Procedural Tradition and the Convergence of Criminal Procedure Systems: The Case of the Investigation and Disclosure of Evidence in Scotland

Abstract

As criminal procedure systems, particularly in Europe, evolve under the influence of international norms and adapt to modern circumstances and needs, they seem to lose many of their traditionally characteristic differences. One aspect of this process pertains to the way systems seek to ensure that the truth is found. In adversarial systems, truth finding is traditionally achieved through debate between equal and autonomous parties who each investigate and present their own case. That has changed significantly over the past fifty years. But that change does not, as is often suggested, reflect a process of convergence towards the inquisitorial or realignment towards a new procedural type. Using the recent development of some seemingly inquisitorial elements in Scottish criminal procedure—the disclosure of prosecution evidence and the duty on the state to investigate all incriminating and exculpating evidence—this Article argues that procedural tradition and legal culture are resilient. Systems of criminal procedure will try to hold on to their traditional principles, guarantees, and mechanisms for truth finding. However, there are limits to what the adversarial tradition can accommodate. If those limits are crossed, systems do not simply converge on the continuum between inquisitorial and adversarial ideal types. Instead, the interaction between conservative tradition and converging trends can cause incoherence in a procedural system's approach to truth finding. Such incoherence can result in an ambiguous allocation of responsi- bilities between prosecution and defense and a lack of procedural guarantees for fair and reliable truth finding.