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Part II: The Duty of Disclosure
4. Issues of principle
4.1 As already explained, this review was set up as a consequence of problems which have arisen in giving full effect in the Scottish system to the fundamental principle that an accused person is entitled to a fair trial. This principle has been recognised in Scotland for centuries, and it has also been recognised that the requirement of fairness implies some duty on the prosecuting authorities 6 to make available information which has a bearing on the guilt or innocence of the accused, whether or not it favours the Crown case. That formulation is deliberately vague because, in my view, the first issue which has to be addressed is exactly how the requirement should be defined or expressed.
4.2 The recent cases of McLeod, Sinclair and Holland reflect and highlight the development over recent years in the understanding of the duties implied in the requirement of a fair trial in Scotland, and in particular of the Crown's duty to make information available. The problems which have given rise to this review have come to notice as a result of this development. The problems associated with putting the duty of disclosure into effect have also arisen in other jurisdictions, and the precise way in which the principle is stated can have important consequences. It is therefore important to try to state the principle and its implications in as clear a way as possible. It is, however, I think, also important to make clear at the outset that the requirement of a fair trial, however that should properly be understood in modern circumstances, is a paramount requirement of a civilised criminal justice system and there should be no question of trying to water it down or place limits upon it.
4.3 A regime to govern disclosure has to deal with four main issues. It has firstly to define the material which falls under the duty of disclosure. Secondly, it has to determine whether and if so in what circumstances material which falls under the general duty can be withheld, in order to protect other important interests such as national security or police investigative methods, and to protect vulnerable witnesses and other persons who might be put at risk. Thirdly, it has to determine who should make the decision to disclose or withhold material, and provide an appropriate procedure for reaching the decision. Fourthly, it has to determine what consequences follow if material which should have been treated as disclosable is withheld by those responsible for the investigation and prosecution, either as a result of a deliberate decision or as a result of some omission on their part.
4.4 These issues of principle are considered, respectively, in chapters 5-8. These chapters are primarily concerned with the disclosure requirements for solemn cases. While the principle applicable in summary cases is identical, the practical and legal requirements seem to me to be significantly different and I address these questions in chapter 9.
4.5 Once these issues of principle have been decided, it is necessary to consider what steps should taken to ensure, so far as possible, that the regime actually works as intended. This is particularly important in a context where failures in disclosure have continued to occur despite acceptance of the principle set out in the case of McLeod v HM Advocate7. My further recommendations on these issues are contained in parts III and IV of this report.
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