Disclosure in Scottish Criminal Procedure: Another Step in an Inquisitorial Direction?
| Author | Peter Duff |
| Published date | 01 July 2007 |
| Date | 01 July 2007 |
| DOI | http://doi.org/10.1350/ijep.2007.11.3.153 |
| Subject Matter | Article |
DISCLOSURE IN SCOTTISH CRIMINAL PROCEDURE Disclosure in Scottish
criminal procedure:
another step in an
inquisitorial direction?
By Peter Duff*
School of Law, Aberdeen University
Abstract 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.
he purpose of this article is twofold. First, it is aimed at explaining the
dramatic and sudden development of a disclosure regime in Scotland
whereby the prosecution must now disclose to the defence all relevant
material in its possession prior to trial. This revolution began less than 10 years
ago with the case of McLeod1and culminated in May 2005 with the decisions of the
Judicial Committee of the Privy Council in Holland2and Sinclair.3My second
purpose is to incorporate this development into a broader thesis, namely that
Scottish criminal procedure is drifting, albeit unintentionally, from its traditional
adversarial base in an inquisitorial direction. At this point, I should make it clear
that I do not think that this is necessarily a bad thing. My intention here, however,
is not to discuss the merits or otherwise of this trend but simply to draw attention
to it. The article falls into four parts. First, I shall outline a thesis that I originally
developed in response to earlier developments in Scottish criminal procedure,
principally the introduction of compulsory pre-trial hearings and the creation of a
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2007) 11 E&P 153–180 153
1McLeod vHMA 1998 SCCR 77.
2Holland vHMA 2005 SLT 563.
3Sinclair vHMA 2005 SLT 553.
T
* Email: p.duff@abdn.ac.uk.
duty to agree uncontroversial evidence.4While these reforms were not directly
concerned with disclosure per se, they were predicated, as we shall see, on a hope,
rather than a legal demand, that there would be more disclosure prior to trial
particularly by the prosecution. Secondly, I shall discuss the recent history of
disclosure in Scotland up until the recent decisions of the Privy Council. The third
part of the article will explain the cases of Holland and Sinclair, which turned the
wish that there might be more disclosure by the prosecution into a legal duty.
Finally, I shall attempt to demonstrate how the creation of this general principle
of disclosure provides further evidence to support my argument that there has
been a shift in an inquisitorial direction in Scottish criminal procedure.
1. Pre-trial hearings and an inquisitorial model of the criminal process
It is necessary at the outset to describe very briefly what is meant by the
‘adversarial’ and ‘inquisitorial’ models and what purpose is served by citing such
concepts.5Damaška, perhaps the doyen of comparative criminal proceduralists,
summarises the difference between adversarial and inquisitorial systems as that
between a ‘party contest’ and an ‘official inquiry’.6For present purposes, it should
be emphasised that the adversarial model implies: the parties are partisan and
have sole control over the assembly and presentation of their respective cases;
they operate at arm’s length and neither party is under any obligation to assist the
other; the parties are entitled to remain silent about the information they have
discovered and the evidence they intend to lead at trial; there are complex and
restrictive evidentiary rules which the parties may use to keep evidence
unfavourable to their case out of court; the judge is a passive umpire with no prior
knowledge of the case when the trial begins; and the outcome is determined by a
single hearing at which there is a heavy emphasis on the oral presentation of
evidence. This, of course, is broadly the approach adopted by the common law
jurisdictions as well as in Scotland.7In contrast, the inquisitorial model implies
154 E & P
DISCLOSURE IN SCOTTISH CRIMINAL PROCEDURE
4 P. Duff, ‘Intermediate Diets and the Agreement of Evidence: A Move towards Inquisitorial
Culture?’ [1998] Juridical Review 349. See also, P. Duff, ‘Changing Conceptions of the Scottish
Criminal Trial: The Duty to Agree Uncontroversial Evidence’ in A. Duff et al. (eds), The Trial on Trial,
Volume 1: Truth and Due Process (Hart: Oxford, 2004) 29.
5 This and the following two paragraphs are largely drawn from Duff (2004), above n. 4 at 30–1.
6 M. Damaška, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A
Comparative Study’ (1973) 121 University of Pennsylvania Law Review 507 at 577. See also M. Damaška,
‘Structures of Authority and Comparative Criminal Procedure’ (1975) 84 Yale Law Journal 480 and
J. H. Merryman, The Civil Law Tradition, 2nd edn (Stanford University Press: Stanford, 1985) ch. XVII.
7 The Scottish system does contain some elements which owe more to the inquisitorial
approach—for instance, the hierarchical system of public prosecution and the mechanism of
judicial examination—but both in overall terms and at the court stages of the process, the
approach adopted is clearly adversarial: see C. Gane, ‘Classifying Scottish Criminal Procedure’ in
P. Duff and N. Hutton (eds), Criminal Justice in Scotland (Dartmouth: Aldershot, 1999).
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