Nature and Sources of Scots Criminal Law

Question 1

what does ‘abbreviate’ mean?

Answer 1

(i) a decree of adjudication containing the names of debtor & creditor, the lands adjudged and the amount of the debt registered as a necessary step in the process of adjudication.
(ii) in bankruptcy an abbreviate or abstract of the petition for sequestration and the first deliverance must be registered.

Question 2

how is Scot’s criminal law more flexible than other parts of the world?

Answer 2

because there is no official list of all the crimes that exist in Scotland. Instead crimes are found across a variety of sources.

Question 3

Who are the institutional writers and what was the name of their work?

Answer 3

David Hume- ‘Hume’s Commentaries’
Archibald Alison- ‘Principles of the Criminal Law in Scotland’
John MacDonald- ‘Practical Treatise on the Criminal Law of Scotland’

Question 4

What is a ‘declaration of incompatibility’?

Answer 4

This is happens when the UK parliament produces a piece of legislation that is incompatible with the ECHR.

Question 5

What does ‘legislative competence’ mean?

Answer 5

The limitation placed on how a parliament acts. Holyrood’s legislative competence is limited because it cannot legislate on issues that are not devolved to Scotland.

Question 6

What are the most common issues regarding compatibility?

Answer 6

• If a Scottish act is withing the parliament’s competence
• Whether a prosecution by the Lord Advocate was fair
• If a failure by the SG was incompatible with any of the rights or freedoms.

Question 7

What is delegated legislation?

Answer 7

When other bodies are permitted to create legislation on behalf of the parliament.

Question 8

What are some examples of delegated legislation?

Answer 8

• a document made by the Secretary of State, Scottish Ministers or High Court of Justiciary. i.e. a statutory instrument.
• byelaws used by local authorities

Question 9

What happens when someone does something wrongful, but it does not meet any pre-existing crime?

Answer 9

The High Court of Justiciary has the power to fill in the gaps known as the ‘declaratory powers’

Question 10

Why might the high court having a declaratory power be controversial?

Answer 10

It risks:

• being incompatible with the ECHR.
• undermining the principle of ‘nullum crimen sine lege’ (means you cannot be convicted of a crime that wasn’t illegal when you did it)

Question 11

When can the declaratory power be used according to Hume?

Answer 11

He believed that the court could exercise their derogatory power when a crime was ‘obviously of a criminal nature’. However, the problem with this interpretation is it is linked to immorality which is a vague concept.

Question 12

What was Lord Cockburn’s view on the declaratory power?

Answer 12

He believed criminalising certain behavior should be left to the legislature.

Question 13

What are the two types of criminal procedure in Scotland and what is the difference between the two?

Answer 13

Summary: flexible, quick and if trial no jury, less serious crimes
Solemn: also known as procedure on indictment, lengthy, judge and jury, more serious crimes.

Question 14

What is a ‘locus’?

Answer 14

A crime that is committed outwith the UK and does not fall within the jurisdiction of the Scottish courts.
However, if the locus was committed elsewhere in the UK but not in Scotland, jurisdiction may be transferred.

Question 15

What is meant by ‘prescription’?

Answer 15

Certain crimes have a time limit for when a crime can be prosecuted. Common law crimes have no time limit whereas statutory offences will have limits transcribed into legislation.

Question 16

How does Scots law prosecute children?

Answer 16

Children who are aged 8 or over (but under 12) can commit offences although they cannot be prosecuted for them. Children age 12 or over (but under 16) may be prosecuted but there are limitation. Persons 16 or older may be prosecuted in the normal way.
Those under age of 12 or those not prosecuted under the age of 16 are dealt with by the Children’s Hearing System.

Question 17

How can a company be held criminal liable?

Answer 17

Legal person can take the form of companies and can also be prosecuted. Although the company is independent from the people because of the rule of attribution the action of those individuals will be used to satisfy the mental element of a crime (Transco Plc v HM Advocate)

Question 18

Can you held liable for the crime of another?

Answer 18

Yes. For instance, vicarious liability.

Question 19

What happens if a person is unfit for trial?

