Disclosure in criminal proceedings

• Summary
• Criminal justice and licensing (Scotland) act 2010
• Roles
• Relevant material
• Reasonable lines of enquiry
• Sensitive and non-sensitive material
• Witness statements and productions
• Defence statements
• Technical and scientific reports and material
• Schedules
• Appendix A - Certificate undertaking by Reviewing Officer of completion and transmission of relevant material - Initial Report
• Appendix B - Certificate undertaking by Reviewing Officer of completion and transmission of relevant material – Additional Material.
• Appendix C - Certificate undertaking by Reviewing Officer of completion and transmission of relevant material – No additional Material
• Appendix D - Sensitive and non-sensitive schedules

Summary

1.1. HSE has the responsibility to make adequate arrangements for enforcing the relevant statutory provisions under the Health and Safety at Work Act 1974 and other legislation where HSE is an enforcing authority. Enforcement is defined in HSE's Enforcement Policy Statement and includes, in Scotland, investigating and reporting alleged offences to Crown Office and Procurator Fiscal Service (COPFS).

1.2  The decision to prosecute is entirely for COPFS. That decision should be taken on the basis of a comprehensive and accurate report from the investigator which should include descriptions and summaries of all relevant evidence and information both for and against the accused.

1.3  There is an obligation on the investigating agency to ensure that all reasonable lines of enquiry are followed, including any line of enquiry that might point away from the accused being the perpetrator of the offence (see section 5 below).

1.4  The Crown is under an obligation to disclose all relevant material both for and against the accused. In order to discharge that obligation the investigator must reveal to the Crown all such material obtained during an investigation.

1.5  These obligations already existed under common law and case law rules but have now been put on a statutory basis by the Criminal Justice and Licensing (Scotland) Act 2010 (CJLA) supported by a Code of Practice (COP).

HSE and individual investigators have duties under section 164 of CJLA to comply with this legislation and the COP. This guidance describes the principles and practice for complying with those duties.

1.6  The duty on the investigator to reveal and the prosecutor to disclose continues throughout the progress of the case including any appeal and even after final disposal of the case.

1.7  Any failure to properly disclose information may result in a miscarriage of justice and breaches of Article 6 of the Human Rights Act – the right to a fair trial. A serious failure to reveal information by the investigating agency may result in criminal sanctions against the agency or individual officers involved.

1.8  For fatal accidents where the Work Related Death Protocol is applied and there is a joint investigation with the police, or other agency, then the arrangements for complying with disclosure requirements must be agreed and documented.

2 - Criminal justice and licensing (Scotland) act 2010

2.1  Part 6 of the 2010 Act www.legislation.gov.uk/asp/2010/13/part/6/enacted
supported by a Code of Practice, "Disclosure of Evidence in Criminal proceedings" (COP) (link to be inserted) issued by COPFS places statutory obligations on investigators and prosecutors in relation to disclosure of information.

2.2  Section 116 defines "information" as, in relation to an accused, material of any kind given to or obtained by the prosecutor in connection with the case against the accused.

2.3  Section 117 applies to solemn cases and requires that where an accused has appeared on petition or indictment, then the prosecutor must notify the investigating agency as soon as practicable and the agency must as soon as practicable provide all relevant information to the prosecutor.  This is done by preparing and submitting schedules of relevant information. The agency must decide if the information is sensitive, highly sensitive or non-sensitive and record the information in the appropriate schedule.

2.4  The Code of Practice sets out core duties and responsibilities for investigating agencies, these include;

Recording and retention of information – all information obtained or generated during an investigation should be recorded and retained.  This includes information assessed as irrelevant in order that such judgements be reviewed.

Reasonable lines of enquiry and exculpatory information – all reasonable lines of enquiry and particularly those that may exculpate or mitigate the accused must be followed.

Revealing and providing information to the Crown – the agency and all its officers have an obligation to record, retain, review, reveal and, where appropriate, provide all information which may be relevant to the Crown. Every case reported to the crown will have a nominated reviewing officer.

Role of Reviewing Officer – The investigating agency has a responsibility to ensure that all reviewing officers have been appropriately trained on the obligations of revelation and disclosure. The reviewing officer must ensure there is a record of all information obtained or generated; review and assess all such information to determine whether relevant and whether sensitive. Conduct early liaison with the Crown in complex cases. The reviewing officer may be the investigating inspector or may be another person appointed for more complex investigations.

2.5  These duties and responsibilities are described in more detail below.

2.6  Reporting agencies will reveal information for summary cases by means of the SRAWEB 2 report which in part 1 will include a disclosable summary of the facts and in part 2 an analysis of the case including a description of any relevant sensitive information and any exculpatory information that requires highlighting to the Crown.  The disclosable summary should be sufficiently comprehensive to include all relevant factual information.  The "remarks" section on part 2 should be used to describe lines of enquiry followed, relevant legal discussion and reasons for terminating lines of enquiry as well as reasons for any recommendations.

