Scottish Government
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Disclosure of evidence

The Scottish Government will legislate to strengthen procedures for disclosing evidence in criminal cases.

Justice Secretary Kenny MacAskill made the commitment following a public consultation into the report of Lord Coulsfield's independent review of the law and practice of disclosure in criminal proceedings in Scotland, published in September 2007.

The Scottish Government response, 'A Statutory Basis for Disclosure in Criminal Proceedings in Scotland', has been published today. It confirms that Ministers will introduce legislation to:

    * Set in statute a clear definition of the legal requirements for disclosure
    * Provide a statutory code of practice detailing the appropriate disclosure procedures and responsibilities
    * Introduce a system of Public Interest Immunity hearings to achieve a balance between protecting sensitive or confidential information and the requirement to disclose
    * Codify a system for notifying defence agents, in solemn (the most serious) cases, about the existence of non-sensitive material that has not been disclosed

These measures were among the 44 recommendations made in Lord Coulsfield's report. Having considered the consultation responses, the Scottish Government intends to legislate in line with these recommendations, with two minor refinements. These are:

    * Material previous convictions of Crown witnesses should be disclosed in all cases, not only on application by the defence
    * Where disclosure has been made by the Crown and the defence request further consideration be given to disclosure of other information, it should then be mandatory for a standard defence statement to be submitted

Cabinet Secretary for Justice, Kenny MacAskill said:

"When we published Lord Coulsfield's report, I welcomed it as a positive and helpful report. Our consultation has confirmed that there is a high degree of consensus about the need for legislation.

"I can now confirm that the Scottish Government will, in the near future, bring forward legislation to deliver the recommended reforms.

"Disclosure is now a vital part of our procedures following changes within the law in 2005. 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.

"These changes will build on the Bonomy High Court reforms, our recent changes to summary procedure and the Judiciary and Courts Bill which we introduced to Parliament in January, to further build confidence in Scotland's modern criminal justice system.

"I am indebted not only to Lord Coulsfield for his careful analysis and recommendations, but also to all those who gave their considered responses to our consultation."

Lord Advocate Elish Angiolini added:

"I warmly welcome today's announcement. I firmly believe that legislation will help bring greater clarity to a vital part of our criminal procedure.

"In the Crown Office and Procurator Fiscal Service we have been making strenuous efforts to ensure that our disclosure practice meets the needs of a modern criminal justice system. Legislation will underpin and consolidate these efforts and will assist us in continuing to improve our practices.

"Early disclosure of evidence is not only beneficial to the defence and to the pursuit of a fair trial but also to victims and witnesses, as it can bring about earlier guilty pleas, saving victims and witnesses from the stress and strain of having to give evidence in court."

Lord Coulsfield's review was commissioned in November 2006, by the then Justice Minister following the decisions, in 2005, of the Judicial Committee of the Privy Council in the cases of Holland and Sinclair.

Lord Coulsfield proposed 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.

His report made recommendations about the practical arrangements which should support disclosure in solemn and summary cases, and also addressed issues such as Crown precognitions, criminal history records and the prevention of misuse of disclosed material.

Related Information

http://www.scotland.gov.uk/Publications/2007/09/11092728/0

http://www.scotland.gov.uk/Publications/2008/04/24084456/0

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