Role of the High Court of Justiciary Flashcards
As the supreme criminal court in Scotland, the court exercises a crucial role in the development of criminal law. How does it do this?
1, It is responsible for the development of the legal rules and principles throught the court system.
2. It interprets statutory provisions
3 In terms of the common law, it may develop and adapt (and change) the law.
4. It has a declaratory power - exercisable by two or more judges in the High Court of Justiciary. This is where the court declares behaviour to be criminal, even if it was not recognised as being so by the law when the offence was committed.. It is an exception to nulla poena sine lege
‘no penalty without law’ but it is not really used now. Instead the court interprets so as to include within an existing crime committed in a new way or declaring that the conduct falls within already established principles - this is more the evolving of the common law and not the use of the declaratory power. - very rare that the actual power would be used - last used in 1838. Instead of assimilating the conduct into an existing crime, the use of the power would involve declaring that conduct of itself as a new crime. The power is justified on the basis of public confidence that entirely novel and grossly criminal conduct will not go unpunished simply because it does not fit an existing, or adapted definition of a current crime.
MY OWN THOUGHTS are that if the power is used it might be against Article 7 of the European Convention on Human Rights - “no punishmnet without law”. unless Article 7 (2) permits it. Basically I don’t know but a thought.
Article 7:
1 No one shall be held guilty of any criminal fofence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a hevier penalty be imposed than the one tha twas applicable at the time the criminal offence was committed.
2 This article shall not prejuce the trial and punishment of any person for any act or omission which, at the time when it wa committed, was criminal according to the general principles of law recognised by civilised nations.
