Introduction
30.1. Fingerprint identifications are led as expert evidence in criminal trials and fingerprint examiners are expert witnesses. This means that various legal issues are engaged. The discussion in this chapter takes account of developments in the law since the trial in HMA v McKie but, where appropriate, indicates the state of the law at that time.
Corroboration, proof beyond reasonable doubt and the best evidence rule
30.2. Scottish criminal law requires corroborated proof of the identification of the accused as the perpetrator of the crime alleged and proof of guilt of the accused beyond reasonable doubt.
Corroboration
30.3. The essence of the rule of corroboration1 in Scotland is that an individual may not be convicted of a crime on the evidence of a single witness, no matter how convincing the evidence is. There must be at least two witnesses pointing to the guilt of the accused before there can be a conviction.
30.4. Though it is said that corroboration must come from two independent sources, corroborated proof can come from what is essentially one piece of evidence. One single fingerprint can provide corroborated proof, provided at least two witnesses speak to each step in the sequence of events leading to the conclusion that the mark was made by the accused.2
30.5. Corroboration does not require evidence exclusively indicative of guilt. If there is clear evidence from one witness, corroboration can come from evidence from a second witness consistent with guilt, even if that second source of evidence could be capable of innocent explanation.3 It is not necessary that the second source is more consistent with guilt than innocence; it suffices that it is capable of being consistent with guilt.
30.6. In particular, corroboration of a positive identification (whether or not the witness is well acquainted with the accused) can come from evidence short of positive identification, such as resemblance, even if the second witness is uncertain and cannot point to any peculiar physical characteristic to inform the degree of resemblance.4
Proof beyond reasonable doubt
30.7. Even where evidence is led from scientists, Scots law does not require 'scientific proof', that is to say the degree of proof that might establish a proposition to the satisfaction of a scientist.5 The criminal standard of proof beyond reasonable doubt does not require mathematical certainty. In Nolan v McLeod6 a conviction was based on two eyewitness identifications. One came from the complainer (i.e. the victim), who knew the accused and said that he was 80% certain of his identification, corroboration coming from a stranger who said that he was 75% sure. There is no general requirement that a witness have no doubts about his evidence.
30.8. It follows that there is no requirement in law that fingerprint evidence must attain 100% accuracy in order to be admissible. Nor is there a requirement in law that a fingerprint examiner achieve 100% certainty.
30.9. Visual identification (or eyewitness) evidence can be of doubtful quality, in particular where the observation is only fleeting. Judges are required to give juries advice to exercise caution when assessing the reliability of such evidence and such advice may be appropriate more generally where a jury has to assess the reliability of any evidence that is essential to conviction.7
30.10. Whether or not there is proof beyond reasonable doubt is a matter for the jury (or judge in a summary trial). It is not necessary that the witnesses to the fact (expert or lay) be themselves satisfied beyond reasonable doubt that the fact is indeed the case.8 Consequently, it is not permissible to ask a witness whether he is sure of some matter beyond reasonable doubt, though he can be questioned relative to the nature and extent of any doubt that he may have.9
Admissibility and assessment of evidence
30.11. A distinction is drawn between (a) the admissibility and (b) the assessment of evidence. The rules on 'admissibility' determine whether the evidence may be led in court. Even if led, the judge or jury is not bound to accept the evidence as proof of any fact; whether or not they accept it will depend on their assessment of it.
Productions and best evidence
30.12. The first edition of Walkers on Evidence states the 'best evidence rule' in general terms: "Secondary or substitutionary evidence is inadmissible when primary or original evidence is, or ought to be, available."10 Essentially the same statement is contained in the current, third, edition of that textbook,11 though other texts question whether there is a 'best evidence rule' of general scope.12 Lord Macphail, an authority on the Scots law of evidence, observed: "In my opinion the 'best evidence' rule is not a general exclusionary rule of evidence but a counsel of prudence."13
30.13. The rule was never absolute and, for example, one party can rely on a secondary copy of a document if the original is in the possession of an opponent and the opponent does not produce the original when called upon to do so.14 Statutory provision has also been made for the admissibility of authenticated copies for the purposes of civil15 and criminal proceedings.16
30.14. In relation to fingerprints it may be thought that the primary evidence is the mark itself, either on the object on which it was found or, if lifted, in the form of the lift. However, as Davidson observes: "the routine practice of the Crown to use secondary evidence of forensic material seems to have judicial support."17 Fingerprint examiners routinely work from photographic images of the mark, including a lift. Despite the fact that a photograph is itself secondary evidence it has been held that fingerprint identification evidence can be given relative to a photograph of the mark (or lift),18 and that the object from which the lift was taken need not be produced.19
30.15. Evidence can be excluded as inadmissible secondary evidence in some circumstances. For example, in Lennox v HMA20 it was held that evidence by police officers identifying an accused from CCTV footage was inadmissible when the CCTV recording had been lost before the defence had had an opportunity to view it. The decision was based on the need to avoid prejudice to the accused, whose legal advisers had not seen the CCTV recording, and not on any absolute 'best evidence' rule.
