Nature and Administration of Scots Criminal Law:
Part 1:
All areas of law can be classified under broad descriptive headings. These headings include 'European', 'International', 'Jurisprudential', but the greatest divide is between public and private law.
Private law is the classification under which come all areas of law which regulate an individual's rights and claims against others. Thus, it includes property law, family and contract law, to mention but a few.
Public law is that which describes all those areas of law which involve the state or some organ of the state. It includes constitutional law, administrative law and, the subject under consideration here, criminal law. Criminal law is treated as an aspect of public law because it involves the state in its capacity as prosecutor. Except in very rare cases where a private prosecution may be brought, the accused and his defence team face the procurator fiscal, the Lord Advocate (or one of his deputies), all of whom are representatives of the Crown. Prosecutions are thus run by the state, albeit for the benefit of society. It is this state involvement which characterises criminal law as public law.
The scope of criminal law can be more difficult to justify, particularly at the boundaries of liability. It covers all criminal behaviour by any person over the age of 8, although the blog author understands that the Scottish Law Commission has published proposals for reform. Nevertheless, difficult theoretical issues can arise in merely defining criminal behaviour but, at its most basic, criminal behaviour is simply that which legislation or case law prohibits, and to describe something as 'criminal' adheres to some notion of proscribing immoral or unacceptable behaviour.
The problem is this: who is to say what is immoral or unacceptable? One man's immorality may be another's pastime. However, those in charge of creating the criminal law have decided, and continue to decide, what is and is not criminal behaviour. The proper question is whether the accused has overstepped that line. If he has, he deserves punishment.
The question of the nature and purpose of punishment is also a difficult area, one in which there is a vast body of literature. The classic divide in theories of punishment falls between retribution and rehabilitation. The retributive theory postulates that punishment is based on the state's duty to subject the criminal to such unpleasant consequences as the gravity of their offence deserves. The oldest version of retribution, in practice, can be seen in the Biblical notion of 'an eye for an eye'. Judaism, for instance, bases much of its punitive retribution on this authority. Other theories concentrate on the need for punishment to provide the offender with the opportunity to reform and rehabilitate or re-educate himself, or stress that its primary purpose is to deter the criminal from committing a similar, or indeed any other crime, in the future and thereby prevent recidivism (repeat offending).
Scots criminal law is unusual among its fellow systems in that it is based almost entirely on the common law. There are relatively few statutes, and most of them tend to relate to criminal procedure - that is, they relate to the handling of the criminal process from detention and questioning to trial and sentence, rather than specify what actually amounts to a crime under Scots criminal law. However, the courts deal with statutory provisions on a regular basis, given that both road traffic offences and drug related offences are governed by statute, and are among the most frequently prosecuted offences. Ladies and gentlemen, there is no such thing as a criminal code in Scotland, as is favoured by many European systems, which sets out the types of conduct which will be prosecutable in one document. For example, the French Code Penal and American Code Penal are both legislative documents that highlight precisely what types of conduct are deemed unacceptable and what actions of punishment will be enforced if such criminal acts are committed.
Because no criminal code as such formally exists in Scotland, cases are resolved on the basis of the doctrine of precedent, whereby previous established decisions from higher courts, usually the High Court of Justiciary as an appeal court, are used as authority and followed by lower courts in coming to a decision in the case in hand. The most noticeable result when examining Scots criminal law as a body of law is that the definitions of crimes tend to be broader and more generalised because they have developed from a series of authoritative decisions throughout the years. Criminal law in Scotland does not suffer from the stringencies of statutory definitions, which tend, as a rule, to be far tighter and exclusive in nature. The writer accepts that common law definitions are more flexible and it is easier to adapt them to changing social circumstances and thereby retain the 'relevance' of particular crimes over a longer period. However, this breadth and broadness of definition has become problematic following the incorporation of the European Convention on Human Rights into Scots law. Article 6, for example, of the Convention, requires that the accused be informed, in a language which he understands and in detail, of the nature of the charge against him. Arguably, some of the more broadly defined crimes actually fall foul of this provision.
There are several historical texts which are viewed as authoritative statements of Scots criminal law and which are used by the courts in Scotland on a regular basis. In the next part of my work on this topic I will examine more closely what these historical texts are.