2.7   For indictment cases revelation will also be via the schedules described below in Section 10. For both types of case further information for disclosure will be included in the witness statements and productions which should have been described in the SRAWEB report and schedules as appropriate with any exculpatory information highlighted.

2.7  Where the prosecutor requests specified information that has been given to or obtained by the investigating agency during an investigation then the agency must provide that information as soon as practical. CJLA s.117(3).

2.8  Where information is disclosed to an accused they may use it only for preparing their case or any appeal. They may not disclose it to other persons (CJLA s.162).

3 - Roles

3.1  The Code of Practice defines certain roles within the disclosure regime.  HSE uses different terminology. This section defines roles of HSE staff relating them to the obligations in the COP.

3.2  The HSE investigation manager must explicitly appoint a reviewing officer for each case and is then responsible for monitoring the work of the RVO.

3.3  If a RVO becomes unavailable eg moves to other duties, then a new RVO must be appointed who should in return review and confirm the judgments on relevancy of their predecessor.

3.4  The RVO has the critical responsibilities in this process which include:

1. Ensure there is a record of all information obtained or generated during the investigation;
2. Review and assess all such information to determine whether it may be relevant and, if so, assess whether it is sensitive and whether it is information likely to materially weaken the prosecution case or materially strengthen the defence case.  This means the RVO must critically assess the detail of all witness statements, expert reports, productions and all other information in order to identify relevant material;
3. Produce and take responsibility for non-sensitive and sensitive schedules (see section 6).
4. Conduct early liaison with the Crown in complex cases;
5. Ensure that the SRAWEB report is accurately and comprehensively completed and contains the information required;
6. Provide details of information which may be relevant to the Crown using procedures set out below; and
7. Thereafter keep all decisions in relation to the relevancy of information under review and provide any new information to the Crown. NB this obligation continues even after final disposal of the case.

3.5) Contact details of the RVO should be included in the "remarks" section of the SRAWEB Report.

4 – Relevant material

4.1  Relevant material must be identified and recorded. Responsibilities are shared between all parties involved in the investigation but principally rest with the Reviewing Officer.

4.2  Relevant material is widely defined. It is any information that appears to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances unless it is incapable of having any impact on the case. In terms of HSE investigations this will include:

• Initial reports of incidents which must be recorded correctly by recipient;
• Formal reports of incidents – eg RIDDOR reports;
• Details of complaints which initiate an investigation, NB. this may be sensitive information;
• Inspector notebooks;
• Enforcement and other formal Notices;
• Any incident logs used during investigation eg major investigation logs;
• Records from telephone or email messages;
• Written and typed witness statements and information contained within them, eg exculpatory information must be brought to the attention of the Crown;
• Tape recordings of interviews;
• Productions taken;
• Key Decision Logs and other records of key decisions;
• All photographs/film taken during investigation (see section 8.7);
• Results of any testing/analysis and specialist reports including any negative information;
• Any authoritative opinion expressed during an investigation by any officer eg technical specialist, which cast doubt on the case;
• Any information casting doubts on credibility of witness;
• Any information about HSE's previous involvement with the accused or the issues that could have a bearing on the case;
• Information about benchmarks or standards which casts doubt on their application or reliability;
• Records/details of any analytical investigation techniques applied – AIMS;
• Any other relevant material that may have a bearing on the case.

4.3  The final decision on whether material is relevant rests with COPFS. If there is doubt then material should be retained, recorded and revealed.

4.4  Material should be assessed by the RVO in a 3 stage process. First this involves deciding whether it is relevant so that it can be retained and recorded and revealed. Second, consider whether the material is sensitive (see below section 6) so that it can be recorded in the correct schedule. Third, consider whether the material is exculpatory, in which case it must be highlighted in the Schedule and the SRAWEB report.

4.5  Once material has been positively assessed as not being relevant then there is no requirement to reveal the material to COPFS. Although there is no obligation to reveal material that is assessed as irrelevant it is advisable to retain the material (unless required to return it by virtue of s.20 HASWA) in case its relevance is subsequently challenged.

4.6  While some information will require to be retained in hard copy format much will be held as electronic information. For each HSE case a TRIM folder should be set up and all records retained in that folder.

4.7  Records of previous involvement with an accused, e.g on COIN, should be assessed by the RVO to ascertain whether there is any relevant information. For organisations with extensive records – large companies or multi site companies then support may be required for the RVO in obtaining and assessing this information eg from Visiting Officer.

