Access to supporting material for reports on gang affiliation

Case no. 57/2020
Order made on 15 January 2021

The Prosecution Service
v.
T1-T4

T1-T4 were charged with violence of a particularly heinous, brutal and dangerous nature according to Section 245(1) of the Danish Penal Code. In addition, the Prosecution Service had claimed that they be sentenced pursuant to Section 81a of the Penal Code, as the violence was committed in connection with an ongoing violent conflict between two gang groups.

The Police had prepared a number of reports for the Court's assessment of the defendants’ gang affiliation, and the Prosecution Service wished to produce these reports as evidence. The reports were based on, among other things, references to a number of incidents that the Police believed to be related to the gang concerned.
The defendants’ defence counsel requested access to the supporting material for the reports on the grounds that the material was important to the case and the defendants’ ability to mount an effective defence. The Prosecution Service did not consider the material to be covered by the defence counsel’s access to documents.

The Supreme Court held that, according to case law, the defence counsel’s access to documents covers all material which cannot be ruled out as being relevant to the case, regardless of whether the material may impact the question of guilt or the sentence. As the defence counsel had a legitimate interest in reading the supporting material, and as it could not be ruled out that the material was relevant to the case and the defendants’ ability to mount an effective defence, the defence counsel were awarded access to the supporting material.

The Supreme Court therefore affirmed the order of the High Court.