Coronavirus Recovery and Reform (Scotland) Act 2022 - criminal justice measures: consultation

Chapter 5 - Digital Productions

An area that supports modernisation in our justice processes is the way evidence is gathered and processed in the criminal justice system. More evidence than ever is being captured in a digital format with opportunity to further expand in this area. The quantity and types of digital evidence has grown and will continue to expand in line with the use of digital technology in all aspects of business and life. This demand will continue with the introduction of Body Worn Videos to every front-line police officer in Scotland.

The Digital Evidence Sharing Capability (DESC) modernises and streamlines the way digital evidence is collected, managed, and shared throughout the criminal justice process, removing the need for a physical item to be presented in court. Digital evidence is submitted securely, it is stored, shared, accessed, and presented digitally. Digital evidence can be shared by members of the public at the point of reporting a crime to the police. This evidence is then onward shared with the prosecution and defence agent for the accused to allow early consideration and possible resolution of cases. The use of digital evidence through DESC has the potential to improve the experience of victims, witnesses, and the accused in terms of providing swifter justice.

Given the benefits of being able to quickly and easily obtain and use digital images in the criminal justice system we now propose that images of physical productions should be admissible in evidence in the same way as if the item itself had been produced in court.

Background to physical productions

Evidence in criminal cases can take many forms. It can be digital, for example CCTV or mobile phone footage, documentary, for example medical records and it can be what is called "physical evidence", actual items. These can include for example the proceeds of a theft, a knife used in an assault, controlled drugs or clothing taken from a victim or accused. When they are taken by the police for the investigation of a crime or offence this is known as seizure.

The police officer who will report the crime to the procurator fiscal will generally decide what productions to seize. Productions will be seized if they are evidentially necessary to assist the investigation or required for forensic examination.

The physical evidence then requires to be stored by the police. If the case is reported to the procurator fiscal and court proceedings are taken, the physical evidence will continue to be stored by the police until the procurator fiscal requests to have it lodged with them. This could be to allow preparation for trial and thereafter for producing the evidence at trial.

In the most serious cases, which are prosecuted in the Sheriff and Jury and High Courts, the physical evidence also needs to be lodged with the clerk of court before the trial. In cases prosecuted under summary procedure before the Sheriff sitting alone or the justice of the peace, the police will be asked to either lodge the physical evidence with the procurator fiscal to take to the court on the day of the trial or bring the physical evidence to the court for the trial diet itself.

A large amount of property is seized by the police as potential productions for criminal cases. Only a small proportion is produced in court and only those items which are necessary for the proof of the charge require to be produced in court.

Storage of productions in secure conditions, accounting for them and transporting them to and from court is very resource intensive across Police Scotland, Crown Office and Procurator Fiscal Service and Scottish Courts and Tribunal Service.

At present a physical production may be required as best evidence and therefore is usually required to be produced in the court. If such evidence is not produced in court, there may be an objection to the evidence or a submission of no case to answer and the Crown case may fail. In order to safeguard the position, the police and the Crown may consider it necessary to retain many productions and produce them in court at the trial. We consider however that rather than have the physical piece of evidence in court, the evidence could and should be presented in digital form, by an image.

The law therefore needs to change to allow for this to happen in a straightforward and practical way and to allow the digital image to be received in evidence without objection on the basis that the original item has not been produced to the court, and to treat the image as the equivalent of the actual production itself.

Benefits of using digital images

Some of the advantages of being able to take and share digital images of physical productions are:

• In some instances, the property of victims and witnesses does not require to be seized in the first place.
• The images of the physical productions can be shared with the defence at an early stage to allow them to examine them online or consider whether they require to make physical examination of them or for instance require to have them examined forensically.
• It is a much more efficient way of storing and handling evidence - it reduces the movement of evidence between the police, procurator fiscal and the court which is costly in terms of movement and time spent booking productions in and out of police production stores, procurator fiscal and Scottish Court and Tribunal offices.
• Where a trial is held wholly virtually, and witnesses are giving evidence remotely all parties can view the productions in the same way if they are presented digitally.
• At trial it will allow juries, witnesses and the parties to view the evidence at the same time in the same way. This could enhance the quality of the evidence which is being examined so if there are features that need to be brought to the attention of the parties this can be done in a way that all parties can see them.

