A letter on disclosure of casefiles in Scotland
Cabinet Secretary, Kenny MacAskill MSP, The Scottish Parliament
Chief Executive of the Scottish Legal Aid Board, Mr Lindsay Montgomery CBE
Chair of Justice Committee, Mr John Lamont MSP
SCCRC , Chief Executive, Mr Gerard Sinclair
11th March 2011
The Forensic Institute undertakes the scientific review of Crown reports which are normally produced by the forensic science laboratories of the Scottish Police Services Authority (SPSA). Although small in comparison with SPSA, we are the largest independent organisation employing full time scientific staff providing expert scientific support to solicitors. Until recently, our review process primarily involved a first stage of obtaining copies of the laboratory casefiles, preferably by making our own electronically-scanned copies. This was quick, efficient, effective, and professionally acceptable as a diligent and thorough assessment of the evidence adduced against the citizen. That system continues in our work outside Scotland. For no stated reason, the SPSA have changed their approach to our requests, adopting what they have termed a ‘National Defence Access Policy’ (which we have not seen nor been consulted about, nor we suspect any other non-Prosecution entities). We believe that this new approach is antithetical to the much-vaunted fairness and justice supposedly central to Scots Law. In the matter of disclosure, we are now clearly behind other jurisdictions, including our nearest neighbours. We have published the attached articles, one being a précis of the other, which set out our position. I would be obliged if you would take the time to read and consider the full case set out therein.
This week, the SPSA instructed its own Counsel (a step which we can neither afford nor see that we have a duty to provide) in a bid to prevent us having proper access to the case files of the cases involved. The High Court, in two separate and unexplained judgements, decided in favour of the SPSA. Neither judge took evidence from our scientist who was there specifically to explain the necessity for our request. Aside from the clear inequality of arms involved in the court debate, we consider that, notwithstanding what may be the legal position, common fairness and justice demands that all of the material used by the Crown scientists should be made available to the defence to conduct such inquiry as the defence deem fit, not as deemed acceptable to the Crown or the SPSA.
The proposal from the SPSA is essentially that the defence scientist attends the laboratory and has then to precognose the Crown scientists, or at best is able to see SPSA-selected parts of the casefile; it is also intended that the SPSA charge hourly fees to attend such meetings or to ‘supervise’ the defence scientist if they are permitted to look at the case files. This is rather like the defence lawyers having to go to the Fiscal’s Office and browse the Crown evidence in the presence of the Fiscal, but not being permitted to take it back to their offices for discussion with colleagues or even the defendant – and being charged for the opportunity. This proposal will
increase costs , as not only will the defence often be sending more than one scientist in order to facilitate discussion, but more time will be spent carefully considering any files seen in the knowledge that a second visit, perhaps as new information or a re-considered Prosecution opinion comes to light, becomes more likely. Where we currently use consultants in England, we send the files to them electronically; the consultant will now have to travel and probably be accommodated (we are of course now completely compromised in seeking other professional opinion through our international networks). Furthermore the SPSA will be charging for supervision time spent by any staff member being taken away from other duties (unless they will be charging effectively double-time for ‘supervision’ while still doing other work, even if only paperwork). If we subsequently make a request for copies of specific parts of any material within the casefile, such copy may be made – but only at the discretion of the SPSA, who effectively become the gatekeeper of the defence case! We would then have recourse to further application to the court, another waste of public money and court time.
reduce effectiveness , as the necessary collegiate approach to our consideration of the evidence, which can involve several scientists using our current system, will be completely compromised as they will not all have access to the original data (other than by sending everyone back to the laboratory).
increase report delivery times , as it is likely that we must spend considerable time at the laboratory in the knowledge that a return visit will be expensive and cause delays. We must then return to the Institute to consider our findings, and then possibly arrange yet another meeting with the Crown scientist to resolve any outstanding issues. Arranging defence expert schedules are bad enough in a busy timetable, let alone being restricted to over-lapping availability of SPSA staff for the ‘supervision’.
Increase the risk of appeals caused by an insufficiently diligent and thorough investigation of the scientific evidence by the defence (we have examples of same).
Our proposal is a simple one; give the defence scientist the same facility as the Crown scientists had to consider all of the evidence by having it readily and constantly available, and permitting discussions with colleagues using the original material (or copies thereof). This is fair, effective, efficient, and is working not only in all of the other UK jurisdictions, but in the USA. It should be noted that in the USA the police also operate many laboratories, and errors and corruption are being increasingly discovered as proper scrutiny of their work becomes more widespread.
Mr MacAskill has been quoted as saying, "Fairness for the victim and the accused is at the heart of any good justice system. But so is public confidence. … It is no threat to our justice system to reappraise historic principles such as double jeopardy. It is to ensure our law remains fit for purpose”. Perhaps the law relating to disclosure needs similar review to ensure public confidence. The Courts may not currently consider our request to have legal merit (albeit we have not been permitted the same representation as the SPSA), but the ‘court of public opinion’, if these facts were to enter that arena, may take a different view.
In summary, although the legal position may be that the SPSA are not compelled to disclose copies of their case files, justice, fairness, cost-efficiency, cost-effectiveness, and scientific effectiveness demand that, as a matter of public policy, they should be compelled to do so.
I would be happy to meet with you to clarify any aspect of this, and/or welcome you to The Forensic Institute to demonstrate our system.
Professor Allan Jamieson,
for and on behalf of The Forensic Institute
Article on casefile disclosure in the Scotsman newspaper>>
Article on Disclosure of lab files in Scotland (J. Law Soc. Scotland) >>
Letter in pdf format>>
Letter from Mr MacAskill (pdf) >>
American Bar Association standards on DNA evidence (includes disclosure at 4.1.)>>
CPS Disclosure Manual>>