Section 5 – Digital productions
62.This section modifies the 1995 Act to make provision about the use of evidence in an electronic form in criminal proceedings.
63.Subsection (2) amends section 68 of the 1995 Act, inserting a new subsection (2A). This new inserted subsection (2A) provides that the existing entitlement of the accused (under section 68(2)) to see productions in the relevant court office does not apply where a production is in an electronic form and the accused is otherwise given an opportunity to examine it in that form. For example, where an accused person is provided with an opportunity to examine a CCTV recording at their solicitor’s premises, the requirements of section 68(2) do not apply.
64.Subsection (2)(c) and (d) amends section 68(3) of the 1995 Act and inserts a new subsection (3A). Section 68(3) sets out presumptions which apply where a person who has examined a production gives evidence on it and the production was lodged by a certain time. The presumptions are that the person who examined the production received and returned it in the same condition as it was given to them, and also that it is the same item which was taken possession of by the prosecutor/police. The amendment to subsection (3) provides that the subsection will also apply where the accused is otherwise given an opportunity to see the production in an electronic form and, in such a scenario, the relevant timescales in that subsection will run with reference to the date that such an opportunity is given. Subsection (3A) confirms that where the person adduced to give evidence has examined a physical item, but it is an image of that item that is the production in the proceedings, the presumptions discussed above apply to the physical item that was examined.
65.Subsection (3) amends section 71(2A) of the 1995 Act to ensure that applications for directions under section 279B(2) (see paragraph 69 of these Notes) can be considered by the court at a first diet.
66.Subsection (4) amends section 79 of the 1995 Act:
Paragraph (a) amends subsection (2)(b) and inserts a new sub-paragraph (va). This new sub-paragraph adds a new preliminary issue that can be raised in proceedings, being any other point concerning the accessing, examination, production, or use of evidence by digital means. This means that objections based on this ground will need to be raised in line with the processes and timescales which apply to the other matters listed in section 79(2) of the 1995 Act, unless the court allows a late objection.
Paragraph (b) inserts a new subsection (2A) to highlight that, as per section 279B(7) (see paragraph 73 of these Notes), an application for a direction under section 279B(2) is not a preliminary issue for the purpose of section 79(2)(b).
67.Subsection (4) inserts new sections 279B and 279C after 279A in the 1995 Act.
Inserted section 279B – Images of physical evidence
68.By virtue of this section, an image of physical evidence is, unless the court otherwise directs, to be treated for evidential purposes in criminal proceedings as if it were the physical evidence itself. For the purposes of this section, it does not matter whether or not the physical evidence is still in existence. For example, an image of a weapon can be produced in court in place of the physical item, and receive equal evidentiary status for the purpose of the proceedings. However, if the court is not satisfied by the use of such an image in place of the physical evidence, it remains open to the court to otherwise direct that the original item be produced. This section does not apply to documents within the meaning of paragraph 8 of schedule 8 of the 1995 Act.
69.The court may only issue a direction that an image of physical evidence is not to be treated as if it were the physical evidence itself where, on the application of a party to the proceedings, it is satisfied that treating the image in such a manner would prejudice the fairness of the proceedings.
70.Section 279B(3) sets out the timescales within which (subject to subsection (4)) any applications for such directions must be made:
In summary proceedings, applications must be made no later than 28 days after the date the image is disclosed to the party making the application. If the image is not disclosed to the party making the application, then the application may be made at any time (as per subsection (5)(a)).
In proceedings on petition or indictment (solemn proceedings), where the application is made by the prosecutor, the application must be made no later than 28 days after written notice is given by the accused in accordance with section 78(4)(a). Where the application is made by the accused in respect of an image included in the list of productions lodged in accordance with section 66(5), the application must be made no later than 28 days after the date the indictment is served. If written notice is not given in respect of the image by the accused or, as the case may be, the image is not included in the list of productions lodged in accordance with section 66(5), then the application may be made at any time prior to the image being led as evidence in proceedings (as per subsection (5)(b)).
71.Section 279B(4) provides that where the timescales for an application for a direction under subsection (3) are not met, the court can permit an application to proceed where it considers that the application was made as soon as was reasonably practicable.
72.Section 279B(6) confirms that where a court issues a direction under section 279B(1) in proceedings on petition or indictment (solemn proceedings), the court may permit the physical evidence to be produced in evidence, notwithstanding the fact that it was not included on any list lodged by the parties and that notice required by sections 67(5) and 78(4) of the 1995 Act has not been given. For example, if the court directs that an image of a weapon cannot be produced in court in place of the physical item following an application by the accused, the court may permit the weapon itself to be produced in evidence, even though it was not included on the list of productions.
73.Section 279B(7) provides that applications for directions under section 279B(2) are not preliminary issues for the purpose of section 79(2)(b) of the 1995 Act. However, the applications can still be considered by the court at the first diet (see paragraph 65 of these Notes).
Inserted section 279C – Guidance on use of images of physical evidence by prosecutors
74.This section requires the Lord Advocate to prepare and publish guidance regarding the use of images of physical evidence by prosecutors acting for the Crown Office and Procurator Fiscal Service. This guidance must set out firstly, the factors that prosecutors will take into account when deciding whether to produce an image of physical evidence in a criminal trial in reliance on section 279B(1) of the 1995 Act (see paragraph 68 of these Notes), and secondly, in general terms, when an image is so used, the approach of prosecutors to the physical evidence that the image is of.
75.The Lord Advocate may revise this guidance from time to time. Where the Lord Advocate revises the guidance, the revised guidance must also be published.
76.Subsection (6) amends section 281 of the 1995 Act. That section sets out the rules which apply where an autopsy or forensic science report is lodged as a production (for example, setting out a presumption that the body of the person identified in the report is the body of the person identified in the indictment or complaint). Subsection (6) of this section applies these rules equally to an autopsy or forensic science report where the accused has been given an opportunity to see the report in an electronic form.
