In Scotland the best evidence should always be led in a criminal trial. In general the best evidence will be that of a witness who can refer or speak to principal documents or items of equipment. The documents etc. forming the evidence in a case are known collectively as the productions.
The responsibility for collating and identifying necessary productions in any trial rests with the Procurator Fiscal, or in a serious case, the Lord Advocate. The productions are numbered, with non-documentary productions (i.e. actual articles) being listed and numbered separately. The non-documentary productions are referred to as 'labelled productions', because of the labels attached to them, which describe the article and state where they were found. The labels are signed by the witnesses who will identify them at trial. Documentary productions are initialled by the witnesses who are to speak to them.
You must ensure that all productions are kept safely and that there is a clear identifiable audit trail from the moment that productions are seized until passed to the Procurator Fiscal. This is because the prosecution may have to prove that the production before the court is the same production that was referred to by the witness in his or her statement; or that the production has not been tampered with since it was retained (see Operational Guidance: Material and evidence management (collection, retention and disposal)).
In establishing this chain of evidence, each person handling a production must sign a label attached to the production, stating when they received it and who they received it from, and saying to whom they passed it and when.
So for example, in respect of a sample which is seized and taken to a laboratory for testing, you need to obtain statements covering all the stages from the taking of the sample or the taking into possession of an article, through submission to the laboratory, testing etc, up to delivering the production to the Procurator Fiscal. Two signatures should be obtained at each link of the chain of movement, including any testing, to ensure there can be no dispute that the sample tested is the sample produced to the court
Where you find relevant documents in the accused’s possession 1, you should narrate that fact in your statement detailing how they came to be in your possession. You should also obtain a statement from any person who gives you a document, describing the document and the context in which it was obtained. If the person is called to prove an essential element in the case, s/he may refer to the documents when giving evidence.
It is important that any documentary evidence is produced in court in the same condition as found. There should be no annotated comments or highlights on the document.
These should be adequately identified in the statement of the inspector (or other person) who made the video, took the photograph or made the drawing. The master book of photographs for the use of the Fiscal may have a legend inside it describing each photograph but further copies, particularly for the use of a jury, should have no legend. It is for the witness speaking to the photographs to describe what they show during their evidence.
In most cases, documents being produced in evidence do not offend against the hearsay rule because you are not asserting that the facts stated within them are true. For example, while a letter from HSE may show that an accused was told that his methods were unsafe, it does not prove that he actually used such methods. So, if the purpose of producing the document is to prove what it said, rather than the truth of what it said, there is no difficulty.
There are circumstances where statements in business documents are admissible and do not offend against the hearsay rule, see below under “proof of documents”.
Similarly, an expert witness may rely on documents that form part of the background literature relating to a process or risk the prosecution does not need to produce the originals or to call the person who wrote the document.
If a computer acts as a sophisticated form of calculator (ie it does not “contribute its own knowledge” to the document) the document produced will not be hearsay. It may be necessary to call evidence to describe the function and operation of the computer before the judge can decide whether the document is real evidence or hearsay.
There is now a rebuttable presumption that computers are working properly. The defence may adduce some evidence to the contrary, and in those circumstances the prosecution would have to prove the reliability of the computer. The ‘Hearsay’ section deals with the further requirements that may have to be complied with.
Under s20 HSWA, you have the power to take a copy of documents required to be kept under any of the relevant statutory provisions or that are necessary for you to see for the purposes of your investigation. You should be aware that the defence may argue that, if such documents are relied upon in a prosecution, this infringes their right against self-incrimination. The basis of this argument is that, since the accused was compelled to provide the copies, they have been compelled to incriminate themselves.2
The Court of Appeal has stated3 that there is a distinction to be drawn between the compulsory production of documents or other material which had an existence independent of the will of the suspect or accused person and statements that they have had to make under compulsion.
In other words, it is important to determine whether the material in question is evidence that an accused has been compelled to create (e.g. a compelled statement) or evidence that was already in existence, where the effect of the compulsory power is to bring such evidence to the attention of the court (e.g. a company’s documents).
As the law currently stands, material that a defendant has been compelled to create may be protected from subsequent prosecution use by the right not to incriminate oneself. Material that was already in existence, but which the defendant was required to produce, does not have this protection and may be used as part of the prosecution case.
In terms of Schedule 8 to the Criminal Procedure (Scotland) Act 1995 there is provision for the admission in evidence of business records. The provisions apply to business documents which are documents satisfying the following conditions as set out in paragraph 2 (1) of the Schedule.
