Criminal law 2021 lecture notes
Introduction to Criminal Law 1
Friday, 27 August 2021
17:54
WEEK 1 INTRODUCTION TO CRIMINAL LAW
Introduction to criminal law, its nature and scope
Brief overview of the criminal process and criminal court structure in
scotland
Reading
TH Jones and I Taggart, Criminal Law (7th edn, 2018), chs 1 and 2
1. The Criminal Process
A. Criminal courts
Criminal trials in Scotland can occur in three types of court.
(descending order of seriousness of the cases):
The High Court of Justiciary (Scotland’s supreme criminal court)
o Murder or rape can only be heard in this court.
o HCJAC hears appeals; hears appeals from Jury cases
o Scotlands supreme criminal court; no appeal to UK supreme
court except in limited issues (ECHR compatibility of criminal
law or prosicution)
Sheriff courts (sheriff summary courts, and sheriff and jury courts)
o SAC hears appeals from summary; judge alone
Justice of the Peace courts
Watch this video, from Lord Bracadale, to understand the structure of the
criminal courts in Scotland (4 mins 33): https://www.youtube.com/watch?
v=AapXRGVmZ8E
- And this one to understand the appeal system (2 mins 49):
https://www.youtube.com/watch?v=pnYe8txBmPc
B. Prosecution and trials
Criminal cases are a public matter; responsibility of state agencies rather than
victims
Prosecution primarily responsibility of the Lord Advocate (assisted by
Crown Office and Procurator Fiscal Service.)
Individual cases handled by advocates depute (HM Adv v Smith or Smith v
HM Adv if convicted appeals) and local Procurators Fiscal (PF v Smith)
English cases are cited as R v Smith (R stands for Regina, i.e. the
Crown Prosecution Service.)
Depending on the offence charged, one or either of the following
procedures may be used for criminal trials:
Summary procedure: tried by a judge sitting without a jury.
o This may be a sheriff or lay Justices of the Peace, who sit with
a legally qualified clerk.
, Solemn procedure (or trial on indictment): cases tried by a judge with
a jury of 15 people, who are the sole judges of fact.
o heard in either the High Court or sheriff court.
o If an accused is acquitted by a jury, the prosecution cannot
appeal against that verdict.
o As in common law systems generally, trials in Scotland are
adversarial in character: judges and juries are essentially
‘passive’ and make decisions based solely on the evidence as
it is presented to them by the parties to trial.
C. Disposals
(i) Verdict
Scots law: three verdicts available in criminal trials.
Guilty, not guilty and not proven.
o Not proven verdicts are functionally identical to not guilty verdicts –
they are acquittals.
o Some believe therefore it should be removed.
[Optional Reading: There is some recent research on how juries understand the not
proven verdict, available here: https://www.gov.scot/publications/scottish-jury-
research-fingings-large- mock-jury-study-2/pages/8/ ]
(ii) Sentence
If guilty verdict then accused is sentenced by the court
o (in solemn procedure cases the court can only pass a
sentence if moved to do so by the prosecution).
Almost always, the court will order some form of punishment;
imprisonment, fine, community service
The sentence available depends on where the case is being tried;
o the High Court may impose the maximum sentence available
for an offence
o the sentencing powers of sheriff and Justice of the Peace
courts are limited.
2. Sources of criminal law
Unusually, there is no criminal or penal code in Scotland
(a criminal code is a document that compiles all, or a significant
amount of, a particular jurisdiction's criminal law
o (though there is an unofficial Draft Criminal Code for Scotland
published in (2003).
until the Scottish Parliament was reinstated and began producing its
own legalisation, major criminal legislation of any kind was rare.
This means contemporary Scots criminal law is derived from a
diverse range of sources, mostly from case law.
Sources of law in Scotland include:
A. Legislation
Both UK and Scottish Parliaments may make criminal laws for
Scotland
Criminal law per se is not reserved to Westminster
, However, criminal legislation may touch on reserved matters, e.g.
drugs, firearms, terrorism (see Scotland Act 1998 sch. 5)
Legislation of the Scottish Parliament on reserved matters is invalid
unless its purpose is to make criminal law 'apply consistently to
reserved matters and otherwise' (1998 Act s. 29(4)).
B. Case law
relative lack of major criminal legislation in Scotland means most core criminal
law doctrine is still derived from case law.
Common law crimes have the advantage of flexibility: can respond to new and
unexpected sets of facts.
however, their scope can be highly uncertain.
raises potential human rights concerns (see e.g. the discussion of breach of
the peace, below, and also the later lectures on reckless injury and
endangerment).
C. Institutional writers
commentaries on the common law from before official law reporting
still considered authoritative (although in practice, now referred to
only selectively).
The most important is Hume, Commentaries on the Law of Scotland
Respecting Crimes (1797)
o Sets out definitive statement of scots law at the time
o to a lesser extent Mackenzie, The Laws of Scotland in Matters
Criminal (1678) and Alison, Principles of Criminal Law of Scotland
(1832)
Non-institutional writers such as Macdonald and Gordon are
frequently referred to
3. The Structure of Criminal Liability
Criminal liability has two essential ingredients:
o the accused must have committed an offence and must lack any
defence.
Offences can be sub- divided into actus reus (conduct) elements
and mens rea (mental) elements.
A. Offences
Criminal liability requires the court must be satisfied beyond reasonable doubt
that the accused has committed a criminal offence.
general rule; criminal offences require an actus reus (or 'guilty act')
accompanied by mens rea (or 'guilty mind').
(i) Actus reus
thoughts do not constitute an actus reus.
Beyond this, a wide range of things are prohibited by criminal
offences, including:
o Causing a given result ('result crimes'); murder
o Performing a given action ('conduct crimes'); theft
o Omissions (failing to act, failing to prevent a result);
o States of affairs, e.g. possession; possession of a weapon
, (ii) Mens rea
Normally, at least some of the actus reus elements of an offence
must be accompanied by mens rea: i.e. some form of culpable
mental state.
o E.g. an assault is defined not as an attack, but as an
intentional attack.
Some statutory offences require no mens rea; 'strict liability'
offences.
controversial because one can commit them accidentally or
by mistake. This will be discussed further in the lectures on
mens rea but for a brief explanation see this video:
https://www.youtube.com/watch?v=zfh9pr2seBs (2 min 36)
B. Defences
Criminal liability requires the accused has no defence to his/her
criminal offending.
The accused bears the burden of raising a defence.
Once a defence is successfully raised, however, the prosecution
must normally prove beyond reasonable doubt that the accused is
not entitled to it.
o (The notable exceptions to this rule are the defences of
mental disorder and diminished responsibility, which are for
the accused to prove)
Introduction to Criminal law 2
Friday, 27 August 2021
17:56
Reading: Taggart and Jones (7th ed) chapter 12 [12.11-12.22]
4. The Limits of the Criminal Law
traditional 'core' offences of harm to person and property (murder,
assault and theft)
Modern criminal law are extensive with constantly changing scope
This should lead us to ask: what limits are there, or should there be,
on the scope of the criminal law?
A. Legal limits
virtually no legal limits on legislators’ power to create criminal laws.
The UK Parliament, and within the bounds of its competence, the
Scottish Parliament (see above), may criminalise any behaviour that
they think fit.
however, there are some legal obstacles.
(i) Human rights
In contrast to the criminal process, human rights laws tend not to
explicitly address the substantive criminal law.
