---

Justice

S3W-11311 - Alex Neil (Central Scotland) (SNP) (Date Lodged Tuesday, March 25, 2008): To ask the Scottish Executive in how many cases since 1945 the defence has not been given access to a piece of evidence or document which has been revealed to the prosecution; whether there are any precedents where a document has been disclosed to the Scottish Criminal Cases Review Commission but not to the defence in a subsequent appeal hearing; whether the legal opinion of the Crown Office is that the withholding of documents in any such cases would violate the principle of the separation of powers between Executive and Judiciary, and, if so, what it considers the impact would be of withholding of documents on the independence of the Scottish Judiciary, Scots Law and the Crown Office itself.

Answered by Right Hon Elish Angiolini QC (Friday, May 02, 2008): It would be inappropriate to refer to any particular case which is before the courts.

However, the duty on the Crown Office and Procurator Fiscal Service (COPFS) to disclose evidence to the defence is set out in The Crown''s Principles of Disclosure, available on the COPFS website as part of the COPFS Disclosure Manual, as follows:

1. The Crown is obliged to disclose all material evidence for or against the accused. This relates to statements, but it also relates to all information of which the Crown is aware.

2. Material means evidence which is likely to be of real importance to any undermining of the Crown case, or to any casting reasonable doubt on it, and of positive assistance to the accused.

This does not mean that the Crown should disclose all information in its possession but that the Crown requires to consider all information for disclosure, and disclose any information which meets the test set out above, subject to any consideration of public interest immunity (PII).

COPFS does not hold information about the number of cases where documents in the possession of the prosecution have not been disclosed to the defence.