No Assessment, No Disclosure

A Freedom of Information response confirms that no formal Equality Impact Assessment was carried out before the introduction of Scotland's complainer transcript scheme, while legal advice on its compatibility with fair trial rights and devolution law has been withheld under a legal advice exemption.

The Scottish Government's Directorate for Justice confirmed the position in a Freedom of Information response dated 13 April 2026, reference 202600510894. The response states that no formal Equality Impact Assessment was carried out before the introduction of the scheme and confirms that legal advice was obtained on compatibility with Article 6(1) of the European Convention on Human Rights and section 57(2) of the Scotland Act 1998. That advice has been withheld.

The scheme was introduced in 2024 as a pilot and became permanent on 1 April 2026. The FOI request was submitted on 15 March 2026, shortly before that transition. The questions it raises now concern a scheme that operates as a standing feature of how transcripts are distributed in High Court proceedings, not a temporary arrangement under review.

The Legal Advice and What Was Asked

The FOI request asked specifically for any legal advice, legal opinion, or internal legal assessment on the scheme's compatibility with Article 6(1) ECHR and section 57(2) of the Scotland Act 1998. The Government confirmed that such advice exists but declined to disclose it under section 36(1) of the Freedom of Information (Scotland) Act 2002, the legal advice exemption. The response cited the Scottish Ministerial Code, which provides that Ministers must not divulge "either the source or content of legal advice" other than in exceptional circumstances.

The scope of the legal question is significant. Article 6(1) ECHR protects the right to a fair trial, including the principle of equality of arms between the parties to proceedings. Section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive has no power to act in a way that is incompatible with Convention rights. The Government obtained advice on both provisions before the scheme was introduced, which indicates that the compatibility of the scheme with fundamental rights and devolution law was considered a question requiring legal assessment.

That assessment has not been published. The basis on which the scheme was judged to satisfy both provisions remains outside the public record.

The EqIA Explanation

On the absence of a formal Equality Impact Assessment, the Government's response offers a position. It states that while no formal EqIA was undertaken, the only material change in policy concerned how the funding of applications was to be met. It further describes an ongoing review of the pilot in which applicants were asked to voluntarily indicate their reasons for applying, as part of an effort to understand why applications were being made.

Under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, Scottish public authorities must have due regard to equality impacts when developing policy. An Equality Impact Assessment is the documented means by which that consideration is recorded. Whether a change characterised primarily as a funding mechanism was sufficient to avoid a formal EqIA is a question the response does not directly address. The practical effect of the scheme, however, is that access to transcripts is funded for one category of participant in proceedings and not the other. No formal assessment recording consideration of that differential was identified in the material disclosed.

The response therefore produces a visible tension. The Government characterises the policy change as limited to funding arrangements while simultaneously confirming that legal advice was sought on compatibility with Article 6(1) ECHR and section 57(2) of the Scotland Act 1998. The relationship between those two positions is not explained in the public record.

Access to the Trial Record

The Scottish Courts and Tribunals Service, which administers the scheme, is projected to incur costs of £185,000 in the 2026/27 financial year. The Government noted in its response that the total cost of the pilot had not yet been finalised, as cases were still being processed at the time of writing.

Under section 94 of the Criminal Procedure (Scotland) Act 1995, transcripts are not ordinarily made available through the statutory appeal process unless leave to appeal has already been granted. This restriction operates at the point where access to the trial record is often most practically necessary: when someone is attempting to identify whether grounds of appeal exist at all.

To obtain leave to appeal, it is often necessary to identify what went wrong at trial. The details of what was said, how evidence was led, and how the jury was directed sit in the transcript. Access to that material may therefore depend on overcoming procedural or financial barriers before any formal appeal process has properly begun.

The scheme introduced in 2024 and made permanent in April 2026 operates alongside that restriction without modifying it. A complainer whose evidence contributed to a conviction can obtain the full trial record at public expense once the verdict has been returned. A person seeking to challenge the safety of that same conviction, often from prison and often before any formal appeal process has begun, may face significant barriers in obtaining access to the same record at the point it is most needed. Accused.scot has examined the legal basis for that restriction separately in Scrutiny After Permission: Access to Trial Transcripts in Scotland.

This differential in access to the trial record is the context in which the absence of a formal EqIA carries weight. There is no documented record of how that differential was assessed before the scheme was made permanent.

It remains open to the Scottish Government to clarify what equality considerations were undertaken in place of a formal EqIA, how the position of accused persons and appellants was evaluated within those considerations, and why the decision to seek legal advice on Article 6 compatibility did not give rise to a corresponding obligation to assess equality impacts formally.

These are questions of institutional process rather than political disagreement. The Scottish Parliament's Criminal Justice Committee is well placed to examine them in the ordinary course of its oversight responsibilities. The scheme is now permanent and publicly funded. The scrutiny questions it generates do not expire with the pilot designation.

What the FOI response establishes is limited but material: a scheme creating a permanent differential in access to the trial record was introduced without a formal equality assessment, legal advice on its compatibility with fundamental rights has been withheld, and the Government's explanation for the absence of that assessment sits in unresolved tension with the legal advice it chose to obtain. Those facts are now on the public record.

Source: Scottish Government FOI response 202600510894 (13 April 2026)

Related reporting: Scrutiny After Permission: Access to Trial Transcripts in Scotland  |  The Working Group That Isn't

Further Reading: Who Gets The Transcript

Written by the Accused.scot Editorial

21.05.2026

Editorial note: Accused.scot is an independent commentary site focused on justice process, evidence, and fair-trial principles in Scotland.
Our work critiques systems, policy, and public discourse, not private individuals. We welcome reasoned challenge to our arguments.