Peter Duff

Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner

In this paper, I draw upon the ‘systems theory’ approach to miscarriages of justice (adopted by Nobles and Schiff) to reflect upon my experience as a member of the Scottish Criminal Cases Review Commission. I demonstrate how the Commission manages the tensions between the rather different ‘legal’ and ‘lay’ worlds which it inhabits. More particularly, I argue that the Commission, while heavily constrained by the law and a legal world view, is more independent of the legal ‘system’ than some commentators would suggest. I substantiate my arguments through describing some of the debates that took place within the Scottish Commission and analysing in depth the judgements of the Scottish appeal court in some of the cases referred to it by the Commission. Much of what I say is applicable in varying degrees to the English Commission and to the current debate in England as to what constitutes a ‘miscarriage of justice’.

Irregularly obtained real evidence: The Scottish solution?

In determining whether to admit improperly obtained real evidence, the Scottish courts have engaged in a balancing act for over 50 years, weighing the public interest in the conviction of the guilty against the rights of the accused and the civil liberties of the citizenry. The Appeal Courts approach to this issue has not been particularly satisfactory and the result is an incoherent mass of detailed and often almost irreconcilable case law, rather than a principled framework to guide the trial courts in the exercise of this power.

Disclosure in Scottish Criminal Procedure: Another Step in an Inquisitorial Direction?

This article describes the recent development of a common law doctrine of disclosure in Scottish criminal procedure when, as little as 10 years ago, the prosecution had no legal duty to disclose any information to the defence prior to trial. Further, it is argued that this transformation has the potential to move the Scottish criminal justice system further from its adversarial base towards a more inquisitorial model.