INTRODUCTION

This chapter analyses law reforms that have taken place in the field of criminal evidence in modern-day Scotland. It does so at a busy time in the law reform arena, with two recent projects having the potential to radically change the landscape of Scottish criminal evidence. The chapter charts the main law reform projects and their outcomes and, drawing on these experiences, identifies the lessons that might be learned. The focus is on three areas: the bodies that might undertake law reform projects and the strengths and weaknesses of each; how projects might best be selected by those bodies; and how success might best be evaluated.

A. CHARTING THE TERRITORY

At the outset, it should be said that our focus is on law reform projects, not law reform that takes place as a result of judicial decisions. There have, undoubtedly, been occasions on which the Scottish courts have engaged in a degree of criminal evidence law reform, either by developing the common law or by interpreting legislation, but the focus of this chapter is on law reform exercises undertaken outside the courts.

As such, our initial task was to identify all Scottish law reform projects with a criminal evidence component since the 1970s. The results of this exercise are contained in the Appendix, which charts these projects – and their outcomes – in chronological order. The table is inclusive – as the Appendix shows, sometimes a project had only a small evidential component.

The first major project – probably still the most extensive – was the Thomson Committee's examination of criminal procedure in the 1970s, in which a team of thirteen members was appointed to ‘examine trial and pre-trial procedures in Scotland (including appeal procedure)’. Three reports were issued, leading to a number of significant changes, including the introduction of the modern regime governing the detention of suspects for questioning.

Trusts make those accustomed to Civilian property systems uncomfortable, given that they seem to rely on the peculiar Common Law separation of legal and equitable ownership. Equity, it seems, is a concept to be avoided at all costs. (This is not always true. The very first sentence of Mackenzie Stuart's book on the Scottish law of trusts explains that a trust is “nothing except a confidence reposed by one person in another, and enforceable in a Court of Equity”, but few if any Scottish writers would be comfortable making this sort of statement today.)

For that reason, one would expect both Scotland and Louisiana to have some difficulty with the trust. And those expectations would be met, although in very different ways. In Scotland, the law has followed practice: trusts exist, and questions of what they are and why they work have been seen as of secondary importance. Hence the Trusts (Scotland) Act 1921 laconically informs the reader that, for the purposes of the statute, the word “trust” includes “any trust”. The leading textbook on the subject includes a section headed “Definitions of trust”, which reviews five different possible definitions of a trust in order to inform the reader that they are all incorrect. The authors do then offer a definition of their own, and the present writer has kept up the tradition by arguing that this definition is itself defective.

INTRODUCTION

This provision, taken from the will of one James Chalmers, who died in Dundee in 1899, appears to have been a not uncommon feature of nineteenth-century Scottish wills. It represents one possible application of the power of the will, in that the testator may attempt to dictate the behaviour of his beneficiaries after his death by means of attaching conditions to legacies.

Just as legal systems do not recognise freedom of testation as an absolute right, and so protect certain parties against disinherison by means of forced succession or discretionary maintenance provisions, so certain attempts to dictate behaviour may be considered to be contra bonos mores and thus unlawful.