Introduction to Scottish Criminal Law

Crime, Criminal Procedure and the Criminal Law

The Scottish Criminal Law has a distinctive nature. It is a unique body of rules, which is independent of the legal system in England and Wales. While the majority of crimes in England are to be found in statutes created by Parliament, most of the Scottish Criminal Law exists in the form of common law crimes and defences. Any discussion of the role of the criminal law inevitably begins with an attempt to define the notions of "crime" and "criminal law". This "obsession with definition" has failed to provide any definitive or concrete answers. Most textbooks resort to a somewhat circular notion of criminal law. The Scots jurist Gordon, for example, defines the criminal law "as that branch of the law which deals with those acts, attempts and omissions which the state may take cognisance by prosecution in the criminal court". There is little attempt to include a historical perspective, or to view crimes as public wrongs within a social context.

The modern criminal law in Scotland continues to depend on its historical roots. To comprehend the current laws and procedures, it is essential to have an understanding of the history and tradition of Scottish Criminal law. Much of the modern criminal law derives from the work of the institutional writer Hume in the nineteenth century. Hume’s treatise on the Law of Scotland Respecting Crimes covers both the substantive and the procedural rules of the criminal law. At the outset it is important to note that the historical significance of the development of the criminal law is not restricted to the general criminal law, but has specific applicability to specific crimes and procedure.

The incorporation of the European Convention of Human Rights (ECHR) has necessitated a reappraisal of both substantive and procedural aspects of the criminal law. The entry into force of the Human Rights Act 1998 on 2nd October 2000 has been described as a landmark in the legal history of the UK, but the ECHR has applied in Scottish criminal proceedings, by virtue of the provisions of the Scotland Act, since 1999.

While there might legitimately be some question as to whether there exists a "system" of criminal justice in the sense of a seamless process, each element is inextricably linked to other. There is a degree of inter-dependence between the different stages of criminal justice, which means that any examination of one aspect of the process without acknowledging the others will provide a biased, if not entirely false, account. The Criminal law is dependent on other factors such as effective police investigations, and the Court system. Without these institutions it would be unable to function effectively.

Criminal Procedure is often neglected in the traditional course of study in criminal law, yet its importance to the criminal law is immeasurable. Rules of evidence and criminal procedure are vitally important to the working of criminal justice. These rules are recognised as essential components of a liberal democratic society and they define the boundaries of the criminal trial. Their function is to moderate the power of the state to interfere in the lives of individuals while continuing to facilitate the punishment of crime. It is essential to note that procedural rules do not simply provide important safeguards for the accused, but also exist to protect the public interest.

 

Principles of Liability

The Latin maxim actus non facit reum nisi mens sit rea is often quoted to express the basic principle of criminal liability. This means that an act is not sufficient in itself to constitute a crime and that there must also be a guilty mind. As such, criminal liability is divided into two concepts:

If the commission of the crime depends on both actus reus and mens rea then it is essential that there exists concurrence between these elements. This theoretical emphasis on the duality of criminal liability continues to play an important part in criminal legal theory. It is nevertheless important to note that there are significant examples of crimes, such as inchoate and strict and vicarious liability offences, which fall outwith the ambit of this definition.

Defences

The nature and structure of defences is such that they play an essential part in maintaining the legitimacy of the criminal law. Although there are a number of defences available to an accused, with differing results following a successful plea, their existence rests on a common basis. Essential to the concept of crime is the requirement that the accused had the capacity to commit the act. This precondition serves as the basis for the justification for the legitimate imposition of liability, which is closely linked with notions of individual responsibility. Generally, defences serve to justify or excuse the actions of the accused. Some defences operate to establish that the accused did not commit an essential element of the crime; for example, the defence of alibi seeks to disprove that the accused committed the actus reus. Alternatively, a defence can serve to acquit the accused despite the fact that there is indisputable evidence that s/he committed the crime. Self-defence is one example of this type of defence. By mounting a plea of self-defence, the accused is not denying that s/he carried out the act, but nevertheless argues that s/he should not be held criminally liable. Defences are categorised for procedural purposes as special defences and other defences.

Crimes

Crimes are normally divided into a number of broad categories. While this method of division can be criticised, there is no doubt that from a practical perspective it serves a useful purpose. One useful set of categories includes: non-sexual crimes against the person, sexual offences, crimes of dishonesty, crimes against property, crimes against public order and crimes against the state.