Part 2:
There are several historical texts which are viewed as authoritative statements of Scots criminal law and are used by modern day courts on a regular basis. The most important of these is Hume's 'Commentaries on the Law of Scotland Respecting Crimes'. This, despite dating from 1797, is still referred to in judgements and remains the main source for an initial definition of many crimes.
The account given in Hume's latest edition - based on Hume and updated after his death - is founded on principles which could be drawn from the decisions of the High Court prior to that date which Hume used as his sources.
Use of law reports:
There are numerous series of law reports which reproduce the text of criminal cases. In modern times, it is fairly safe to say that no one series is more or less authoritative than another, although some are certainly much more brief, providing only a short summary, while others are reproduced with the text and, for notable cases, a short commentary.
The two main series of reports are the 'Scots Law Times' and the 'Session cases'. Each are bound by year and cover civil as well as criminal cases. Each volume of the Session Cases is divided into three sections dedicated respectively to House of Lords cases, Justiciary cases and Session cases. All criminal cases reported in the Session Cases are found in the Justiciary cases section.
The doctrine of precedent:
The doctrine of precedent basically requires lower courts to follow decisions of higher courts in cases that deal with the same area of law. These cases are said to be 'in point'.
However, the 'doctrine of precedent' is weaker in criminal law than it is in civil law because, within the arena of criminal law, there is no possibility of appeal to the House of Lords as it only deals with Scottish appeals on civil matters. Instead, the 'doctrine of precedent' means that the Scottish criminal courts will follow decisions of the High Court of Justiciary, which sits as the most senior court within the jurisdiction. The High Court sitting as an appellate court binds the High Court sitting as a trial court: the appeal court will follow its own prior decisions, although it is quite possible for a larger bench to be convened in order to overrule an earlier appellate decision.
A judge sitting in the High Court on his own is not bound by earlier decisions made by another sole judge. A Sheriff will be bound by the High Court on appeal, and will usually also follow prior decisions by a sole judge in the High Court, or by a Sheriff, although he is not bound to do so. Decisions retain their authoritative status until overruled or, exceptionally, until they became so old that they fall into disuse. Although older decisions of the High Court are clearly still authoritative and are referred to on a daily basis in court, the emphasis on the text will, where possible, be on more modern day precedents.
Even if a prior decision is not actually binding on the court in question, it can be treated as persuasive and therefore may carry some weight. It is known as 'persuasive', rather than binding, precedent. Binding precedent can become even more authoritative if it has remained unchallenged, been cited with approval, and been followed by other courts for many years. Conversely, the weight of any binding precedent can be diminished if the decision was by majority and the dissenting options were strong, or from a particularly respected judge.
Once a case has been identified as binding, it then becomes necessary to isolate the part of the decision which is binding. Only the ratio decidendi is binding; that is, the underlying basis for the decision, which will be expressed as a general principle, without any of the specific details particular to the case from which it is derived. In practice, the ratio is not always actually expressed by the judge in his opinion, and often has to be deduced instead.
Any statement which is obiter dicta is not binding, although judges may take note of what has been said in, for example, English rulings. This applies to all statements made 'by the way' and which are not necessary for, or strictly related to, the decision in hand.
The declaratory power of the High Court of Justiciary:
The declaratory power is one of the most unusual features of the High Court of Justiciary. It was described by Hume as: "an inherent power ... to punish ... every act which is obviously of a criminal nature".
The power allows the High Court to declare as criminal, conduct which which was not, at the time the act was committed, subject to criminal sanction. In effect, the power allows the High Court to declare the accused's conduct to be criminal retrospectively.
In determining what types of conduct would justify such retrospective criminalisation, older authorities suggest that the conduct should be so clearly and grossly immoral that it would be obvious to everyone and, crucially, would or should have been obvious to the accused that it was criminal in nature. Indisputably, it is necessary for the common law to be able to adapt and move forward and, in order to do so, it is accepted that new types of criminal activity will be brought before the court and will, ultimately, lead to the gradual development of the definitions of existing crimes. The accused would be convicted of an existing crime because, for example, his act amounted to a new means of committing theft, fraud, or any other common law crime. However, the nature of the declatory power is somewhat different; instead of allowing the new form of conduct to be assimilated into an existing crime, the High Court simply declares this conduct to be criminal in and of itself.