4.8  Exculpatory information may be included within a witness statement that otherwise supports the case against the accused. Reporting officers and reviewing officers must be alert to this potential. Witness statements should be analysed in detail to identify relevant information and any exculpatory comments by a witness highlighted in the SRAWEB report and the schedule.

Material relating to the development of expert opinion is potentially disclosable and experts should keep any relevant material that they have in their possession in a suitable form for possible disclosure. The RVO must ensure that this information is revealed to COPFS. External experts, and even experts within HSL, may hold "third party material" HSE's instructions are contained here, in the Expert evidence section and in the investigation operational procedures.

Once an expert (skilled witness) has been appointed, s/he should be reminded that, as part of his/her duty to the court, s/he must assist in ensuring that the prosecution complies with its disclosure obligations. As with members of the investigating team, experts should be aware of the requirements to record, retain and reveal material in the course of preparing the report and giving expert evidence in court. (see section 9)

4.10 Witness statements should be submitted to the Crown when requested. Where a typed copy is derived from a manuscript then the officer who took the original statement must authenticate that the typed copy is a consistent and accurate transcript of the original.

4.11 As investigations progress, particularly fatal, serious incident or major incident (as defined), then case conferences or briefings may take place. The reviewing officer should attend or the discussion should be carefully minuted. If during such events information is raised which has the potential to materially weaken the prosecution case, materially strengthen the defence case or exculpate the accused and is not contained within source document elsewhere within the enquiry, then it must be recorded and revealed.

4.12 HSE may receive requests from the defence, including unrepresented accused, to have access to relevant material in HSE/HSL's possession. Where that material is an article or substance which was taken using powers under  s.20(2)(h) HASWA and the material is being retained for the purposes set out in s.20(2)(i) and the responsible person requests that they be present when the material is subject to any process or test, then HSE should facilitate the request. For any other request it should be recalled that the responsibility for disclosure rests with the Crown not the investigating agency, accordingly, the inquirer should be directed to the Procurator Fiscal who will then advise HSE whether to facilitate access.

4.13 In HSE emails are automatically deleted after 4 months. It is therefore essential that email exchanges between persons involved in an investigation be copied to the case TRIM folder and retained so that the reviewing officer can consider whether there is any relevant information that requires revealing. In particular, exchanges with expert witnesses must be retained.

4.14 Communications with the Procurator Fiscal or Legal Advisors Office regarding the investigation may generate relevant material which should be considered for revelation.

4.15 The prosecutor is a under an obligation to disclose criminal convictions or pending charges against witnesses where the conviction is relevant to the case. HSE in Scotland does not have access to criminal records so checks on witnesses will be carried out by the Crown.

4.16 HSE should reveal any information available regarding witnesses that could undermine the credibility of a witness, particularly an HSE/HSL employee. This will include information on any findings of misconduct against an HSE/HSL employee. Accordingly, to preserve the confidentiality of the information, the RVO should write to HR for HSE and HSL as appropriate (link to address) providing details of HSE/HSL witnesses with staff numbers as well as details of the Procurator Fiscal. HR should check their records and communicate directly with COPFS is there are any misconduct findings against the officer.

4.17 It is possible that relevant material is held by third parties such as the police, other investigatory agencies, government departments or hospitals. Where HSE is aware that such material has been obtained by the third party then steps should be taken to gain access to the information so that it can be assessed for revelation. Any difficulties in obtaining access to the material should be referred to the Crown for advice.

4.18 Material should be retained according to HSE's retention policy http://www.hse.gov.uk/foi/retention-schedule.htm.

4.19 Inspector notebooks containing information about the relevant investigation should be retained for 6 months or, where a custodial sentence is imposed, until release from custody.

5 Reasonable lines of enquiry

5.1  The Code of Practice places an obligation on the investigating agency to follow all reasonable lines of enquiry. The purpose of this requirement is to ensure that the investigator pursues lines of enquiry that point both to and away from the accused for the particular offence(s) being investigated. It does not require the investigator to follow lines of enquiry to every possible offence relating to an incident.

5.2  HSE's Enforcement Policy Statement http://www.hse.gov.uk/pubns/hse41.pdf acknowledges (para.33) that investigation decisions should be proportionate. While inspectors will have to use their discretion in deciding what is a reasonable line of inquiry, it does not include wholly irrelevant lines of inquiry. Inspectors are permitted to target their enquiries, and should take informed decisions so as to avoid the pursuit of lines incapable of having an impact on the case.

5.3  As part of this process any decisions taken in respect of a particular line of enquiry in any investigation including decisions not to pursue a particular line must be accurately recorded and retained along with the reason for those decisions.