Procedural Considerations

There will still be items that require to be retained for examination by the prosecutor and on behalf of the accused and would still require to be stored. However, the need to continue to transport them for presentation in court would not be necessary if a digital image of the production would suffice.

It would remain the case that it would be for the prosecutor or the defence agent to determine how they will present their evidence and so the prosecutor or defence agent may decide to have the actual physical item in court.

There may be circumstances where the defence agent requires an object to be produced in court which the prosecutor wishes to simply produce an image of, on the basis that if the article itself was not produced it would cause material prejudice so as to be unjust.

In solemn cases, which are tried on indictment before the High Court or a Sheriff sitting with a jury, an indictment is served on the accused which contains the charges the accused faces, and a list of the productions the prosecutor may be leading in evidence before the court during the trial. It would therefore be open to the defence to raise this issue through the defence statement under section 70A of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). It could be raised at a procedural hearing in the High Court or in Sheriff and jury proceedings as a preliminary plea or issue under section 79A of the 1995 Act for the court to resolve.

In summary cases which proceed before the sheriff sitting alone or justice of the peace the situation is different. In these cases, there is no requirement for the prosecutor to tell the defence which productions they will be seeking to rely on during the trial. If the defence wished a particular item brought to court that would be a matter of discussion between them and the prosecutor particularly at the pre-intermediate diet meeting between the prosecutor and the defence agent if one took place. If agreement could not be reached, or no pre intermediate diet meeting took place then the matter could be the subject of discussion or debate at an intermediate diet before the sheriff. The defence may also be able to object to the evidence in these circumstances at the trial.

Practical considerations

We would expect in any trial that the image would be led in evidence in the same way evidence would be led about the physical production and witnesses would be required to give evidence about the significance of the item. The image of an object may not tell the whole story, so it will be essential that images are supplemented with information about the production to allow the court to understand the relevance of it. This could include for example, information on the weight and size of productions as well as the use of a scale to supplement the presentation of the item in a digital format. For example, if a knife was seized, it would be important to have a scale beside the blade to show the size of the blade.

The accuracy and the quality of the digital image is of the utmost importance. For instance, if the significance of a physical production was its colour, then this would have to be accurately presented in any image.

There must also be assurance that the integrity of the image is secure and that the image has not been manipulated inappropriately. (It may of course be legitimate for instance to enlarge the image to show particular features.) DESC can provide that assurance through its automatic and tamper-proof audit function which shows every activity on the uploaded file from its receipt to the conclusion of the case. So, whilst DESC does allow police officers and prosecution staff to clip or redact the original image, the original file uploaded to DESC of the image remains intact. The redacted or clipped file is produced as a separate file bearing its own unique identification number. Therefore, if any question arose about the evidential impact of changes to the original image the fact the original image is still available with the audit trail would show what these changes were.

We consider that the proposal to ensure that presenting digital images would be equivalent to having a physical item in court promotes the use of modern technology and will support greater efficiency across the criminal justice system and along with the proposal to have virtual trials could enhance the way that evidence is led to create improvements in the court experience.

Question 6

Do you agree or disagree with the proposal that digital evidence should be used to produce evidence in courts in criminal cases rather than having to produce the original item in court?

Agree

Disagree

Unsure.

I have no view.

Please elaborate on your answer, setting out any advantages or disadvantages of the proposal as you see them.

Question 7

Do you agree or disagree with the proposal that where an image is produced that it can be treated as if it was the item itself that was being produced?

Agree

Disagree

Unsure.

I have no view.

Please elaborate on your answer, setting out any advantages or disadvantages of the proposal as you see them.

Question 8

Do you agree or disagree that the current procedural framework as outlined in chapter 5 would allow the defence to seek for the physical production to be brought to court if its absence would prejudice a fair trial??

Agree

Disagree

Unsure.

I have no view.

Please elaborate on your answer, setting out any advantages or disadvantages of the proposal as you see them.

Chapter 6 – Modernisation of the law on copy documents

An area where the law could be modernised to update and future proof it for technological developments is the way in which copy documents are admitted in evidence in court.

Currently the law and associated court rules require a person to sign a certificate to be attached to a copy document, to allow it to be used as evidence thereby verifying its authenticity.

Modern methods of sharing and producing evidence could not have been envisaged at the time the existing requirements were introduced and are so reliable that rather than having a person certify something is a copy, an auditable system can provide complete assurance on its authenticity.

