criminal law = Introducing the criminal law of scotland.

What is harm principle?

An act or omission which causes harm

What is a crime?

A situation forbidden by the law under threat of punishment

What are the 2 types of conduct in crimes of commission?

Positive conduct

Result conduct

What is the meaning of positive conduct (crimes of commission)?

A public wrong ie assault or murder

What is the meaning of result conduct (crime of commission)?

An act or conduct that has a later effect

ie selling knives to a minor

What are the 2 types of conduct in crimes of omission?

1. Negative conduct

2. Negative conduct that has a result

What is the meaning of negative conduct within the crime of omission?

Failure to comply with the law when faced with a legal duty

ie failure to provide a breath specimen

What is the meaning of gof negative conduct with a result in crime of omission?

a crime that happens when someone fails to do something they have a legal duty to do, and that failure causes harm or breaks the law

ie starving a child to death.

What is a state of affairs?

A state of affairs is a situation or condition

It exists when a person is in a particular situation that is unlawful

ie drunk in charge of a motor vehicle

When does the state of affairs apply?

1. In statutory offences

2. Breach of the peace of common law

What is the ‘Good Samaritan rule’ and is it in Scotland?

The Good Samaritan rule is when you find someone in danger and are legally bound to help them

• Scotland does not have any legal binding to this rule with he exception with some situations

When does the commission follow a prior dangerous act and example?

When the previous positive act may be criminal or not criminal

example is : HMA v McPhee

When does the accused status contractual obligation result in a duty to act?

• Applies to those in public office or positions with responsibility

• When the accused has a duty to prevent the occurrence of harm and fails to do so
  
  Example is ; Bonnar and Hogg v Macleod (Police officer who assaulted and supervisor did not intervene)

When does prior special relationships between parties hold a legal obligation? And example

An example is a parent and a minor

• But the obligation is not absolute personal characteristics are considered

Bone vs HMA (Homocide against daughter)

What are the 5 statements that makeup the definition of a criminal act?

1. A public wrong

2. An action with a result

3. negative conduct

4. negative conduct with a result

5. state of affairs

What acts are seen to be a crime?

• Involving harm

• causing offence to others

• conflicting with morality

• Harm to the offender

How is the law defines in criminal law?

Through

1. common law

2. legislation

3. Human rights law

4. Legal writing

Why is Scotland considered to be a mixed legal system?

• As common law is developed and applied through judges

• Written by institutional writers who are prominent lawyers

• Uses both uk and Scottish parliament and legislation

• Follows the European convention of Human Rights

How has common law developed in Scotland?

• Evolved by cases heard in court and decisions taken by judges and creating precedents

What is the definition of Scottish common law?

• The decision of previous higher court is used to guide a decision on a particular offence

What is the declamatory power of the high court?

• Its the higher court power to declare the common law which is of obvious criminal nature e

What is legislation?

• Act or omission can be declared crimes by statue because society demands that these actions are treated as crimes

• Both Uk(Westminster acts) or Scottish acts

How does the European convention on Human Rights known as the ECHR affect Scottish criminal law?

• Its only enforced to the extent that is compatible with the rights set out in the human right act of 1998

What are the principles of law?

1. No one is above the law

2. The law must be understandable and accessible

3. Legal rights and responsibilities are decided through rules of law

4. Governments should exercise their power in good faith and responsibly

5. Justice should not be excessively delayed or costly

6. State should comply with obligations of national law

7. The law must protect fundamental human rights

How many jurisdictions does the Uk have?

3

What are the names of the UK Jurisdiction?

• England

• Wales and Northen Ireland

• Scotland

How does the Scottish criminal justice system differ from other Jurisdictions?

• Scotland has its own separate criminal justice system

• The union with Scotland Act 1707 ratified the Treaty of Union

• Scotland retained its own legal system that developed separately from Wales and England

• Even before devolution they SJS had its won police force,prosecution service and prisons.

How has Scottish values reflected in policy making compared to England and Wales?

• Scotland has often been described as having a different penal philosophy with less harsh and disciplinary criminal justice system.

What is the meaning of civil law?

• Right of obligations of individuals and organisations

What is the meaning of criminal law/public law?

• it concerns the structure of government

• The power, duties and obligations from officials

• It includes both statutory and common law offences.

How is the Scottish legal framework?

How does common law differ between England and Scottish criminal systems?

• Sentencers in Scotland have discretion when considering sentencing options available to them.

• Its evolved over time by cases heard in court and decisions taken by judges creating precedents

• Sentences are not fixed by nature of the offence but the authority of the court hearing the case.

What is the meaning of proctor Fiscal?

• In where the court decide which court the prosecution should take place in. Which is also considered by the seriousness of the crime.

What is the order of Scottish criminal courts?

What occurs at the Justice of the peace courts?

• Its the lowest level of the criminal court system

• Deals with minot offences

• The judges are known as ‘lay judges’

• Can impose custodial sentences of up to 60 days and fines of £2,500

What occurs at the Sherrif Courts?

• Majority of cases in Scotland

• Deal with crime that are too serious for a Justice of the Peace court but not serious enough or the high court

• There are 2 types of proceedings summary and solemn procedure.

