Scottish criminal law

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.

Crown Office and Procurator Fiscal Service

The Crown Office and Procurator Fiscal Service (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 Courts) as public prosecutors.

Private prosecutions 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.

"Not proven" verdict

Main article: Not proven

The Scots legal system is unique in having three possible verdicts for a criminal trial: "guilty", "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.

List of offences

Homicide Murder. Culpable homicide. (This would be manslaughter in England) Corporate homicide, contrary to section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 Abortion, etc. Abortion. Concealment of pregnancy. Assault and related offences Assault (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 1803. Numerous statutory frauds. Reset. Statutory offences akin to reset. Extortion. Unsolicited goods and services (Unsolicited Goods and Services Act 1971)

Corruption Bribery (principally of a judicial officer) Statutory offences of corruption: Public Bodies Corrupt Practices Act 1889, Prevention of Corruption Act 1906, ss.38 and 68 of the Local Government (Scotland) Act 1973 (c.65) Electoral offences, Representation of the People Act 1983. Criminal damage Malicious mischief. Offences under the Explosive Substances Act 1883. Vandalism, s.52 of the Criminal Law (Consolidation) (Scotland) Act 1995; formerly s.78 of the Criminal Justice (Scotland) Act 1980. 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 Mobbing (or 'mobbing and rioting'). Breach of the peace. Violation of sepulchres. Shameless indecency. Indecent exposure. Blasphemy. Bigamy. Riding a horse furiously[1]

Defences

• Diminished responsibility

Cases

• Brennan v HM Advocate 1977 JC 38 - authority against automatism in cases of voluntary intoxication
• 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
• Ross v HM Advocate 1991 JC 210 - first authoritative recognition of non-insane automatism
• Jamieson v HM Advocate 1994 SLT 537
• Khaliq v HM Advocate 1984 JC 23
• Smart v HM Advocate 1975 JC 30
• Sutherland v HM Advocate 1994 SLT 634

References

• Stair Memorial Encyclopaedia

1. ^ http://business.timesonline.co.uk/tol/business/law/article3015458.ece

See also

• Corroboration in Scots law
• English criminal law
• Trial by jury in Scotland