Criminal Law
Why do we have Criminal Law? So that the state can protect society, when one attempts to remove, or oppress the liberty of another.
What is the difference between a crime and an offence? Crimes tend to be against another at Common Law, while offences are more likely to be a breach of statute.
Crime normally has three main elements. These are,
- Dole or Mens Rea – Deliberate Intent.
- An Overt Act or Omission.
- Liability to Imprisonment.
However there are other aspects. These are,
- You need to have caused the crime.
- Strict Liability.
- Who can be a party to the crime (art & part).
- Legal Personality (i.e. a corporation).
- Conspiracy.
- Incitement.
Particular Crimes
- Murder (Homocide) – To deprive the life of another.
- Attempted Murder – Failed intention to deprive the life of another.
- Culpable Homocide – Deliberate act of intending to harm someone resulting in the death of that individual.
- Theft – Intention to remove or not to return another’s property.
- Robbery – Same as theft, but with an element of force, removing an item in another’s custody.
- Fraud – Combination of Theft and Dishonesty.
- Rape – A man having intercourse with a woman, without consent.
- Incest – Intercourse between those within the forbidden degrees (family).
- Wilful Fire Raising (Arson) – Deliberate fire-raising.
- Terrorism – To scare another into losing their liberty.
Burden on proof – The responsibility of proving a crime is on the crown, and for prosecution it must be proven beyond all reasonable doubt.
In general, most offences are statutory, but many are adapted from Common, and Canon Law, i.e. Thou shalt not kill. In criminal courts there are both Summary and Solemn procedures (without and with juries).
Law Officers
- The Lord Advocate
- Solicitor-General
- Procurator-Fiscal
- Lord-Justice General or Lord President
- Lord Justice-Clerk
- Judges
- Sheriffs
- Magistrates (Bailey or Justice of the Peace)
Other Classification of Offences
Offences Against The State
- Official Secrets Act (1989) – It is an offence to give out information about security and intelligence services, or information which could jeopardise national security, or to be found to be classified property, without reason. All of these depend on the classification of information.
- Perjury – Where a person under oath gives evidence they know to be a false.
- Contempt of Court – Refusal to answer questions, being late or absent without excuse, refusal to implement a court order, being abusive towards the judge, publication of any material which could prejudice the outcome of a trial (Media), and anything which offends the authority of the court.
Revenue Offences
- Non-disclosure of income.
- V.A.T. offences.
- Concealment of assets, i.e. Inheritance Tax.
- Non-payment of properly assessed tax.
- Smuggling.
Corporate Offences
- Fraudulent trading by directors.
- Insider dealing.
- Falsification of accounts.
- Failure to lodge an annual return.
Environmental Offences
- Air pollution.
- Water pollution.
- Land pollution.
- Noise pollution (mainly at a local level).
Public Order Offences
- Breach of the Peace.
- Incitement to riot.
- Mobbing and Rioting.
- Incitement to racial hatred.
- Anti-social behaviour.
- Non-peaceful picketing in a trade dispute.
Misuse of Drugs Offences
- Misuse of Drugs Act (1971)
- Customs and Excise Management act (1979)
- Drug trafficking Offences Act (1986)
Revolves around the importing and exporting, producing, supplying and possessing of controlled drugs, i.e. Opiates, cocaine, hallucinogens and amphetamines.
Offences Against The Person
Assault – There must be intent to cause physical harm.
- Striking a person.
- Setting a dog on someone.
- Driving a vehicle at someone.
- Spitting at someone.
- Pouring petrol or throwing acid.
- Propelling victim to injury, i.e. by chasing them.
- Brandishing a fist or weapon.
Can be aggravated depending on the circumstances, i.e. if a child or old person is involved, or the attacker is in a position of trust, i.e. Tutor lifts a student from their seat and punches 5 of their teeth out.
Sexual Offences
Indecent Assault – Where there is an affront to the sexual modesty of the victim.
- Touching the Privates.
- Male Rape.
- Non-consensual anal intercourse.
- Brandishing a weapon and forcing someone to strip.
- Sexual intercourse with a girl under 13 (Criminal Law (Consolidating)(Scotland) Act (1995)). This can lead to life imprisonment, whether the girl consented.
- Sex with a girl 13-16 (A defence is that the man had reasonable cause to believe she was over 16).
Obscenity Offences
- To display, publish, sell or distribute obscene material.
- Shameless Indecency.