30.16. In England consideration has been given to the admissibility of copies of photographic material, including video recordings. In Kajala v Noble Ackner LJ said:
"The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available in one's hands, one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility: Garton v Hunter [1969] 1 All E.R. 451 per Lord Denning M.R. at 453e; see also Archbold, Criminal Pleading, Evidence and Practice (40th ed.), para. 1001. In our judgment, the old rule is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes or films."21
30.17. Allowance has also to be made for the specialities of computer processing:
"in the digital environment, the concept of an original document is meaningless. Arguably, the original document exists as RAM and is destroyed when the file is saved. Electronic transmission of a document by e-mail involves the creation of a new document, not the transfer of some pre-existing one. What matters in the digital environment is not originality, but integrity."22
30.18. 'Integrity' links to considerations of provenance and authenticity. Cross and Tapper on Evidence discuss these issues in the context of automatic recordings:
"At a trial by jury, the party relying on a recording or film must satisfy the judge that there is a prima facie case that it is authentic, and it must be sufficiently intelligible to be placed before the jury. The evidence must define and describe the provenance and history of the recording up to the moment of its production in court. There is no need to account for the absence of the original if the copy is shown to be authentic."23
The final sentence cites Kajala, to which reference has been made. Among the other cases cited is R v Robson, where an issue was raised about the authenticity of a tape recording. Shaw J held that the trial judge could rule on the admissibility of the evidence by considering whether there was a prima facie case that the tape recording was authentic. If there was, the tape could be played to the jury who would then have to apply the more stringent test, in the context of the whole case: "that they must be sure of the authenticity of that evidence before they take any account of its content."24
Expert evidence
The admissibility of expert evidence
30.19. In Scotland the admissibility of expert evidence is determined according to three criteria:
30.20. Experts are permitted to express opinions even in respect of techniques that are in their relative infancy, provided that the context for the opinion is properly stated.27 Mere self-certification is not permitted. The court must be scrupulous to ensure that the evidence is properly based on specialised experience, knowledge or study.28
30.21. There is current debate about the approach of the courts in this context. The Law Commission published a consultation paper about the admissibility of expert evidence in England and Wales in April 200929 and a report, following consultation, in March 2011.30 Speaking in November 2010 Lord Justice Leveson said "expert evidence of doubtful reliability may be admitted too freely with insufficient explanation of the basis for reaching specific conclusions, be challenged too weakly by the opposing advocate and be accepted too readily by the judge or jury at the end of the trial."31
30.22. Admissibility is dealt with differently in the United States. In Daubert v Merrel Dow Pharmaceuticals Inc32 the Supreme Court considered Rule 702 of the Federal Rules of Evidence and held that "[T]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."33 Accordingly, where Daubert is applied the trial judge has an active 'gate-keeper' role.
30.23. Although fingerprint evidence is expert evidence and generally admissible in Scotland and England and Wales, the third criterion above remains relevant. It does not follow that all fingerprint evidence is or should be admissible. The third criterion could be relevant to the admissibility of evidence based on third level detail because there are questions about its reliability;34 and the admissibility of evidence based on probabilistic analysis35 has yet to be considered by the courts.
Evaluation of expert evidence
30.24. Once expert evidence has been admitted by the court the fact finder has to evaluate and assess it in order to decide what weight, if any, it should receive.36
30.25. The classic statement about the role of an expert in Scots law is that of Lord President Cooper in Davie v Magistrates of Edinburgh.37 In Davie the defenders maintained that the court was bound to accept the conclusions of an expert because no counter evidence was adduced by the pursuer. Lord President Cooper rejected this argument and said:
"Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court¿ Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert."38
30.26. The principle is simple but important. It is the court, not the expert, that makes the judgment even about facts to which the expert speaks.
30.27. Other points flow from Lord President Cooper's statement:
The expression of opinions by experts
30.28. Lord President Cooper stated that experts must not "usurp" the role of the jury. How then should an expert express his opinion?