5.4  Decisions on lines of enquiry and the reasons for them should be recorded in the Key Decision Log (KDL) for those investigations where a KDL is required www.hse.gov.uk/foi/internalops/og/ogprocedures/investigation/decisionlog.htm. For other cases the investigating inspector should record decisions and the reasons for them in their notebook, then narrate them in their statement and, where appropriate in the "remarks" section of the SRAWEB report. It will be necessary for the RVO to review the information on such decisions to ensure they have been properly recorded for revelation.

6 Sensitive and non-sensitive material

6.1  Where a case has been identified as one which will, or is likely to be, prosecuted under solemn procedure then the investigating agency must prepare schedules listing all the information obtained or generated during the investigations that may be relevant. In Scotland most HSE cases proceed under solemn procedure so, unless the case is of such a nature that summary procedure is appropriate and the fiscal agrees, for practical purposes all investigations should be considered as requiring schedules.

6.2  Each item of information must be categorised in one of 3 categories of schedule:

1. Non-sensitive;
2. Sensitive;
   

6.3  Sensitive is defined in section 122 (4) of the 2010 Act as meaning that if the item were to be disclosed it would be likely –

1. to cause serious injury, or death, to any person,
2. to obstruct or prevent the prevention, detection, investigation or prosecution of crime, or
3. to cause serious prejudice to public interest

6.4  The Code of Practice further defines highly sensitive as information the disclosure of which would be likely to lead to;

1. Lead directly to loss of life;
2. Directly threaten national security; or
3. Lead to exposure of a CHIS (covert human intelligence source)

6.5  Reviewing officers must be alert to the possibility that relevant material may be sensitive and, in particular, cases involving major hazard sites may include information with national security implications.  The RVO should consider whether the disclosure of information would have a detrimental effect on:

• the willingness of citizens, commercial institutions, communication service providers, agencies etc to give information to authorities in circumstances where there may be a legitimate expectation of confidentiality (eg a whistleblower);
• public confidence that proper measures will be taken to protect witnesses from intimidation and harassment;
• national (not individual or company) economic interests;
• the ability of law enforcement agencies to fight crime;
• the freedom of investigators and prosecutors to exchange views frankly about casework.

6.6  Examples of material likely to be sensitive are:

• material related to national security, for example in connection with Crown contractors;
• material that might facilitate the commission of other offences or hinder the prevention and detection of crime if it were disclosed;
• internal complaints against inspectors that are still under investigation;
• other material the purpose of which is to assist field professionals in carrying out their role as investigator more effectively.  This material is often referred to as the "process papers" in a case and includes views intended to help direct the investigation (.eg weighing up the evidence), notes intended to help direct investigation, reports and discussions on whether or not to report alleged offences, and internal discussion such as management minutes.  Such papers may or may not satisfy the relevancy test.  If considered relevant then they should normally be treated as sensitive.
• confidential complaints;

6.7  Should HSE conduct investigations where the provisions of the Regulation of Investigatory Powers Act 2000 apply then the application for authorisation will require to be revealed along with any information obtained by directed surveillance.  The reviewing officer should consider whether any of this information is sensitive and early consultation with COPFS is recommended.

6.8  As stated above there is a continuing obligation to keep decisions regarding relevancy of information under review.

6.9  The Government Protective Marking Scheme should be applied to all documents produced during an investigation.

6.10 Law enforcement agencies are required to comply with the requirements of Article 2 (right to life) and Article 8 (right to privacy) of the Human Rights Act. In consequence agencies must have regard to the interests of victims, witnesses and any other persons involved in the investigation and prosecution of crime. Disclosure of some types of personal sensitive information has the potential to expose victims or witnesses to harm. This must be balanced against the right to a fair trial (Article 6) which is an unqualified right, unlike Article 8, so that information may be disclosed in the interests of justice.

6.11 Should sensitive material be identified in cases that are proceeding as summary cases then, since schedules will not be prepared, then the sensitive material should be described in the "remarks" section of the SRAWEB report so the Crown can consider whether it should be disclosed.

6.12 Where highly sensitive material is generated then it must only be handled by staff with the appropriate clearance and it and the relevant highly sensitive schedule must be hand delivered to an appropriately vetted prosecutor by prior arrangement.

7 - Witness statements and productions statements

7.1  The original record of witness statements whether recorded in the Inspector's notebook or on a form (LPS 9 or 10) should be retained and produced if requested.

7.2  Any witness statement obtained or generated during an investigation must accurately and comprehensively reflect the evidence provided by the witness. As far as possible the witness statement must contain the actual words of the witness and should include everything elicited from or said by the witness that may be relevant to the incident, including everything that may be exculpatory or mitigatory in nature.

