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University of Dundee Reforming Scottish Criminal Procedure Ferguson, Pamela R University of Dundee Reforming Scottish Criminal Procedure Ferguson, Pamela R. Published in: Bergen Journal of Criminal Law and Criminal Justice DOI: 10.15845/bjclcj.v4i2.1073 Publication date: 2017 Licence: CC BY Document Version Publisher's PDF, also known as Version of record Link to publication in Discovery Research Portal Citation for published version (APA): Ferguson, P. R. (2017). Reforming Scottish Criminal Procedure: In Search of Process Values. Bergen Journal of Criminal Law and Criminal Justice, 4(2), 167-195. https://doi.org/10.15845/bjclcj.v4i2.1073 General rights Copyright and moral rights for the publications made accessible in Discovery Research Portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from Discovery Research Portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain. • You may freely distribute the URL identifying the publication in the public portal. Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Download date: 27. Sep. 2021 Bergen Journal of Criminal Law and Criminal Justice • Volume 4, Issue 2, 2016, pp. 167-195 Reforming Scottish Criminal Procedure: In Search of Process Values PAMELA R. FERGUSON* 1 1. Introduction In recent years there have been several proposals to reform aspects of Scottish criminal procedure. The rationales for these proposals are largely considerations of efficiency, and in particular a desire to improve the accuracy of fact-finding. The procedural rights of suspects and accused persons are acknowledged, but often in a somewhat perfunctory fashion. Since there is no detailed consideration of the values they embody, these rights are vulnerable to interpretation in a way which allows them to be outweighed by other considerations, such as the rights and interest of victims or of the wider society. Fea- tures of criminal procedure are assessed solely on their instrumental, or ‘truth-finding’ abilities, and there is little attempt to offer a normative account. Furthermore, some of the proposed changes would situate Scottish criminal procedure closer to non-adversar- * Professor of Scots Law, School of Law, University of Dundee, Scrymgeour Building, Park Place, Dundee, DD1 4HN, Scotland, UK. The author is grateful to the participants of the Scottish- Scandinavian Criminal Law Conversations, held at the University of Glasgow in May 2016. Particular thanks are due to Gustaf Almkvist and Iain Cameron from the Department of Law, University of Uppsala, who acted as discussants of the paper, and to Peter Duff, Alan Page and Jørn Jacobsen for comments on an earlier draft. All links in this paper were last accessed on 10 September 2016. This is an Open-access article distributed under the terms of the Creative Commons Attribution 3.0 Unported License (http://creativecommons.org/licenses/ by/3.0/), permitting all use, distribution, and reproduction in any medium, provided the original work is properly cited. 167 Pamela R. Ferguson ial and ‘inquisitorial’ systems, and away from its adversarial roots.1 Reform proponents seem untroubled by such a shift, believing that since the purpose of the criminal trial is to attain a high degree of fact-finding accuracy, it matters not whether this is achieved by adversarial or non-adversarial procedures. This paper describes and critiques the recent proposals and the principles which are said to lie behind them, and draws comparisons with similar efficiency-driven reforms in England and Wales. It argues that there has been too much emphasis on the need for the criminal process to become better at finding ‘the truth’. This approach tends to equate erroneous acquittals and wrongful convictions, and by doing so fails to recognise a fun- damental tenet of adversarial criminal procedure, namely that protecting the innocent against wrongful conviction is of the utmost importance. The paper also suggests that there should be greater focus on non-instrumental and process values. These values risk being obscured by an exclusive focus on ‘the search for the truth’. It is adherence to pro- cess values which gives the state the moral legitimacy it needs in order to condemn and punish the accused. 