The decision by the Scottish Government to bring in new legislation requiring disclosure of more information to defence lawyers is long overdue. For the first time, a clear definition of the legal requirements for disclosing evidence will be backed by a statutory code of practice and a system for notifying defence agents about material that has not been disclosed, bringing the Scottish system into line with similar jurisdictions elsewhere.
The decision by the Scottish Government to bring in new legislation requiring disclosure of more information to defence lawyers is long overdue. For the first time, a clear definition of the legal requirements for disclosing evidence will be backed by a statutory code of practice and a system for notifying defence agents about material that has not been disclosed, bringing the Scottish system into line with similar jurisdictions elsewhere.
This adopts many of the recommendations of an independent review under Lord Coulsfield, set up after two men had convictions for assault and robbery quashed on the grounds that the Crown had failed to disclose vital documents and that this breached the European Convention on Human Rights. Since then, the practice has been to disclose police statements of defence witnesses as well as previous convictions and pending cases for certain witnesses. Giving this guidance a legal framework makes such miscarriages of justice less likely in the future.
The more challenging part of the new legislation will be the introduction of a system of public interest immunity (PII) hearings to arbitrate on whether sensitive information, which could compromise security or otherwise be against the public interest, should be disclosed. It is, however, urgently required. A hearing is to take place at the end of this month on whether the defence team representing Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the Lockerbie bombing, can have access to a document thought to contain vital information about the timer which detonated the bomb. The UK Government has previously said the document cannot be disclosed for reasons of national security. The hearing, affecting Scotland's highest- profile case, will take place before the new system can become law. On the issue of PII, there is agreement only on the difficulty of setting up a mechanism which provides a fair means of balancing what are usually irreconcilable differences. However, a legal framework which allows material to be withheld on grounds of public interest must have a robust means of challenge.
The public interest can range from national security to the protection of witnesses, but any system in which decisions about what should be withheld and why are made unilaterally has an irreparable weakness at its centre. A hearings system takes an important step towards greater balance, but experience elsewhere shows that there is no perfect template. It will be possible in highly sensitive cases for PII hearings to take place without the defence being present or notified. Lord Coulsfield, who was one of three judges who presided over the trial of Megrahi at a Scottish court convened in the Netherlands, has said that this procedure should be discouraged "except for the most unusual cases". Nevertheless, it will cause considerable concern among defence lawyers, who can point to the fact that it was the lack of clear, statutory procedures which brought about the need for this legislation.
A fair trial is the basis of our criminal justice system. The introduction of new, fairer requirements are a welcome boost to one of the basic principles of civilised society.
