What Happens When a System Cannot See Itself

This Freedom of Information series on Scotland’s criminal justice system set out to answer a straightforward question. Not how the system is supposed to work, but how it operates in practice, and whether it can be examined.

Each request looked at a different part of the system. On their own, the answers were limited, but taken together, they begin to form a clearer picture.

Blind Spots in the System showed that Scotland’s courts do not record how certain key mechanisms are used in any searchable way. The Moorov doctrine, which allows separate allegations to corroborate each other where they disclose a course of conduct, leaves no administrative trace. Section 275 applications, which govern whether certain evidence about a complainer’s sexual history or behaviour can be led, are logged only once per case, regardless of how many are made.

Still Blind. Still Silent. followed that up. It found no project, no proposal, and no discussion in the last ten years about changing that position.

A separate line of enquiry considered whether the system could be examined from another angle. If the courts could not record the information, could it be extracted elsewhere? The answer from the Crown Office and Procurator Fiscal Service (COPFS) was that it could not be done without manually reviewing individual case files. In practice, that prevents any meaningful system-wide analysis.

If the data cannot be readily recorded or extracted, the next question is whether it has at least been analysed, and whether any part of government has examined how these mechanisms operate in practice. The answer there was also no.

Even at that point, a narrower question remains. If no analysis exists, is there any record that the issue has been considered at all?

The most recent response confirms there is not. A formal notice under section 17 of the Freedom of Information (Scotland) Act 2002 states that no recorded information exists concerning any project, proposal or discussion on making it possible to identify how evidential doctrines such as Moorov are used.

These answers come from different parts of the system. The courts, the prosecution service, and the Scottish Government all have distinct roles. But the pattern is the same in each case.

There is no consistent way to record how some of the most important mechanisms in criminal trials are used. There is no practical way to extract that information at scale. There is no analysis of how those mechanisms operate in practice. And there is no record that the absence of that information has been examined.

None of that means the system is failing. Safeguards exist. Legal tests exist. Procedures exist. But those are descriptions of how the system is designed to work. They are not evidence of how it behaves in reality.

The gap lies not in the law, but in visibility.

If key parts of the process cannot be tracked, they cannot be measured. Without measurement, they cannot be compared across cases or over time. That makes it difficult to identify patterns, including patterns that would indicate systemic error.

Where a system cannot see patterns, it cannot detect inconsistency or correct it. The burden shifts quietly onto the individual case, where outcomes are treated as isolated rather than part of a wider structure.

That leaves a more basic question.

What would it look like if the system were able to show that its safeguards are working as intended?

You would expect mechanisms to be recorded in a way that allows them to be identified across cases, with data on how often they are used and in what context. You would expect some form of analysis of outcomes, and an ability to revisit that analysis over time.

None of those things have been identified here.

The responses do not show that the system is wrong.

They show that, in these areas, it is not in a position to demonstrate that it is right.