7.3  Investigators should ensure that where a statement is recorded then at the end of the statement there is a declaration that the statement is a true and accurate record. The witness should be invited to read the statement and sign underneath the declaration. Any amendments to the statement requested by the witness should be initialled. Where a witness cannot read the statement then it should be read to them and the witness asked to confirm its accuracy.  The investigator should note that the statement was read to the witness and note the response of the witness.

7.5  Typescript versions of all witness statements should be prepared using the National Standard Statement (NSS) format.  Forms LPS 9 and 10 have been designed to reflect NSS.  These may then be submitted electronically via SRAWEB and the manuscript version should be submitted to the Crown on request.

7.6  The officer preparing the statement must ensure that the typescript version is accurate and consistent with the original and should include confirmation that the witness read and signed the statement or otherwise and any reasons for not signing.  The officer must also check and authenticate in the field provided (section 2) that the typed statement has been proofread against the original.

7.7 Where a statement was obtained using powers under s.20(2)(j) Health and Safety at Work Act 1974 (HASWA), or similar, information to that effect should be included in the typescript version with an explanation as to why such powers were used.

7.8  If a statement contains vernacular or technical information that requires explanation then it is best practice to ask the witness to explain and for their explanation to be recorded as part of the witness statement. Where such an explanation is not included or requires further explanation for the benefit of the prosecutor, or the defence, then it is acceptable to insert such explanation in the typescript version provided it is clear that the information has been added by the investigator.

7.9  Every HSE officer involved in an investigation should narrate their involvement providing that involvement could have a bearing on the case.  Every HSE officer who plays any part in gathering evidence must now prepare a statement (using NSS format) narrating their full involvement in the investigation.

7.10 The Crown may now provide witnesses with copies of their witness statements prior to trial. If a witness requests a copy of their statement from HSE they should be advised that it is a matter for the Crown and HSE cannot provide copies of statements.

Productions

7.11 The investigating inspector has prime responsibility for managing the identification, seizure, labelling, security, transport and safe keeping of productions.

7.12 For larger investigations another officer may be appointed to lead this process.

7.13 A Production Register should be maintained throughout the investigation and prosecution process until the case is disposed to ensure proper tracking of productions. The Register is available (HSE Communities web site) for hand completion as productions are seized on site.

7.14 Relevant productions, there description, identifying witnesses and significance should be described in the Description of Event field of the SRAWEB report and listed in form LPS 7 for transfer by the litigation officer to the "productions list" of the SRAWEB report. Where schedules are required (see section 10) all physical evidence gathered during the investigation that is relevant will also be listed in the schedule. 

7.15 Should material be obtained during an investigation which is identified as relevant, but then is not used, for summary cases it should be listed in the "remarks" section of the SRAWEB report.  For indictment cases, unused material will be listed in the schedules.

7.16 RVOs should consider whether productions, particularly documents, contain sensitive information.

8 – Defence statement

8.1  In all cases prosecuted on indictment the defence must submit a defence statement under section 70A of the Criminal Procedure (Scotland) Act 1995 as amended by section 124 of the CJLA 2010 setting out:

1. The nature of the defence, including and particular (special) defences on which the accused intends to rely;
2. Any matters of fact on which the accused takes issue with the prosecution and the reasons for doing so;
3. Particulars of the matters of fact on which the accused intends to rely for the purposes of the accused's defence;
   
4. Any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose; and, if applicable
   
5. By reference to the accused's defence, the nature of any information the accused requires the prosecutor to disclose; and
   

8.2  On receipt of the defence statement the prosecutor should provide details of the statement to the Reporting or Reviewing Officer in order that they can jointly review all decisions relating to the relevancy of items of information to reconsider relevancy, sensitivity and whether the material is exculpatory. Any such information must be revealed to the prosecutor forthwith and new schedules prepared.

9 – Technical and scientific reports and material

9.1  Many HSE cases will involve specialist input either in the form of technical analysis and opinion derived from factual information gathered during the investigation or scientific examination and/or analysis of evidence. The results are normally produced in the form of a report supported by statements prepared by the specialist/scientists. The reports are then used as productions in court.

9.2  In Scotland such witnesses are referred to as "skilled" witnesses rather than "expert" witnesses as in England and Wales. A skilled witness is one who through expertise or education or both is specially qualified in a recognised branch of knowledge.

9.3  Skilled witnesses should use the LPS 9 which follows the format of the National Standard Statement (NSS) for narrating and transmitting their involvement in the investigation. The statement should narrate the witness's full involvement in the investigation eg whether they attended the scene, the productions they seized or were given and should make reference to their report.

9.4  It is essential that any negative findings or any other information that could assist the defence be included in the report.

