When it becomes known that the Reporter will be relying on a JII in evidence and where the Reporter has not disclosed a copy of that DVD to you, then you will require to apply for sanction for unusual work for any travel costs associated with viewing this DVD. This applies to qualified and unqualified staff, counsel and any experts sanctioned in the case.

We accept that it is reasonable and necessary to view such a JII for the proper preparation of a case. However, it is not always considered reasonable and necessary to incur what can sometimes amount to extensive time and travel costs to view this.

The criminal case of HMA V AM and JM [2016] HCJAC 34 is of relevance here as it has equal application to a children’s case. This criminal appeal case concerned an order made by a judge at a preliminary hearing prior to a trial requiring the Crown to disclose evidence of the JII’s by providing the defence with copies of the discs. This appeal by the Crown was refused and it was held that, in terms of the Criminal Procedure (Scotland) Act 1995, intimation of a list of productions to the court had the effect of bringing the productions under the control of the court whether or not they have been lodged (although they remained physically in the possession of the Crown).  Therefore the issue was not one of disclosure but whether the defence should be allowed to remove the productions from the custody of the court. As the discs were to be used as the evidence in chief of the interviews with children it was difficult to conceive of a situation where the court would refuse an application to borrow them, albeit perhaps subject to conditions such as the viewing of the recording and its return to court.

If you wish to travel to view a JII at the Reporter’s office you need to address:

  • Where the Inventory of Productions referring to the JII recording has not yet been lodged with the court but intimated to you, why you consider that it would be more economical to travel to view the recording rather than to lodge a specification of documents application with the court asking the sheriff or judge to order SCRA to provide a copy of the recording to you.
  • Where the Inventory of Productions referring to the JII recording has been lodged with the court (even where the actual recording itself remains physically in the possession of SCRA) why you consider that it would be more economical to travel to view the recording rather than to make a motion in terms of Rule 50.5 of the Act of Sederunt (Child Care and Maintenance Rules) 1997 to borrow or obtain a copy of the recording from the court.

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