What Disclosure Means

The legal framework governing disclosure in Scottish criminal proceedings

Disclosure is one of the most fundamental obligations in a fair criminal justice system. It is also one of the areas where the gap between what the law requires in principle and what happens in practice is most significant.

This page explains what disclosure means in the context of Scottish criminal proceedings, what the legal framework requires, and why it matters so profoundly to the fairness of any trial.

The basic obligation

Disclosure in criminal proceedings means the obligation on the prosecution to provide the defence with material that is relevant to the case. This includes not just the evidence the Crown intends to use at trial but material that might undermine the Crown's case, assist the defence, or affect the reliability or credibility of the Crown's witnesses.

The obligation exists because of a fundamental principle of fairness. A defendant who does not know what material the prosecution holds cannot properly prepare their defence. They cannot identify weaknesses in the Crown's case. They cannot challenge evidence they do not know exists. And they cannot make informed decisions about how to approach the trial.

Without proper disclosure the adversarial process that is supposed to test the Crown's case and produce a just outcome cannot function properly. It becomes a contest fought on unequal terms, with the prosecution holding information the defence has never seen.

The legal framework in Scotland

The primary legislative framework governing disclosure in Scottish criminal proceedings is the Criminal Justice and Licensing Scotland Act 2010. Part 6 of that Act introduced a statutory disclosure scheme for Scotland that placed the previously common law based obligations on a formal legislative footing.

Under the 2010 Act the Crown has an initial duty to disclose to the defence all material that it considers would be of use to the accused in preparing their defence or that would be likely to form part of the Crown's case at trial. This initial disclosure should take place at an early stage of the proceedings, before the trial begins and in sufficient time for the defence to make use of the material.

The Crown also has a continuing duty of disclosure. This means that the obligation does not end once initial disclosure has taken place. If new material comes to light during the proceedings that meets the disclosure test the Crown must disclose it even if initial disclosure has already occurred. The duty continues throughout the trial and, in certain circumstances, beyond it.

The test for disclosure under the 2010 Act is whether the material would be of use to the accused. This is deliberately broad. It does not require the Crown to make a judgment about whether the material will ultimately assist the defence or affect the outcome. If it might be of use it should be disclosed.

What must be disclosed

The categories of material that must be disclosed are wide.

This list is not exhaustive. The disclosure obligation is broad and the test is one of potential usefulness to the accused. Where there is doubt about whether material should be disclosed the Crown should err on the side of disclosure.

The role of the defence

Disclosure is not purely a passive process in which the defence simply waits to receive whatever the Crown decides to provide. The defence has an active role in identifying what material may exist and making sure the Crown is aware of the defence case so that relevant material can be identified and disclosed.

Under the 2010 Act the accused is required to provide a defence statement setting out the nature of the defence and identifying any matters of fact on which the accused takes issue with the Crown. This statement helps focus the disclosure process by alerting the Crown to what is relevant to the specific defence being advanced.

The defence can also make specific requests for disclosure of identified categories of material. Where the defence has reason to believe that material exists that has not been disclosed a specific request can be made and the Crown must respond to it.

In practice the quality of the disclosure process in any given case depends significantly on the engagement of the defence solicitor. A defence agent who actively pursues disclosure, identifies what material ought to exist, and makes specific requests where general disclosure appears incomplete is in a much stronger position than one who simply receives what the Crown provides without further inquiry.

Third party disclosure

A particular challenge arises in relation to material held not by the Crown or the police but by third parties. Medical records, social work records, mental health records, school records and other material held by agencies and organisations outside the criminal justice system may be highly relevant to the issues in a case but do not automatically fall within the Crown's disclosure obligations.

Where such material exists and is potentially relevant the defence can make an application to the court for an order requiring the third party to produce it. This is a separate process from the main disclosure scheme and it involves its own procedural rules and its own tests for when production will be ordered.

Third party disclosure applications can be contentious. The organisations holding the material may resist production on grounds of confidentiality or data protection. The court must balance the interests of the accused in obtaining potentially relevant material against the interests of the individual whose records are sought.

In sexual offence cases in particular third party material relating to the complainer's medical history, mental health history or prior contact with social services may be directly relevant to issues of credibility and reliability. Applications for such material have their own specific rules and the admissibility of any material obtained is subject to the same considerations that apply to other sensitive evidence in such cases.

Why disclosure matters so much

Disclosure failures are at the heart of a disproportionate number of the most serious miscarriages of justice in the United Kingdom. The reason is straightforward. Material that undermines the Crown's case is precisely the material that the defence most needs and precisely the material that is most likely not to be volunteered without a proper disclosure framework to compel it.

In some cases disclosure failures are deliberate. Material is withheld because those responsible for disclosure know it is damaging to the Crown's case and make a decision not to provide it. Those cases are the most serious and the most culpable.

But many disclosure failures are not deliberate. They arise from systems that do not properly identify what material exists, processes that do not effectively communicate disclosure obligations to all the agencies involved in an investigation, volume of material that makes comprehensive review difficult, and a culture in which the significance of potentially relevant material is not always recognised until long after the trial has concluded.

What to take from this page

Disclosure is the obligation on the Crown to provide the defence with material that is relevant to the case including material that might undermine the Crown's case or assist the defence. The framework in Scotland is governed primarily by the Criminal Justice and Licensing Scotland Act 2010. The obligation is broad, continuing and applies to a wide range of material. The defence has an active role in pursuing disclosure and making specific requests where general disclosure appears incomplete. Third party material requires a separate application process. Disclosure failures are among the most significant causes of miscarriages of justice and their identification in concluded cases is one of the most important aspects of post-conviction review.