Scottish criminal law

Scots 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 statutes of the UK Parliament with some areas of criminal law, such as misuse of drugs and traffic offences appearing 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 (2009 asp 9) and Prostitution (Public Places) (Scotland) Act 2007 (2007 asp 11) which only apply 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 or in civil cases in Scotland. Scots law is one of the few legal systems that 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

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.

The 'not proven' verdict in modern Scots criminal law can be described as an historical accident. Historically, there were no set forms for verdicts used by early juries, and their role was simply to find the guilt or innocence of the accused.[1] The role of the jury changed when it became customary in the Justice Court to compose lengthy indictments, where facts were listed which culminated in a statement of the punishable character of such conduct in general of which the accused ought to be punished for his commission of it. In these situations the role of the jury was to deliver one of the 'special verdicts' of "proven" or "not proven" for individual factual issues one-by-one.[2] 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. This practice persisted until the 1728 trial of Carnegie of Finhaven, where the jury's right to return a verdict of not guilty, and essentially pronounce on innocence and guilt, was re-established. By the 19th century, the legal profession had come to view these 'special verdicts' as obsolete, and yet the "not proven" verdict continued to be used.[3]

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. A study was commissioned in September 2017) by academics at the Universities of Glasgow and Warwick, in collaboration with Ipsos Mori, to consider, among other things, the three verdict system in Scotland in order to inform future reform of the criminal justice system in Scotland.[4]

List of current offences

Crimes against the person

Crimes of dishonesty

  • Theft, which can be aggravated
    • theft by housebreaking
    • theft by opening lock-fast places ("OLP") (also, opening or attempting to open a lock-fast place with intent to steal)
  • Offences under the Civic Government (Scotland) Act 1982
    • s57 - Being within a premises with the intention to commit theft
    • s58 - convicted thief in 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
  • Forgery, with the requirement of Uttering (i.e. used as if it was genuine), see Burke v MacPhail.[5]
  • Numerous statutory frauds.
  • Reset and the related statutory offences.
  • Extortion.
  • Unsolicited goods and services, see Unsolicited Goods and Services Act 1971.
  • Bribery (principally of a judicial officer), see Bribery Act 2010 and the Local Government (Scotland) Act 1973.
  • Electoral offences under the Representation of the People Act 1983.
  • Plagium (e.g. child-stealing, and it is considered to be an aggravated form of theft).
  • Stouthrief

Crimes against the property

Crimes relating to Public order and morality

  • Mobbing (previously mobbing and rioting).
  • Breach of the peace, more commonly libelled as "Threatening or abusive behaviour", see Criminal Justice and Licensing (Scotland) Act 2010, s.38.
  • Violation of sepulchres.
  • Public indecency, see Criminal Justice and Licensing (Scotland) Act 2010, s.81.
  • Indecent exposure
  • Bigamy
  • Perjury
  • Attempted to pervert the Course of Justice
  • Escaping from lawful custody, see Police and Fire Reform (Scotland) Act 2012, s.91.
  • Contempt of Court

Miscellaneous statutory offences

Former offences

  • Abortion.[6]
  • Concealment of pregnancy.[7]
  • Rape (at common law).[8]
  • Clandestine injury to women.[8]
  • Lewd, indecent or libidinous practice or behaviour.[8]
  • Sodomy.[8]
  • Shameless indecency.[9]
  • Offences under the Forgery of Foreign Bills Act 1803. (Repealed).
  • Blasphemy, although still technically a law, no prosecutions have occurred since 1843.[10]

Defences

Significant cases

References

  1. Willock, Ian (1966). The Origins and Development of the Jury in Scotland: Volume 23 of the Stair Society. Stair Society. pp. 217ff. ISBN 1561690333.
  2. Willock, Ian (1966). The Origins and Development of the Jury in Scotland: Volume 23 of the Stair Society. Stair Society. pp. 218–219. ISBN 1561690333.
  3. "No, "not proven" did not come first". School of Law. 27 September 2017. Retrieved 20 June 2018.
  4. News, Scottish Legal. "'Not proven' verdict to come under scrutiny again in jury study". Scottish Legal News. Retrieved 20 June 2018.
  5. Burke v MacPhail (1984) S.C.C.R. 388
  6. Abolished by the Abortion Act 1967.
  7. Stair Memorial Encyclopaedia
  8. Abolished by the Sexual Offences (Scotland) Act 2009.
  9. Replaced with the offence of public indecency under Criminal Justice and Licensing (Scotland) Act 2010, s.81.
  10. Hugh Barclay: A Digest of the Law of Scotland: With Special Reference to the Office, T & T Clark, Edinburgh, 1855, p.86

See also

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