Scots law on the release of case papers to third parties

[guest29835]

Below (end of this post) is a link to a podcast discussion between Dr. Sandra Lean and Yvonne Hartley.  They talk about the Luke Mitchell case, so I am posting it up here.  (Please do not use this thread to start a discussion on the Bamber case.  There is already a board on here for that).

What interests me in particular is a comment by Dr. Lean at 26:55.  The context of what follows is that Yvonne Hartley mentioned how the Campaign Team for Jeremy Bamber are always happy to refer people to documents in their possession that prove their arguments right.  (Whether that is actually true is beside the point for the purpose of this thread). 

At this point, Dr. Lean jumps in and states this:

"...slight difference between Scotland and England & Wales is that I can't put that material online.  I'd love to put the whole lot online.  In Scotland, I can't.  I can quote from...excerpts from different documents, and I have gone as far as I could with that to get as much of it out there as I can, but in terms of creating a website and just chucking everything up there for everybody to go through, I don't want to go to jail...I'm not allowed to do that."

Is this true?  Is there some peculiarity of Scots law that prevents the release of case papers to third parties, even when the individual who is protesting innocence has no objection?

If Dr. Lean is reading this, may I ask that she posts a fuller explanation to this thread, explaining and citing the relevant provisions or principles of Scots law that preclude lawful disclosure on this Forum or some similar platform or format.

The question is, I believe, important.  This case has been discussed on here at length, but at no point have we seen any documentation.  That means we are reliant on one monopolistic source: Dr. Lean.  I am not at all suggesting that Dr. Lean would present us with a false or misleading picture, but she is a campaigner for Luke Mitchell, so inevitably Dr. Lean will be interpreting and quoting from documents through the lens of Mr Mitchell's cause and interests, whereas we, being commenters and researchers, have a more objective standpoint (or, certainly I do).  I am more interested in the truth.  I am not interested in overturning the conviction of a brutal murderer - if he is guilty, and if the conviction is legally safe, which are very much 'ifs'.

Here's the link to the discussion I quote from:
https://www.youtube.com/watch?v=sybRd-ud0h4

Feel free to use this thread to critique other aspects of the discussion as they pertain to the case, but my interest is in the specific question of disclosure.

[guest29835]

One more thing I request:

If you do wish to reply, please do not use this thread I have created to attack, libel, malign or insult Dr. Lean.  That is not the purpose of this Forum and it is off-topic, as far as I am concerned.  I don't know Dr. Lean.  I've never met or spoken with her.  I am not defending her.  I just ask that we keep things sensible and on-topic.

Thanks.

[Davie2]

Is this true?  Is there some peculiarity of Scots law that prevents the release of case papers to third parties, even when the individual who is protesting innocence has no objection?

I have also asked similar type questions in the past, but never really got a defined answer. I have always believed this to be this case, that it is against the law. I have researched, tried to look for the laws, but I have never found a conclusive answer. I was always curious, why a few sentences from statements were put in the public domain, but not the full statement. What is the difference in law? What does the law say about partial use of case papers? Does the law allow partial use? But not full use? Why?

[guest29835]

I have also asked similar type questions in the past, but never really got a defined answer. I have always believed this to be this case, that it is against the law. I have researched, tried to look for the laws, but I have never found a conclusive answer. I was always curious, why a few sentences from statements were put in the public domain, but not the full statement. What is the difference in law? What does the law say about partial use of case papers? Does the law allow partial use? But not full use? Why?

Then you are asking the right questions and we are on the same page. 

I stress I am not a Scots lawyer, but I have so far found the following:

The Transcripts of Criminal Proceedings (Scotland) Order 1993:
https://www.legislation.gov.uk/uksi/1993/2226/made

Section 275 of the Criminal Procedure (Scotland) Act 1975: https://www.legislation.gov.uk/ukpga/1975/21/section/275#:~:text=%5B275F1Transcripts%20of%20record%20and%20documentary%20productions.&text=(1)The%20Clerk%20of%20Justiciary,the%20use%20of%20any%20judge.

Basically, section 275(2)(b) of the 1975 Act allows a transcript of criminal proceedings to be provided to effectively anyone, but section 275(3) says that the Secretary of State can make an order restricting the availability of such transcripts and the purposes for which they can be used.

The Secretary of State duly made the 1993 Order, which you can read and is pretty clear in what it does.

However, none of that prevents Dr. Lean publishing transcripts or other documents or sharing such documents with us.  It could be that there is other legislation or regulation covering that. 

I think before discussions go any further, this needs to be clarified one way or the other.  I note that Dr. Lean has not logged on here for some months, though for all anyone knows, she may be lurking.  If she is looking in, I would request that she comes back on the Forum to fill us in on the precise legal position in Scotland.  If she can't, or won't, and assuming we don't have anyone else here who is knowledgeable on the topic, I will have to look into it myself. 

[killingeve]

I gave up looking at the case as I don't make a habit of stumbling around in the dark when it appears info is being withheld.   

If Scots law prevents access to third parties then how come SL has access to? 

How come the two former police officers who took part in a documentary had access to?  Remember the prog showed them going through witness stats and referring to parts?

[killingeve]

I gave up looking at the case as I don't make a habit of stumbling around in the dark when it appears info is being withheld.   

If Scots law prevents access to third parties then how come SL has access to? 

How come the two former police officers who took part in a documentary had access to?  Remember the prog showed them going through witness stats and referring to parts?

@ 22 mins in the former police officers, currently private investigators, carry large boxes and refer to case related docs throughout the docu.

https://www.youtube.com/watch?v=J7eusTWVCEg

[guest29835]

I gave up looking at the case as I don't make a habit of stumbling around in the dark when it appears info is being withheld.   

If Scots law prevents access to third parties then how come SL has access to? 

How come the two former police officers who took part in a documentary had access to?  Remember the prog showed them going through witness stats and referring to parts?

I think we can assume that Dr. Lean is an 'authorised person' under section 3(a) of the 1993 Order I refer to above.

One question I am mulling over is whether section 3(a) provides a lacuna.  The difficulty here is that I am not a Scots lawyer, and in the absence of advice from one or further clarification from Dr. Lean herself, we need to be very careful.

I will research the point and update the Forum in due course - but you will have to bear with me, as I am swamped currently.