Reforming Scottish Criminal Procedure: In Search of Process Values

How to Cite

Ferguson, P. (2017). Reforming Scottish Criminal Procedure: In Search of Process Values. Bergen Journal of Criminal Law & Criminal Justice, 4(2), 167-195.


Recent proposals to reform Scottish criminal procedure are motivated by considerations of efficiency and accurate fact-finding, and there is little attempt to offer a normative account. This paper describes these proposals and contends that their emphasis on finding ‘the truth’ is misplaced on two distinct bases: (1) it equates erroneous acquittals to wrongful convictions, thus fails to uphold a fundamental tenet of criminal procedure, namely the particular importance of protecting the innocent against wrongful conviction; and (2) it fails to recognise the importance of non-instrumental process values which are at the heart of the adversarial criminal trial.  The paper suggests that it is only by adhering to these process values that the state maintains – and demonstrates that it maintains – its moral authority to condemn and punish offenders.

Key notes: Return Directive, entry ban, illegal migrant, criminal law sanctions, crimmigration, expulsion.

Copyright (c) 2017 Pamela Ferguson

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