defence wished to have copies to enable their content to be reviewed by a forensic psychologist, with a view to potentially challenging their admissibility. The Crown had refused to provide copies but elected to disclose by offering inspection at a reasonable time and place.
The judge considered that the Crown had adopted an illegitimate blanket policy of never giving to the defence visual recordings of children being interviewed, and ordered copies to be provided in a format which could be viewed but not further copied. The discs were to be kept secure and their contents not disclosed further unless necessary in the legitimate interests of the accused.
On appeal the Crown argued that the judge had erred in holding that the Crown's position infringed the accused's article 6 right to a fair trial. The Lord Advocate had published a code of practice that established a clear, consistent and readily understood means which enabled parties to apply a practice meeting the legitimate and proportionate aims of balancing the rights of an accused person and those of the witnesses. The case was not complicated; disclosure by access was a justified and proportionate response to the obligations placed on the Crown and did not unnecessarily impede preparation of the defence.
Lord Carloway, who delivered the opinion of the court, said it was important to distinguish the disclosure regime, the object of which was to ensure that the defence had knowledge of what evidence would form the case against the accused and what material was available to refute it, and the regime covering label productions.
Intimation of lists of productions had the effect of "bringing the productions specified under the control of the court whether or not they have been lodged and it is for the court to determine, as master of its procedure, what may or may not happen to them", he stated. "No issue of substantive law arises. At this stage in the case the accused is entitled to see the labels, not as a result of the disclosure regime but in terms of the statute relative to the lists of productions".
If the Crown did not lodge the productions with the record copy indictment, they were retained subject to any order of the court. An accused was entitled to apply to the trial court to remove a production for the purposes of copying or inspection, and there was no need to invoke the disclosure regime, article 6 or European Court jurisprudence. "The court will thereafter decide, as a matter for its discretion but no doubt having regard to the principles of fairness, including equality of arms, whether it is in the interests of justice to grant the application."
He concluded: "Given that the labels are to be used as evidence in chief, it is difficult to conceive of a situation in which the court would refuse such an application, albeit perhaps subject to conditions. The court has effectively granted that application. The appeals will simply be refused on that basis."