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Scottish criminal law

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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 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 asp 9 and Prostitution (Public Places) (Scotland) Act 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. 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. 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".[citation needed] The verdict, especially in high-profile cases, often causes controversy.

List of offences

Current offences

Crimes against the person

Crimes of dishonesty

  • Theft, which can be aggravated thefts - theft by housebreaking, theft by opening lock-fast places, and theft of mail.
  • 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.
  • Forgery, with the requirement of Uttering (i.e. used as if it was genuine), see Burke v MacPhail.[1]
  • 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

Miscellaneous statutory offences

Former offences

  • Abortion.[2]
  • Concealment of pregnancy.[3]
  • Rape (at common law).[4]
  • Clandestine injury to women.[4]
  • Lewd, indecent or libidinous practice or behaviour.[4]
  • Sodomy.[4]
  • Shameless indecency.[5]
  • Offences under the Forgery of Foreign Bills Act 1803. (Repealed).
  • Blasphemy, although still technically a law, no prosecutions have occurred since 1843.[6]

Defences

Significant cases

References

  1. ^ Burke v MacPhail (1984) S.C.C.R. 388
  2. ^ Abolished by the Abortion Act 1967.
  3. ^ Stair Memorial Encyclopaedia
  4. ^ a b c d Abolished by the Sexual Offences (Scotland) Act 2009.
  5. ^ Replaced with the offence of public indecency under Criminal Justice and Licensing (Scotland) Act 2010, s.81.
  6. ^ 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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