Permanence of Coronavirus Recovery and Reform Act measures: consultation analysis

6. Digital productions

It is proposed that images of physical productions should be admissible in evidence in the same way as if the item itself had been produced in court.

The consultation paper notes that secure storage, tracking and transportation of physical evidence is resource intensive for a number of organisations including Police Scotland, Crown Office and Procurator Fiscal Service and Scottish Courts and Tribunal Service (SCTS). The potential impact on a case if specific pieces of physical evidence cannot be produced in court also means that the police and the Crown may consider it necessary to retain many productions as a safeguard.

It is proposed that use of digital productions will support greater efficiency across the criminal justice system, enable virtual trials, and potentially improve the court experience. The consultation paper notes that the Digital Evidence Sharing Capability (DESC) currently supports secure storage, sharing, accessing and presentation of digital evidence.

The principal of digital evidence

Question 5: 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?

Responses to Question 5 by respondent type are set out in Table 6.

5 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

The majority of those answering the question (18 of 25) agreed that digital evidence should be used in courts in criminal cases rather than having to produce the original item in court. Six respondents were unsure.

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

Sixteen respondents provided further comment at Question 5.

Advantages of the proposal

Consistent with the overall balance of views, the majority of those providing further comment agreed with the proposal.

These respondents cited a range of anticipated advantages associated with use of digital productions, most commonly the potential to deliver efficiencies and reduce pressure on court and justice partner resources. It was noted that DESC enables all parties – police officers, prosecutors, defence agents and the judiciary – to access evidence in an efficient and secure way. Judiciary and community justice respondents referred to positive feedback from pilots of digital productions, including delivery of efficiencies in relation to early disclosure and presentation in court.

It was also suggested that efficiencies and quicker resolution of cases, potentially including fewer trials, could bring significant benefits for victims, witnesses and the accused.

Other specific benefits mentioned in relation to digital productions include reduced resourcing requirements and carbon emissions associated with storage and transport of physical evidence (including reducing the need for long-term storage of physical productions if digital evidence can be treated as “best evidence”), reduced risk of loss or tampering of evidence, and minimising risk to staff from any toxic substances.

A judicial respondent felt that in most cases (particularly in summary) digital evidence should be used in court rather than having to produce the original.

A legal profession respondent commented that the above benefits could help to reduce “churn”^[3] in court business and enable trials to run more smoothly. It was also suggested that such positive outcomes have the potential to improve public confidence in the justice system.

Points for consideration

While none of those providing comment at Question 5 objected to proposals for digital evidence to be used in courts in criminal cases, respondents did raise a number of potential issues around how digital productions are used.

These were most commonly linked to a view that there will be circumstances where it will be necessary for physical evidence to be produced in court. Several judiciary and legal profession respondents cited potential situations where the defence and/or witnesses need to physically examine an item. It was also noted that the need for production of an original item may not be apparent to prosecution and/or defence until later in proceedings, for example following full production of the prosecution case or if additional evidence emerges. While acknowledging that such instances are likely to be rare, some respondents perceived the need for provisions to enable the court to require and for the prosecution or defence to request physical productions.

There were calls for clarity around the quality standards that will be in place to ensure that digital productions can be trusted to capture the forensically significant aspects of original items. This included reference to image quality, standards of display to ensure accurate reproduction of evidence, the provenance trail and the producer of digital evidence. A legal profession respondent also raised specific concerns around use of digital productions in the presentation of forensic evidence in court, including the risk of limiting opportunities for the defence to test evidence and potential privacy issues. There were calls for guidance on the digital reproduction of forensic evidence.

Other issues noted by respondents in relation to use of digital productions are summarised below.

• An individual respondent suggested that digital productions may lack the impact of physical evidence, such that provisions should require all parties to agree before digital productions are used.
• It was suggested that modernisation in relation to use of digital productions should also be made available to children’s hearings court proceedings, noting that this may require additional legislation or regulatory change.
• Judiciary and advocacy respondents indicated that experience to date has highlighted potential issues around data storage compliance, and suggested that these will need to be resolved.
• A legal profession respondent saw a need for a clear and shared understanding that the object and the image are two different things.

A small number of respondents saw a need for further work to agree a suitable approach and timescale for implementation of proposals. A police respondent suggested that further discussions between Scottish Government and affected agencies could be valuable in agreeing how current operational barriers might be overcome. The resourcing implications were also highlighted, including concern that these are not accounted for in current budgeting. For example it was noted that updates would be required to police, COPFS and partner guidance, operating procedures and IT systems relating to the storage and destruction of productions, and that associated training would be required.

Procedural and practical considerations

The consultation paper highlights a number of procedural and practical considerations around the use of digital productions. For example, it notes that some items will still require to be securely stored for the purpose of examination, even if transportation to court would not be necessary. Prosecutors or defence agents may still choose to produce physical evidence in court; there is also potential for the defence agent to require an item to be produced in court even if the prosecutor is satisfied with a digital production. It is noted that different approaches to resolving this disagreement would be required for solemn and summary cases due to the different procedures which already apply.

