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 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

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". The verdict, especially in high-profile cases, often causes controversy.

List of offences

Current offences

Crimes against the person

• Murder.
• Culpable homicide. (Comparable to the offence of manslaughter in English law)
• Corporate homicide, see the Corporate Manslaughter and Corporate Homicide Act 2007, s.1.
• Assault (this offence can be charged in an aggravated form while still being considered to be the same offence).
• Hamesucken
• Culpable and reckless injury.
• Culpable and reckless endangering of the public.
• Uttering threats.
• Sexual offences, see Sexual Offences (Scotland) Act 2009 and Sexual offences in Scotland

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

• Trespass on Hertiable property, see Trespass (Scotland) Act 1865
• Malicious mischief, whether riotious and will-full or intentional and reckless.
• Offences under the Explosive Substances Act 1883.
• Vandalism, see Criminal Law (Consolidation) (Scotland) Act 1995, s.52.
• Fire-raising, whether wilful or culpable and reckless.
• 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.

Crimes relating to Public order and morality

• Mobbing (previously mobbing and rioting).
• Breach of the peace.
• Stalking, see Criminal Justice and Licensing (Scotland) Act 2010, s.39.
• Threatening communications, see Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, s.6.
• Violation of sepulchres.
• Public indecency, see Criminal Justice and Licensing (Scotland) Act 2010, s.81.
• Indecent exposure.
• Bigamy.

Miscellaneous statutory offences

• Road traffic offences, see Road Traffic Act 1988.
• Controlled and prohibited substances, see Misuse of Drugs Act 1971 and Psychoactive Substances Act 2016.
• Offences relating to alcohol licensing and licensed premises, see Licensing (Scotland) Act 2005.

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

• Diminished responsibility
• Special defence

Significant cases

• Brennan v HM Advocate 1977 JC 38 – authority against automatism in cases of voluntary intoxication
• Cadder v HM Advocate [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 Rights
• 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 Advocate 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
• Moorov v HM Advocate 1930 JC 68 - admissibility of similar fact evidence - established a precedent named the Moorov doctrine

References

1. Burke v MacPhail (1984) S.C.C.R. 388
2. Abolished by the Abortion Act 1967.
3. Stair Memorial Encyclopaedia
4. 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

• Stair Memorial Encyclopaedia
• Corroboration in Scots law
• Lord Advocate's Reference
• English criminal law
• Trial by jury in Scotland