Access to Crown Papers

Due to the nature of the Commission's work and its statutory role as a review body, there are occasions when the Commission requires to seek access to all information held on cases by the Crown Office and Procurator Fiscal Service in order to ensure the full and thorough review of the case.

The type of information that the Commission may require again varies from application to application. It can be simple factual information regarding evidence available to the Crown at the investigation stage of a case which is often invaluable when details of evidence heard at trial is unavailable. It can be other lines of enquiry which were conducted either by the police or the Crown during the investigation of a particular matter, or it can be decisions made by the Crown Office and Procurator Fiscal Service regarding the nature and circumstances of a prosecution.

When the Commission approached Crown Office in connection with this matter, in relation to a particular case, and requested access to all the documents in the case, Crown Office advised that it was concerned that the provision of such documentation might be in breach of its own obligations of confidentiality.

It was the Commission's view that where it believes that it is necessary for the full and thorough review of a case to have access to all papers held by the Crown Office and Procurator Fiscal Service, the Commission should be granted access to the relevant documentation. The Commission believed that, in view of its independent investigatory function, a request made by the Commission, in which the Commission stated its view that obtaining the documentation was necessary for the purposes of carrying out the review, should be sufficient to enable documentation to be transferred to the Commission. The Commission was of the view that if access to documentation was limited, this could seriously hamper the Commission's independent review and investigatory functions.

In this particular case, it became necessary to clarify matters and in July 2000 the Commission exercised its powers under Section 194(I) of the Criminal Procedure (Scotland) Act 1995 and applied to the court to order Crown Office to release all documentation held in the case. The case is reported as Scottish Criminal Cases Review Commission v HMA 2000 SCCR 842. (click here for the link on the opinion) Lord Clarke granted an order instructing the Crown to release all documentation in the case to the Commission. Of particular importance was the ruling that it was a matter for the Commission to decide whether the material and documents were of assistance to it in its consideration of the case and that the Commission was not required to specify in advance of receiving the papers why access to the papers was required.

The advantage of this High Court ruling is that it has allowed the Commission to establish a working practice with Crown Office regarding access to papers in all cases where the Commission deems that such access is necessary for the proper review of a conviction or sentence. The Commission is confident that the principles established by this ruling, will be of assistance when it requests access to information, documents and material, held by other organisations, which the Commission believes are necessary for the proper and efficient review of a case.