General principles
30.29. As is discussed elsewhere in this Report,41 fingerprint evidence is not based on statistical information. A fingerprint examiner who has spent years studying marks and prints can form a judgment, based on his experience, but his conclusion is subjective. Fingerprint evidence is not alone in that respect. The courts have, particularly since HMA v McKie, given close consideration to the proper manner in which such evidence should be presented.
30.30. Some general principles can be derived from case law as follows:
30.31. These principles can be illustrated by reference to two English decisions that post-date HMA v McKie.
30.32. In R v Atkins and Atkins51 an expert in facial comparison gave evidence of similarities between the face shown on CCTV footage and that of one of the accused. The expert could not positively identify the accused but expressed the strength of his opinion on a sliding scale from "lends no support" to "lends powerful support" to the allegation that the man in the camera shot was the accused. The defence argued that the expert should only have testified as to the similarities and dissimilarities between the two faces and should not have graded his conclusion by reference to a scale because there was no database showing the distribution of facial features in the population and the expert's judgment was based only on his experience. The Court of Appeal held that the expert could give evidence based on experience, even though it did not derive from a statistical database. Indeed, it was recognised that for the expert to give no guidance on the matter would be undesirable because it would give the jury raw material with no means of evaluating it and was as likely to result in over-valuation of the evidence as under-valuation. That said, the Court observed that such evidence has to be approached with caution and it has to be made "crystal clear" to the jury that it was not supported by any statistical database.52
30.33. In R v T, an expert in footwear mark comparisons gave evidence of the likelihood of a match by reference to a scale that ran from "weak or limited support" to "extremely strong support". It emerged in evidence that the expert's placement on the scale depended on a calculation by him of mathematical likelihood ratios based on some limited statistical data relating to footwear patterns and sizes. The expert's report made no reference to the use of a likelihood ratio or the formula used in the calculation and the Court of Appeal was critical of the consequent lack of transparency.53 The court noted that an approach based on mathematical calculations is only as good as the reliability of the data used54 and concluded that likelihood ratios or other mathematical formula should not have been used in expressing the conclusions because the available data was inadequate in many respects.55 The court stated:
"It is of course regrettable that there are, at present, insufficient data for a more certain and objective basis for expert opinion on footwear marks, but it cannot be right to seek to achieve objectivity by reliance on data which does not enable this to be done. We entirely understand the desire of experts to try and achieve the objectivity in relation to evidence of footwear marks, but the work done has never before, as we understand it, been subject to open scrutiny by a court."56
30.34. The court accepted, following Atkins and Atkins, that an expert in footwear mark comparison can use his experience to express an evaluative opinion57 but if there is a lack of reliable data such an opinion has to be carefully expressed. In R v T the expert used the word "scientific" in his opinion. The court stated:
"It is essential, if the expert examiner of footwear expresses a view which goes beyond saying that the footwear could or could not have made the mark that the report makes clear that this is a view which is subjective and based on his experience. For that reason we do not consider that the word 'scientific' should be used, as, if that phrase is put before the jury, it is likely to give an impression to the jury of a degree of precision and objectivity that is not present given the current state of this area of expertise."58
The expert's duties to the court
30.35. In Scottish civil litigation an expert is usually engaged by and paid for by a party to the litigation in question. In criminal cases it is not dissimilar. The defence engages experts, as happened in HMA v McKie. More often than not the expert will be paid for by legal aid funds. The Crown's experts are often employees of law enforcement agencies. Judicial comment both in Scotland and England about the duties of expert witnesses should be considered against this background.
30.36. The basic position is that such witnesses owe an overriding duty to the court, notwithstanding any contractual or other relationship with a party to the litigation. From that general principle flow a number of other duties.
