Scots criminal law
Encyclopedia
Scots Criminal Law governs the rules of criminal law
in Scotland
. Scottish criminal law
relies far more heavily on common law than in England and Wales. Scottish criminal law includes offences against the person of murder
, culpable homicide
, rape
and assault
, offences against property such as theft
and malicious mischief, and public order offences including mobbing
and breach of the peace
. Scottish criminal law can also be found in the statute books of the UK Parliament with some areas of criminal law, such as misuse of drugs and traffic offences appear identical on both sides of the Border
. Scottish criminal law can also be found in the statute books of the Scottish Parliament such as the Sexual Offences (Scotland) Act 2009 asp 9 and Prostitution (Public Places) (Scotland) Act 2007 asp 11 have only legal extent to Scotland. In fact, the Scots requirement of corroboration
in criminal matters changes the practical prosecution of crimes derived from the same enactment. Corroboration is not required in England. Scotland is one of the few jurisdictions who require corroboration.
(COPFS) provides independent public prosecution
of criminal offences in Scotland (as the more recent Crown Prosecution Service
does in England
and Wales
) and has extensive responsibilities in the investigation and prosecution of crime. The Crown Office is headed by the Lord Advocate
, in whose name all prosecutions are carried out, and employs Advocates Depute (for the High Court of Justiciary
) and Procurators Fiscal
(for the Sheriff Court
s) as public prosecutors.
Private prosecution
s are very rare in Scotland and these require "Criminal Letters" from the High Court of the Justiciary. Criminal Letters are unlikely to be granted without the agreement of the Lord Advocate
.
s for a criminal trial
: "guilt
y", "not guilty" and "not proven
". Both "not guilty" and "not proven" result in an acquittal
with no possibility of retrial. The third verdict resulted from historical accident, in that there was a practice at one point of leaving the jury
to determine factual issues one-by-one as "proven" or "not proven". It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. Now the jury decides this question after legal advice from the judge, but the "not proven" verdict lives on. The "not proven" verdict is often taken by juries and the media as meaning "we know they did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy.
In February 1999, United States Senator
Arlen Specter
voted against conviction in the impeachment trial of Bill Clinton
, citing the concept of the "not proven" as a basis for his decision. Another recent example is seen in the case of Sean Flynn, who stood trial at the High Court in Perth
accused of murdering his mother, Louise Tiffney. Responding to the "not proven" verdict delivered on 16 March 2005, some of Flynn's relatives expressed their dissatisfaction, including Flynn's aunt, June Tiffney, who stated the verdict was "not justice" for her sister.
However, the Scottish legal profession is largely opposed to this perception of the not-proven verdict. Many believe there should only be two verdicts; guilty and not guilty. In a Scottish criminal trial, the burden of proof lies on the prosecution, and the guilt of the accused must be proven "beyond reasonable doubt." It is therefore the role of the prosecution to produce enough evidence, whether direct or circumstantial, which must be relevant, admissible and of enough weight to procure a conviction. Where the prosecution fails in this role, the jury will feel doubt as to the guilt of the accused and cannot return a verdict of guilty. Therefore, the 15 jurors can declare a not proven verdict, alerting the prosecution to the fact that its performance and/or evidence (of all types) was unsatisfactory.
Abortion, etc.
Assault and related offences
Sexual offences
See Sexual offences in the United Kingdom#Scotland
Theft etc.
Corruption
Criminal damage
Public order and decency
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
. Scottish criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
relies far more heavily on common law than in England and Wales. Scottish criminal law includes offences against the person of murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, culpable homicide
Culpable homicide
Culpable homicide is a specific offence in various jurisdictions within the Commonwealth of Nations which involves the illegal killing of a person either with or without an intention to kill depending upon how a particular jurisdiction has defined the offence...
, rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
and assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
, offences against property such as theft
Theft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
and malicious mischief, and public order offences including mobbing
Mobbing
Mobbing in the context of human beings either means bullying of an individual by a group in any context. Identified as emotional abuse in the workplace, such as "ganging up" by co-workers, subordinates or superiors, to force someone out of the workplace through rumor, innuendo, intimidation,...
and breach of the peace
Breach of the peace
Breach of the peace is a legal term used in constitutional law in English-speaking countries, and in a wider public order sense in Britain.-Constitutional law:...
