What is in our written submission about the timing of the commission hearing arises from the provision in the bill that removes the barrier to holding a commission prior to service of the indictment. We welcome that provision, but the Crown’s position remains that the majority of commission hearings will take place after service of indictment.
I refer you to my previous answer. The Crown’s idea is not to have the commission before the indictment but to expedite service of the indictment to allow the commission to take place at an earlier stage. However, in some cases, when we see that that will not be feasible, the provision allows for us to hold the commission earlier, prior to the indictment.
The reasons for that are many and varied. I am sure that the Faculty of Advocates will disagree with me, but the Crown Office’s experience is that, once a case is reported to the Crown, the investigation that it conducts, which is known as the precognition process, evolves. We ingather the evidence. We do not get all the evidence when we get a police report: we have to ingather the statements; we have to ingather forensic material and get it analysed; we have to analyse digital devices, which goes back to a point that Grazia Robertson raised earlier; and we often have to ingather medical and social work records.
To an extent, the investigation is organic. We identify and ingather the material that we think we need. We do not get all the material at the same time and, when it is received, we must assess it to determine whether it is material and relevant, and anything that is material and relevant must then be disclosed to the defence. The process often results in further material coming to light and that material must be obtained, either to support the Crown case or because it is relevant to the defence. Therefore, the volume of material grows as the investigation goes on. As a result of our examination of the material, including witness statements, the charges that were drafted at the petition stage may not be replicated in the indictment. There are often significant changes to the information that appeared in the petition in the indictment. It is important that the parties know exactly what the evidence is and what the charges are for the purposes of a commission hearing, to allow the questions to be properly framed and to ensure that all the areas in which the accused is likely to stand trial are covered.
If the commission takes place too early, there are three principal risks. First, material could be missed, which would require a further commission to take place—that is absolutely correct in order to be fair to the accused. Secondly, we may have carried out an unnecessary commission hearing because, after investigation, we decide not to proceed with the charge—there is an attrition rate for such matters. Thirdly, if the accused chooses to plead guilty, the commission hearing could be viewed as having been unnecessary.
In most cases, the accused’s opportunity to plead guilty is after service of the indictment. Therefore, in the majority of cases, the commission will take place post-indictment, but the opportunity to do it before the indictment in appropriate cases, where the timeframe cannot be matched, is helpful and appropriate.