What You Are Entitled To
The material the defence should receive and what to do if it has not
Understanding in principle that disclosure obligations exist is one thing. Understanding in practical terms what material you should actually receive, how to identify whether something is missing, and what to do about it if it is, is something quite different.
This page addresses the practical side of disclosure. It is written for the accused, for their family members, and for anyone supporting a person through a Scottish criminal case who wants to understand what should be happening and whether it is.
What the defence should receive before trial
In a solemn case the defence should receive a substantial body of material before the trial begins. What follows is a guide to the main categories of material that should be disclosed and that a defence agent should be actively pursuing if it has not been provided.
Statements from every witness interviewed during the investigation not just those the Crown intends to call. A statement from a witness not called may be more significant precisely because the Crown chose not to rely on it.
Where a complainer gave more than one account all versions should be disclosed. Inconsistencies between earlier and later accounts bear directly on credibility and the defence is entitled to see how the account developed over time.
Including any interview under caution. Where interviews were recorded the recordings themselves or full transcripts should be available.
Including reports commissioned but not relied upon by the Crown. A forensic report whose findings did not support the prosecution case may be significant to the defence.
Crime reports, incident logs, records of lines of inquiry pursued or considered. These reveal what police knew, when, and what they chose to pursue or not pursue.
Previous convictions, disciplinary records where relevant, and any information that might affect how a jury would assess the evidence of a key prosecution witness.
Phone records, social media records, emails and electronic communications relevant to the issues in the case regardless of whether that material supports the Crown's case.
Any identification procedures carried out during the investigation and the records relating to them.
Any material undermining the identification of the accused or suggesting the involvement of another person.
Disclosure in sexual offence cases
In serious sexual offence cases there are additional categories of material that may be particularly significant and that the defence should actively pursue.
Not just formal statements all informal contacts, calls and meetings recorded in police logs. The full record can reveal how the account developed and whether it was influenced by the investigation.
Where the complainer gave evidence by television link, behind a screen or with other special measures, records of when and how those applications were made and granted.
Records of any compensation claims made by the complainer in connection with the alleged offence. A financial interest in the outcome is relevant to credibility.
In cases relying on the Moorov doctrine, whether complainers knew each other, communicated, or had any contact before or during the investigation is potentially highly significant. Contact between complainers before their accounts were finalised bears directly on the independence of those accounts and the validity of the Moorov inference.
Any information about the complainer's background that was obtained during the investigation and that may be relevant to credibility or reliability should also be disclosed. This is a sensitive area and the admissibility of such material at trial is subject to section 275. But the obligation to disclose material that may be relevant to the defence exists regardless of whether that material would ultimately be admissible. Disclosure and admissibility are separate questions.
How to identify whether something is missing
This is the hardest part of the practical disclosure question. The defence cannot know with certainty what material exists and has not been disclosed. By definition undisclosed material is material the defence has not seen.
What the defence can do is reason about what material ought to exist given the nature of the investigation and make specific requests for it.
In any serious investigation there will have been a crime report. There will have been an investigation log. There will have been records of every witness spoken to. There will have been records of forensic submissions. There will have been records of communications between investigators and prosecutors. There will have been records of decisions made during the investigation about what to pursue and what not to pursue. If any of these categories of material have not been disclosed the defence should ask for them.
Where the defence has a specific reason to believe that particular material exists a reference to a document in material that has been disclosed, an inconsistency that suggests something has not been provided, or information from another source a specific disclosure request should be made and the Crown should be required to respond.
Where the Crown asserts that material does not exist or is not disclosable that assertion can be challenged. The court has the power to order disclosure where the Crown has not complied with its obligations and the defence can apply for such an order where it considers disclosure is incomplete.
Disclosure after conviction
The disclosure obligation does not end at conviction. Where material comes to light after a conviction that was not disclosed before or during the trial and that is relevant to the safety of the conviction the question of whether a miscarriage of justice has occurred arises directly.
In the context of an appeal the existence of undisclosed material that might have affected the outcome is a recognised ground of challenge. The fresh evidence ground of appeal and the ground based on a miscarriage of justice can both be engaged where previously undisclosed material emerges.
In the context of a Scottish Criminal Cases Review Commission application disclosure failures are one of the most significant categories of potential miscarriage of justice that the SCCRC investigates. The commission has powers to obtain material from police, prosecutors and other agencies that the defence was not able to access before or during the trial. Where that investigation reveals material that should have been disclosed and was not the SCCRC can take that into account in deciding whether to refer the case back to the appeal court.
Anyone who believes that material relevant to their case was not disclosed should raise that concern with their solicitor as a matter of priority. In concluded cases where the normal legal routes are being pursued it should be one of the first questions addressed in any post-conviction review.
What to do if you think disclosure has been incomplete
If you are currently in proceedings and believe that disclosure has been incomplete the first step is to raise the concern with your defence solicitor. The solicitor should identify what specific material may be missing, make a formal request to the Crown for that material, and if necessary make an application to the court for an order requiring disclosure.
If you are not satisfied with how your solicitor is handling disclosure concerns and you are in current proceedings you have the right to change your legal representation. The Scottish Legal Complaints Commission handles complaints about solicitors and is listed in the Support and Organisations section of this site.
If you are in a concluded case and believe that material was not disclosed that should have been the appropriate route depends on where you are in the process. If an appeal has not yet been pursued this should be considered with legal advice as a matter of priority given the time limits that apply. If the normal appeal routes have been exhausted an application to the SCCRC is the appropriate avenue and disclosure failures are specifically within the SCCRC's investigative remit.
In either situation keeping a detailed record of what you believe was not disclosed, why you believe it exists, and what steps have been taken to pursue it is important. The more specifically the concern can be articulated the more effectively it can be pursued.
A note on managing expectations
Identifying a disclosure failure does not automatically mean a conviction will be overturned. The question for an appeal court or the SCCRC is not just whether material was not disclosed but whether the failure to disclose it affected the fairness of the proceedings and the safety of the conviction.
Material that was not disclosed but that would not have made any difference to the outcome even if it had been will not generally be sufficient to establish a miscarriage of justice on its own. The significance of the undisclosed material to the issues in the case matters enormously.
That is not a reason to abandon the pursuit of disclosure concerns. It is a reason to be clear-eyed about what the material is, why it matters, and how it connects to the specific issues that were central to the trial. The stronger that connection the more significant the disclosure failure and the stronger the potential ground of challenge.
People in your situation often ask…
What to take from this page
The defence is entitled to a wide range of material before trial including all witness statements, full records of the police investigation, forensic reports, digital material and any information affecting the credibility of Crown witnesses. In sexual offence cases additional categories of material are particularly significant including records of all contact between the complainer and police, records of contact between complainers in Moorov cases, and any information about compensation claims. Identifying whether disclosure is incomplete requires active pursuit by the defence. Disclosure failures in concluded cases are a significant category of potential miscarriage of justice and are within the SCCRC's investigative remit.
Information only. This page does not constitute legal advice. Law changes and individual cases vary. Anyone facing criminal proceedings in Scotland should seek advice from a qualified Scottish solicitor at the earliest opportunity.
Support exists for families going through this, not just for the person accused. Family Support and Legal Support and Representation cover finding a solicitor, legal aid, and organisations that work directly with families in this position.
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What happens when the Crown does not meet its obligations.
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Important
Disclosure and admissibility are separate
The obligation to disclose material that may be relevant to the defence exists regardless of whether that material would ultimately be admissible at trial. In sexual offence cases material may need to be disclosed even where its use at trial would be subject to a section 275 application. Do not confuse the two obligations.