. Scottish criminal law can also be found in the statute books of the UK Parliament with some areas of criminal law, such as misuse of drugs and traffic offences appear identical on both sides of the Border
Border Country
Border Country is a novel by Raymond Williams. The book was re-published in December 2005 as one of the first group of titles in the Library of Wales series, having been out of print for several years. Written in English, the novel was first published in 1960.It is set in rural South Wales, close...
. Scottish criminal law can also be found in the statute books of the Scottish Parliament such as the Sexual Offences (Scotland) Act 2009 asp 9 and Prostitution (Public Places) (Scotland) Act 2007 asp 11 have only legal extent to Scotland. In fact, the Scots requirement of corroboration
Corroboration in Scots law
The importance of corroboration is a unique feature of Scots criminal law. Scotland is the only jurisdiction in Europe that requires corroboration of evidence in criminal trials...
in criminal matters changes the practical prosecution of crimes derived from the same enactment. Corroboration is not required in England. Scotland is one of the few jurisdictions who require corroboration.
Crown Office and Procurator Fiscal Service
The Crown Office and Procurator Fiscal ServiceCrown Office and Procurator Fiscal Service
The Crown Office and Procurator Fiscal Service provides the independent public prosecution service for Scotland, and is a Ministerial Department of the Scottish Government. The department is headed by Her Majesty's Lord Advocate, who under the Scottish legal system is responsible for prosecution,...
(COPFS) provides independent public prosecution
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
of criminal offences in Scotland (as the more recent Crown Prosecution Service
Crown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
does in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
) and has extensive responsibilities in the investigation and prosecution of crime. The Crown Office is headed by the Lord Advocate
Lord Advocate
Her Majesty's Advocate , known as the Lord Advocate , is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament...
, in whose name all prosecutions are carried out, and employs Advocates Depute (for the High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
) and Procurators Fiscal
Procurator Fiscal
A procurator fiscal is a public prosecutor in Scotland. They investigate all sudden and suspicious deaths in Scotland , conduct Fatal Accident Inquiries and handle criminal complaints against the police A procurator fiscal (pl. procurators fiscal) is a public prosecutor in Scotland. They...
(for the Sheriff Court
Sheriff Court
Sheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom.Sheriff courts deal with a myriad of legal procedures which include:*Solemn and Summary Criminal cases...
s) as public prosecutors.
Private prosecution
Private prosecution
A private prosecution is a criminal proceeding initiated by an individual or private organisation instead of by a public prosecutor who represents the state...
s are very rare in Scotland and these require "Criminal Letters" from the High Court of the Justiciary. Criminal Letters are unlikely to be granted without the agreement of the Lord Advocate
Lord Advocate
Her Majesty's Advocate , known as the Lord Advocate , is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament...
.
"Not proven" verdict
The Scots legal system is unique in having three possible verdictVerdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. The term, from the Latin veredictum, literally means "to say the truth" and is derived from Middle English verdit, from Anglo-Norman: a compound of ver and dit In law, a verdict...
s for a criminal trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
: "guilt
Guilt (law)
In criminal law, guilt is entirely externally defined by the state, or more generally a “court of law.” Being “guilty” of a criminal offense means that one has committed a violation of criminal law, or performed all the elements of the offense set out by a criminal statute...
y", "not guilty" and "not proven
Not proven
Not proven is a verdict available to a court in Scotland.Under Scots law, a criminal trial may end in one of three verdicts: one of conviction and two of acquittal ....
". Both "not guilty" and "not proven" result in an acquittal
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...
with no possibility of retrial. The third verdict resulted from historical accident, in that there was a practice at one point of leaving the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
to determine factual issues one-by-one as "proven" or "not proven". It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. Now the jury decides this question after legal advice from the judge, but the "not proven" verdict lives on. The "not proven" verdict is often taken by juries and the media as meaning "we know they did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy.
In February 1999, United States Senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
voted against conviction in the impeachment trial of Bill Clinton
Impeachment of Bill Clinton
Bill Clinton, President of the United States, was impeached by the House of Representatives on charges of perjury and obstruction of justice on December 19, 1998, but acquitted by the Senate on February 12, 1999. Two other impeachment articles, a second perjury charge and a charge of abuse of...
, citing the concept of the "not proven" as a basis for his decision. Another recent example is seen in the case of Sean Flynn, who stood trial at the High Court in Perth
Perth, Scotland
Perth is a town and former city and royal burgh in central Scotland. Located on the banks of the River Tay, it is the administrative centre of Perth and Kinross council area and the historic county town of Perthshire...
accused of murdering his mother, Louise Tiffney. Responding to the "not proven" verdict delivered on 16 March 2005, some of Flynn's relatives expressed their dissatisfaction, including Flynn's aunt, June Tiffney, who stated the verdict was "not justice" for her sister.