There are three essential conditions of admissibility which must all be satisfied before a statement in a document is admissible as evidence of any fact or opinion of which direct oral evidence would be admissible.
These conditions are as follows:-
These conditions must be set up in evidence.
It is essential to note that only condition (b) can be established by certificate in a docquet prescribed in form 26.1-B unless the court directs otherwise – paragraph 4.
Paragraph 4 states that:-
“unless the court otherwise directs, a document may in any criminal proceedings be taken to be a document kept by a business or undertaking or by or on behalf of the holder of a paid or unpaid office if it is certified as such by a docquet in the prescribed form and purporting to be authenticated, in such manner as may be prescribed –
(a) by a person authorised to authenticate such a docquet on behalf of the business or undertaking by which; or
(b) by, or by a person authorised to authenticate such a docquet on behalf of, the office holder by whom, the document was kept.
A statement in such a document is admissible as evidence of any fact or opinion of which direct oral evidence would be admissible, whether the information contained in the document was supplied directly or indirectly, unless in the latter case it appears to the court that any person through whom it was so supplied did not both receive and supply it in the course of a business or undertaking or as or on behalf of the holder of a paid or unpaid office (1995 Act, Schedule 8, paragraph 2).
The certification procedure ought to be followed as a matter of course in relation to business type documents.
It is of note that it is only condition b which can be established by certificate.
The 1996 Act of Adjournal does not make detailed provision as to who may sign such a docquet but the form makes it clear that the person must hold some office (which would include a position in a business) and must be authorised.
On a practical level authorisation should be approached in the same way as it is in the case of certified copy documents (dealt with below) and in each case a statement should be taken and submitted from the person signing the docquet confirming that he or she is able to speak to the documents being kept by the business or undertaking. In the event of a challenge being made, this statement would, of course, require to be used in court.
The above section has dealt primarily with condition (b), that is, that the document is or at any time was kept by a business or undertaking.
As regards conditions (a) and (c) these will require to be established by oral evidence from a responsible employee of the relevant business and it will therefore be necessary for a statement to be taken from such a person establishing these facts or at least facts from which these conditions might be inferred.
Practically it is appropriate for the person giving evidence as to conditions (a) and (c) to also be the person that signed the docquet for the purposes of condition (b). There are prescribed forms of doquet (form 26.1-B) as regards satisfying condition (b).
It is important to consider the definitions which are contained in paragraph 8 of the schedule.
“Business” is defined to include a trade, profession or other occupation. “Undertaking” includes any public or statutory undertaking, any local authority and any government department (examples might be a hospital who might provide hospital records).
“Document” includes in addition to a document in writing –
(a) any map, plan, graph or drawing
(b) any photograph
(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable, with or without the aid of some other equipment, of being reproduced therefrom; and
(d) any film, negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced there from;
“Film” includes a microfilm;
“Made” includes allegedly made
“Statement” includes any representation (however made or expressed) of fact or opinion, including an instruction, order or request but, the following are expressly excluded by virtue of paragraph 8:-
(a) a statement in a precognition
(b) a statement made for the purposes of or in connection with:-
(i) pending or contemplated criminal proceedings; or
(ii) a criminal investigation; or
(c) a statement made by an accused person in so far as it incriminates a co accused.
In summary, the aim of schedule 8 is to establish a regime for the admission of hearsay evidence relating to statements contained in business documentation of which direct oral evidence would have been admissible. It is important to note that the statements contained in business documentation must be sufficiently reliable to justify the substitution of documentary hearsay for oral testimony. It is important also to note that the provision allows for the admission of evidence but this is not conclusive. If direct oral evidence might have been objected to had it been led on the ground that such evidence was irrelevant or incompetent, then such objection remains open. In addition, evidence of statements contained in business documents is still open to challenge on grounds of credibility and reliability.
Schedule 8 to the 1995 Act also deals with the problem of showing that no record of a transaction exists by the provisions contained in paragraph 5, that is, it deals with proof of a negative. One view which had been previously advanced was that in order to prove that something does not appear in the records of a business it was necessary to produce in court all the records of that business relevant to the subject matter in question. Thus is it was, for example, material to show that the accused was not a member of a professional body it would have been necessary to produce the whole membership records or register in order to establish the absence of the name of the accused from that register or record.
