Disclosure appeals: a plea for principle

This chapter examines critically the approach of the Scottish courts to determining appeals based on the failure of the Crown to disclose material evidence to the defence prior to trial. In particular, it analyzes in some detail the level of confusion which has arisen as a result of recent cases, and argues briefly that a more principled approach might have avoided much of this. A more principled approach would make it easier for the judiciary to come to a conclusion, tentative although it might be, on the appropriate approach to disclosure appeals. Instead, the courts seem to be stumbling about blindly between the two possible options — treating disclosure and fresh evidence appeals similarly or differently — giving no explanations for their decisions other than the selection, from a wide range of authorities, of those which happen to support their conclusions. The result is that after a succession of disclosure appeals, it is still not possible to discern whether the test for a disclosure appeal is less exacting than that in a fresh evidence case.