A fairer regime in Scotland's courts, with the accused given a broader right to know all the evidence against them, is to be introduced.
A fairer regime in Scotland's courts, with the accused given a broader right to know all the evidence against them, is to be introduced.
The move follows controversy in a series of high-profile cases, including the Lockerbie bombing, and follows a review by former High Court judge Lord Coulsfield who recommended changes.
Justice Secretary Kenny MacAskill said yesterday: "Disclosure is now a vital part of our procedures following changes within the law in 2005.
"It is essential that the defence have all the necessary information available to ensure a fair trial. Effective disclosure also contributes to a more effective criminal justice system and to earlier resolution of cases."
Lord Advocate Elish Angiolini said: "We have been making strenuous efforts to ensure that our disclosure practice meets the needs of a modern criminal justice system. Legislation will underpin and consolidate these efforts and will assist us in continuing to improve our practices.
"Early disclosure of evidence is not only beneficial to the defence and to the pursuit of a fair trial but also to victims and witnesses, as it can bring about earlier guilty pleas, saving victims and witnesses from the stress and strain of having to give evidence in court."
Yesterday's proposals set out plans to: l Set in statute a clear definition of the legal requirements for disclosure.
l Provide a statutory code of practice for disclosure procedures.
l Introduce a system of Public Interest Immunity hearings to achieve a balance between protecting sensitive or confidential information and the requirement to disclose.
l Codify a system for notifying defence agents in jury trials about the existence of non-sensitive material that has not been disclosed.
Ministers plan to go beyond Coulsfield by providing that: material previous convictions of Crown witnesses should be disclosed in all cases, not only on application by the defence; where disclosure has been made by the Crown and the defence request further consideration be given to disclosure of other information, it should then be mandatory for a standard defence statement to be submitted.
Niall McCluskey, an advocate specialising in criminal law, feared that the idea of mandatory defence statements was an assault on the fundamental right to silence, calling this a "totally unwelcome innovation".
He also feared that the right to revisit witness statements could cut across the defence right to ensure that statements were based on actual memory and not prompted.
Disclosure of prosecution evidence has had no statutory footing in the past, but this is now to be set out in a statutory code.
However, the planned legislation will also introduce to Scotland the system of Public Interest Immunity hearings which have been widely criticised in England for giving the government of the day a way of stifling public coverage of trials which are politically embarrassing.