30.37. A starting point in this context is the decision of the House of Lords in Whitehouse v Jordan.59 In his speech, Lord Wilberforce, with whom Lord Fraser of Tullybelton concurred,60 said "it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form and content by the exigencies of the litigation."61
30.38. In National Justice Compania Naviera SA v Prudential Assurance Co Ltd,62 (The Ikarian Reefer), Cresswell J provided a detailed analysis of an expert's duties to the court:63
"The duties and responsibilities of expert witnesses in civil cases include the following:
30.39. The Ikarian Reefer was approved by Lord Caplan sitting in the Outer House of the Court of Session in Scotland in Elf Caledonia Ltd v London Bridge Engineering Ltd and Ors.64
Authorities since 1999
30.40. R v Sally Clark65 emphasises the importance of disclosure by experts. The failure to disclose microbiological tests in three statements made for the purposes of a trial, in oral evidence or in his report was said by the Court of Appeal in England to fall a long way short of the standards expected of a pathologist.66
30.41. In R v Harris, R v Rock, R v Cherry and R v Faulder67 the Court of Appeal stated that the guidance given in the Ikarian Reefer is "very relevant to criminal proceedings" and that it saw nothing new in such an observation.68 The court also noted that where an expert advances a hypothesis or where there is disagreement as to a scientific or medical issue the expert owes a duty to explain to the court that what he is advancing is a hypothesis or that an issue is controversial.69 The Ikarian Reefer was also mentioned in Jones v Kaney70 where the Supreme Court lifted the immunity that experts enjoyed from being sued for negligence.
30.42. Turning to Scottish authority, Lord Carloway cast some doubt as to the application of these principles in Amy Whitehead's Legal Representative v Graeme John Douglas and Another.71 He stated: "It is not at all clear that an expert, instructed by one party, has some form of duty to the court greater that any professional or other witness. Of course once he is sworn, he must abide by the terms of his oath. However, when he is in the witness box, what he is permitted and not permitted to say will depend not just on what he is asked but on what he is not asked. He is not in a position to volunteer information."72
30.43. In BSA International SA v Irvine78 Lord Glennie stated that his own views were "somewhat at variance" to those of Lord Carloway: it has been accepted in Scotland for some time that an expert witness owes a duty to the court to give his honest and complete report; and, as a consequence, an expert is not entitled to keep some reservations about his opinion to himself and is under a duty to volunteer information if failure to do so would leave the court with a misleading impression of his whole evidence.74 The Ikarian Reefer was applied by Lord Nimmo Smith in McTear v Imperial Tobacco Ltd,75 by Lord Hodge in Cramaso LLP v Viscount Reidhaven's Trustees76 and by the High Court of Justiciary in HMA v Wilson in 2009. The High Court of Justiciary stated:
"an expert witness should explain why any relevant material to his conclusions is ignored or regarded as unimportant...the court will expect in a criminal matter that an expert's report must state the facts upon which opinions are based, and if assumptions are made, these must be clearly identified. Reasons must be given for conclusions. Whether instructed for the prosecution or defence, the principal duty of an expert witness is to the court, and this overrides any duty he owes to the party which instructed him. Again, explanations should be given for the basis on which all relevant material is either accepted or rejected."77
Transparency and pre-trial preparation
30.44. The obligation of transparency is not confined to experts instructed by the prosecution. It applies to defence experts also. In two recent decisions the English Court of Appeal has stressed the need for "proper and robust pre-trial management"78 of cases where there is expected to be conflicting expert evidence in relation to complex scientific evidence: R v Reed and Reed (a case concerning low template DNA) and R v Henderson (three appeals concerning shaken baby syndrome). In Henderson Moses LJ observed:
"In Kai-Whitewind Judge L.J. rejected the contention that where there is a conflict of opinion between reputable experts, expert evidence called by the Crown is automatically neutralised [84]. He emphasised that it was for the jury to evaluate the expert evidence even where the experts disagree as to the existence of the symptoms upon which their opinions were based [88]-[89]. But how is a jury to approach conflicting expert evidence? We suggest it can only do so if that evidence is properly marshalled and controlled before it is presented to the jury. Unless the evidence is properly prepared before the jury is sworn it is unlikely that proper direction can be given as to how the jury should approach that evidence. Thus the jury will be impeded in considering that evidence in a way which will enable them to reach a logically justifiable conclusion."7 9
30.45. Lords Carloway and Glennie were agreed in Amy Whitehead's Legal Representative80 and BSA International81 that there are some differences in practice between Scotland and England.82 There is not always a duty on a party to proceedings in Scotland to disclose the contents of an expert report. Nonetheless, it is essential that issues in relation to expert evidence are properly focussed in trials. That task is made much more difficult if experts do not provide transparent and clear reports.
Routine evidence: sections 280 and 281 of the Criminal Procedure (Scotland) Act 1995
30.46. The full rigours of these general rules on expert evidence are tempered by statutory provisions tailored to "routine"83 forensic evidence, including fingerprint evidence.