2. Background Criminal procedure may be described as the body of laws and rules which govern the investigation and prosecution of crimes. Its primary purpose is to determine whether those who are suspected of breaching the criminal law are indeed guilty of having done so and are thus deserving of punishment. Substantive criminal law has been described as the ‘“Cinderella subject” of the legal academy’ – an essentially practical matter, devoid of much in the way of theory.2 Extending the metaphor, criminal procedure is no doubt considered by many to be like Cinderella’s broom: a useful tool, perhaps even an essen- 1 Referring to the criminal procedure systems of some Continental European countries as ‘inquisitorial’ is not particularly accurate; as Brants has suggested: ‘Given that almost all modem criminal justice systems combine procedural features of both traditions, it is better to consider them not as being totally adversarial or inquisitorial, but as positioned on a continuum. Indeed, rather than speak of inquisitorial or adversarial systems, it is more accurate to see modem jurisdictions as primarily “shaped by” the inquisitorial or adversarial tradition’: Brants, Wrongful convictions and inquisitorial process: the case of the Netherlands, 80 University of Cincinnati Law Review (2012) pp. 1069-1114, at 1073. ‘Inquisitorial’ is, however, used in the present paper since it is the term employed in recent Scottish reform proposal documents. 2 Farmer, Bringing Cinderella to the ball: teaching criminal law in context, 58 Modern Law Review (1995) pp. 756-766, at 756, quoting Tur, Criminal law and legal theory in Twining (ed.), Legal Theory and the Common Law (Basil Blackwell 1986) p. 195. 168 Bergen Journal of Criminal Law and Criminal Justice • 2/2016 tial one, but not worthy of much consideration, far less of philosophical analysis.3 In Scotland, recommendations for changes to criminal procedure have recently become the focus of some debate. However, although the pace of change has accelerated, and the proposed changes have become more radical, philosophical analysis and commentary remain sparse. Some important procedural changes came about as a result of the case of Cadder v. HM Advocate in 2010.4 Cadder and its impact have been described elsewhere and will not be considered at length in the present paper.5 In brief, the UK Supreme Court found that the failure of Scottish law to recognise a right to legal advice for suspects prior to police questioning was contrary to Article 6 of the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights in Salduz v. Turkey.6 The relevant domestic legislation was amended to provide that suspects who are detained7 or attend voluntarily at a police station8 have a right to a private consultation with a so- licitor before questioning,9 and also at any time during such questioning.10 The Scottish Government invited the Lord President11 to nominate a High Court judge to review ‘key elements of Scottish criminal law and practice’12 in light of the decision in Cadder. Lord Carloway took up the task and his 2011 Review made many important recommendations regarding police powers of arrest, and the law and practice of questioning and detaining 3 ‘Procedure is viewed as theoretically uninteresting, or at least comparatively less interesting than the shape and content of substantive criminal law’. Roberts, Groundwork for a jurisprudential theory of criminal procedure, ch. 17 in Duff and Green (eds.), Philosophical Foundations of Criminal Law (2011) at pp. 379-408, at 380. See also in the same volume: Dripps, The substance-procedure relationship in criminal law, ch. 18, pp. 409-432, at 410: ‘Criminal law has received more attention from academic philosophers than criminal procedure’. 4 [2010] UKSC 43; 2011 SC (UKSC) 13; 2010 SLT 1125; 2010 SCL 1265. 5 See Ferguson, Repercussions of the Cadder case: the ECHR’s fair trial provisions and Scottish criminal procedure, Criminal Law Review (2011), pp. 743-757; McCluskey, Supreme error, 15 Edinburgh Law Review (2011) pp. 276-287; Leverick, The Supreme Court strikes back, 15 Edinburgh Law Review (2011) pp. 287-292; Stark, The consequences of Cadder, 15 Edinburgh Law Review (2011) pp. 293-298; White and Ferguson, Sins of the father? The ‘sons of Cadder’, Criminal Law Review (2012) pp. 357-368. 6 (2009) 49 EHRR 19. 7 Criminal Procedure (Scotland) Act 1995, s 15A(a), inserted by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15) s 1. 8 Criminal Procedure (Scotland) Act 1995, s 15A(b) (henceforth: ‘1995 Act’). 9 1995 Act, s 15A(3)(a). 10 1995 Act, s 15A(3)(b). These provisions will be replaced by s 32 of the Criminal Justice (Scotland) Act 2016 when that legislation is brought in to force. 11 The Lord President of the Court of Session (a civil court) is also the Lord Justice General of the High Court of Justiciary (a criminal court), and as such is Scotland’s most senior judge. 12 The Carloway Review: Report and Recommendations (2011) (henceforth: ‘2011 Review’) para. 1.0.1. The report is available at: http://www.scotland.gov.uk/Resource/Doc/925/0122808.pdf. 169 Pamela R. Ferguson suspects.13 The Review proved highly controversial, particularly its recommendation that the requirement for corroborated evidence be abolished.14 The resulting legislation made many changes to police powers of arrest and suspects’ rights during police detention, but the proposal regarding corroboration was dropped from the Bill and is to be subject to further consideration by the Scottish Government.15 The focus of this paper is on more recent proposals.
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