What is the meaning of summary procedure?

• Used for less serious offences and may ultimately lead to trial before Sheriff or a JoP

• Trails under summary are conducted without a Jury

What is the meaning of solemn procedure?

• Involves the most serious of criminal cases

• May to lead to trial on indictment before a judge in the HC or before a sheriff in the SC

• Conducted of a jury of 15 people.

What is the procedure of the summary?

• The Sheriff determines if the accused is guilty or not

• And if found guilty imposes the sentencing

• The maximum sentence hears before a sheriff is 12 months in prison or a £10,000 fine

What is the structure of the jury and verdict requirements in Scottish solemn procedure?

• Used only under solemn procedure in Scotland.

• Jury consists of 15 people.

• The jury are the finders of fact, not arbiters of the law.

• A simple majority (at least 8 out of 15 / over 1/2) is required for a guilty verdict (Note: In Scotland, a minimum of 8 jury members out of 15 must agree to convict).

• The jury decides whether the accused is guilty or not.

What are the main procedural steps during a solemn trial in Scotland?

• No opening statements (standard Scottish procedure).

• Begins directly with the Crown and defense calling their witnesses.

• No requirement for the accused to give evidence.

• Closing speeches are made.

• The trial judge/sheriff gives their charge to the jury.

• The jury returns their verdict.

What are the roles of the sheriff and the limits on sentencing in solemn procedure?

• Role of Sheriff: Determines the sentence if the accused is convicted.

• Sentence limits (Sheriff Court):

  • Maximum prison sentence of 5 years.

  • No limit on the fine the sheriff can impose.

What is the high court of Justiciary?

• The highest criminal court

• Covers the whole of Scotland in respect of all crimes

• Aberdeen, Edinburgh, Glasgow have permanent HC buildings

• Deal with the most serious crimes like murder.

How is the High Court of Justiciary structured for trials and appeals?

• A single judge hears cases with a jury of 15 people.

• Sitting as a court of appeal is only in Edinburgh.

• 3 judges are mandatory when hearing appeals against conviction.

• Appeals against sentence are generally heard by a bench of 2 judges.

Who undertakes prosecutions in the High Court and Sheriff Court?

• Prosecutions in the High Court are brought in the name of the Lord Advocate and handled by advocate deputes.

• Prosecutions in the Sheriff Court are undertaken by the Procurator Fiscal for a sheriffdom.

What is and occurs in the UK Supreme Court?

• It is the final court of appeal for all Uk civil and criminal cases

• Hears appeals on arguable points of law of general public importance

• Concentrates on cases of the greatest public and constitutional importance

• Maintans and develops the role of the highest court in the UK

What are the rules of appealing cases?

• The name of the Paris are reversed

• Law reports to include an appellants first name in Brackets

• Only exception is when the Crown is the appellant.

What has changed to the rule of verdicts?

• 3 verdict system has been abolished from 2026 onwards

• Only 2 options available guilty / non guilty

• Jury size has to be 15 members

• conviction requires 2/3 majority (10 out of the 15)

What is the new rule on the doctrine of Judicial precedent?

• The decision of the higher courts create a precedence which the lower courts must follow.

Stare decisis

What is the meaning of ‘Stare Decisis’?

To stand by things decided

What is the position of Lord advocate ?

• His Majesty’s Advocate is alternatively called

• Principal legal adviser of both Scottish government and the crown in Scotland for civil and criminal matters

• They are able to refer to a point of law which has arisen during course of solemn proceedings for determination

• THE HCOJ considers the case and arguments and gives an opinion and interpretation of how the law should be applied

• then the case is sent back for to the court origin.

How does legislation define crime ?

• There are acts or omissions declared to be crimes by statue

• Can be UK acts or Scottish acts which only apply in Scotland

How does a person’s state of mind affect whether their conduct constitutes a crime?

• Conduct generally amounts to a crime only if carried out with a blameworthy state of mind (criminal intent)

What is the 2 part general rule that crime consists of?

• Conduct + mental element
  
  ⬇

• Act + Intention

What is the meaning of conduct in anatomy of crime?

• Doing something wrong

• An omission

• A state of affairs

What is the meaning of mental element in anatomy of a crime?

• Criminal intention

• Acting recklessly

• Blameworthy state of mind

Can a defence challenge what constitutes a crime?

• Yes. Some defences prevent the establishment of the actus reus or mens rea, meaning one or both elements of the crime is ultimately missing.

What does there need to be for it to be considered a crime?

• Act

• Intention

• No defence

What is the meaning of Actus Reus?

• Conduct element of an offence

• ie doing the criminal offence

What is the meaning of Mens Rea?

• Guilty purpose or criminal intent —→

• Dole —→ evil intent

When is someone seen as being guilty of a crime?

• If without justification or excuse they carry out the actus reus of that crime and has the required Mens Rea

What if they don't happen at exactly the same time?

• No. Although they normally coincide, an accused may still be criminally liable where the acts and mental state form part of the same sequence of events/one transaction.

What is an example of coincidence in time under autonomy of crime