Reforming Scottish Criminal Procedure: In Search of Process Values

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Abstract

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.
Original languageEnglish
Pages (from-to)167-195
Number of pages29
JournalBergen Journal of Criminal Law and Criminal Justice
Volume4
Issue number2
DOIs
Publication statusPublished - 12 Jan 2017

Keywords

  • Return Directive
  • entry ban
  • illegal migrant
  • criminal law sanctions
  • crimmigration
  • expulsion

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