30.47. The form of the fingerprint reports prepared by the SCRO officers for the trials in HMA v Asbury and HMA v McKie and the revised style now used in current practice84 were influenced by the statutory provisions in sections 280 and 281 of the 1995 Act which specifically deal with "Routine evidence".85
30.48. Section 280(4) of the Criminal Procedure (Scotland) Act 1995 provides:
"For the purposes of any criminal proceedings, a report purporting to be signed by two authorised forensic scientists shall, subject to subsection (5) below, be sufficient evidence of any fact or conclusion as to fact contained in the report and of the authority of the signatories."
30.49. Fingerprint practitioners come within the range of "forensic scientists" for this purpose.
30.50. This statutory provision had (and continues to have) a number of practical consequences for the manner in which fingerprint evidence is presented at criminal trials in Scotland.
30.51. The rule applies to prosecution and defence alike. It grants, in effect, three dispensations from the ordinary rules applicable to expert evidence.
Sub-section (5) restricts these privileges to reports prepared by duly authorised "forensic scientists"; and sub-section (6) provides that the report must be served on the other party, who may challenge the report, in which event at least one of the signatories will require to attend the trial and give evidence.
30.52. Section 281(2) of the 1995 Act is also relevant. By using the procedure set out in this provision the prosecutor87 can ensure that, if it does become necessary to lead evidence of the contents of a report, this can be done by calling only one of the two signatories to the report unless the accused serves notice that he requires the attendance of both signatories.
30.53. These provisions date from 1980 and the rationale for their introduction was said to be: "This section contains a number of provisions designed to make it easier for the prosecutor to establish certain matters which are rarely in dispute¿"88 The implications are discussed in chapter 31.
Disclosure
30.54. Disclosure arises at two levels:
The duty of investigating bodies to provide information to the prosecution
30.55. In the case of Smith v HMA89 Lord Justice Clerk Thomson gave what is viewed as the classic description of disclosure in Scotland. The case is authority for the following propositions:
(i) The duty of the police is of investigation under the supervision of the procurator fiscal.
(ii) It is for the Crown Office and Procurator Fiscal Service (COPFS), and not the police, to decide whether the results of an investigation justify prosecution.
(iii) The police must put the result of their investigations fairly before the fiscal and disclose everything that may be relevant and material to the issue of whether the suspected party is innocent or guilty.
(iv) The police may exercise a power of selection in what they disclose but because they are not the final judge of what may be relevant and material they should err on the safe side and should consult the procurator fiscal if in doubt.
30.56. The Smith duty would apply equally to fingerprint examiners and other forensic scientists engaged by the police or the prosecution.
30.57. The English case of R v Ward90 points to a bridge between the duty to provide information on the part of investigating agencies (such as forensic scientists) and the duty owed by the prosecution to the defence. The bridge is that the prosecution should not simply be the passive recipient of such information as investigating agencies may elect to pass on but should make positive inquiries to discover if there is other disclosable material held by the agency. The background was a prosecution in connection with a series of bombings in which forensic scientists gave evidence of the finding of traces of nitro-glycerine. Unknown to the prosecution at the time of the trial the scientists in some instances exaggerated their findings, concealed the fact that experiments had shown that dyes in boot polish could mimic nitro-glycerine and also concealed the fact that one test had shown a risk of contamination. The Court of Appeal held that the irregularities in the forensic evidence were alone sufficient to justify quashing the conviction and suggested that two lessons could be learned for the future. The first was that there was a need to spell out to forensic scientists that it is "the clear duty of government forensic scientists to assist in a neutral and impartial way in criminal investigations." The second was expressed in these terms:
"... we believe that the surest way of preventing the misuse of scientific evidence is by ensuring that there is a proper understanding of the nature and scope of the prosecution's duty of disclosure¿ [T]he prosecution's general duty of disclosure in respect of scientific evidence¿exists irrespective of any request by the defence. It is also not limited to documentation on which the opinion or findings of an expert is based. It extends to anything which may arguably assist the defence¿ [I]t is a positive duty, which in the context of scientific evidence obliges the prosecution to make full and proper inquiries from forensic scientists in order to ascertain whether there is discoverable material."91
The duty of disclosure by the prosecutor to the defence
