Health and Safety Executive

Preparing evidence for use in court

Productions

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 the 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.

Continuity and integrity of productions

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 The use of evidence bags, tags & labels [52KB]).

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

Documents

Where you find relevant documents in the accused’s possession1, 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.

Authentication

Video recordings, photographs and drawings

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.

Documents and hearsay 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.

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.

Computer records

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.

Documents and self-incrimination

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.

Certificates of authentication

The use of certificates of authentication is an emerging area where currently the practice of various Procurators Fiscal vary. Certificates can be used to allow authenticated copies of documents to be used as evidence and can also be used to allow documents to be evidence when otherwise the content would be considered hearsay. For complex investigations Inspectors are advised to consult the Fiscal. For less complex investigations it may be prudent to obtain certificates of authentication when taking statements from witnesses who speak to documents. This may avoid the need to revisit to obtain a certificate if so requested by the Fiscal.

Care should be taken to select the correct certificate. All forms listed below are in word format,

Footnotes

  1. This statement should mention that you have taken possession of the document in the exercise of your s.20 powers.
  2. In JB v Switzerland, May 3 2001 (ECHR), a person’s right against self-incrimination under Article 6 of the European Convention on Human Rights was infringed where they were fined for refusing to surrender financial documents to the Swiss tax authorities when required to so by law.
  3. R v Kearns [2002] 1 WLR 2815, relying on Attorney General’s Reference (No 7 of 2000), TLR 12 April 2001. In Kearns, the court considered the effect of JB v Switzerland in reaching its decision.

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Updated 02.06.09