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Part V: The Next Steps
20. The need for early legislation and action
20.1 In the course of this review I have considered many aspects of disclosure as it applies currently in Scotland, ranging from the legal principles established by McLeod, Sinclair and Holland, to the practical systems which have been developed subsequent to the reports of Lord Bonomy and of the McInnes Committee. In many respects my report endorses and supports the principles which are already established and the practices which have been or are being developed, and where I have made recommendations for change these should for the most part be seen as reinforcing and extending current policies.
20.2 However, at the same time it is clear that there are shortcomings in current practices, as evidenced by the degree of concern from defence lawyers that "disclosure is not working as it should", and on the other hand by concerns from eg victims' and witnesses' groups that too wide a system of disclosure is being implemented. In part this unease stems from the inherent difficulty of the disclosure issue which I outlined in chapter 3; but in my view, two interrelated factors are magnifying the problem: a lack of clarity in what the jurisprudence on disclosure implies and what it does not; and, despite significant efforts by the Crown and the police to rectify the problem, a lack of systematic processes to ensure that the police and the Crown fulfil their disclosure duties securely and reliably.
20.3 What emerges from the review is, in my view, 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, bearing in mind that the purpose is to secure, overall, a fair trial. All the recommendations are intended to make it possible to achieve that combination. 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. The main requirements for action can be summarised as follows:
20.3.1 Legislation should clarify the requirement to disclose information of potential value to the defence, derived principally from McLeod. It should also establish a system of "Public Immunity Interest" hearings, and should require investigators and the Crown to have regard for a Code of Practice. It might usefully standardise other practices, such as voluntary defence statements, and should implement the other recommendations for legislation contained in this report.
20.3.2 A statutory Code of Practice should be prepared and published, which could detail the responsibilities of the police and the Crown, give guidance on interpretation of the duty of disclosure, and set out standard procedures for the preparation and use of schedules in solemn cases, responding to a defence statement, and the handling of sensitive material. The Code will need to specify systems and processes in some detail, including the exact format and structure for the schedules. Much of this could be written and disseminated on a non-statutory basis in advance of legislation.
20.3.3 Consideration should be given to the potential for improvement of IT systems which govern disclosure activity by the police and the Crown, building on development work which is already progressing under the Scottish Executive, the Crown Office and the police. There is considerable scope for the use of technology to enhance the efficiency of recording and retaining case information; transferring information from the police to the Crown; recording decisions on what should be disclosed; and effecting and recording disclosure.
20.3.4 A fourth and equally important strand of the action plan will need to focus on reviewing systems used by the police and the Crown, and the training of police officers and probationers. This will need to focus both on the new processes and procedures, and also on the rationale behind them. In particular, there need to be sustained efforts to ensure that the importance of a fair trial, and the place that disclosure plays in achieving this, are understood throughout the police service and form part of their core way of thinking, alongside protecting the public and bringing offenders to justice.
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