Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Act 2025

5 Digital productions

(1) The Criminal Procedure (Scotland) Act 1995 is modified as follows.

(2) In section 68 (productions)—

(a) in subsection (2), at the end insert “(but see subsection (2A))”,

(b) after subsection (2), insert—

“(2A) But subsection (2) does not apply to a production if—

(a) it is in electronic form, and

(b) the accused is otherwise given an opportunity to see it in such form.”,

(c) in subsection (3), after “lodged” insert “or the accused has otherwise been given an opportunity to see the production in an electronic form”,

(d) after subsection (3), insert—

“(3A) Where—

(a) a person is adduced to give evidence in relation to a physical item which the person has examined,

(b) an image of the item is a production in the proceedings (by virtue of section 279B), and

(c) the image has been lodged as a production or the accused has otherwise been given an opportunity to see it in an electronic form as mentioned in subsection (3),

subsection (3) applies to the physical item as if it were a production.”.

(3) In section 71 (first diet), in subsection (2A), after “section 275” insert “, or subsection (2) of section 279B”.

(4) In section 79 (preliminary pleas and preliminary issues)—

(a) in subsection (2)(b)—

(i) the word “and” immediately following sub-paragraph (v) is repealed,

(ii) after sub-paragraph (v), insert—

“(va) any other point raised by a party, as regards any matter not mentioned in paragraph (a) or sub-paragraphs (i) to (v), which concerns the accessing, examination, production or use of evidence in an electronic form; and”,

(b) after subsection (2), insert—

“(2A) Subsection (2)(b) is subject to section 279B(7).”.

(5) After section 279A, insert—

“Reproductions of evidence

279B Images of physical evidence

(1) In any criminal proceedings an image of physical evidence is, unless the court otherwise directs, to be treated for evidential purposes as if it were the physical evidence itself, whether or not the physical evidence is still in existence.

(2) A direction under subsection (1) may be issued only where, on the application of a party, the court is satisfied that treating the image as if it were the physical evidence itself would prejudice the fairness of the proceedings.

(3) Any application under subsection (2) for a direction must be made—

(a) where an image is disclosed in summary proceedings, no later than 28 days after the date the image is disclosed to the party making the application,

(b) in the case of proceedings on petition or indictment—

(i) where the application is made by the prosecutor in respect of an image of which written notice has been given by the accused in accordance with section 78(4)(a) of this Act, no later than 28 days after the date the notice is given,

(ii) where the application is made by the accused in respect of an image that is included in the list of productions lodged in accordance with section 66(5) of this Act, no later than 28 days after the date the indictment is served.

(4) Subsection (3) does not apply to the extent that the court considers that the application was made as soon as was reasonably practicable.

(5) Where an application under subsection (2) for a direction is made in respect of an image not mentioned in subsection (3), the application may be made—

(a) in the case of summary proceedings, at any time,

(b) in the case of proceedings on petition or indictment, at any time prior to the image being led as evidence in the proceedings.

(6) Where the court issues a direction under subsection (1) in proceedings on petition or indictment, the court may permit the physical evidence to be produced in evidence, notwithstanding that it is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.

(7) An application under subsection (2) for a direction is not a preliminary issue for the purpose of section 79(2)(b) of this Act.

(8) For the purposes of subsection (1), an image of physical evidence—

(a) is a moving or still image,

(b) may include accompanying explanatory material and authenticating documents.

(9) This section does not apply to documents within the meaning of paragraph 8 of schedule 8.

279C Guidance on use of images of physical evidence by prosecutors

(1) The Lord Advocate must prepare and publish guidance setting out—

(a) factors that prosecutors will take into account when deciding whether to produce an image of physical evidence in reliance on section 279B(1), and

(b) in general terms, where an image is so produced, the approach of prosecutors to the physical evidence.

(2) The Lord Advocate—

(a) may revise the guidance from time to time, and

(b) where the guidance is so revised, must publish the guidance as revised.

(3) In this section, “prosecutor” means the Lord Advocate, the Solicitor General, Crown Counsel or the procurator fiscal (and any person duly authorised to represent or act for them).”.

(6) In section 281 (production of autopsy and forensic science reports)—

(a) in subsection (1), after “prosecutor” insert “, or the accused has otherwise been given an opportunity to see the report in an electronic form,”,

(b) in subsection (2) after “production” insert “, or providing the accused with an opportunity to see the report in an electronic form,”.