Disclosure and Evidence

What the Crown must provide, what the defence is entitled to, and what happens when it goes wrong

Of all the things that can go wrong in a Scottish criminal case, disclosure failures are among the most serious and among the least visible to people outside the legal system.

Disclosure is the process by which the prosecution provides the defence with the material it holds that is relevant to the case. It sounds straightforward. In practice it is one of the most contested and consequential areas of Scottish criminal procedure, and failures in disclosure have been at the heart of some of the most significant miscarriages of justice not just in Scotland but across the United Kingdom.

Most people involved in a criminal case, whether as the accused, as a family member, or as someone supporting a person through the process, have little understanding of what disclosure actually means, what they are entitled to, or what the consequences are when it goes wrong. That gap in understanding matters because disclosure failures are not always obvious. They do not always announce themselves.

Sometimes the most significant disclosure failure in a case is the absence of something — material that should have been provided and was not. And the absence of something is by definition invisible unless you know to look for it.

This section exists to address that gap.