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Chapter 39: Debates, Applications for Court Rulings, Compatibility Issues and Petitions for Recovery

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Chapter 39: Debates, Applications for Court Rulings, Compatibility Issues and Petitions for Recovery Chapter 39: Debates, Applications for Court Rulings, Compatibility Issues and Petitions for Recovery 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: i) Applications for Court Rulings ii) Common law points raised at preliminary hearing/ first diet/ intermediate diet; iii) Compatibility Issues iv) 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: (i) becomes aware of secondary information which was not available to the Court at the time of making the ruling; and (ii) 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 – (i) a plea of guilty is recorded against the accused, (ii) the accused is acquitted, (iii) the proceedings against the accused are deserted simpliciter, (iv) the accused is convicted and does not appeal against the conviction before the expiry of the time allowed for such an appeal, (v) the accused is convicted and appeals against the conviction before the expiry of the time allowed for such an appeal (vi) the proceedings are deserted pro loco et tempore for any reason and no further trial diet is appointed, or (vii) 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.
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