« Previous | Contents | Next »
Listen
Part I: Introduction and Context
1. Remit
1.1 The right to a fair trial is a fundamental constitutional right in the United Kingdom. It has long been recognised that a fair trial cannot be achieved unless the accused is given notice of the charge against him and of the nature of the evidence which is to be relied on to make out the case. It has also been recognised that it is the duty of a public prosecutor to act fairly towards an accused. More recently, however, there has been an increased emphasis on the duty of the prosecutor to make known to the accused evidence or other information which has come to the prosecutor's attention and which might assist the accused's defence. A series of decisions of the Judicial Committee of the Privy Council ( JCPC) and of the High Court have redefined and perhaps expanded that duty, which is conveniently referred to as the duty of disclosure. The most important of these decisions are McLeod v HMA (No. 2) [1998] JC 67, Holland v HMA [2005] SC( PC) 3 and Sinclair v HMA [2005] SC( PC) 28. These decisions, which I discuss in detail later in this report, require, by express statements and by implication, changes in some of the established practices of the courts and the Crown Office and Procurator Fiscal Service ( COPFS) and have given rise to uncertainty about the exact requirements of the duty of disclosure. That uncertainty, in turn, has given rise to difficulties for the police in carrying out criminal investigations and for prosecutors in presenting charges, and in consequence to this report.
1.2 Following the decisions to which I have referred, in May 2006, the then Solicitor General, Elish Angiolini, when giving evidence to the Justice 1 Committee in relation to the Criminal Proceedings etc (Reform) (Scotland) Bill 1, said, in answer to a question:
"The bill should not legislate on disclosure in a piecemeal fashion. Given the decisions that are made in the Court of Appeal and by the Judicial Committee of the Privy Council, disclosure is a very live and dynamic issue that we want to consider comprehensively and to legislate on fully, rather than just in the context of the bill".
1.3 On 3 November 2006, the then Justice Minister, Cathy Jamieson, announced my appointment to carry out a review of the law and practice of disclosure of evidence in the Scottish criminal justice system, the remit of which 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."
1.4 This review is limited to the law and practice of disclosure and does not extend to wider issues of evidence or the burden of proof, or the fundamental principle of the adversarial nature of the criminal justice system. The review does, however, extend to the law and practice of disclosure across all the Scottish criminal courts from the High Court of Justiciary, both as an appeal court and at first instance, to the District Courts. It does not extend to civil cases of any type, and so I have not considered, for example, the disclosure requirements for the conduct of Children's Hearings 2.
1.5 I think that it is important to make two points at the outset. The first is that increased emphasis on disclosure should not be seen as in any way negative. Proper performance of the duty is a vital part of modern criminal procedure, and essential to the fairness of trials under current conditions, for reasons which I shall try to explain in due course. Further, proper preparation for and performance of the duty can enhance the efficiency and coherence of the process of investigation, prosecution and trial.
1.6 The second point is that proposals for changes in the law in this field are subject to some constraints. The court decisions which have drawn attention to the problem include decisions of the European Court of Human Rights ( ECtHR) and of the Judicial Committee of the Privy Council, applying the principles of the European Convention on Human Rights ( ECHR) 3 in accordance with the related provisions in the Scotland Act 4 and the Human Rights Act. These decisions have to be taken as defining rules or principles which are binding on the courts in Scotland and also on the Scottish Parliament and Executive, so that any legislative proposals have to be consistent with what has been decided in these cases. As will be seen, it is not always clear exactly what the effect of the decisions is, so that there is some uncertainty about the limits within which changes can be made by legislation.
« Previous | Contents | Next »