Scottish Criminal Evidence Law Set Adrift

The School of Law has an ongoing seminar series, where our own academic staff or visiting academics are given the chance to showcase or develop some research. One such recent seminar was on the rules of evidence in Scottish criminal law.

Since the turn of the century, Scottish criminal evidence law has gone through a period of unprecedented change. Affected areas include:

  • the treatment of ‘vulnerable’ witnesses in court;
  • the tightening up of the ‘rape shield’ to prevent the questioning of complainers about their previous sexual history;
  • police questioning of suspects;
  • the Crown’s duty of disclosure;
  • the long-standing double jeopardy principle and rules relating to new evidence; and
  • increased pressures on the parties to agree evidence before trial.

That is just the beginning. There are proposals to render admissible the relevant previous convictions of the accused and for the introduction of a doctrine of ‘similar facts evidence’, not to mention the possible abolition of the ‘sacred cow’ of corroboration, where two pieces of evidence about an event are needed before that can come before a Scottish court.

Historically, the reform of criminal evidence in Scotland has been left to the experts, meaning lawyers, judges, legal academics, the Scottish Law Commission and the like. This has meant reform has principally come from ‘internal’ pressures and has taken place along familiar doctrinal lines. Increasingly, the recent revolution in Scottish criminal evidence law has been influenced by ‘external’ pressures, principally political considerations and a managerialist agenda which puts an emphasis on cost-cutting and efficiency.

The debate over corroboration provides an excellent example of the ‘politicisation’ of criminal evidence reform, whereby political considerations entered into what previously would have been a purely doctrinal debate. Similarly, the drive to increase the pre-trial agreement of evidence and to increase the amount of written (‘pre-frozen’) evidence introduced at trial as an alternative to oral testimony is a product of the managerialist drive to reduce the number of trials and shorten the length of trials that do take place in order to increase ‘efficiency’ and save money.

The future of Scottish criminal evidence law is difficult to predict. What is clear is that it will no longer be shaped primarily from within the field by experts in criminal evidence law, who might be expected to steer its development along traditional doctrinal or ideological lines. Increasingly its reform will be subject to external pressures, principally through the involvement of politicians, civil servants and interest groups pursuing ‘populist’ or ‘managerialist’ agendas.

All of this was discussed at a seminar in Old Aberdeen (see this collection of tweets) and will form part of an essay in a forthcoming collection edited by Peter Duff and Pamela Ferguson. The book will be called ‘Current Developments in Scottish Criminal Evidence Law’ and it will be published by Edinburgh University Press in early 2017.

Blog by Professor Peter Duff

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