30.58. The duty of the police to disclose evidence to the Crown is long standing. What has changed is the extent of the duty of disclosure by the prosecutor to the defence. In Smith it was recognised that the extent of necessary disclosure to the defence was a question of degree.92 Since the trial in HMA v Asbury in 1997 there has been what Lord Hope has described as a cultural revolution in disclosure.93 The starting point was the decision of the High Court of Justiciary in McLeod v HMA94 on
19 December 1997. In argument in that case the Crown accepted the traditional formulation of its duty of disclosure:
"The Crown accepts that it has an obligation to disclose any information which supports the defence case. This duty has long been set out in the Book of Regulations... and it extends to any information which supports any known or stateable defence or which undermines the Crown case."95
30.59. The specific issue in McLeod was the extent to which the Crown had a duty to disclose to the defence statements that witnesses had given to the police. The point was decided in that case on a concession by the Crown that it would disclose certain statements. In 2005, in Sinclair v HMA,96 the Privy Council decided that the prosecution's duty of disclosure extended to the statements given to the police by witnesses who were to be called at the trial whether on behalf of the prosecution or the defence. In Holland v HMA97 the Privy Council also held that previous convictions and outstanding charges against witnesses were in principle disclosable; but whether or not they have to be produced in any particular case remains a question of circumstance to be determined by asking whether this information would materially weaken the Crown's case or materially strengthen the case for the defence: HMA v Murtagh.98
30.60. In principle the duty of the prosecution is spontaneously to disclose material of which it is aware that would materially weaken the Crown's case or materially strengthen the case for the defence but there are practical limits to the extent to which the prosecution can know the line of defence. In McDonald and others v HMA the Privy Council held that the duty of the prosecution did have practical limits and did not extend to searching out material that might be relevant to some possible line of defence. In the final analysis "The Crown's job is to prosecute, not to defend."99
Lord Coulsfield's review
30.61. Lord Coulsfield was asked to review the law and practice relating to disclosure. His recommendations were published in a report in 2007. It was noted that Scots case law provided different definitions of the nature of the information that the prosecutor must disclose. Lord Coulsfield recommended that there should be a statutory definition of the duty of disclosure.101
The Criminal Justice and Licensing (Scotland) Act 2010: disclosure
30.62. Following Lord Coulsfield's report the Scottish Parliament legislated on disclosure. Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 makes provision for a statutory system of disclosure, with the provisions coming into force on 6 June 2011.102
30.63. Four aspects of the Act are noted. First, it provides that "investigating agencies" (broadly police forces and certain other persons as the Scottish Ministers may prescribe)103 must detail to the prosecutor all information obtained in the course of investigation "that may be relevant to the case for or against the accused" and must provide the prosecutor with any of that information that the prosecutor may specify.104 The relevant agencies are prescribed in the Disclosure (Persons engaged in the Investigation and Reporting of Crime or Sudden Deaths) (Scotland) Regulations.105 The list is extensive but does not include the Scottish Police Services Authority.
30.64. Second, it provides a statutory test for disclosure by the prosecution to the defence. Subject to certain prescribed exceptions, there is a duty of disclosure if:
"(a) the information would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused;
(b) the information would materially strengthen the accused's case, or
(c) the information is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused."106
30.65. Third, the duty of disclosure is amplified in solemn cases by the prosecutor being required to provide to the defence details of non-sensitive information that the prosecution is not obliged to disclose but may be relevant to the case for or against the accused.107
30.66. Fourth, the Act addresses the practical problem that full disclosure by the prosecutor may require knowledge of the line of defence. The Act makes provision for a defence statement setting out the nature of the defence and any matters of fact on which the accused takes issue with the prosecution. Provision of a defence statement is optional in summary cases108 but compulsory in solemn cases.109
1. The rules on corroboration are different in England and Wales where at common law one witness is sufficient in all cases except perjury, Richardson J. Archbold: Criminal Pleading, Evidence and Practice 2011. 59th Edition, London: Sweet & Maxwell, 2010. 4-404. There is no general corroboration requirement in England and Wales and offences such as murder, robbery and rape are capable of being proved by the testimony of one single witness. Roberts P. and Zuckerman A.A.S. Criminal Evidence. 2nd Edition, Oxford: Oxford University Press, 2010, page 662. "[E]vidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime¿[I]t must be evidence which implicates him, that is, which confirms in some material particulars not only the evidence that the crime has been committed, but also that the prisoner committed it", Lord Reading CJ, R v Baskerville [1916] 2 KB 658 at 667.
