Crown Office and Procurator Fiscal Service

3 November 2006

JAMIESON COMMISSIONS REVIEW OF LAW OF DISCLOSURE

The Justice Minister, Cathy Jamieson, has asked the Rt Hon Lord Coulsfield to conduct a review of the law and practice of disclosure of evidence in the Scottish criminal justice system.

In the last two years there have been important developments concerning disclosure of evidence in criminal cases. Ministers now wish to see a comprehensive review of this area of law, taking account of all the interests involved, in order to secure continuing confidence in the system.

Lord Coulsfield intends to report to Ministers by Summer 2007.

The remit for the review is:

"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."

Lord Coulsfield is inviting a number of key interests to join a Reference Group for the review, including representatives from the police and defence practitioners.

Ms Jamieson said:

"Our wide-ranging reforms of Scotland's criminal justice system are based firmly on the principle of fairness. Fair for victims, fair for witnesses - but also ensuring a fair trial for the accused.

"Effective and fair disclosure procedures are essential if we are to respect the rights of all these groups - and also to preserve the confidentiality of vital aspects of criminal investigations.

"I am delighted that Lord Coulsfield has agreed to review the law and practice of disclosure, as part of that end-to-end reform of the Scottish criminal justice system."

It is not intended that a formal consultation paper should be issued for the review: any proposals which emerge from it will be subject to consultation in the normal way. However, Lord Coulsfield is anxious to see that the review covers all the issues and therefore, in addition to the Reference Group, he is inviting written comments from anyone with an experience of, or interest in disclosure issues. These should be sent to Bill Barron, Disclosure Review Team, Scottish Executive Justice Department, St Andrews House, Edinburgh EH1 3DG or to Bill.Barron@scotland.gsi.gov.uk, preferably by 1 December 2006.

Notes for News Editors

1. The Crown Office and Procurator Fiscal Service agreed to disclose witness statements in all High Court trials to support the reforms to the High Court system proposed by Lord Bonomy. Then, following rulings in May 2005 by the Judicial Committee of the Privy Council overturning the convictions of James Holland and Alvin Sinclair on the grounds of non-disclosure, the Crown took further steps to extend the practice of disclosure.

As the law has stood for some time, the Crown must disclose any information in their possession that would tend to exculpate the accused or undermine the prosecution case.

2. Following the decisions in Holland and Sinclair the Crown is required to disclose witness statements, previous convictions for and outstanding charges against witnesses whom the Crown intends to lead in evidence. But the Crown also has a competing duty to protect witnesses' rights in terms of the European Convention on Human Rights. In other jurisdictions, such as England and Wales, legislation provides means for striking such balances and protecting witnesses. While the courts have attempted to deal with individual cases in Scotland, the recent decisions by the Privy Council have raised a question as to the adequacy of the current law in Scotland to deal with competing interests.

3. Lord Coulsfield was appointed to the Bench in 1987 and retired in 2002. Before his retirement, he sat in the Second Division of the Inner House, and was one of three judges presiding in the Lockerbie trial at Camp Zeist in the Netherlands. He was appointed a Privy Councillor in 2000. More recently he has led an independent inquiry into alternatives to custody in Britain, set up by the Esmee Fairbairn Foundation; and chaired the Civil Justice Advisory Group for the Scottish Consumer Council.