This provision enables an authorised person to give evidence that a document satisfying the conditions set out in paragraph 2 (1) (a) and (b) of Schedule 8 (detailed above) does not contain a relevant statement as to a particular matter or that no document, within a category of documents satisfying those conditions, contains such a statement, whether or not the whole or any part of the document or documents within that category and satisfying those conditions has been produced in the proceedings.
It is provided in paragraph 5 (2) that a relevant statement is a statement which is of the kind mentioned in paragraph 2 (1) (c) of the schedule and which the document might reasonably have been expected to contain.
Unless the court otherwise directs, this evidence can be given by means of a certificate by the authorised person in the prescribed form – 1996 Act of Adjournal, form 26.1C.
As regards these provisions, an authorised representative means a person authorised to give evidence
(a) on behalf of the business or undertaking by which; or
b) as or on behalf of the office holder by or on behalf of whom, the document is or was kept.
These provisions might be used where there is a document in existence but that document does not contain the relevant statement being sought. Generally Form 26.1-C.1 would cover that situation. An example would be:- no entry of a particular person in a register or the absence of a credit entry in a bank statement. Form 26.1-C.2 refers to the situation where there is a class of documents in existence but none of the documents within that class contains the relevant statement, that is, the document does not exist within that class of records. An example would be the absence of a licence from among the records of licence forms held by a particular organisation.
There is provision within paragraph 1 of schedule 8 to the 1995 Act for copy documents to be produced.
Previously the best evidence rule prohibited the use of copy documents and meant that the original records would have to be produced. This created obvious difficulties.
Paragraph 1 of Schedule 8 now allows for an authenticated copy of a document, or a material part of a document, to be received in evidence as equivalent to the original document (or material part) regardless of the continued existence of the original and of the number of removes between the original and the copy. This provision gives an authenticated copy the same status as the original but goes no further than this. Importantly it does not enable the document to speak for itself.
“Copy” is said to include a transcript or reproduction - paragraph 1 (3).
In terms of Chapter 26 of the Act of Adjournal 1996, it is provided that authentication of copies may be done by one of three persons:-
(i) the author of the original document
(ii) a person in, or who has been in, possession and control of the original document or a copy of it; or
(iii) the authorised representative of the person in, or who has been in, possession and control of the original of the document or a copy of it.
A “person in possession and control” will normally be a private individual or a sole trader or business person. In most businesses, the person certifying a copy will fall into category (iii) as an authorised representative of the person in possession and control, that is, of the business itself. The requirement is that the individual signing the certificate is authorised to act as representative of the business for the purpose of authenticating copy documents. It will be necessary to check in each case that the individual is of sufficient seniority or exercises sufficiently relevant responsibilities within a business or organisation for it to be inferred, in the event of a challenge, that he / she is authorised to carry out such a task. In the case of a more junior employee it should be ascertained whether or not that person is in fact so authorised.
Any certified copy will be open to challenge at trial in which case it will be necessary for oral evidence to be led by the Procurator Fiscal as to the manner in which the copy was prepared and indeed the original documents may require to be produced themselves. That additional evidence may require to be available and led at very short notice. It will therefore normally be appropriate for the person granting the certificate to have seen the original documents (or copies) when certifying the copies and to verify that the copies which are being certified are true copies of the document from which they have been taken. If the documents are on microfilm, microfiche or computer, the person granting the certificate should wherever possible have been present when the copy was run off. Persons authenticating copies should be able to speak authoritatively to the system of work under which the copies were produced, to state that they have personally taken steps to verify the accuracy of the copies and to explain what these steps were.
It is of note that it will be essential to call a witness to speak to the significance of the records. Where the copy is challenged at trial it will be necessary for the prosecutor to call also as a witness the person who authenticated the copy. It would therefore seem appropriate for the person giving evidence as to the significance of the document also to be the person who speaks to the authentication where this is possible.
The person who obtains a certified copy should take a statement from the person authenticating the copy explaining:-
(a) the person’s position in the organisation;
(b) the basis of authorisation to exercise the authenticating function;
(c) the involvement in the process of copying (where appropriate);
(d) knowledge of the process by which copies are generated (particularly in relation to computer generated printouts); and
(e) in cases where the person authenticating copies as not been involved, or present, during the process of copying, the steps taken to verify the accuracy of the copy.
Certificates of authentication for copies should be in the form prescribed in certificates 26.1-A.1 – 26.1-A.24.
In the case of doubt as to the certification process (either as business documents, statements not contained in business documents or copy documents), an approach should be made to the Health & Safety Division within Crown Office & Procurator Fiscal Service.
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