To ensure that we can maximise existing and potential digital innovations, now and in the future, legislation relating to the use of copy documents in criminal cases needs to be updated and future proofed.

Related to that, we are also proposing to modernise the system of proof of copy physical documents. Rather than only rely on certification as a method of authentication, we consider the courts should be given more discretion to accept that a document is a copy where there is, for instance a defect in the certification under the schedule 8 regime, including by way of leading oral evidence.

Copy documents

Historically, and at the time of the Scottish Law Commission's (SLC) 1992 'Evidence: Report on Documentary Evidence and Proof of Undisputed Facts in Criminal Proceedings', the general common law rule in criminal proceedings was that a copy of a document which is in existence was generally inadmissible i.e., it could not be produced as evidence in court. A copy was normally admissible only when the original document itself was unavailable. In this Report the SLC drew attention to the reliability of modern methods of copying, and the inconvenience of producing original documents where copies could reasonably be used.

The recommendations from that SLC Report became the basis for what is now section 279 and Schedule 8 of the Criminal Procedure (Scotland) Act 1995. These provisions provide a scheme to allow copy documents to be used in evidence using certificates to authenticate the copy documents.

Schedule 8 of the 1995 Act provides that an authenticated copy shall, unless the court directs otherwise, be deemed a true copy, and treated as if it were the document itself, regardless of how many removes there are between it and the original, and whether the original document is still in existence. A document is "authenticated in such manner and by such persons as may be prescribed". This has been achieved by Court Rules. The rules require a certificate to be signed and either endorsed on or attached to a copy document or a copy of a material part of a document. The certificate can be signed by a person who is the author of the original, who is in or who has been in possession and control of the original or a copy of it; or the authorised representative of the person in, or who has been in possession or control of the original or a copy of it. (See rule 26.1 of the Act of Adjournal (Criminal Procedure Rules) 1996.) Whilst there is one form there are 24 permutations of who can certify a copy or the material part of a copy document.

Document was given a wide definition in schedule 8. It includes not just documents in writing. In addition, a document includes any map, plan, graph or drawing. Any photograph, disc, tape, soundtrack or other device in which sounds, or other data, are recorded so as to be capable with or without the aid of some other equipment, of being reproduced therefrom; and any film negative, tape, disc or other device in which one or more visual images are recorded so as to be capable of being produced therefrom.

At present, for example, if footage from a mobile device is required to be used in court, that footage is downloaded onto a disc or pen drive. A certificate requires to be completed by a person, usually the person who was in possession and control of the phone when the copy was made, certifying that is a copy of the footage and then the certificate is attached to the disc or pen-drive. In that way the copy of the footage on the disc or pen-drive can be deemed a true copy and used in evidence in a court case. The completion of certificates by civilian witnesses is usually done with the assistance of a police officer.

There are occasions when a copy document requires to be edited or redacted before it can be produced in a form that is suitable for leading in evidence in court. The reason for this is often to remove sensitive material, information that is prejudicial to the accused or just to delete the parts of the document that are not relevant to the case. This requires the document then to be recertified as the copy of a material part of the document.

Documents and Digital Evidence Sharing Capability (DESC)

The way in which evidence can now be shared and stored in criminal cases has changed due to advances in technology. This is particularly due to the development of DESC, a digital service which allows for the collection, editing and sharing of digital evidence at every stage of a criminal case and prosecution across the justice sector, delivering a digital pathway from crime scene to court room.

DESC is currently being piloted allowing the collection of digital material such as CCTV footage, photographs, and footage from mobile devices. Looking to the future we anticipate that once Body Worn Video is rolled out by Police Scotland, they will upload the relevant footage to DESC to be used as evidence. Digital files can be shared directly from DESC rather than being downloaded onto a pen-drive or disc. The files are stored, edited, transmitted, and presented in court all digitally through DESC and all with an audit trail.

In the example above where files had to be downloaded onto a separate disc or pen-drive, footage can now be accessed directly from DESC without the need for any physical media. Once the footage is in DESC it can be edited there either by the police or the prosecutor if required, for example, to redact or provide an extract of the original file.

When footage from a mobile device is uploaded to DESC, the original evidence file is never altered. Each file is provided with an industry standard unique identification value. It will also show who uploaded the file along with the date and time of the upload. The uploaded footage will be available in DESC until court proceedings are finished and policies in relation to retention of information are applied.

