Scottish Government
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Review of disclosure law
The Scottish Government yesterday published the report of an independent review of the law and practice of disclosure in criminal proceedings in Scotland.
The review was carried out by Lord Coulsfield, the retired High Court judge, on a personal basis, and the report contains his own analysis and conclusions.
The remit was "to review the law and practice of disclosure of evidence and other relevant material in criminal proceedings in Scotland, with a view to making recommendations that will secure a system that is both practical and effective, recognising the rights of the accused, the interests of victims and witnesses and the wider interests of justice".
Lord Coulsfield acknowledged the assistance given by many who had contributed to his review, in particular the members of the Reference Group.
The report concludes:
"What emerges from the review is that a workable and fair system requires that there should be a clear definition of the duty of disclosure coupled with a reasonable and flexible approach to its application.... I hope that this report will itself help to promote the clarity and security that the system of disclosure needs; as no doubt will future decisions of the higher courts. However, a range of legislative and executive action is also needed to secure substantial improvements to disclosure practices at the present time."
Cabinet Secretary for Justice, Kenny MacAskill said:
"The Government welcomes this positive and helpful report. Disclosure is vital because it is essential that the defence have all the necessary information available to ensure a fair trial. Effective disclosure also contributes to a more effective criminal justice system and to earlier resolution of cases. I am indebted to Lord Coulsfield for his careful analysis and recommendations. We will shortly publish a consultation paper to invite further views from anyone with an interest, which we will consider before deciding the way forward."
Lord Advocate Elish Angiolini said:
"I warmly welcome the publication of Lord Coulsfield's report. His careful analysis of the issues has provided a helpful insight into the difficulties involved. The report marks a significant step towards achievement of the required degree of clarity in this complex area of law and practice."
Lord Coulsfield's review was commissioned in November 2006, by the previous Justice Minister. The need for the review became clear as a result of the 2005 decisions of the Judicial Committee of the Privy Council in the cases of Holland and Sinclair.
Lord Coulsfield proposes that there should be legislation, to clarify the legal requirements of disclosure and to establish a mechanism for resolving the conflicts of interest which arise when disclosure of important material might put witnesses or security interests at risk. The report makes recommendations about the practical arrangements which should support disclosure in solemn and summary cases, and also addresses issues such as Crown precognitions, criminal history records and the prevention of misuse of disclosed material.
Lord Coulsfield was appointed to the bench in 1987 and retired in 2002. Before his retirement, he sat in the Second Division of the Inner House, and was one of three judges presiding in the Lockerbie trial at Camp Zeist in the Netherlands. He was appointed a Privy Councillor in 2000.
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