Legislating the Duty of Disclosure

Document Cited authorities (12) Cited in Related
Date01 June 2009
Pages493-497
AuthorFindlay Stark
DOI10.3366/E1364980909000638
Published date01 June 2009

A relatively recent development in Scots criminal procedure is the recognition of the Crown's duty to disclose certain parts of its evidence to the defence.1

Duff argues that it would have been “virtually meaningless” to speak of such a duty before McLeod, Petitioner 1998 JC 67: P Duff, “Sinclair and Holland: a revolution in ‘disclosure’” 2005 SLT (News) 105 at 105. A defence submission that a duty of disclosure existed was described as “impertinent” in Higgins v HM Advocate 1990 SCCR 268 at 269 per Lord Cowie.

The scope of this duty has been contentious, resulting in a number of appeals reaching the Privy Council.2

See, most recently, McDonald v HM Advocate [2008] UKPC 46, 2008 SLT 993.

 To date, the most important of these are Holland v HM Advocate3

[2005] UKPC D1, 2005 1 SC (PC) 3.

 and Sinclair v HM Advocate,4

[2005] UKPC D2, 2005 1 SC (PC) 28.

 which were heard together. The duty recognised in both was the same: the Crown must disclose “material” evidence to the defence. This was defined as “any evidence which would tend to undermine the prosecution's case or to assist the case for the defence”.5

Sinclair at para 33 per Lord Hope of Craighead.

This conception of “materiality” is clearly one of “infinite ambiguity”.6

F Raitt and P R Ferguson, “Re-configuring Scots criminal procedure – seismic shifts?” (2005) 10 EdinLR 102 at 107.

It is unsurprising, then, that prosecutors have struggled to apply the disclosure regime consistently.7

See HM Advocate v B [2006] HCJ 09, 2006 SLT 1093 at para 10 per Lord Hardie.

 Constraints on the Crown's resources have served to exacerbate this problem.8

See McClymont v HM Advocate [2006] HCJAC 47, 2006 GWD 21–450; P Nicholson, “Hearing and answering” (2007) 52(2) JLSS 12.

 As a result, a review of the disclosure regime was commissioned and published in 2007.9

Lord Coulsfield, Review of the Law and Practice of Disclosure (2007, available at http://www.scotland.gov.uk/Publications/2007/09/11092728/0).

 It recommended that the duty of disclosure would benefit from being put on a legislative footing.10

Coulsfield, Review para 20.3.1.

 The Scottish Government has introduced such legislation as part of the Criminal Justice and Licensing (Scotland) Bill.11

The Bill, together with accompanying documents, is available at http://www.scottish.parliament.uk/s3/bills/24-CrimJustLc.

 This note discusses the impact of the Bill's provisions on one important area: the obligations of the Crown and defence in relation to the duty of disclosure.12

The Bill also contains important provisions relating to the non-disclosure of evidence under the doctrine of public interest immunity. This issue cannot be pursued here, but see ss 102-107 of the Bill and P Duff, “Disclosure of evidence and public interest immunity (PII)” 2007 SLT (News) 63.

 It argues that although the Bill seeks to change some things, others must necessarily remain the same. By its very nature, the duty of disclosure can never be fully legislated for

The proposed legislation will be dealt with in two parts. The provisions relating to the prosecution's duties will be discussed first, before those relating to the defence are considered.

PROSECUTION

As the duty of disclosure recognised in Holland and Sinclair is extremely vague, the Bill hopes to “re-state and clarify” it.13

See para 475 of the Policy Memorandum accompanying the Bill.

It proposes that the Crown be required to disclose information which would “materially weaken or undermine the prosecution case … materially strengthen the accused's case, or … [is] likely to form...

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