Coulsfield proposes Crown disclosure law

Report recommends enacting rules for disclosing evidence to defence

News, 12 September 2007

The report of an independent review of the law and practice of disclosure in criminal proceedings in Scotland was published today.

The review was carried out at the request of the previous administration by Lord Coulsfield, the retired High Court judge, on a personal basis, and the report contains his own analysis and conclusions. The review arose as a result of the 2005 decisions of the Judicial Committee of the Privy Council in the cases of Holland and Sinclair.

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".

Requirement of fairness

Lord Coulsfield concludes 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".

The formulation in the 1998 case of McLeod, that what should be disclosed is "all material evidence for or against the accused" and "all information which would tend to exculpate the accused, he says, correctly reflects decisions of the European Court of Human Rights.

"Having regard to the experience in other jurisdictions, particularly in that of England and Wales, it should enable the requirements of the defence for equality of arms to be met without overloading the process with useless and irrelevant material. It is as clear and definite as can be expected and should be adopted in statute to clarify the law in Scotland."

He adds that the statute should make it clear that the prosecuting authorities should have regard to the overriding requirement of a fair trial, and should specify the principal categories of evidence or information which should be regarded as exculpatory and "material".

These recommendations apply to solemn procedure; summary practitioners did not see the need for prescriptive rules and Lord Coulsfield says in relation to summary cases: "What is needed is a simple and reliable regime, coupled with the possibility of applying to the court for assistance where the needs of a particular case make it appropriate to do so."

Where the duty applies, he recommends legislation such as applies in England & Wales for a system of public interest immunity hearings where the Crown wishes to withhold sensitive material.

Ministerial welcome

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

Welcoming the report, Cabinet Secretary for Justice, Kenny MacAskill said that ministers would shortly publish a consultation paper to invite further views from anyone with an interest, which they would consider before deciding the way forward.

Lord Advocate Elish Angiolini said: "Lord Coulsfield's 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."

The report can be read at http://www.scotland.gov.uk/Publications/2007/09/11092728 .