The existence of the declaratory power has been recognised in a number of cases, most notably the case of Bernard Greenhuff which expressly states the existence of this power. More recent cases have acknowledged its existence, although they have not actually used it. Such cases include Khaliq v. HM Advocate [1984: SLT 137] and Grant v. Allan [1988: SLT 11]. In Grant, the accused had been charged with unlawfully taking, detaining and offering to make available to another, confidential information belonging to his employer. It was argued that this was not a crime known to Scots law. The High Court on appeal were very cautious about using the declaratory power. Although they acknowledged Hume's statement that the power allowed the court to punish every obvious criminal act, and that it would sometimes be appropriate to use such a power, it was also noted that any such exercise should be carried out with great care. Simply stating that conduct is immoral or reprehensible is not sufficient to make it criminal, but the court felt it was proper for Parliament, and not themselves, in declaring new law. If Parliament is not so minded, the courts are generally reluctant to step in.
The declaratory power is also subject to strong criticism to the extent that it offends against fundamental principles. It is axiomatic that there can be no crime without the existence of a law which makes that conduct criminal at the time of its commission. It is irrelevant, under this principle, that it became criminal within a very short time of its commission. If legislation had come into effect on the Tuesday, and the accused had carried out the act in question on the Wednesday, but in ignorance of the new law, he will be prosecuted for his acts because they were criminal at the time of their commission. It does not matter that he did not know they were criminal, as ignorance of the law is not a defence.
The declaratory power also faces criticism from a different source, in that it offends against Article 7 of the European Convention on Human Rights which enshrines the principle of non-retroactivity and prohibits *any* law from attaching liability to conduct which pre-dates the implementation of that law.
The nature and impact of the European Convention on Human Rights:
The Convention was incorporated into Scots law by virtue of section 57 (2) of the Scotland Act 1998, which forbids the Scottish Executive from acting in ways which are incompatible with the Convention and the rights that such European rights enshrines. Likewise, the same prohibition has been imposed on public authorities (section 6 (1)), which are defined so as including the courts. Thus, even if legislation was passed by the Scottish Parliament which was Convention non-compliant, the courts could not lawfully enforce it. This has brought into Scots law a number of rights which are now explicitly identified. Of particular note to the criminal law, these give the accused the right to a fair and timely trial and of the right to be informed of the charge laid against him in detail. This, in itself, has already caused problems in relation to the ‘charge of breach of the peace’.
The Human Rights Act 1998 (section 3) further requires that all domestic legislation should be interpreted and given effect to in a way which is compatible with the Convention rights. If legislation is not compatible with these rights, the court may make a declaration to that effect under section 4 of the 1998 Act. Section 6 requires that all public authorities act in ways which are likewise compatible, unless they are prevented from doing so by primary legislation – but, as explained above, would then itself then fall foul of section 3.
The Convention sets out broad rights with little explanatory detail. Several articles impinge to a greater or lesser extent on the criminal law. Article 1 enshrines the right to life, but gives no guidance on issues such as when life begins and ends. Thus, there is for example no specific guidance on the contentious issues of abortion and euthanasia. Article 4 provides a right to liberty and security, unless those rights are compromised by a lawful detention or arrest. Article 6 is perhaps the most frequently used and comprehensive Convention right. It gives the accused the right to a fair and public hearing within a reasonable timescale before an impartial tribunal. It also encompasses the presumption of innocence and allows the accused to insist that he is informed promptly, in detail and in a language to which he understands and, of the nature and cause of the charge against him. He is assured of adequate time and facilities to prepare his defence, and is given the right to choose in defending himself, hire a representative of his choice, and in applying for legal aid to cover his costs if he meets the financial criteria. Article 7 enshrines the principle of non-retroactivity, such that the accused can only be charged with an offence if his acts were criminal at the time they were committed. If an offence has been created after the date of the accused’s acts, they cannot be penalised, as they did not constitute an offence at the relevant time. Articles 10 and 11 assure freedom of expression and assembly, and the 6th. Protocol, Article 1 outlaws the use of the death penalty unless reintroduced by the State in exceptional circumstances during wartime.
