Consultation Questions
Question 1
Statutory Police Guidelines
Question 1) - Do you agree that Codes of Practice governing key aspects of
the gathering of evidence by the police in criminal cases (such as interviewing
suspects and conducting identification procedures) should be required by
statute?
Yes
No
Please feel free to provide any additional comments to support your answer
SEPA is one of around 50 specialist reporting agencies who have the ability
to investigate cases and submit reports to the Crown Office and Procurator
Fiscal Service for consideration of prosecution in respect of a wide range of
different type of offences. We note the paragraph in the Consultation which
said "The Reference Group recognise that there are other organisations
that carry out investigations but have confined their deliberations to Police
Scotland, since they are responsible for the vast majority of cases reported
for prosecution." We assume in light of this, and in light of the fact the
question above refers to the gathering of evidence by the police, that there
is not an intention for such a statutory Code of Practice to also apply to the
specialist reporting agencies. Based on this assumption, we have no
comment on whether there should be a statutory requirement for a Code of
Practice in respect of the gathering of evidence by the police.
We would, however, request that if the intention is for such a Code to only
apply to evidence gathering by the police, that this is expressly stated in the
Code itself. Otherwise the potential exists for confusion over the potential
applicability of the Code to evidence gathering undertaken by specialist
reporting agencies.
If the intention is for such a Code to also apply to evidence gathering by
specialist reporting agencies, SEPA would be grateful for the opportunity to
be able to engage in discussions regarding the content of such a Code, in
order to ensure some of the practical differences between specialist
reporting agencies such as SEPA and the police could be considered in
determining the content of the Code.
Question 2
Dock Identification (Report of the Academic Expert Group – Chapter 5)
Question 2A) - Do you agree that dock identification evidence should be
generally inadmissible?
Yes
No
Please feel free to provide any additional comments to support your answer
The question above is, unlike question 1, not limited to investigations
undertaken by the police. The section of the Report of the Academic Expert
Group considering this proposal does not, however, appear to consider the
way in which specialist reporting agencies presently undertake
investigations, but rather appears to focus on common procedure
undertaken by the police, for example in terms of a live ID parade or the
VIPER system.
SEPA (and presumably most, if not all, other specialist reporting agencies)
has not to date undertaken a live ID parade, nor does it have the VIPER
system. Clearly there are likely to be time, cost, training and resource
implications for specialist reporting agencies were they to be required to run
such processes in future, particularly were some of the requirements
mentioned in page 65 of the Expert’s Report, such as video recording of the
ID parades, to also be required.
Until the potential implications on specialist reporting agencies of
introducing a rule that dock identification evidence should be generally
inadmissible have been considered, and practical measures developed in
light of these (perhaps including consideration of the use of a Statement of
Uncontroversial Evidence referred to in the consultation, and clarification of
what would happen in practice if this was contested in respect of a case
submitted by a specialist reporting agency), given its role as a specialist
reporting agency SEPA feels unable to support the suggestion that dock
identification evidence should be generally inadmissible.
Question 2B) - In what circumstances should dock identification evidence be
admissible?
Please provide comments
We would suggest that further consideration be given to the applicability of
dock identification evidence in respect of cases submitted by specialist
reporting agencies, and/or further consideration be given to the practical
measures which should be introduced in respect of specialist reporting
agencies were dock identification evidence to be generally inadmissible.
Question 3
Confession Evidence (Report of the Academic Expert Group – Chapter 6)
Question 3A) - Should corroboration be required in cases where otherwise a
confession would be the sole evidence?
Yes
No
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Question 3B) – Where a confession is corroborated by way of special
knowledge, do you consider that the defining characteristic of special
knowledge should be: (a) knowledge of a fact or facts relating to the crime
which could only be known by the accused if he was the perpetrator; (b)
knowledge of a fact or facts relating to the crime which were not in the public
domain; (c) some other formulation?
Please provide comments
SEPA has no comment to make on this.
Question 4
Hearsay Evidence (Report of the Academic Expert Group – Chapter 8)
Question 4A) Should corroboration be required in cases where hearsay
evidence would be the sole or decisive evidence on which a conviction would
be based?
Yes
No
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Question 4B) What additional (or alternative) counterbalancing measures
should be required where hearsay evidence would be the sole or decisive
evidence on which a conviction would be based?
Please provide comments
SEPA has no comment to make on this.
Question 5
Jury Directions (Report of the Academic Expert Group – Chapter 9)
Question 5) - Do you have any suggestions as to how jurors should be
instructed on the law and how to consider the evidence in a trial? For
example, should they be given written instructions from the judge?
Please provide comments
SEPA has no comment to make on this.
Question 6
Recording of Police Interviews (Report of the Academic Expert Group –
Chapter 10)
Question 6A) - Do you agree with the general principle that all
questioning/interviewing of a suspect should be recorded by audio visual
means?
Yes
No
Please feel free to provide any additional comments to support your answer
The heading of question 6 (Recording of Police Interviews) appears to
indicate the question posed (Do you agree with the general principle that all
questioning/interviewing of a suspect should be recorded by audio visual
means?) relates only to interviews conducted by the police. On this basis,
SEPA has no comments on the specific question posed.
SEPA would, however, be grateful that if a general principle is introduced
that all questioning/interviewing of a suspect by police should be recorded
by audio visual means, consideration is also given to the effect, if any, this
is intended to have in relation to interviews undertaken by specialist
reporting agencies, and for this to be expressly reflected in the Code. If the
Code is not intended to apply to specialist reporting agencies, the potential
exists for confusion regarding the potential applicability of this principle to
interviews undertaken by all specialist reporting agencies. The uncertainty
could impact on specialist reporting agencies, Crown Office, suspects and
defence agents.