2. Hamilton v HMA 1934 JC 1, Langan v HMA 1989 JC 132
3. Fox v HMA 1998 JC 94
4. Adams v HMA 1999 JC 139; and Ralston v HMA 1987 SCCR 467
5. Dingley v Chief Constable, Strathclyde Police 2000 SC(HL) 77 and 1998 SC 548
6. 1987 SCCR 558
7. Coubrough's Executrix v HMA 2010 SCCR 473 paras 44-45
8. Hendry v HMA 1987 JC 63; Paxton v HMA 2000 JC 56; and Johnston v HMA 2009 JC 227; contrast HMA v McGinlay 1983 SLT 562 (Note)
9. See for example Nolan v McLeod, and further below
10. Walker A.G. and Walker N.M.L. The Law of Evidence in Scotland 1st Edition, William Hodge & Co., Scotland, 1964, page 243
11. Walker A.G. and Walker N.M.L. The Law of Evidence in Scotland 3rd Edition, edited by M.L. Ross and J. Chalmers, Tottel Publishing, 2009, page 371
12. Fraser P. Davidson on Evidence Scottish Universities Law Institute, 2009, paras 2.01-03; and Stair Memorial Encyclopaedia, Evidence Reissue, at 304
13. Haddow v Glasgow City Council 2005 SLT 1219, para 14
14. Walker A.G. and Walker N.M.L. The Law of Evidence in Scotland 3rd edition 2009, pages 374-5
15. Civil Evidence (Scotland) Act 1988, c 32 section 6
16. Criminal Procedure (Scotland) Act 1995, c 46 schedule 8, para 1
17. Fraser P. Davidson, 2009, page 29.
18. Hamilton v Grant 1984 SCCR 263 and McFadyen v HMA (1972) 36 JCL 57
19. HMA v Dennison 1978 SLT(N) 79
20. 2010 SCCR 837
21. 1982 75 Cr App R 149 at page 152
22. Phipson on Evidence 17th Edition. Sweet & Maxwell, 2010, para 41-10
23. Cross and Tapper on Evidence 12th Edition, Oxford University Press, 2010, page 61
24. [1972] 1 WLR 651 pages 655-6
25. e.g. Gage v HMA 2011 SCL 645
26. HMA v Wilson 2009 JC 336. The test in England and Wales was summarised by the Court of Appeal, Criminal Division in R v Reed and Reed [2009] EWCA Crim 2698; [2010] 1 Cr App R 23 (CA).
27. R v Dallagher [2002] EWCA Crim 1903
28. R v Atkins and Atkins 2009 EWCA Crim 1876, [2010] 1 Cr App R 8, para 27
29. The Law Commission, The Admissibility of Expert Evidence in Criminal Proceedings in England & Wales. The Stationery Office, 2009, Consultation Paper No. 190. URL: http://www.justice.gov.uk/lawcommission/docs/cp190_Expert_Evidence_Consultation.pdf
30. The Law Commission. Expert Evidence in Criminal Proceedings in England and Wales. The Stationery Office, 2011, LC325. URL:
http://www.official-documents.gov.uk/document/hc1011/hc08/0829/0829.pdf
31. The Rt Hon Lord Justice Leveson 'Expert Evidence in Criminal Courts - The Problem' 16 November 2010 page 15. The current state of the law was also the subject of criticism on the part of the Court of Appeal in R v Henderson, R v Butler, R v Oyediran [2010] EWCA Crim 1269 at para 206.
32. 509 US 579 (1993)
33. Page 589. Daubert is not followed in all States. Fingerprint evidence has been considered under Daubert - see United States v Llera Plaza CR No 98-362-10 (2002). In a preliminary ruling Pollak J concluded that fingerprint examiners could not present evaluation testimony as to their opinion that a particular latent print is the print of a particular person. In a second ruling Pollak J vacated his first ruling and allowed fingerprint examiners to testify as to whether a mark was made by a particular person. He held that ACE-V did not satisfy the scientific criteria in Daubert as it was "technical" rather than "scientific". In his revised opinion he decided that following a case called Kumo Tire pronouncements in Daubert applied to technical evidence. The judge did not change his view that fingerprint evidence based on ACE-V is not scientific.