9.5  Where an article or substance has been seized for the purpose of examination or test using section 20(2)(h) HASWA powers then the inspector who took possession of the article or substance should ensure the provisions of section 20(4) are met and the responsible person in relation to the premises where the article or substance was found may, should they request it, be permitted to be present when the article or substance is examined or tested.

9.6  Skilled witnesses should record all work carried out, and any findings reached, in relation to the investigation and prosecution case. They should be instructed to retain everything, including physical, written and electronically captured material, until otherwise instructed and the investigator has indicated the appropriate action to take.

9.7  The following offers general guidance on material to be recorded and retained by a skilled witness, but is not an exhaustive list:

• Information relating to the chain of evidence;
• Details of any site visits and the examination of materials;
• Any notes used in the preparation of a report that contain primary facts not already recorded elsewhere, including any notes relating to preliminary conclusions;
• Notes of speculative thinking, together with notes relating to preliminary conclusions and any other related notes;
• All communications, verbal and written, with the inspector/investigating officer and any other relevant parties including e-mails and other electronic transmissions (eg images) sent or received. Correspondence between the expert and the inspector may be purely administrative in nature (for example, discussions regarding the payment of fees or an email asking when a report will be completed). As with similar material, this will not be relevant;
• Notes of meetings attended;
• All expert reports, other than the final one, should be retained and identified as drafts, making it clear that they do not represent a final report (see Draft reports)  The report, of an expert should not be signed at an early stage; it should initially be considered a draft and marked as such. This is because; the expert will not necessarily have seen all the evidence; the expert may consider on reflection that the case, or a part of it, is outside his/her expertise; and the charges and the ambit of the investigation may not yet have been finalised.
• Clear notes of any witness accounts or explanations that the expert has been provided with, or any other information received; and
• The results of all tests and not just those that support the prosecution case.

9.8  The defence may request access to information generated during scientific examination including all the above.

Such information should be collected and collated during the course of the investigation into a forensic case file. Any relevant information identified from the file should be highlighted to the reviewing officer to consider whether it should be revealed to the Crown.

9.9  The forensic case file should be retained and made available to the defence for examination on request.

9.10 HSE investigations may generate large numbers of photographs taken by inspectors and/or HSL scientists and photographers. All such photographs are potentially disclosable though only a selected few may be needed to present the case. The photographer must be in a position to describe every photograph taken – where/when taken and what it shows. The photographer must make all photographs available to the reviewing officer.  Photographs that are unused must be listed in the schedule (see section 10.9 below) or for summary cases a note included in part 1 of the SRAWEB report say that X number of photographs were taken, considered relevant but not used for what ever reasons eg they are duplicates, or blurred. They should be made available to the Fiscal on request.

10 – Schedules

10.1 Although the requirement to prepare schedules only commences upon notification by the Crown on the first hearing on indictment, or on petition, it is prudent for work on preparation and maintenance of schedules to begin as soon as possible. As stated above the majority of HSE cases are likely to proceed by way of solemn procedure so schedules should be prepared for all cases unless the Fiscal has already intimated that they are minded to proceed as a summary case only so that schedules will not be needed.

10.2 Three types of schedule should be prepared, sensitive, highly sensitive and non-sensitive. Where a case does not generate any sensitive or highly sensitive information then a statement to that effect must be made on the relevant schedules.

10.3 In addition to disclosing all material that forms the prosecution case or would otherwise weaken the case against the accused or strengthen the accused's defence, COPFS must provide the defence with details of all other relevant, non sensitive material that has been obtained or generated in relation to the investigation. This allows the defence to make representations to COPFS or the Court to have any of that material disclosed. Accordingly the non-sensitive schedule will be disclosed to the defence.

10.4 The sensitive and highly sensitive schedules will not be disclosed to the defence. However, it is important to note that the material listed in either of these schedules may be disclosed, subject to any redaction by COPFS, if it meets the disclosure test.

10.5 The Reviewing Officer is responsible for ensuring the schedules are prepared accurately and any further schedules are also prepared and submitted.

10.6 Once schedules have already been provided to the Crown, any new information that emerges and requires revealing must be submitted via new  suitably numbered schedules (see 10.28).

10.7 The fact that there is sensitive material within a non sensitive document does not mean that it cannot be listed in the non-sensitive schedule. COPFS can redact non-disclosable information, such as witness address, from the relevant material prior to disclosure.

"monthly company accounts, 1972 to date" as opposed to scheduling each and every account. However, care must be taken, as inappropriate use of generic listing is likely to lead to requests from the prosecutor and the defence to see the items. This may result in wasted resources and unnecessary delay. The preparation of sufficiently detailed schedules at this stage will save time and resources throughout the disclosure process, and will promote confidence in its integrity.

