Lord Coulsfield's analysis and recommendations: ES5. It is a long-established rule in the Scottish legal system that the Crown has an obligation to give the accused notice of the case against him, that is, to tell him what charges he faces and what is the evidence which the Crown intends to bring to prove the charges. Disclosure has the additional purpose of ensuring that any exculpatory material is identified and made available to the defence. ES9. At least since the decision in Smith v HMA [1952] JC 66, it has been clear that the prosecuting authorities, including both the police and the Crown, have the initial information about potential criminal proceedings and vastly greater resources to investigate than does the defence and that they are under some corresponding obligation to disclose what they know in order to secure a fair trial. ES10. On the other hand, there is very substantial reason to think that, because of the amount of material generated in even a simple inquiry, totally unrestricted disclosure would be impracticable and probably damaging to the operation of the criminal justice system. If, however, withholding information is to be justified it must be justified pragmatically, and there must then be a robust, fair and reliable system of selection of material which is not to be disclosed to make it acceptable to deprive the defence of the possibility, be it remote, of turning up some valuable piece of evidence. 5.33 What is needed is a firm statement of principle or rule which can, in the first instance, provide police and prosecutors with a proper basis of judgement. From the authorities canvassed above [in the full report], it is possible to draw several candidates for that principle: Edwards: "All material evidence for or against the accused" (remembering that at another point the court identified the defect as being that "relevant" evidence was withheld). The old English rule: "All material matters which affect the case relied on by the prosecution, whether they could strengthen or weaken the prosecution case or assist the defence case." CPIA (as amended): "Any prosecution material… which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused." Australian guidelines: "Any material which might be relevant to guilt or innocence of the defendant." Stinchcombe: "All material evidence whether favourable to the accused or not." "All evidence which may assist the accused even if the Crown does not propose to adduce it." McLeod: "All material evidence for or against the accused… information which would tend to exculpate the accused" ( LJG). "Not all evidence but all material evidence" ( LJC). Sinclair: "All material evidence… any evidence which would tend to undermine the prosecution's case or assist the case for the defence is to be taken to be material" (Hope). 5.34 These formulations could be regarded as different ways of saying almost the same thing, but there are shades of difference between them which could lead to significantly different results. In particular, it seems to me that what is said in Sinclair is not quite the same as what is said in McLeod. The difference, in my view, is that the formulation in Sinclair, deliberately or not, places less emphasis on the materiality of the evidence, objectively considered, and more on the subjective assessment of the defence. The different formulations were discussed at some length in the Reference Group 2. In these discussions, it was argued strongly that "evidence which may assist the case for the defence" had a wider scope than "material evidence for or against the accused". From comments made to me by judges and sheriffs, it is clear that similar arguments have been repeatedly canvassed in court since the decision in Sinclair and have given rise to a degree of uncertainty. The differences between the rival formulations may be subtle, but they are sufficient, given the existing apparent uncertainty, to make it desirable to set out the rule for Scotland in statute. ES12. The formulation in McLeod is that what should be disclosed is "all material evidence for or against the accused" and "all information which would tend to exculpate the accused." This correctly reflects the requirements of the European Court decisions, particularly Edwards v United Kingdom [1992] 15 EHRR 417. 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. ES13. Because any definition is open to interpretation, the statute should make it clear that the prosecuting authorities should have regard to the overriding requirement of a fair trial. Further it would be desirable to add to the precision of the process by specifying the principal categories of evidence or information which should be regarded as exculpatory and "material". R1. The formulation in McLeod, to specify what requires to be disclosed, should be adopted in statute to clarify the law in Scotland. ( see also recommendation 5) R5. There should be a statutory definition of the duty of disclosure which should provide that, with a view to implementing the requirement of fair trials in criminal matters, the duty of the prosecutor in both solemn and summary cases is to disclose to the defence all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it. R6. The statute should provide that the duty applies to all categories of material produced or recovered in the course of a criminal investigation and that it applies throughout the whole course of the investigation and prosecution. R7. The statute should provide that the material to be disclosed includes but is not limited to the following six categories: - Evidence which may point to the conclusion that no crime has been committed or that no crime was committed on the date or at the place libelled.
- Evidence which may contradict evidence (real or oral) on which the Crown case will rely.
- Information which may cast doubt on the credibility or reliability of the Crown witnesses.
- Information which may be inconsistent with scientific or other expert evidence on which the Crown will rely or with inferences which may be drawn from such evidence.
- Evidence or information which may point to another person as perpetrator.
- Evidence or information which might reduce the degree of seriousness of the offence.
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