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Book reviews

21 January 13

Reviews of Criminal Procedure (Scotland) Act (Shiels and others), Confoscation Law Handbook (Eissa & Barber), Scottish Criminal Evidence, Procedure and Practice (Macphail)

by David J Dickson, J R Spencer (review editor: David J Dickson)

Criminal Procedure (Scotland) Act 1995

11th edition

Shiels, Bradley, Ferguson and Brown

PUBLISHER: W GREEN
ISBN: 9780414018815
PRICE: £90 (including CD)

The authors have, once more, fully and ably incorporated another deluge of criminal justice legislation requiring amendment to the principal Act on criminal procedure. Those amendments are inevitably important, arising as they do from the seminal Criminal Justice and Licensing (Scotland) Act 2010 and the yet to be tested provisions and objectives of the Double Jeopardy (Scotland) Act 2011. Amendments to secondary legislation by four acts of adjournal are also incorporated. Included in the price is the increasingly familiar CD which Greens very helpfully provide in a number of publications, though perhaps a call here for an iPad-friendly version.

The labyrinthine provisions of the Act, with an increasing number of sections referred to as A, B or AA, and even ZA and ZB, reflect the volume of amendments, which in turn makes the understanding of the section with the reconciliation of previous and new law all the more difficult to annotate. Not here in these safe and assured hands. The real benefit of this text lies in the clear, erudite and focused interpretation of the sections provided in the annotations by the authors.

The appeal court has commented a number of times this year on the inadequacy of knowledge on the part of those either who report to it or appear before it, such as Cartner v PF Ayr [2012] HCJAC 67 and HMA v Paterson [2012] HCJAC 105, where at para 5 the court observed: “Although the sheriff's decision proceeded upon a concession from the Crown, no reasoning for the decision is provided in his report and no reference is made to any of the authorities referred in the standard textbooks which ought to have been readily available both to the court and parties.” This carefully considered text will go a long way to guide practitioners on the appropriate route.

David J Dickson, solicitor advocate

Confiscation Law Handbook

Adrian Eissa and Ruth Barber

PUBLISHER: BLOOMSBURY PROFESSIONAL
ISBN: 9781847667076
PRICE: £75

Eissa and Barber have produced a concise, knowledgeable and, importantly, accessible text on this complex area of law. A brief history of the the development of the law is set out, followed by brief but illuminating chapters on the basic principles, restraint, practice and procedure, cash seizures and enforcements, and appeals. There is a particularly helpful synopsis of relevant case law. The texts of the Proceeds of Crime Act 2002 and Criminal Procedure Rules 2010 are provided. There is also a chapter on civil recovery and third party interests.

The real benefit of a text such as this is the means by which the busy practitioner can access both the primary legislation together with a clear text written by practitioners for practitioners. This is particularly so with the checklists at the end of the major chapters on restraint and the confiscation hearing.

The authors provide clarity of the purpose of the relevant sections of the legislation. For example, they provide in one brief paragraph when the assumptions must be applied by the court and what those are.

The authors share their experience including the difficulty in rebutting the statutory presumptions. They observe: "given the defence problems with credibility, the defendant's best hope is to call witnesses", and consider whether the accused should give evidence where they observe: "a defendant needs to be carefully advised before the hearing as to whether it is wise to give evidence...There is little point in the defendant going into the witness box if he truly has no answers to the questions likely to be put". However, given the likely outcome of the extent of the confiscation order, practitioners are advised to obtain "written confirmation"!

While this text is written from the aspect of English practice, it offers much for both those coming new to this complex area of law and those who practise but benefit from reminders of the main issues.

David J Dickson, solicitor advocate

Scottish Criminal Evidence, Procedure and Practice

Ian D Macphail

PUBLISHER: AVIZANDUM
ISBN: 9781904968504
PRICE: £30

Sherriff Iain Macphail (as he then was) spent the academic year 2001-02 in Cambridge as the Arthur Goodhart Visiting Professor of Legal Science. While he was there he planned a new book on criminal evidence and began to write it. His rapid promotion on his return to Scotland left him little time for writing and he set the project on one side for his retirement. Sadly his retirement never happened, because in 2009 he died. With the help and encouragement of his widow, Rosslyn, and some legal friends, the unfinished manuscript has now been published as a book by Avizandum.

This 205-page text comprises the first two parts of an intended four-part book – 10 chapters out of an intended 23.The first part covers basic matters, including the burden and standard of proof. The second part, entitled “the means of proof”, deals with the competency and compellability of witnesses, their examination and cross-examination, and the evidential status of their previous statements. It concludes with a short chapter on documentary evidence. The preliminary pages give us an outline of the complete project which the author had in mind, showing how the completed chapters were meant to fit into a bigger scheme. The preliminary pages also carry a bibliography, a table of cases and a table of legislation – but at the other end there is no index.

The first thing the reader notices about the book, as with all the other things he wrote, is that the author had a gift for words. Complex and potentially difficult legal rules are explained with simplicity and elegance. The second thing that strikes the reader is the tone of the book, which is intelligently critical. Among the aspects of the Scottish law of evidence which Macphail subjects to perceptive criticism are the rules on the competency of child witnesses, the rules about the inadmissibility of precognitions, the general suppression of a witness’s prior statements in favour of his oral testimony, and the verdict of not proven: or to be more precise, judicial refusal to explain to juries how this differs from acquittal – if indeed it does.

To English lawyers, like this reviewer, one of the merits of this book are the insights it provides on Scottish solutions to problems which south of the Border seem to be virtually insoluble. One such problem is persuading defendants to identify in advance of trial the facts which they dispute and the facts which they admit: a problem to which the Scottish institution of the “statement of uncontroversial evidence” appears to be an intelligent solution.

But for all the author’s many friends, on both sides of the Border, the real delight is to read his well-turned phrases, and through them once again enjoy his wisdom and his gentle humour. To Avizandum, and all those who contributed to the posthumous publication of this book, our thanks are due.

J R Spencer, Professor of Law, Selwyn College, Cambridge
 

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