As part of the move to Scottish devolution, the role of the Lord Advocate as head of the prosecution system has been subject to scrutiny. The problem was caused by the inclusion of the Lord Advocate within the Scottish Executive, which requires that the Lord Advocate take account of Convention rights. For instance, as head of the prosecution service in Scotland, the Lord Advocate has a core role in the appointment and reappointment of temporary sheriffs. Temporary sheriffs are vital to the administration of the criminal justice system, as they help to deal with the increasing volumes of work which come before the Sheriff Court. However, in the context of antagonism, the argument was pledged that, as they were appointed by the Lord Advocate - and therefore by a member of the Executive - their appointments were to closely connected to the Executive as a whole in being viewed as independent and impartial. It was alleged that this lack of independence (in the form of a judge) was an infringement of Convention rights to a fair trial before an impartial tribunal.
Ladies and gentlemen, difficulties have also been faced in relation to criminal procedure, and particularly the accused's right to a timely trial as enshrined in Article 6. For example, the blog author notes the case of O'Brien v. HM Advocate: In this case 23 months had elapsed between the original charge and the trial. This was due to pressure of work on the forensic laboratory and the police. It was held - "If this type of delay was a regular occurrence as the inevitable result of the limited resources available, it would amount to systematic under-funding by the state and therefore a failure to connect this inadequacy would be unreasonable in terms of Article 6". But, in this particular case, the appellant had 'failed to show' that his case had suffered due to anything more than a temporary problem and his appeal was dismissed.
In another case, noted by the author, Dyer v. Watson [2002: SLT 229 (Privy Council], the High Court held that a delay of 27 months was to long in a case involving sensitive matters. The Crown had argued that, since the case was one requiring sensitivity and was to be dealt with by particular and specifically trained skilled people, it was inevitable that it would take longer. It was held that Article 6 (1) did not lay down any precise time limits, but instead looked to provide an objective level of protection to all parties against procedural abuses. The test for establishing that a delay had been unreasonble is a stringent one, and it must be shown that the length of delay gives real cause for concern on its face, before it is necessary to look into the details and require an explanation from the prosecution for the delay.
The courts:
There are a number of criminal courts in Scotland, and the decision to which court is appropriate for a particular case depends on several factors. For example, a child under the age of 16 who is thought to have committed an offence will usually be dealt with by the Children's Hearings system instead of the criminal courts.
There are geographical considerations; all the courts in Scotland, with the exception of the High Court of Justiciary, hear those cases involving crimes committed in their area. The High Court of Justiciary is a peripatetic court - in that, it can hear cases in its buildings in either Edinburgh or Glasgow or, for convenience, it can also move around the country sitting in local Sheriff Court buildings in the area covering the crime scene.
The severity of the crime committed may also determine the type of court used, as each court has different (maximum) levels of sentencing powers. There is little point prosecuting a serious assault before a court which can only sentence the accused to a maximum three months imprisonment. This decison, ladies and gentlemen, is for the prosecutor in the individual case.
Readers might like to note that a seperate journal is being considered for the different types of courts in Scotland which, I would argue, although linked to the nature of this topic in hand, is a subject within its own right.
Before embarking on works relating to the various courts in Scotland, in my next delivery I intend to concentrate on the difficult area of Scots Criminal Law known as 'The Actus Reus'. This will be presented via a seperate journal and to which will be available through RSS updates. In essence however, and as a guiding legal tenet, it has always been a fundamanetal requirement for liability under Scots criminal law that there is some form of voluntary act. This is directly related to the Actus Reus maxim.
THIS IS SCOTLAND AND MATTERS JOURNALLED HERE ARE IN REGARDS TO SCOTS LAW.
IF YOU ARE IN DOUBT AS TO THE CONTENT OR ANY MATTER REQUIRING LEGAL CLARIFICATION CONCERNING YOUR RIGHTS, IF YOU ARE SO CONCERNED, YOU SHOULD CONTACT A SOLICITOR IN SCOTLAND REGARDING THOSE RIGHTS IN MATTERS THAT MAY CONCERN YOU WITHIN THE ABOVE COMMENTARY.
© Copyright MarkDowe 2007: all rights protected.
