Review: The Trial on Trial (Volume 1): Truth and Due Process, Litigation II: Evidence & Criminal Process

AuthorJacqueline Hodgson,Jonathan Doak
Published date01 February 2007
Date01 February 2007
Subject MatterReview
Antony Duff, Lindsay Farmer, Sandra Marshall and Victor Tadros (eds)
Hart Publishing (Oxford, 2004), 202pp, hb £45
This volume is the first of two edited collections resulting from a series of
AHRB-funded workshops held in Scotland in 2003 and 2004, a collaborative
project between lawyers and philosophers with the aim of working towards a
normative theory of the criminal trial—a theory to be developed by the editors in a
third book which they will author.
The Introduction sets out the justifications and context for the current study
together with its principal aim, which is not to locate a theory of the trial within
one or other procedural tradition, but ‘to develop a normative theory that is
appropriate to the context in which it is formed and will be applied—the context of
a 21st century state that purports to be democratic, and to respect the set of
roughly liberal values that, whatever the controversies about their precise
meaning and application, are the common currency of contemporary legal and
political debate’ (p. 18). The chapters that follow are concerned with ‘truth’ and
‘due process’, the second volume dealing with ‘judgment’ and ‘calling to account’.
In this way, the volume introduces a series of procedural, practical and theoretical
questions (some, but not all of which, are tentatively answered) not to provide
definitive responses, but to pave the way for the project’s eventual conclusion—the
final volume.
Peter Duff examines the recent development of the duty to agree ‘uncontroversial’
evidence, arguing that this represents a significant shift in the largely adversarial
conception of the criminal trial in Scotland. Through a careful account of the
debate leading up to these changes, we see that there is a trend towards character-
ising the judge in a more active role by, for example, giving her the power to
determine, against the will of the parties, that certain evidence should be
presented only in written form. To constrain the defence role in this way, and to
treat as uncontroversial evidence that has been gathered by the policeand is as yet
untested, undermines the adversarial safeguards contained within Scottish
criminal procedure, elevating efficiency as the principal value within criminal
justice. Jenny McEwan discusses more generally the relationship between trial
procedure, fairness and truth and John Jackson provides an overview of the history

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