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 MarkDowe’s Journal 2008 Improving justice in Scotland

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Location : Glasgow
Registration date : 2008-09-03

PostSubject: MarkDowe’s Journal 2008 Improving justice in Scotland   Wed Sep 03, 2008 5:48 pm

THE decision by the Scottish Government to introduce new legislation requiring disclosure of more information to defence lawyers is long overdue. For the first time in Scotland, a clear definition of the legal requirements for disclosing evidence will be backed by a statutory code of practice, bringing the system in Scotland into line with similar jurisdictions elsewhere.

Many of the recommendations have been adopted following an independent review by Lord Coulsfield, which was triggered after two men had convictions for assault and robbery quashed on the grounds that the Crown had failed to disclose vital documents. It was held that this breached the European Convention on Human Rights. Since then, though, the practice has been to disclose police statements of defence witnesses as well as previous convictions and pending cases for certain witnesses. A legal framework with statutory compliance, as advocated by the Scottish Government, makes such miscarriages of justice less likely in the future.

The more challenging part of the legislation will be the introduction of a system relating to public interest immunity (PII) hearings to arbitrate on whether sensitive information might compromise security or, otherwise, be against the public interest, be disclosed. It is however, pressingly required. A hearing is to take place, soon, on whether the defence team representing Abdelbaset Ali 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, 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, any 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, when made unilaterally, invokes an irreparable weakness at its centre. A hearings system takes an important step towards greater balance but, empirical evidence from elsewhere does show a lack of uniformity, not a single perfect template exists. It will be possible in highly sensitive cases for PII hearings to take place without the defence being present, or even notified of such proceedings. Lord Coulsfield, who was one of the three judges who presided over the Megrahi trial at a Scottish court in the Netherlands, has said that this procedure should be discouraged “except for the most unusual cases”. Nevertheless, it will be of considerable concern among defence lawyers, who can point to the fact that it was the lack of clear, statutory procedures which has brought about the need for this legislation.

A fair trail is the basis of the criminal justice system, in Scotland. The introduction of new, equitable and fairer requirements is a welcome boost to one of the basic principles underpinning a civilised democratic society.

The Lord Advocate in Scotland, Elish Angiolini QC 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 the 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.”
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