However, the Scottish legal profession is largely opposed to this perception of the not-proven verdict. Many believe there should only be two verdicts; guilty and not guilty. In a Scottish criminal trial, the burden of proof lies on the prosecution, and the guilt of the accused must be proven "beyond reasonable doubt." It is therefore the role of the prosecution to produce enough evidence, whether direct or circumstantial, which must be relevant, admissible and of enough weight to procure a conviction. Where the prosecution fails in this role, the jury will feel doubt as to the guilt of the accused and cannot return a verdict of guilty. Therefore, the 15 jurors can declare a not proven verdict, alerting the prosecution to the fact that its performance and/or evidence (of all types) was unsatisfactory.
List of offences
Homicide- Murder.
- Culpable homicideCulpable homicideCulpable homicide is a specific offence in various jurisdictions within the Commonwealth of Nations which involves the illegal killing of a person either with or without an intention to kill depending upon how a particular jurisdiction has defined the offence...
. (This would be manslaughter in England) - Corporate homicide, contrary to section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007Corporate Manslaughter and Corporate Homicide Act 2007The Corporate Manslaughter and Corporate Homicide Act 2007 is an Act of the Parliament of the United Kingdom that seeks to broaden the law on corporate manslaughter in the United Kingdom...
Abortion, etc.
- Abortion.
- Concealment of pregnancy.
Assault and related offences
- AssaultAssaultIn law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
(this offence can be charged in an aggravated form while still being considered to be the same offence). - Culpable and reckless injury.
- Culpable and reckless endangering of the public.
- Uttering threats.
Sexual offences
See Sexual offences in the United Kingdom#Scotland
Theft etc.
- Theft.
- Plagium (e.g. child-stealing, and it is considered to be an aggravated form of theft).
- Other aggravated thefts - theft by housebreaking, theft by opening lockfast places, and theft of mail.
- Housebreaking with intent to steal.
- Opening lockfast places with intent to steal.
- Offences under s.57 of the 1982 Act (trespassing and possession of articles from which an intent to steal may be inferred).
- Embezzlement (or breach of trust and embezzlement).
- Robbery.
- Piracy, both at common law and under the law of nations.
- Hijacking.
- Fraud.
- Uttering as genuine
- Offences under the Forgery of Foreign Bills Act 1803Forgery of Foreign Bills Act 1803The Forgery of Foreign Bills Act 1803 is an Act of the Parliament of the United Kingdom. It creates offences of forgery of foreign instruments in Scotland.-Preamble:The preamble now reads:...
. - Numerous statutory frauds.
- Reset.
- Statutory offences akin to reset.
- ExtortionExtortionExtortion is a criminal offence which occurs when a person unlawfully obtains either money, property or services from a person, entity, or institution, through coercion. Refraining from doing harm is sometimes euphemistically called protection. Extortion is commonly practiced by organized crime...
. - Unsolicited goods and services (Unsolicited Goods and Services Act 1971)
Corruption
- BriberyBriberyBribery, a form of corruption, is an act implying money or gift giving that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or...
(principally of a judicial officer) - Statutory offences of corruption: Public Bodies Corrupt Practices Act 1889Public Bodies Corrupt Practices Act 1889The Public Bodies Corrupt Practices Act 1889 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland...
, Prevention of Corruption Act 1906Prevention of Corruption Act 1906The Prevention of Corruption Act 1906 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland...
, ss.38 and 68 of the Local Government (Scotland) Act 1973Local Government (Scotland) Act 1973The Local Government Act 1973 is an Act of the Parliament of the United Kingdom, that reformed local government in Scotland, on May 16, 1975....
(c.65) - Electoral offences, Representation of the People Act 1983Representation of the People Act 1983The Representation of the People Act 1983 is an Act of the Parliament of the United Kingdom. It changed the British electoral process in the following ways:* Amended the Representation of the People Act 1969....
.
Criminal damage
- Malicious mischiefMalicious mischiefMalicious Mischief is the specific name for different criminal offences in a number of different criminal jurisdictions. While the wrongful acts will often involve what is popularly described as vandalism there can be a legal differentiation between the two....
. - Offences under the Explosive Substances Act 1883Explosive Substances Act 1883The Explosive Substances Act 1883 is an Act of the Parliament of the United Kingdom. It makes it illegal to use -- or conspire or intend to use -- any explosive substance to cause an explosion likely to endanger life or cause serious injury to property, whether or not any explosion actually takes...