Answer 19

They will not be prosecuted. The individual must be fit for trial, both physically and mentally. This is proven on the balance of probabilities. However, unfit doesn’t apply if they simply don’t remember committing the offence.

Question 20

What is the double jeopardy rule?

Answer 20

Under common law, it was established that you could not prosecute someone for the same crimes twice. This common law principle has now been transcribed into the Double Jeopardy (Scotland) Act 2011.

Question 21

What are the statutory exception to the double jeopardy rule?

Answer 21

• If the person is found to have messed with the trial that gave them the acquittal.
• If after their acquittal they admit their guilt
• If new evidence came to light that the individual did commit the crime.

Question 22

What does section 8 of the Double Jeopardy (Scotland) Act 2011 detail?

Answer 22

It specifies cases where a plea in bar of trial may be dismissed (that’s when the defence says cannot prosecute twice).

Question 23

What is the charging document in solemn procedure called?

Answer 23

an indictment

Question 24

What is the charging document in summary procedure called?

Answer 24

a complaint

Question 25

Why must charging documents in both solemn and summary procedure explicitly state the crime?

Answer 25

If they didn’t the crime may be attacked.

Question 26

Why is it easier to state the crime for statutory offences than common law?

Answer 26

Because statutory offences will make reference to legislation whereas common law can have length descriptions of the offence.

Question 27

How does the prosecutor prove the accused’s guilt?

Answer 27

By providing the necessary corroborated evidence for the particular crime.

Question 28

What burdens are placed on the prosecution?

Answer 28

The evidential and the persuasive.

Question 29

What happens if the prosecution fails to discharge their burdens?

Answer 29

The case will be dismissed. Known as a ‘no case to answer if it happens before the trial.

Question 30

What burden does the defence has?

Answer 30

They have the evidential burden when proving their defence, but they do not have the persuasive burden (unless it is the defence of mental illness or diminished responsibility in which case on they have the evidential and persuasive burden on the balance of probabilities.

Question 31

Who makes up the public prosecution service?

Answer 31

• Lord Advocate
• The Solicitor General for Scotland
• Advocates deputes
• Area and district procurator fiscal

Question 32

Why are private prosecutions for criminal offences so uncommon in Scotland?

Answer 32

Because the prosecutor must show that they have been personally wronged, not a general wrong. A private party has to prosecute under solemn procedure and get express permission from the high court.

Question 33

Who speaks last at a criminal trial?

Answer 33

The accused always has the right under art 6 of the ECHR to speak last at a criminal trial.

Question 34

Who decides if it is a trial by jury or judge?

Answer 34

The prosecutor or the law has absolute discretion. This is why jury trials are less common in Scotland.

Question 35

How many people are on a Scottish jury?

Answer 35

15

Question 36

What are the three verdicts of a criminal trial?

Answer 36

• guilty
• not guilty
• not proven

Question 37

How is the sentence of the accused determined?

Answer 37

The judge is given a maximum and minimum penalty that they can inflict. Normally laid out in the Criminal Justice and Licensing (Scotland) Act 2010.

Question 38

What is the most common cause for appeal and what does it require?

Answer 38

An appeal can be made on the grounds of a miscarriage of justice but this requires leave of a judge of the High Court of Justiciary.

Question 39

What is the difference in appeal between summary and solemn procedures?

Answer 39

In summary procedures the prosecutors can appeal on a point of law or too lenient a sentence whereas they cannot in solemn procedures.
In solemn procedures the prosecutor can only seek clarification on certain points of law to the Appeal Court, but this will not affect the outcome of the case. These are known as the ‘Lord Advocates Reference’.

Question 40

What is meant be ‘nobile officium’?

Answer 40

The power of the High Court of Justiciary to create a remedy where there is non in law.

Question 41

When can the High Court of Justiciary exercise nobile officium?

Answer 41

If:

• the case is unforeseen and truly extraordinary
• no other remedy in law
• petitioner is in good faith
• no conflict with statutory provisions.

Question 42

What power does the Scottish Criminal Cases Review commission have in regards to appeals?

Answer 42

They can refer cases for an appeal if they believe there has been a miscarriage of justice.