Call for prosecutors to provide full details to defence lawyers
Criminal prosecutors should be legally bound to provide full information to defence lawyers in advance of a trial, the Scottish Government was told yesterday.
The call came from a retired judge who said the information should include material favourable to the accused, even if it weakens the Crown case.
The call came from Lord Coulsfield in a report commissioned from him last year by the previous administration.
Lord Coulsfield, who retired in 2002, was one of three judges who presided at the Lockerbie trial in the Netherlands. He was asked by the previous administration to review the law in the light of a 2005 ruling by the Privy Council which overturned the convictions of two men, James Holland and Alvin Sinclair, on the grounds of "non-disclosure".
His findings include a recommendation for legislation requiring the prosecution to have regard to "the over-riding requirement of a fair trial".
The legislation should provide a definition of a duty of disclosure, and require prosecutors to disclose to the defence "all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it," said the judge.
This already happens in England and Wales and Lord Coulsfield said: "I do not see that there is any practicable alternative in the short or medium term."
Non-disclosure by the Crown is a major issue in some of the most high-profile cases in Scotland, such as that of the Lockerbie bomber Abdelbaset Ali Mohmed al Megrahi who earlier this year was granted leave to launch a second appeal against his conviction.
Kenny MacAskill, the Justice Secretary, said: "The government welcomes this positive and helpful report. Disclosure is vital because 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. I am indebted to Lord Coulsfield for his careful analysis. We will shortly publish a consultation paper to invite further views."
Elish Angiolini, Lord Advocate, said: "The report marks a significant step towards achievement of the required degree of clarity in this complex area of law and practice."
© All rights reserved. Reproduction in whole or in part without
permission is prohibited.
Posted by: Guga, Rockall on 3:20am Thu 13 Sep 07
I am amazed that there is not already full disclosure of all material to the defence. I was always under the impression that Scottish law was somehow a cut above English and other laws. However, the more I see, and the more I hear about failings in the Scottish legal system, the more I am becoming convinced that our legal system is pathetic, and badly in need of a total overhaul.
As for our (almost invisible) Lord Advocate, from whom I had high hopes, now dashed, there is nothing "complex" in providing full disclosure. It is, and should be, a basic right.
Let us hope that Kenny MacAskill at least rights this wrong.
I am amazed that there is not already full disclosure of all material to the defence. I was always under the impression that Scottish law was somehow a cut above English and other laws. However, the more I see, and the more I hear about failings in the Scottish legal system, the more I am becoming convinced that our legal system is pathetic, and badly in need of a total overhaul.
As for our (almost invisible) Lord Advocate, from whom I had high hopes, now dashed, there is nothing "complex" in providing full disclosure. It is, and should be, a basic right.
Let us hope that Kenny MacAskill at least rights this wrong.
Posted by: donald, glasgow on 6:04am Thu 13 Sep 07
How can anyone defend themselves if they do not know fully what they are accused of?
How can anyone defend themselves if they do not know fully what they are accused of?
Posted by: Govanboy, Witness Box on 8:04am Thu 13 Sep 07
Should full disclosure not apply to both the prosecution AND the defence ? if so why not go the whole hog and move to an inquisitorial system, to have trials which strive to ascertain the truth of the matter - to find out what actually happened in any one circumstance. Surely being able to declare the truth of any matter would be more in keeping with a [italic]justice[/italic] system rather than a [italic]legal[/italic] system which when trying to prove or disprove guilt relies on so many factors not least of which include ability,integrity and honesty. Yes lets go for it lets turn our legal system into a just one.
Should full disclosure not apply to both the prosecution AND the defence ? if so why not go the whole hog and move to an inquisitorial system, to have trials which strive to ascertain the truth of the matter - to find out what actually happened in any one circumstance. Surely being able to declare the truth of any matter would be more in keeping with a
justice system rather than a
legal system which when trying to prove or disprove guilt relies on so many factors not least of which include ability,integrity and honesty. Yes lets go for it lets turn our legal system into a just one.
Posted by: Edwin&Mahnaz Bollier, MEBO Ltd, Zurich/Switzerland on 9:37am Thu 13 Sep 07
Please visit the article "The Lockerbie-Fraud" on the webpage:
www.lockerbie.ch
Please visit the article "The Lockerbie-Fraud" on the webpage:
www.lockerbie.ch
Posted by: Big Wullie, Glasgow on 10:14am Thu 13 Sep 07
Does this mean the big hearing on 23-24 of last month and still ongoing at the High Court need proceed no further.