. - VandalismVandalismVandalism is the behaviour attributed originally to the Vandals, by the Romans, in respect of culture: ruthless destruction or spoiling of anything beautiful or venerable...
, s.52 of the Criminal Law (Consolidation) (Scotland) Act 1995Criminal Law (Consolidation) (Scotland) Act 1995The Criminal Law Act 1995 is an Act of the Parliament of the United Kingdom passed to consolidate certain enactments creating offences and relating to the criminal law of Scotland.-Incest and related offences:...
; formerly s.78 of the Criminal Justice (Scotland) Act 1980Criminal Justice (Scotland) Act 1980The Criminal Justice Act 1980 is an Act of Parliament in the United Kingdom . It decriminalized private homosexual acts between two consenting adults in Scotland:"Subject to the provisions of this section, a homosexual act in private shall not be an offence provided that the parties consent...
. - Fireraising (very occasionally a distinction is made between wilful fireraising and culpable and reckless fireraising).
- Cruelty to animals, Protection of Animals (Scotland) Act 1912.
- Sinking and destroying a ship with intent to defraud insurers, common law. Also offences under the Aviation and Maritime Security Act 1990.
Public order and decency
- MobbingMobbing (Scots law)Under the law of Scotland, mobbing, also known as mobbing and rioting, is the formation of a mob engaged in disorderly and criminal behaviour. The crime occurs when a group combines to the alarm of the public "for an illegal purpose, or in order to carry out a legal purpose by illegal means, e.g....
(or 'mobbing and rioting'). - Breach of the peaceBreach of the peaceBreach of the peace is a legal term used in constitutional law in English-speaking countries, and in a wider public order sense in Britain.-Constitutional law:...
. - Violation of sepulchres.
- Shameless indecency.
- Indecent exposure.
- Blasphemy.
- Bigamy.
- Riding a horse furiously
Cases
- Brennan v HM AdvocateBrennan v HM AdvocateBrennan v HM Advocate 1977 JC 38 was a Scots criminal appeal case decided in the High Court of Justiciary in its capacity as the Court of Criminal Appeal. The case set the precedent that voluntary intoxication, whether by drink or drugs, cannot be used to establish defences of automatism or...
1977 JC 38 – authority against automatismAutomatism (case law)Automatism is a rarely used criminal defence which denies that the accused was criminally responsible for his or her actions. The term automatism was first used in the trial of Harrison-Owen in 1951, although accused persons had been exonerated on grounds of automatic behaviour before then e.g...
in cases of voluntary intoxication - Cadder v HM AdvocateCadder v HM AdvocateCadder v HM Advocate [2010] UKSC 43 was a decision of the Supreme Court of the United Kingdom which held that the way in which police in Scotland detained suspects was not compatible with the European Convention on Human Rights and was therefore unlawful in terms of the Scotland Act...
[2010] UKSC 43 - not being permitted access to a solicitor while in police custody was a breach of Article 6(1) of the European Convention on Human RightsEuropean Convention on Human RightsThe Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953... - Cawthorne v HM Advocate 1968 JC 32
- Crawford v HM Advocate 1950 JC 67
- Drury v HM Advocate 2001 SCCR 538 – provided modern definition of murder
- Jamieson v HM Advocate 1994 SLT 537
- Khaliq v HM AdvocateKhaliq v HM AdvocateKhaliq and Anor v HMA was a Scottish criminal case decided by the High Court of Justiciary on appeal, in which it was decided that it was an offence at common law to supply materials that were otherwise legal in the knowledge that they would be used for self-harm.Two shopkeepers in Glasgow were...
1984 JC 23 - Ross v HM Advocate 1991 JC 210 – first authoritative recognition of non-insane automatism
- Smart v HM Advocate 1975 JC 30
- Sutherland v HM Advocate 1994 SLT 634
See also
- Corroboration in Scots lawCorroboration in Scots lawThe importance of corroboration is a unique feature of Scots criminal law. Scotland is the only jurisdiction in Europe that requires corroboration of evidence in criminal trials...
- English criminal lawEnglish criminal lawEnglish criminal law refers to the body of law in the jurisdiction of England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community...
- Trial by jury in ScotlandTrial by jury in ScotlandIn Scotland trial by jury is used in serious criminal cases and less commonly in civil cases. There are some similarities with the jury system in England and Wales but some important differences....