POST DATE
27/05/2009 22:29:51 Following the publication of my last article, it seemed appropriate to follow it up with an opinion poll regarding the issue of disclosure of evidence. For those who have not yet read it, you can find it here, Disclosure of evidence and denial of it in terms of the Human Rights Convention..
There are many issues which are not covered by the article which progress the need for compulsory disclosure of all evidence even further. In the COPFS book of regulations Chapter 2, paragraph 2.20.1 there is reference to and quotation from Lord Justice-General Rodger who said "the crown will respond to specific requests from the defence for information or for the production of statements or other items where the defence can explain why they would be material to the defence." and Lord Hamilton who says "The Crown does not in the investigation or prosecution of crime adopt a partisan attitude. It has an interest and a responsibility to secure, insofar as within its power, as much the acquittal of the innocent as the conviction of the guilty.". Here we have two Lord's who draw attention to the responsibility of the prosecution to disclose evidence.
And in paragraph 2.20.5 "The underlying principle in such matters is that the Procurator Fiscal must never act unfairly.", clearly withholding evidence from a defence is unfair and hence contradicts the COPFS's own book of regulations.
The Joint Protocol between Association Of Chief Police Officers In Scotland (ACPOS) and Crown Office And Procurator Fiscal Services (COPFS) provides time limits where by "Full Statements" must be provided to the defence. (Full statements is defined as ALL statements of ALL witnesses whether or not listed in the Standard Prosecution Report).
The Freedom of information act states that information must be released to anyone with a reasonable interest in obtaining it unless the releasof it would prejudice a persons right to a fair trial. There can be no person with a greater reason of interest than the accused or his/her defence team and there is no reference within the FOISA which states that information must be retained to ensure an unfair trial.
It is also important to note that details from within my article on the subject and those above demonstrate that disclosure of evidence is to a certain extent already mandatory but the practice of disclosure dose not reflect that. Non-disclosure certainly can lead to a person being wrongly convicted and also provide a legal technicality for a genuine criminal to escape prosecution. I think the case for what is alreadtechnically mandatory to become officially compulsory with penalties enforced on anyone who fails to comply has been sufficiently shown and would urge you to vote yes in favour of it.
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Poll