Were the principle that all questioning/interviewing of a suspect should be
recorded by audio visual means to apply to specialist reporting agencies,
this is likely to have significant resource/cost/training implications for these
bodies. Although page 118 of the Expert Report contains a suggestion from
a criminal defence practitioner that interviews conducted by police are
usually carried out in notebook form, often in a dedicated interview room
where recording facilities are available, even if such statement is correct
(and group acknowledged they were not in a position to determine this), this
is unlikely to be the position for specialist reporting agencies, who are
correspondingly more likely to be affected in terms of
resource/cost/time/training by such a proposal. The proposal is also likely to
present some practical issues in terms of specialist reporting agencies
lacking some powers the police may have (eg the power to detail suspects
in a particular location to be interviewed).
Question 6B) Do you consider that any breach of the Codes of Practice
governing interview procedure should normally result in that evidence being
inadmissible?
Yes
No
Please feel free to provide any additional comments to support your answer
SEPA would suggest that, were the Code of Practice not followed, the
admissibility of statements given by suspects should continue to be subject
to the common law test of fairness.
Question 6C) If you answered no, what do you consider should be the test for
admitting evidence where the Code has been breached?
Please provide comments
The test for admitting evidence where the Code has been breached should
be the common law test of fairness.
Question 7
No Case to Answer Submission (Report of the Academic Expert Group –
Chapter 12)
Question 7A) - Do you agree that the circumstances in which the no case to
answer submission can be made should be broadened, and that a judge
should be empowered to uphold a submission of no case to answer if he or
she considers that no jury or judge acting reasonably could find the charge
proved beyond reasonable doubt on the evidence presented?
Yes
No
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Question 7B) – Should the accused be allowed to make a no case to answer
submission at the close of the whole of the evidence?
Yes
No
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Question 8
Jury Size, Majorities and Verdicts (Report of the Academic Expert Group Chapter 13)
Question 8A) – Should a jury be required to strive to achieve a unanimous
verdict or is a verdict by a weighted majority acceptable?
Unanimous verdict
Verdict by weighted majority
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Question 8B) - If you answered “unanimous verdict” to question 8A, what do
you think the qualified majority should be, should the jury be unable to reach a
unanimous verdict?
-1 less than the total number of jurors
-2 less than the total number of jurors
Other
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Question 8C) – if you answered “weighted majority” to question 8A, what do
you think that weighted majority should be?
Two thirds (2/3) of the jury
Three quarters (3/4) of the jury
Other
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Question 8D) - Should the same number of jurors as is required for a guilty
verdict also be required for an acquittal verdict?
Yes
No
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Question 8E) - Do you agree that the size of a jury in Scotland should be
reduced from 15 to 12 persons?
Yes
No
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Question 8F) - Do you think there should be 2 or 3 verdicts in criminal trials?
2
3
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Question 8G) If you answered 2, what should these verdicts be?
Guilty and Not Guilty
Guilty and Not Proven
Proven and Not Proven
Please feel free to provide any additional comments to support your answer
SEPA has no comment to make on this.
Questions 9, 10 and 11
Additional Comments
Question 9) - Do you have any comments to make on proposals raised in the
Report of the Academic Expert Group that have not been mentioned in the
consultation document?
The Reference Group recognise in the Consultation Document that there
are other organisations that carry out investigations, but that their
deliberations have been confined to Police Scotland, since they are
responsible for the vast majority of cases reported for prosecution. If the
intention is for the proposals to only apply to Police Scotland, and not to be
applicable to specialist reporting agencies, SEPA would be grateful if this
were expressly stated in any subsequent Code. Otherwise, there may be
confusion for specialist reporting agencies, Crown Office, suspects and their
defence agents over whether specialist reporting agencies should also be
adhering to the Code.
If the intention is for the Code to be applicable to specialist reporting
agencies, as such a body SEPA would welcome the opportunity to input
further on such a proposal, given the likely resource, time, training and cost
implications, as well as potential practical difficulties in the absence of
certain police powers such as the power of arrest and detention.
Question 10A) - Do you think there are any additional matters to be
considered in relation to safeguards in solemn cases that are not raised in the
consultation document or in the Report by the Academic Expert Group?
SEPA has no comment to make on this.
Question 10B) - Do you think there are any additional matters to be
considered in relation to safeguards in summary cases that are not raised in
the consultation document or in the Report by the Academic Expert Group?
SEPA has no comment to make on this.
Question 11) - Do you believe that there would be any unforeseen
consequences arising from the changes discussed in the consultation
document or the Report of the Academic Expert Group? These could be in
relation to any aspect of the criminal justice system, for example the effect of
any possible changes identified on the position of victims and witnesses. If
so, what might these be?
Unless it is expressly clarified in the relevant documentation implementing
any of the changes discussed whether these changes are also to apply to
specialist reporting agencies, the potential exists for confusion amongst the
specialist reporting agencies and others over whether any such changes
impact on them. Were the changes to apply to specialist reporting agencies
as well as the police, these are likely to present significant time, cost,
training and resource implications for such bodies, given they are organised
differently to Police Scotland. There may well also be other practical
difficulties for such specialist reporting agencies, in terms of having different
investigation powers than those available to Police Scotland (for example in
relation to arrest and detention). If, therefore, the intention is for the Code to
be applicable to specialist reporting agencies, as such a body SEPA would
welcome the opportunity to input further on such a proposal.