10.9 Investigations may generate large numbers of photographs, some of which, though relevant, may not be used ie if repetitive or blurred.  In this case they may be described in the schedule in generic terms see example in paragraph 10.25 below.

10.10  The litigation officer submitting statements either electronically or in hard copy should inform the Reviewing Officer of the date submitted but the RVO should take responsibility for checking regularly to ensure the schedule is maintained ready for submission.

Schedule completion

10.11  The schedule will have the title HMA v……, the full details of the accused must be completed. If there is more than one accused they can be listed on the same schedule

10.12  Adjacent to the title is a space for Agency Reference which will be the HSE COIN case number. This is followed by the PF reference, once notified, and then full details of the Reporting Officer.

10.13  Below to the left is a section headed "FOR AGENCY USE" which will be completed by the investigating agency. This is the section that contains the full details and description of material considered relevant after assessment by the RVO.

10.14  The URN number is a consecutive number for each listed item of relevant material. The numbering sequence should continue in the submission of any subsequent schedules submitted to COPFS. Use 3 (or 4) digit sequence – 001, 002 etc.

10.15  An accurate description of material type should be entered in the next column – "witness statement, "production" etc. Where at all possible for ease of preparation and examination relevant material should be grouped by type –statements, productions etc.

10.16  Next describe the material and state why relevant. For witness statements the minimum information should include:

• Sequential number of the statement, eg no 1, 1(a), 1(b) (for supplementary statement) etc. N.B this is to identify sequential statements from the same witness so the first statement from any witness will always be no 1, the second statement from any witness will be no 1a and so on
• Name of the witness;
• Age of the witness;
• Time and date when the statement was taken;
• Any significance as a witness, e.g witness was injured person.

10.17  The RVO must review the statement to consider whether it contains any sensitive or exculpatory information. If so this should be described:

10.18  Where the statement is self prepared by an HSE officer this should be clear:

10.19  During the reviewing process it is essential that the relevance test is carefully applied to all productions as large numbers of productions may be seized in typical investigations and some may be manifestly irrelevant (see 4.5). For productions deemed relevant the description must include at least:

• Description of the item;
• Who identifies the production;
• Exact location where found by description eg witness's office rather than address;
• Date seized/taken:
• Details of HSE officer who seized/took production;
• Productions register number.

10.20  If during the reviewing process of the production anything of an exculpatory nature is identified this must be summarised in the "description and relevance" column.

10.21  All other non-sensitive material (see 4.2) must be accurately described articulating why it is relevant within this column. Failure to do so may result in COPFS asking for clarification, requiring amendment of the schedule or requiring a copy of the material itself, or it may cause the defence to request the material.

10.22  Managers and approval officers are responsible for the quality of their officer's work including checking the accurate completion, maintenance and transmission of the schedules.

10.23  The next column describes where the material is kept.

10.24  The next column is headed notes and is designed for material where  generic notes are used. Generic notes are primarily designed for police use.

10.25  The next column - * - is the date the material is submitted to the Procurator Fiscal. For statements the date will be when the electronic version is submitted. Should COPFS request the manuscript version a note to that effect with the date of submission should be added. It is imperative that the RVO takes responsibility for ensuring this column is maintained but in HSE the litigation officer must also keep the RVO informed of submission progress.

10.26  The final column requires a simple Y/N to highlight to COPFS whether the material contains anything that could help the defence case or weaken the prosecution case.

10.27  The RVO should provide their details in the section provided and date it as the date when they completed the review stage. There will be requirement for further written undertakings by the RVO as the case progresses.

10.28  The schedules for sensitive material are similar except that a column for "Reason for sensitivity- RFS" is included. The reason for deciding material is sensitive should be clearly narrated.

10.29  Schedules will be assigned an individual number with a space at the bottom of each page.  Version numbers should not be used.  Because schedules are submitted in stages a structured numbering system is required so that there is no doubt where the schedule sits in the reporting process for the case. 

The numbering sequence is:
"FISCALREFNO DEPTCDE SCHEDULETYPE BATCHNO"

Therefore, a first non-sensitive schedule completed by HSE on 27 February 2011 would read:
GL12345678 HSE NS 1
GL12345678 – is the procurator Fiscal's reference number
HSE is the departmental identifier
NS is the schedule type – non-sensitive
1 – is the batch number – could be 1,2, 3 (see paragraph 10.29)

Further schedules

10.30  In indictment cases there are 4 key stages for COPFS that RVOs need to be aware of. These should be notified to HSE by the relevant COPFS staff member. The first schedules should be submitted 21 days before stage 1. Further schedules or a written undertaking that no further relevant information has been obtained or generated since submission of previous schedules should be provided by RVO to COPFS for 2 to 4.

