The laws of criminal procedure attempt to balance the rights of the accused against those of the state. It is important that the correct balance is struck between the two opposing sides in order for a fair trial. If the accused is denied a fair trial then this would breach Article 6 of the European Convention on Human Rights (ECHR) and potentially decrease the accuracy of the case. I shall examine different aspects of the criminal process in Scotland and discuss whether the system is balanced or unbalanced in favour of the accused or the state. I shall also briefly examine any potential proposals or reforms regarding the features discussed and the impact they may have on the balance.
The main principle of the Scottish criminal procedure is…show more content… It is money paid from the Government to help individuals afford legal assistance. Legal aid is important as it gives individuals on the lower end of the income scale access to representation in the justice system. In order for legal aid to be rewarded certain criteria must be met. The Legal Aid (Scotland) Act 1986 contains the criteria required for the individual to qualify. Firstly the accused must lack “sufficient means” which would result in them being unable to pay for legal assistance. Secondly, the provision of legal aid must be in the “interests of justice”. In order for the criteria to be less restrictive the standards set within the Act must not be high. If the criteria was too high then accessibility to legal aid would be restricted to a fewer number people. In relation to the second test, what is required in the interests of justice should be considered by looking at a number of factors regarding the case. These factors include the severity of the case, the complexity and the personal circumstances of the accused. Each case is different so must be investigated thoroughly to determine the eligibility or the illegibility of the individual. The fact that the standards which have to be met are realistic, makes legal aid more attainable, therefore actively balancing the rights of the accused and promoting a fair…show more content… The presumption of innocence described means that the accused is innocent until proven guilty. In the case of Mackenzie v HM Advocate Lord Justice-Clerk Thomson stated
“the presumption of innocence is a fundamental tenet of our criminal procedure. It follows that the burden of proof rests on the Crown to displace this presumption”.
As a result of this, the presumption of innocence means that if the jury is not convinced past the reasonable doubt that the accused is guilty then the trial will go in favour of the accused. This would result in a not proven verdict and the accused would be acquitted. This verdict is often delivered when the judge or jury has insufficient evidence against the accused for conviction of the crime. It may also arise if they judge or jury are not persuaded by the person’s innocence.
The presumption of innocence is now contained within the European Court of Human Right (ECHR) under Article 6(2). It says that
“ everyone charged with a criminal offence shall be presumed innocent until proven guilty according to