The warnings come after the high-profile collapse of rape cases in England due to lack of disclosure by prosecutors and police.
Solicitors in Scotland have said there is a “perfect storm” brewing due to increasing levels of digital evidence taken from phones and computers and decreasing numbers of prosecution staff available to analyse it.
Last week, the director of public prosecutions for England and Wales, Alison Saunders, revealed that evidence was withheld from defence lawyers in 47 cases of rape and sexual assault. The withholding of evidence was the main reason five of the cases had to be stopped.
There has been an increased focus on the issue since the collapse of the case against 22-year-old Liam Allan in December. Allan had been charged with 12 counts of rape and sexual assault and was under investigation for nearly two years. The case against him was dropped after three days in court when his defence found evidence on a computer disk containing 40,000 messages which revealed the alleged victim had pestered him for “casual sex”.
Advocate Niall McCluskey said the Scottish criminal justice system was under similar pressures due to cutbacks and the weight of digital evidence which had to be analysed.
He said: “The difficulty is the lack of resources in the system when there can be huge amounts of evidence. If you get a disk with data from someone’s phone, it can be extraordinary the amount of information that is in that, including phone calls, texts and social media stuff.
“For the Crown to properly analyse all that information is quite a difficult task, so it’s a concern. We’ve haven’t had the sort of high-profile cases they’ve had in England, but there’s a potential for similar problems up here.”
In Scotland, the Crown must disclose information which is likely to undermine its case or provide positive assistance to the accused.
“The people working on these cases are human; they only have so much capacity,” McCluskey said. “In some of the bigger cases, they’re being asked to do an awful lot. Trying to make sure they’ve disclosed everything – evidence which undermines their case or which assists the defence case – is quite hard. In some of the English cases, it’s extraordinary what has been missed.”
A Crown Office spokesman said: “The Crown Office and Procurator Fiscal Service (COPFS) recognises the importance of the legal obligation to assess and disclose evidence. A statutory disclosure regime was put in place by the Scottish Parliament in 2010 and COPFS operates within that regime. Where disclosure issues are raised in relation to any specific case, COPFS have processes in place to respond appropriately.”