34. See chapter 35
35. See chapter 41
36. See for example Professor Davidson's comments in Davidson F. Evidence. Edinburgh: W Green, 2007, para 11.16
37. 1953 SC 34; see also Lord President (Rodger) in Dingley v Chief Constable, Strathclyde Police, 1998 SC 548 page 555A; McTear v Imperial Tobacco (2005) 2 SC 1; and HMA v Wilson
38. Davie v Magistrates of Edinburgh page 40
39. Lord Prosser in Dingley v Chief Constable, Strathclyde Police 1998 SC 548 page 604 C-D
40. R v T [2010] EWCA Crim 2439; [2011] Cr App R 9, para 97 Thomas LJ; and see Wilson v HMA 2009 JC 336 at paras 58-63.
41. Chapters 35 and 41
42. R v T para 97
43. Hendry v HMA pages 69-70, R v Doheny, R v Adams [1997] 1 Cr App R 369 (CA)
44. Hendry v HMA page 70
45. R v Atkins and Atkins para 23
46. R v T, R v Atkins and Atkins
47. R v T
48. R v Atkins and Atkins para 31, R v T para 96
49. R v Atkins and Atkins para 23 and R v T
50. R v Reed and Reed [2009] EWCA Crim 2698, [2010] Cr App R 23 at para 121
51. [2009] EWCA Crim 1876, [2010] 1 Cr App R 8
52. R v Atkins and Atkins para 23
53. R v T paras 97-99
54. R v T para 80
55. R v T para 95
56. R v T para 87
57. R v T para 95
58. R v T para 96
59. [1981] 1 WLR 246 (HL)
60. Whitehouse v Jordan page 268
61. Whitehouse v Jordan pages 256-257
62. [1993] 2 Lloyd's Rep. 68
63. National Justice Compania Naviera SA v Prudential Assurance Co Ltd page 81
64. Unreported judgment dated 2 September 1997 at page 225
65. [2003] EWCA Crim 1020, [2003] 2 FCR 447
66. See also R v Puca [2005] EWCA Crim 3001; and the earlier Scottish case of Preece v HMA 1981 Crim LR 783.
67. [2005] EWHC Crim 1980, [2006] 1 Cr App R 5
68. R v Harris, R v Rock, R v Cherry and R v Faulder paras 272-273
69. R v Harris, R v Rock, R v Cherry and R v Faulder para 272
70. See [2011] UKSC 13, [2011] 2 WLR 823 at para 123
71. [2006] CSOH 178, (2007) BMLR 42
72. Amy Whitehead's Legal Representative v Graeme John Douglas and Another para 17
73. 2009 SLT 1180
74. BSA International SA v Irvine para 19
75. (2005) 2 SC 1
76. [2010] CSOH 62
77. HMA v Wilson 2009 JC 336 paras 60-61
78. R v Henderson [2010] EWCA Crim 1269; [2010] 2 Cr App R 24, para 205
79. Moses LJ in R v Henderson para 203
80. Amy Whitehead's Legal Representative v Graeme John Douglas and Another para 16
81. BSA International SA v Irvine para 17
82. See also Walker v HMA [2011] HCJAC 51, 2011 SCL 755
83. See the heading to the sections in the Act
84. CO_4109
85. See chapter 31
86. Meek v Vannet 2000 SCCR 192
87. This provision is confined to the prosecutor because it is qualifying the requirement for corroboration that only applies to the prosecution.
88. Annotation to section 26 of the Criminal Justice (Scotland) Act 1980 in 1980 Current Law Statutes Annotated, volume 2 (Sweet & Maxwell)
89. 1952 JC 66
90. [1993] 1 WLR 619
91. R v Ward page 676
92. Smith v HMA page 72
93. McDonald and others v HMA [2008] UKPC 46, 2010 SC (PC) 1, para 20
94. 1998 JC 67
95. McLeod v HMA page 79B
96. 2005 SC (PC) 28
97. 2005 SC (PC) 3
98. 2010 SC (PC) 39
99. McDonald and others v HMA, Lord Rodger para 60
100. The Rt Hon Lord Coulsfield. Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland. The Scottish Government, 2007, ISBN 978 0 7559 5524 4.
101. The Rt Hon Lord Coulsfield. Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland. The Scottish Government, 2007, ISBN 978 0 7559 5524 4. Para 5.46
102. Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No 8, Transitional and Savings Provisions) Order 2011 SSI 2011 No 178 HMSO 2010
103. Criminal Justice and Licensing (Scotland) Act 2010 asp 13 section 117(3) HMSO 2010
104. Criminal Justice and Licensing (Scotland) Act 2010 asp 13 sections 117-120
105. SSI 2011 No 146 HMSO 2011
106. Criminal Justice and Licensing (Scotland) Act 2010 asp 13 sections 121 and 123
107. Criminal Justice and Licensing (Scotland) Act 2010 asp 13 section 122
108. Criminal Justice and Licensing (Scotland) Act 2010 asp 13 section 125
109. Criminal Justice and Licensing (Scotland) Act 2010 asp 13 section 124(3), introducing section 70A of the Criminal Procedure (Scotland) Act 1995