I D Macphail, SCOTTISH CRIMINAL EVIDENCE. PROCEDURE AND PRACTICE Edinburgh: Avizandum Publishing (www.avizandum.co.uk), 2012. xlix + 205 pp. ISBN 9781904968504. £30.

Date01 January 2015
Published date01 January 2015

I read this book with an increasing sense of disappointment. This has nothing to do with what appears in it. Instead, it arises from the fact that the work is incomplete. Prior to his death, the author managed to complete less than half of the chapters of the book, having written Part I (Introduction) and most of Part II (The Means of Proof). Part III (The Exclusionary Rules of Evidence) and Part IV (Sufficiency, Cogency and Weight of Evidence) remain unwritten. While this is a great pity, what is available represents a highly-readable and extremely useful exposition of some very important areas of the law of evidence. Part I covers: Concepts, classifications and sources; Facts not requiring proof by evidence; Relevance; The trial court and Burden and standard of proof: presumptions. Part II deals with Competence and compellability of witnesses; Examination of witnesses (including use of prior statements) and Statutory certificates (in the partly written Documentary evidence section).

The late author is, of course, already a significant contributor to the law of evidence in Scotland in the form of Macphail's Memorandum on Evidence, published by the Scottish Law Commission in 1979. This book states the law as at 2002-4. While this does mean that some significant developments are not reflected, that disadvantage only affects a small proportion of what is available.

Several general thoughts crossed my mind as I read this book. The first is that it is easily readable. The author explains complex concepts, principles and ideas so concisely and simply, that any impression of complexity or difficulty simply melts away. As Lord Wheatley points out in his tribute to the author, in commenting on his period on the bench, he “brought a completely fresh and open mind to every problem, free from any prejudices or preconceptions, in order to understand the true nature of what was being looked at. Then he applied an orderly and scientific approach to finding the right answer.” This book is evidence that this approach applied to his writing too.

I was also struck by the use of copious Scottish authority (historical and modern) alongside sources of law from England, New Zealand, Australia, Canada and the United States. The international material is used to significant effect not as authority as such, but to explain concepts in a different (often clearer) way than is available in Scots legal literature. Examples of this include the discussions of reasonable doubt and the...

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