You may remember our article (‘Show us the files’) in the Journal of the Law Society of Scotland where we highlighted the sharp contrast between the disclosure regime for scientific evidence in other countries and the restrictive regime in Scotland.

Why is Scotland’s State forensic laboratory the most secretive that we have ever dealt with?  State owned and operated, yet more resistant to disclosure to the defence than any other civilised jurisdiction that we have worked in (USA, Australia, New Zealand, England, Northern Ireland and Ireland).  It is a disgraceful state of affairs which is not new yet threatens to create massive repercussions on a Cadder scale if the highest courts decide that Scotland should adopt the fair practices used routinely elsewhere.

Once upon a time, that is before the creation of the Scottish Police Authority (SPA), Scotland’s four forensic science laboratories provided the defence expert on request with colour copies of the casefiles which contained the observations and results of their work.  Never have we received those files since the creation of the SPA.

Once again we feel the need to raise this issue as the Scottish Police Authority introduce new software used to provide a statistic in DNA cases across Scotland.   Unsurprisingly, we asked to see the validation data which would show that the SPA had demonstrated that the software actually worked.  Unsurprisingly, from our years of experience in attempting to achieve proper disclosure in Scotland, the SPA refused.

We wrote to the Scottish Government in September 2018 to request that they instruct the Scottish Police Authority to release information about the testing of the new software being used to provide DNA evidence.  We also asked;

“The SPA, a publicly funded body, has not only refused to provide the defence with this vital information, it is understood that they now intend to spend public money on their own Counsel to go to court to block such disclosure.

In whose interest can it be to keep the validation secret? 

What is within the data that the defence should not see?  

Why is public money being spent to avoid scrutiny of a public body which is supposedly serving the public?”

Another brick wall from the Government; 

 “I understand that the above information was, in part, the subject of a petition served on behalf of the accused on the SPA in August 2018. The outcome of that petition, in respect of the production of the information set out below, was dismissed by the Sheriff and withdrawn by the accused’s Counsel:

• details of the validation undertaken to support the reliability of STRmix
• all standard operating procedures used in the implementation of the software
• details of what was provided to UKAS in connection with its accreditation of the use of STRmix by the SPA.”

As the subject matter of your request has been considered and dismissed in law, I am unable to help you.”

It should be noted, as we did in our further letter to the Scottish Government;

“The issue is not, as you would have it, of law but one of fairness.  Although a single Sheriff court in a single case has rejected our request this does not make it illegal for the scientific data held by the Scottish Police Authority, and being used to prosecute individuals in Scottish courts, to be released for proper scrutiny by the scientific community at large and the defendants in particular.”

We also asked again the unanswered questions from our original email;

“In whose interest can it be to keep the validation secret? 

What is within the data that the defence should not see?  

Why is public money being spent to avoid scrutiny of a public body which is supposedly serving the public?”

Importantly, we asked this;

“For the record, please confirm that the Cabinet Secretary for Justice had sight of my email and specifically approved the response contained in your letter of 17^th October 2018?”

Now I trust the fair-minded member of the public would agree that these are reasonable questions that deserve an answer given the importance of forensic science in criminal trials.  Silence from the bureaucracy.  A short and not-so-sweet response from the bureaucracy;

“There is nothing that I can add to the previous reply.”

Really?  You cannot even say whether the Minister was even made aware of our letter?  You cannot say what we shouldn’t see?

This episode is of course simply the latest in the ongoing obstructive and unfair approach apparently adopted by the entire Scottish system.  The Crown Office and Procurator Fiscal Service (COPFS), the prosecuting authority in Scotland, stand meekly aside, pleading that since they don’t have the files they cannot provide them and apparently unwilling to force the SPA to do so. 

Again, really? 

“3.1.2 The police and other investigating agencies are under an obligation to submit all relevant information to the Crown (Criminal Justice and Licensing (Scotland) Act 2010 s116). The court in Smith v HMA (1952 JC 66) at pages 71 and 71 set out that it is the duty of the police;

“to put before the Procurator-fiscal everything which may be relevant and material to the issue of whether the suspected party is innocent or guilty. We repeat, it is not for the police to decide what is relevant and material but to give all the information which may be relevant and material.”[i]

It would appear that the COPFS should expect all relevant information to be provided to them.  Of course being lawyers they may not understand the importance or relevance of the work performed in the laboratory and upon which any scientific evidence will be based (does anyone actually believe that?).

“… the prosecutor must consider what action is in the public interest. Assessment of the public interest often includes consideration of competing interests, including the interests of the victim, the accused and the wider community.”[ii]

We say that the interests of all of those parties is best served by a fair trial with full disclosure of the relevant information.   COPFS, and the Scottish Government, should become active in ensuring fairness.  Defence solicitors need to be more active in challenging this idiosyncratic system on behalf of their clients and justice.

Despite the Scottish Government claims that Scotland has one of the best, if not the best, criminal justice systems in the world, we at The Forensic Institute know that it has the most restrictive disclosure regime for forensic scientific evidence in the advanced world. 

This is simply the latest in a long, frustrating campaign on our part to achieve change.

(A form of this article appears in the Journal of the Law Society of Scotland, April 2019)