Scottish Criminal Evidence Law Adrift
Speaker: Professor Pete Duff
Over the last 20 years, Scottish criminal evidence law has undergone unprecedented, major changes and there is more reform on the way. Areas affected include: police questioning of suspects; the treatment of vulnerable witnesses in court; double jeopardy; the admissibility of the accused’s previous convictions; the Crown’s duty of disclosure; and the need for corroboration. These ad hoc developments are fundamentally altering the basic adversarial principles of Scottish criminal evidence which have been in place since the 19th century. Overall, the impression is one of chaos and no clear pattern of reform is discernible to most practitioners and commentators. Some of the major influences driving this process have been identified and discussed by evidence scholars, for instance, the new human rights agenda, the influence of the “Victims’ Movement”, advances in science, the need to husband scarce resources in an era of austerity and a desire to simplify and rationalise the law of criminal evidence. In this paper, I attempt to analyse two overlooked factors in this process – “penal populism” and “managerialism” – and argue that they also need to be taken into account in order to attempt to forecast the future of Scottish criminal evidence law.
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