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McCluskey "baffled" by Executive's stance

27 March 2006

Another legal controversy has ignited over the Shirley McKie case following Executive claims that making public reports relating to the case would undermine a basic principle of Scots law.

Former High Court judge Lord McCluskey has said he is "baffled" by a recent parliamentary answer by Justice Minister Cathy Jamieson. Ms Jamieson told the SNP's Alex Neil that the Executive would not publish two reports, commissioned by the Lord Advocate from an independent fingerprint expert who investigated the Scottish Criminal Record Office's handling of the McKie case.

The reports had been commissioned as part of the Executive's defence of the civil action brought by Ms McKie, who was wrongly accused of perjury folowing a fingerprint analysis. Ms Jamieson said that their publication would "undermine the basic principle of Scots law that neither party to a litigation is obliged to disclose reports commissioned for the purpose of the litigation".

As reported in today's Scotsman, however, Lord McCluskey claims there is no such basic principle, but only a rule of practice protecting a report commissioned during a party's investigations into a live civil case. A judge will usually refuse to make formal court order requiring the report to be handed over to the other party.

However, there is no rule that the report cannot be published, and Lord McCluskey, who has backed calls for a public inquiry, said ministers could no longer plead confidentiality when the litigation in question was finished.

A spokesperson for the Scottish Executive said ministers were interested in Lord McCluskey's comments, but they stood by the parliamentary answer. However, the Executive would consider requests for documents from the Justice 1 Committee, which last week decided to hold its own inquiry.