I sat at that hearing and listened to Crowns pathetic excuses for non disclosure and would suggest that the words Exculpatory be removed and every detail is revealed.
Govanboy, yes disclosure would and should mean Equality of arms meaning both sides would have this duty, The only problem i see in Scotland though is: The onus is on Crown to prove Guilt and accused need not call any witness or give evidence
Should this be changed?
Does this mean the big hearing on 23-24 of last month and still ongoing at the High Court need proceed no further.
I sat at that hearing and listened to Crowns pathetic excuses for non disclosure and would suggest that the words Exculpatory be removed and every detail is revealed.
Govanboy, yes disclosure would and should mean Equality of arms meaning both sides would have this duty, The only problem i see in Scotland though is: The onus is on Crown to prove Guilt and accused need not call any witness or give evidence
Should this be changed?
Posted by: Stargazer, Paisley on 11:04am Thu 13 Sep 07
Hidden agendas robbed the Eadie and Scott families of justice for their daughters. Colin Boyd should hang his head in shame.
Hidden agendas robbed the Eadie and Scott families of justice for their daughters. Colin Boyd should hang his head in shame.
Posted by: they do, cumbernauld on 1:00pm Thu 13 Sep 07
[quote][bold]donald[/bold] wrote:
How can anyone defend themselves if they do not know fully what they are accused of?[/quote] Donald, I think you will find that they do. In fact the european law requires it. This has caused serious problems with the charge of breach of the peace because now you need to be told exactly what you have done. Hence you are told breach of the peace that on such and such a date you did do something etc
donald wrote:
How can anyone defend themselves if they do not know fully what they are accused of?
Donald, I think you will find that they do. In fact the european law requires it. This has caused serious problems with the charge of breach of the peace because now you need to be told exactly what you have done. Hence you are told breach of the peace that on such and such a date you did do something etc
Posted by: CC, Glasgow on 1:28pm Thu 13 Sep 07
The Police are obliged to disclose everything to the defence agents in Scotland. What then happens is the defence agent then trys to build a defence case around what infrmation he has been given by the police, instead of where his client actually was and actually did.
This is generally because the client in question, was either guilty, or by providing a truthful alibi, would have to admit to an even more serius misdemenour.
If people are truly innocent, then the police will not have enough evidence against them and the crown will not be able to bring a prosecution.
The Police are obliged to disclose everything to the defence agents in Scotland. What then happens is the defence agent then trys to build a defence case around what infrmation he has been given by the police, instead of where his client actually was and actually did.
This is generally because the client in question, was either guilty, or by providing a truthful alibi, would have to admit to an even more serius misdemenour.
If people are truly innocent, then the police will not have enough evidence against them and the crown will not be able to bring a prosecution.
Posted by: George Laird, Glasgow on 2:28pm Thu 13 Sep 07
[quote][bold]CC[/bold] wrote:
The Police are obliged to disclose everything to the defence agents in Scotland. What then happens is the defence agent then trys to build a defence case around what infrmation he has been given by the police, instead of where his client actually was and actually did. This is generally because the client in question, was either guilty, or by providing a truthful alibi, would have to admit to an even more serius misdemenour. If people are truly innocent, then the police will not have enough evidence against them and the crown will not be able to bring a prosecution.[/quote] Dear CC
"If people are truly innocent, then the police will not have enough evidence against them and the crown will not be able to bring a prosecution".
Explain Shirley McKie then!
Guildfour Four!
Paddy Meehan!
Birmingham Six!
Yours sincerely
George Laird
The Campaign for Human Rights at Glasgow University
CC wrote:
The Police are obliged to disclose everything to the defence agents in Scotland. What then happens is the defence agent then trys to build a defence case around what infrmation he has been given by the police, instead of where his client actually was and actually did. This is generally because the client in question, was either guilty, or by providing a truthful alibi, would have to admit to an even more serius misdemenour. If people are truly innocent, then the police will not have enough evidence against them and the crown will not be able to bring a prosecution.
Dear CC
"If people are truly innocent, then the police will not have enough evidence against them and the crown will not be able to bring a prosecution".
Explain Shirley McKie then!
Guildfour Four!
Paddy Meehan!
Birmingham Six!