Given the level of detail held within the digital application we do not consider that it is necessary to also obtain a certificate from a person that the information uploaded to DESC is a copy.

DESC also allows authorised police officers and prosecution staff to edit or redact the original file. The edited or redacted file is saved as a secondary file, bearing its own unique identification value and showing who made the edit and when the edit was made. This is recorded in a tamper proof audit trail. If the original footage as uploaded is to be used in evidence, it will be disclosed to the defence.

Where an edited version is to be used as the evidence in the case, it will be disclosed to the defence. It would be clear to the defence that they have been provided with an extract of the original file because the file bears a different unique identification value. Again, in these circumstances we do not consider that it should be necessary to obtain a certificate from the person who edited the document. Details of who made the edit and when the edit was made are again recorded in the tamper proof audit trail.

The schedule 8 scheme is limited only to ensuring that copy documents can be used in evidence. It does not remove the need to lead evidence about the content of the document and to show how it is relevant to the case. So, for example, if a person provides images of an alleged assault from their mobile device to DESC, they may still be required as a witness to give evidence about where and when the alleged assault happened and who was involved.

Question 9

It is proposed that the transfer of digital files to any reliable digital evidence system such as DESC (which has a robust audit system) should remove the requirement of certification as outlined in the scheme under the 1995 Act. Which of the following best describes your view on this proposal?

I agree.

I do not agree.

Unsure.

I have no view.

If you have any comments on this proposal, please write them below.

Question 10

Whilst the examples given have related to files from mobile devices, there are other types of documents which could be transmitted into DESC, especially as the term document is given a wide definition in schedule 8. This could include items such as photographs of evidence or paper copies of a traditional document which are scanned and uploaded to DESC.

It is proposed that any type of document uploaded to DESC should be accepted as a true copy without the need for separate certification. Which of the following best describes your view on this proposal?

I agree.

I do not agree.

Unsure.

I have no view.

If you have any comments on this proposal, please write them below.

Question 11

If there were to be a challenge to the admissibility of the evidence held within DESC on the basis that the image is not a true copy, we do not consider that any new procedure need be introduced to allow this challenge. We consider that there are sufficient procedures currently in place to allow a challenge to the admissibility of such evidence through procedural pre-trial hearings in all courts.

It is proposed that any issue in relation to the admissibility of the copy held in DESC could be raised through the pre-trial hearing system already in place.

Which of the following best describes your view on this proposal?

I agree.

I do not agree.

Unsure.

I have no view.

If you have any comments on this proposal, please write them below.

Question 12

Certification under schedule 8 will still be needed for copies of documents which are not uploaded to DESC. There are occasions where the certification of the document is incorrect or missing an essential piece of information. Where there is no valid certificate the copy document cannot generally be accepted into evidence in place of the original.

Whilst we do not consider that there should be any separate procedure to challenge the admissibility of copy documents certified under schedule 8 due to defect in certification, as the issue should be raised at a procedural hearing, an issue may arise if such a defect is not detected until after a procedural hearing in the case, particularly if it is only discovered shortly before or at the trial.

If this happened at the trial, it could potentiality result in a trial being halted for the matter to be resolved or a decision taken that the copy document could not be put in evidence. This could not just cause inconvenience to victims and witnesses but could also result in the failure of a case.

At present the ways to remedy the defect would include having the document re-certified, or to try and obtain the original document to put in evidence. This second course may not be possible as the original may no longer exist. Both of these routes to correct a defect would be time consuming.

We do not consider that this should be necessary. There may be sufficient information before the court to allow it to accept that the copy document is a true copy. We therefore consider that the law should be more flexible. The court could be given a discretion to allow the copy document to be admitted if satisfied it is a copy despite any defect in certification.

It is proposed that the court therefore be given a discretion to allow a document to be led in evidence if satisfied it is a copy document despite any defect in certification. Which of the following best describes your view on this proposal?

I agree.

I do not agree.

I am unsure.

I have no view.

If you have any comments on this proposal, please write them below.

Question 13

One of the ways a court may be satisfied that a document is a copy document is to simply hear oral evidence of that fact. It is therefore also proposed that the court should be able to hear evidence from witnesses, to allow it to be satisfied that the document can be deemed a true copy and treated for evidential purposes as if it were the document or material part of the document.

Which of the following describes your view on this proposal?

I agree.

I do not agree.

I am unsure.

I have no view.

If you have any comments on this proposal, please write them below.