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36. The Scottish Government is grateful to Lord Coulsfield for his report, and to all respondents for their valuable comments - including the many helpful points of detail which have not been reflected in the above summary, but which will nonetheless be taken into account as new systems are designed. Although the total number of responses was limited, we are pleased that the respondents came from a diverse variety of stakeholders and reflected a spread of standpoints and views.
37. There is clear consensus on several of Lord Coulsfield's key recommendations, including that there should be legislation on disclosure supported by a statutory code of practice; that there should be a system of Public Immunity Interest hearings; and that in solemn cases there should be a system to inform defence agents of non-sensitive material that has not been disclosed. The Scottish Government intends to bring forward legislation on these matters in the near future, and to develop a statutory Code of Practice to accompany the legislation. There will be further opportunities for scrutiny of the Government's proposals, not least during the Parliamentary passage of the Bill.
38. The consultation process has revealed a spread of views on some other aspects of Lord Coulsfield's recommendations. Debate on these matters will, rightly, continue throughout the passage of the legislation. However, having considered all the responses carefully, the Scottish Government intends to take matters forward in the following ways:
Definition of what is disclosable: We note the views of those who would prefer a definition based on Sinclair or on English legislation or case law. However, we believe these arguments were fully considered by Lord Coulsfield in the course of his review, and we are minded to accept his recommendation that McLeod represents the established legal position in Scotland, and should form the basis of the statutory definition.
Statements in summary cases, and Immaterial previous convictions: We note the views expressed by defence organisations that there should be routine disclosure of statements of Crown witnesses and (with few exceptions) of previous convictions even when immaterial. However, we are minded to accept Lord Coulsfield's arguments that the principle of "materiality" should apply equally to these matters.
Material previous convictions in summary cases: Lord Coulsfield recommended, on pragmatic grounds, that in summary cases even material previous convictions need not be disclosed unless requested by the defence. The majority of respondents see difficulties with this proposal, and the Scottish Government agrees with the majority. We therefore propose that no exception should be made to the principle that all material information must be disclosed (other than in exceptional circumstances following the decision of a PII hearing).
Schedules for summary cases: We note that a number of respondents consider that summary as well as solemn cases would require a system to notify defence agents of (non-sensitive) material which has not been disclosed. However, the majority support Lord Coulsfield's view that this would be inappropriate for summary cases. We also note the GBA's suggestion that any such system should be piloted. Our intention is that this should be required only for solemn cases, though the Crown and police will have discretion to use the system also for appropriate summary cases if they wish.
Defence statements: We note that some respondents would favour a mandatory system of defence statements, while others would prefer no change to the status quo. We are minded to accept Lord Coulsfield's recommendation, which is in effect a middle way between these two positions. We do not think that there would be any value in imposing a mandatory system. However, we recognise the value that a clear defence statement can sometimes have (for both sides in the case). We therefore propose to develop a standard format for voluntary defence statements. We also consider that in cases where, following disclosure by the Crown in accordance with the requirements, the defence wishes to request further consideration be given to disclosure issues, it should be mandatory for a defence statement in the standard form to be submitted.
Witnesses to have access to their statements: We note the caution expressed about this recommendation by a number of respondents, in particular regarding the quality of statements. We remain minded to accept Lord Coulsfield's recommendation, for the reasons set out in his report and supported by other respondents, subject to further work to flesh out the new system in detail.
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