Yours sincerely
George Laird
The Campaign for Human Rights at Glasgow University
Posted by: freethekillie2, kilmarnock on 3:47pm Thu 13 Sep 07
[quote][bold]George Laird[/bold] wrote:
[quote][bold]CC[/bold] wrote: The Police are obliged to disclose everything to the defence agents in Scotland. What then happens is the defence agent then trys to build a defence case around what infrmation he has been given by the police, instead of where his client actually was and actually did. This is generally because the client in question, was either guilty, or by providing a truthful alibi, would have to admit to an even more serius misdemenour. If people are truly innocent, then the police will not have enough evidence against them and the crown will not be able to bring a prosecution.[/quote] Dear CC "If people are truly innocent, then the police will not have enough evidence against them and the crown will not be able to bring a prosecution". Explain Shirley McKie then! Guildfour Four! Paddy Meehan! Birmingham Six! Yours sincerely George Laird The Campaign for Human Rights at Glasgow University [/quote] YOU ARE SO TRUE GEORGE.
There are many miscarraiges of justice in scotland and it is something that no one thinks about till it happens to them.
George Laird wrote:
CC wrote: The Police are obliged to disclose everything to the defence agents in Scotland. What then happens is the defence agent then trys to build a defence case around what infrmation he has been given by the police, instead of where his client actually was and actually did. This is generally because the client in question, was either guilty, or by providing a truthful alibi, would have to admit to an even more serius misdemenour. If people are truly innocent, then the police will not have enough evidence against them and the crown will not be able to bring a prosecution.
Dear CC "If people are truly innocent, then the police will not have enough evidence against them and the crown will not be able to bring a prosecution". Explain Shirley McKie then! Guildfour Four! Paddy Meehan! Birmingham Six! Yours sincerely George Laird The Campaign for Human Rights at Glasgow University
YOU ARE SO TRUE GEORGE.
There are many miscarraiges of justice in scotland and it is something that no one thinks about till it happens to them.
Posted by: Colin B, Bearsden on 7:43pm Thu 13 Sep 07
Crown Office witholds evidence , gets caught, case collapses, £s wasted. Why because the Crown is corrupt and nothing happens to Lord Boyd, Elish, Frank , John etc. Lothian and Borders Police should be investigating this but they don't preferring instead to hand out traffic tickets and hide in the toilet.
Crown Office witholds evidence , gets caught, case collapses, £s wasted. Why because the Crown is corrupt and nothing happens to Lord Boyd, Elish, Frank , John etc. Lothian and Borders Police should be investigating this but they don't preferring instead to hand out traffic tickets and hide in the toilet.
Posted by: Big Wullie, Glasgow on 9:30pm Thu 13 Sep 07
The legislation should provide a definition of a duty of disclosure, and require prosecutors to disclose to the defence "all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it," said the judge.
This has always Existed in McLoed V HMA what Holland and Sinclair means is to Take away "Exculpatory" and disclose all evidence in accordance with Section 6,(1) (3) of our right to a fair hearing.
If Exculpatory remains as Lord Coulsfield seeks to keep then this will let Crown Office Continue to hide documents by saying simply They Are Not Exculpatory. This should be a question for any defence team examining a case.
The legislation should provide a definition of a duty of disclosure, and require prosecutors to disclose to the defence "all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it," said the judge.
This has always Existed in McLoed V HMA what Holland and Sinclair means is to Take away "Exculpatory" and disclose all evidence in accordance with Section 6,(1) (3) of our right to a fair hearing.
If Exculpatory remains as Lord Coulsfield seeks to keep then this will let Crown Office Continue to hide documents by saying simply They Are Not Exculpatory. This should be a question for any defence team examining a case.
Posted by: http://williambeck.b
logspot.com/, Glasgow on 9:37pm Thu 13 Sep 07
There are a number of cases which started airing on 23-24 of last month at the High Court in Edinburgh.
They can be obtained under Brendan Dixons Name.
Is the Justice secretary now going to flex his muscles here now and say there is no need for cases having to come before our Courts asking for documents to be released.
Remember it was because they refused to release documents that Holland and Sinclair both had their convictions quashed at court
There are a number of cases which started airing on 23-24 of last month at the High Court in Edinburgh.
They can be obtained under Brendan Dixons Name.
Is the Justice secretary now going to flex his muscles here now and say there is no need for cases having to come before our Courts asking for documents to be released.
Remember it was because they refused to release documents that Holland and Sinclair both had their convictions quashed at court
News
INDEX
Comment | Read Comments (13)