Crimes Against Property
Reset
- Receiving stolen goods – The retention of goods that have been obtained by theft, robbery, fraud, or embezzlement, with the intention of keeping them from their rightful owner, and knowing how they were obtained.
Uttering Forged Documents
- To forge something is not a criminal offence, it is the uttering that is the offence. This is very similar to fraud.
Malicious Mischief
- The damaging of property and causing monetary loss to the owner of the property.
- Pushing a fire alarm button when there is no emergency.
- Pushing a stop button in a power station.
- Shooting sheep, eating turnips on your land.
Wilful Fire-Raising
- The deliberate act of starting a fire.
Burglary
- Deliberately entering another’s property without permission, and stealing property from within.
Entering Lockfast Places
- Entering premises which are tightly secured, with the intention of committing a theft, or act of malicious mischief.
Trespass
- No permission. Mainly a delict, but it becomes an offence when damage has been caused.
Outline Procedure – Summary
- If an offence is committed and the Police are called in, or the Police see an offence being committed.
- A report is made to the Procurator Fiscal.
- After reviewing the case and the Procurator Fiscal decides to go ahead, he will issue a complaint, and cite the accused to appear in court.
- The accused can plead guilty by letter, and be dealt with there and then.
- If the accused pleads not guilty, they must go to trial. The court will hold an immediate diet, 3 weeks prior to a trail diet, to check the parties’ readiness, and need for witnesses.
- If the accused is arrested and appears in court to plead, the trial must take place within 40 days.
In Court
- The prosecution presents its case and the defence cross-examines.
- The defence may put forward a “no case to answer” submission.
If Un-successful
- The defence may present its case, but it does not have to, and the accused may not need to go into the witness box.
- The prosecution sums up, and then the defence sums up.
- The verdict.
- If the verdict is guilty, the defence may put forward any plea of mitigation.
- Sentence is pronounced.
Outline Procedure – Solemn
- The accused is arrested and then taken into custody.
- The accused appears on petition before the sheriff. No plea or declaration need be made at this point. Bail may be applied for and if refused, the accused can be remanded for up to 8 days for further enquires. Indictment must be served within 80 days of being in custody.
- Full committal hearing, in private before a sheriff.
- The trial must commence within 12 months of the accused first appearance on petition, or within 10 days of appearance at full committal. The jury consists of 15, and neither side now has the right to object to jurors, unless they can find good cause, i.e. a family member of the victim is on the jury.
In Court
- There are no opening speeches in Scottish Criminal Prosecution.
- Prosecution calls witnesses and the defence cross-examines.
- Defence may submit “No case to answer”.
- Defence may submit evidence, and the prosecution may cross-examine.
- Prosecution and defence sum up proceedings.
- Judge directs jury as to the law.
- Verdict
- Sentence, after prosecution have moved for it. Any previous convictions may now be admitted. Plea of mitigation is made.
Defences to a Criminal Charge
The special defences – required that the special defence must be intimated to the prosecution before the trial.
Self-Defence
- If successful, must lead to an acquittal.
- There must be an imminent danger of rape.
- There must be an imminent danger to life, or personal safety.
Not allowed
- Threat of future action.
- Only such force or action enough to repel the attack is permitted (reasonable force).
Insanity (Self-Defence)
i. There must be a total lack of reason – No mens rea (No intention)
ii. May be pleaded as insane at the time of the act, but if upheld will lead to restriction order, which only the Scottish Executive can rescind.
iii. May be “In Bar of Trial”, i.e. the accused is not fit to plead, or instruct a defence.
iv. Medical evidence is the determinant.
Intoxication (Alcohol or Drugs)
In general this will only act as a defence where it is involuntary, i.e. spiked drinks. Where liability is strict, there will be no effect.
Non-Age – Below the age of criminal responsibility.
Non-age is normally under the age of 8. No child under the age of 16 should be prosecuted in court without the approval of a Lord-Advocate.
Coercion
There must be a clear, serious and immediate threat to the accused, or to their family.
Alibi
To have a good, sound alternative location at the time the crime was committed. If the alibi is sound it’s unlikely the person pleading would be brought to trial.
Pleas in Mitigation
- Diminished Responsibility – see HMA vrs Savage (1923) J.C.49. “A mental unsoundness. A state of mind bordering on but amounting to insanity”. There must be evidence of some mental order or disease (this is only likely to reduce the sentence).
- Provocation – The accused admits to the crime, but pleads he has done so in response to the actions of the victim.
- Entrapment – Wilful and deliberate manipulation of evidence and circumstances to gain a conviction. This is one, which the courts loathe to uphold.
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