Submission at the 4 stages is:

1. First submission at 21 days before CFE (committal for further examination or for many HSE cases this will be the date of service of the petition)
2. 2 weeks prior to the case being reported by the precognoscer to the Crown Office
3. 2 weeks prior to the preliminary hearing
4. 2 weeks prior to the trial diet.

Submission of schedules

10.31  The schedules should be submitted at the above stages. The first schedule submission should be submitted at the appropriate stage (stage 1) above and not on submission of the SRAWEB Report.

10.32  Non-sensitive and sensitive schedules should be submitted electronically by the HSE Litigation officer accompanied by the Certificate Undertaking by the RVO (see paragraph 34). In the unlikely event that an HSE case generates a highly sensitive schedule then it should be handled in accordance with Government Protective Marking Scheme – see OC 70/1. Highly sensitive schedules will be delivered to COPFS staff with the appropriate security clearance.

10.33  The RVO is responsible for ensuring the schedules, once completed, are submitted to COPFS via the litigation officer. Each submission should be accompanied by a certificate of written undertaking prepared and signed by the RVO. A separate certificate should be prepared and submitted for each submission of the schedules as described in paragraph 10.31 above. See Appendices B,C and D. If there is no new relevant information this should be certified on form appendix D.

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APPENDIX A

To be completed by Reviewing Officer, saved to TRIM and forwarded with schedule to the Procurator Fiscal by HSE Litigation Officer

Certificate undertaking by Reviewing Officer of completion and transmission of relevant material - Initial Report

HSE UNIT:
HSE OFFICE:
DATE:
CASE AGAINST:
REPORTING OFFICER:
AGENCY REFERENCE:
PF REFERENCE:

1) With reference to the above subject and previous correspondence from (insert details of PF requesting and PF office details) dated (insert date) I have to report as follows:

2) As the Reviewing Officer in this case, I can confirm that as per the date of this report, I have reviewed all the information which has been obtained or generated during this investigation and to the best of my knowledge and belief, all relevant material, has been recorded on the appropriate schedules of relevant material.

3) There are/there are no (delete as required) sensitive schedules in this case.

4) The schedules that have been completed and submitted are as follows:
(Insert schedule file name(s) as per naming convention – see paragraph 10.30 above);

5) These schedules of relevant material were forwarded to (insert HSE litigation officer details) on (insert time and date).

6) I request that this report and the relevant schedule of relevant material be submitted to the Procurator Fiscal detailed in paragraph I above.

NAME:

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APPENDIX B

To be completed by Reviewing Officer, saved to TRIM and forwarded with schedule to the Procurator Fiscal by HSE Litigation Officer

Certificate undertaking by Reviewing Officer of completion and transmission of relevant material - additional material

HSE UNIT:
HSE OFFICE:
DATE:
CASE AGAINST:
REPORTING OFFICER:
AGENCY REFERENCE:
PF REFERENCE:

1) With reference to the above subject and previous correspondence from (insert details of PF requesting and PF office details) dated (insert date) I have to report as follows:

2) As the Reviewing officer in this case, since the previous submission of schedules, further relevant information has been obtained in this investigation. I have reviewed all the additional information which has been obtained or generated and the best of my knowledge and belief, can confirm all relevant material has been recorded on the appropriate schedules of relevant material.

3)  There are/there are no (delete as required) sensitive schedules in this case.

4) The schedules that have been completed and submitted are as follows:
(Insert schedule file name(s) as per naming convention – see paragraph 10.30 above);

5)  These schedules of relevant material were forwarded to (insert HSE litigation officer details) on (insert time and date).

6) I request that this report and the relevant schedule of relevant material be submitted to the Procurator Fiscal detailed in paragraph I above.

NAME:

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APPENDIX C

To be completed by Reviewing Officer, saved to TRIM and forwarded to the Procurator Fiscal by the Litigation Officer

Certificate undertaking by Reviewing Officer of completion and transmission of relevant material – no additional material

HSE UNIT:
HSE OFFICE:
DATE:
CASE AGAINST:
REPORTING OFFICER:
AGENCY REFERENCE:
PF REFERENCE:

1) With reference to the above subject and previous correspondence from (insert details of PF requesting and PF office details) dated (insert date) I have to report as follows:

2) As the Reviewing officer in this case, since the previous submission of schedules I can confirm that to the best of my knowledge and belief that as per the date of this report there has been no relevant material obtained or generated in this case which has not already been listed on the schedules submitted.

3) I request that this report and the relevant schedule of relevant material be submitted to the Procurator Fiscal detailed in paragraph I above.

NAME:

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APPENDIX D

1. Sensitive schedule document
2. Non sensitive schedule template
3. Highly sensitive schedule template