It is also assumed that digital images would be led in evidence in the same way as a physical production, and that images would require supplementary information such as the weight and size of productions. The consultation paper notes that the accuracy and quality of images would be of vital importance, and that there must be assurance of the integrity of the image – for example via the DESC audit function.

Question 6: 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?

Responses to Question 6 by respondent type are set out in Table 7.

5 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

The majority of those answering the question (16 of 25) agreed that, where an image is produced, it can be treated as if it was the item itself that was being produced. Three respondents – a police respondent and two individuals – disagreed with the proposal and five were unsure.

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

Fourteen respondents provided further comment at Question 6.

Advantages of the proposal

Most of those providing further comment agreed with the proposal, reflecting the overall balance of views.

Some of these respondents commented on the principle of treating an image as if the item itself is being produced, including a view that this is necessary for the use of digital productions to achieve the anticipated benefits. For example, a legal profession respondent noted that if the image is not treated as the item, then subsequent production of the physical item may result in adjournments and delays.

Those commenting in support of the proposal also noted potential practical advantages. A legal profession respondent identified potential to reduce the cost and resource implications around storage and transport of physical evidence. There was also specific reference to potential for an image to be used as “best evidence”, noting that this would enable some productions to be returned to owners sooner.

Other discussion of practical considerations included a judiciary respondent noting the importance of DESC provisions to preserve original digital files to assure the integrity of digital productions. Several individual respondents also noted the need to ensure that images include and/or are accompanied by the information needed for proper interpretation – for example to confirm accurate representation of scale and context.

Disadvantages of the proposal

Comments from some of those who disagreed with the proposal suggested that physical productions are usually more suitable than digital productions for criminal cases. They highlighted concerns around how the integrity and accuracy of images could be assured. Some individual respondents referred to the impact of perspective, lighting and other factors on how objects may be presented in an image. It was also suggested that jury members’ wider view of the trustworthiness of images may have been diminished by the recent rise in AI with the ability to produce realistic images, and that provisions to ensure the integrity of images as outlined in the consultation document may be too technical to be properly understood by juries.

Other points for consideration

Several judiciary and legal profession respondents, including some of those who agreed with proposals, highlighted the importance of ensuring that the defence still has a reasonable opportunity to examine physical evidence, and where necessary require physical production in court. This included a legal profession respondent expressing reservations around an image being treated as best evidence in all cases, and noting that some items may have certain physical characteristics which are less well represented in an image. It was also suggested that a requirement to inspect physical evidence, such as by an expert witness, can only become apparent in the course of court proceedings, and that the retention of physical evidence will be required to respond to these circumstances.

A police respondent wished to see further discussions between Scottish Government, criminal justice partners and representatives of affected stakeholders to consider what the proposal might mean and how it should be implemented from a practical standpoint. It was also suggested that the proposal should be applied to children’s hearing court proceedings.

Question 7: 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?

Responses to Question 7 by respondent type are set out in Table 8.

5 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

Around half of those answering the question (13 of 25) agreed that the current procedural framework would allow the defence to seek for the physical production to be brought to court if its absence would prejudice a fair trial. Two individual respondents disagreed with the proposal, and eight respondents were unsure.

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

Eleven respondents provided further comment at Question 7. These were primarily focused on considerations around how the proposed approach would operate in practice.

As noted at Questions 5 and 6, several respondents wished to ensure that the approach to digital productions retained opportunity for prosecution and defence to inspect physical evidence, and to require physical production in court where this was seen as necessary. This was seen by a judiciary respondent as an essential safeguard to ensure use of digital productions does not prejudice a fair trial.

Comments from judiciary, legal profession and police respondents saw a need for judicial oversight to determine whether the absence of the original evidence could prejudice a trial. It was suggested that these issues should be raised at an early stage to ensure they can be judicially determined. This was seen as important in protecting the interests of justice and to ensure this provision is only used where necessary.

Also in relation to how requests should be determined, a legal profession respondent suggested that a defence request should be allowed unless it is considered unjustified. A community justice respondent suggested that physical production should be assumed where there is disagreement between prosecution and defence around a specific item.

Respondents also noted the differing procedures in solemn and summary cases for the defence to identify objects they wish to be produced in court.

In relation to solemn cases, a judiciary respondent suggested that it would not be appropriate for the defence to raise issues around physical production as a preliminary plea, but that this could be raised as a general issue under sections 72 or 79 of the Criminal Procedure (Scotland) Act 1995 - for example on basis of an objection to evidence. It was proposed that sections 72 and 79 could be amended to make digital/physical production an additional preliminary issue.

In relation to summary cases, concern was expressed around how the issue can be dealt with prior to trial, as the defence would not be made aware in advance of the productions that the prosecution expects to use. It was suggested that there may be a need to ensure the defence is informed of productions early in proceedings and/or allow the defence to object during the trial, and thus potentially pause the trial until a physical production can be made. A legal profession respondent suggested the use of Statement Of Uncontroversial Evidence (SOUE) procedures by the prosecution to allow the defence to consider the digital images to be used, and to raise any challenge in summary cases.

A legal profession respondent noted potential for the defence to require attendance of the accused to physically examine an item, in order to identify where physical production may be required. There was concern that requiring transportation of the accused from custody to examine items may not be feasible given existing pressures on custody services.