For a practice that, by its nature, keeps things secret, the non-disclosure of evidence ahead of criminal trials has come in for a great deal of public scrutiny over the past month. First, Lord Coulsfield, the former High Court judge, recommended some three weeks ago that non-disclosure, as applied in Scotland, should be replaced by legislation that made Crown Office prosecutors legally bound to provide full information to defence lawyers in advance of a trial.

Secondly, non-disclosure is under the spotlight anew today with the revelation in The Herald of one of the two outstanding grounds for the Scottish Criminal Cases Review Commission (SCCRC) recommending that Abdelbaset Ali Mohmed al Megrahi, convicted of the Lockerbie bombing, should be granted fresh leave to appeal. This relates to the Crown's failure to disclose a top-secret document with potentially vital information about the timer said to have been used to detonate the bomb on Pan Am Flight 103. It will be for a fresh appeal hearing to decide on al Megrahi's fate. The future of non-disclosure as practised at present can probably be predicted with greater confidence. It is likely not to have one, and rightly so.

Scotland's criminal justice system has earned a reputation for high standards on the international stage but it fares less well on non-disclosure compared with countries operating a similar model. Elsewhere, there are codes of conduct and guidance as to what should be disclosed. In Scotland, it has traditionally been down to the Lord Advocate and Crown Office to decide whether the defence should be allowed to see certain material. There was a tightening of practices in 2005 after James Holland and Alvin Sinclair had convictions for assault and robbery quashed by the Judicial Committee of the Privy Council. It ruled that their right to a fair trial had been breached by a failure on the Crown's part to disclose vital documents to the defence.

Since 2005, the Crown has had to disclose police statements of defence witnesses as well as previous convictions and pending cases of certain witnesses. However, criminal lawyers are unhappy about policies on disclosure remaining a matter of prosecution practice and believe that the Lord Advocate should no longer be in a position to decide what is in the public interest to disclose and what is not. Niall McCluskey, an advocate specialising in criminal law, wrote recently that a profound conflict lay at the heart of disclosure: between the interests of the defence, which desires all material assisting a client, and the public interest, which wants to ensure sensitive or confidential information is kept out of the public domain.

Resolving that conflict should not be insurmountable. Other countries, including England, have managed. There, Public Interest Immunity hearings are held to decide what can and cannot be disclosed. Lord Coulsfield has recommended legislation to clarify the legal requirements of disclosure and establish a mechanism to resolve conflicts when they arise. The right to a fair trial is the cornerstone of our criminal justice system. As has been shown (and might be demonstrated again) non-disclosure as practised has nibbled at that cornerstone and damaged the reputation of the system. Lord Coulsfied has offered a solution. It should be taken.