‘Substantial and Radical Change’: A New Dawn for Scottish Criminal Procedure?

Abstract

This paper discusses the recommendations of the Carloway Review, which was established to review law and practice in criminal cases following the introduction in Scotland of a right to legal assistance during detention. A number of recommendations are made in the Review, including the introduction of stricter time limits governing the detention of suspects, the removal of the corroboration requirement, the rejection of adverse inference provisions, and a change in the manner in which the appeal court deals with cases referred to it by the Scottish Criminal Cases Review Commission. It is argued that while some of these recommendations are to be applauded, others are poorly reasoned and some may lead to a dangerous reduction in protection against wrongful conviction.

Strasbourg Jurisprudence, Law Reform and Comparative Law: A Tale of the Right to Custodial Legal Assistance in Five Countries

“…78 The police may afford the suspect access to a lawyer during interrogation, but there is nothing in the relevant Act that prescribes a duty to do so. 79 The legislation was enacted in October 2010, 80 leading to considerable criticism and debate coming especially from Scottish scholarly circles, protesting an inappropriate interference by the Supreme Court with unique domestic elements of the Scottish criminal justice system and pinpointing the collateral risk of a diminution of other rights of the suspect. 81 Since then, the Scottish government has appointed Lord Carloway to undertake a review of key elements of criminal law and practice, 82 and has introduced a Bill into the Scottish Parliament that takes forward and develops Lord Carloway's recommendations.…”

Plea-negotiations, prosecutors and discretion: An argument for legal reform

“…Plea-negotiations and the courtroom workgroups facilitating them have been (sparingly) examined in US, UK and Canadian research since the 1960s. Common analyses have included: procedural elements, such as the content of agreements, who is involved, when it occurs (Buckle & Buckle, 1977; Pizzi, 1999); their purpose (Alschuler, 1995; Goldstein, 1981; Walker, 1993); the role of sentence discounts in facilitating guilty pleas (Baldwin & McConville, 1977; Cohen & Doob, 1989); and how plea-negotiations moderate court delays (Chalmers, Duff, Leverick, & Melvin, 2007; Fitzgerald, 1990; Samuel & Clark, 2003). A number of important studies have also examined prosecutors’ discretionary charging powers in plea-negotiations, and possible legal reforms, including the abolition of plea-negotiations in certain contexts and the use of early resolution focused pretrial hearings (Atkins & Pogrebin, 1982; Blumberg, 1967; Heumann & Loftin, 1995; Kerstetter & Heinz, 1979; McDonald, 1985; Stenning, 2010; Worrall, Ross & McCord, 2006).…”