Criminal Law Y2S1 Week 1: L1 Intro & L2 Limits of Criminal Law

Key terms and cases (Issue / Facts / Held), made from my OneNote notes. 'Added' notes are clarifications from outside the notes.

Where does criminal law sit in the classification of law?

Part of PUBLIC law: offences are wrongs against society, prosecuted by the state (the Crown), not by the victim. Added: in Scotland almost all prosecutions are brought by the Crown (Lord Advocate / Procurator Fiscal); private prosecution is extremely rare.

Hart's two versions of the argument for enforcing morality through criminal law: name and explain both.

1. Conservative thesis: society may enforce its morality because the majority are entitled to protect their moral environment from change.

2. Disintegration thesis: shared morality is the 'cement' of society, so it must be upheld to prevent social disintegration. Added: this is the Hart–Devlin debate, sparked by the Wolfenden Report (1957) on decriminalising homosexual acts.

Lord Devlin: which thesis did he support, and what is his core claim?

The DISINTEGRATION thesis. Law must protect the institutions and the community of shared political and moral ideas without which people cannot live together. Society cannot ignore individual morality any more than individual loyalty. Exam use: the moralistic side of essays on the scope of criminal law (e.g. Lord Templeman in R v Brown).

Erskine's justification for penalising crimes

Crimes should be punished 'because they threaten to loosen the bonds of society'. This is a disintegration-style justification rooted in Scottish institutional writing.

The Harm Principle (J.S. Mill)

The LIBERAL view: the only legitimate reason to use power against anyone against their will is to prevent HARM TO OTHERS. A person's own good, physical or moral, is not enough. Added: Feinberg's 'offence principle' extends this to serious offence to others. It is useful when discussing breach of the peace, which criminalises alarming or offensive rather than harmful conduct.

What is the prime function of the criminal law (principles of criminal responsibility)?

To set out the circumstances in which it is JUSTIFIABLE to hold a person punishable for their conduct.

Aims of the criminal law / punishment: list them and the two main theories justifying punishment

Aims: deterrence, retribution, reformation/rehabilitation, and public protection (which underlies the courts' approach). Theories: • Retributivism: backward-looking. Punishment is deserved because of the wrong done and should be proportionate. • Utilitarianism: forward-looking. Punishment is justified by its future benefits (deterrence, rehabilitation, incapacitation).

Sources of Scots criminal law (list)

1. Common law (consuetudinary/customary rules). Much of Scots criminal law is uncodified.
2. Legislation (Scottish Parliament and UK Parliament)
3. Precedent / case law (the High Court of Justiciary)
4. Institutional writers (Hume, Mackenzie, Alison)
5. ECHR compatibility (Scotland Act 1998 / Human Rights Act 1998) Scots criminal law is less certain but more flexible than codified systems.

Legislation as a source: who can legislate, and what are the limits?

• Both the UK and Scottish Parliaments can legislate. By the Sewel convention, Westminster does not normally legislate on devolved matters without Holyrood's consent, so it rarely legislates on Scots criminal law. • Some areas are RESERVED to the UK Parliament, e.g. drugs, firearms and terrorism (Scotland Act 1998 Sch. 5). • Scottish legislation on reserved matters is invalid, unless its purpose is to make the criminal law apply consistently to reserved and other matters (SA 1998 s.29(4)).

Case law as a source: strengths and weaknesses

• Most key doctrines are judge-made, and the Appeal Court plays a strong role in developing the law. • The court cannot create new crimes on its own initiative (see the declaratory power). • It is flexible and adaptable, BUT this can create vagueness and uncertainty, e.g. conflicting authority on breach of the peace and culpable & reckless conduct. • Its terminology is often archaic, and many crimes are purely customary with unknown origins.

Institutional writers: who are they and what is their status?

Commentators on the common law writing before official law reporting existed. They are still authoritative but used selectively in practice. • Most important: Baron David HUME, Commentaries (1797) • Also Sir George Mackenzie (1678) and Archibald Alison (1832) • Influential non-institutional writers include Macdonald and Gordon (Gordon's Criminal Law of Scotland is a key modern text).

The declaratory power of the High Court

Added (the notes list only the heading): The claimed inherent power of the High Court to declare conduct criminal even though it was never previously a crime. Hume said the court could punish 'every act which is obviously of a criminal nature'. • Classic use: Bernard Greenhuff (1838), keeping a gaming house. • Criticised as a breach of the separation of powers and of legality / Art 7 ECHR. • Refused in Grant v Allan 1987 (taking confidential information is not a crime; this is for Parliament). • Webster v Dominick 2005 JC 65: the High Court indicated the power should not be used to create new crimes today. It is widely treated as obsolete.

Summary vs Solemn procedure

SOLEMN (on indictment): judge AND jury (15 jurors); the jury decides the verdict. It is lengthier and more rule-bound, and used for serious crimes. Cases run in the Lord Advocate's name, e.g. HM Advocate v Smith. SUMMARY: a judge sitting alone decides both law and verdict. It is quick, flexible and less formal, and used for less serious crimes. Cases run in the local Procurator Fiscal's name, e.g. PF Edinburgh v Smith / Jones v Smith. Most common-law crimes can go either way, so procedure does NOT classify crimes.

Which courts hold criminal trials in Scotland, and why are there four levels?

• High Court of Justiciary (solemn only; most serious cases, e.g. murder and rape) • Sheriff Court: solemn (sheriff + jury) • Sheriff Court: summary (sheriff alone) • Justice of the Peace Court (summary, least serious) The sheriff court sits in both modes, which gives four levels. Added (maximum sentences, approx.): JP 60 days; sheriff summary 12 months; sheriff solemn 5 years; High Court up to life.

Which courts hear criminal appeals?

• Solemn appeals go to the High Court sitting as the Court of Criminal Appeal. • Summary appeals go to the Sheriff Appeal Court (added: created by the Courts Reform (Scotland) Act 2014). There is a further appeal to the High Court on a point of law, only with the High Court's permission. • The High Court is the FINAL court of appeal in criminal matters. The exception is devolution / human-rights (compatibility) issues, which can reach the UK Supreme Court.

Rights of appeal in SOLEMN procedure

• Leave to appeal is decided by a single High Court judge (sift). • The accused may appeal conviction, sentence or both on the ground of a 'miscarriage of justice'. • The Crown CANNOT appeal a 'not guilty' verdict in solemn cases. It can only seek clarification of the law via a Lord Advocate's Reference (added: CP(S)A 1995 s.123). The acquittal stands regardless. • The Crown may appeal an unduly lenient sentence.

Rights of appeal in SUMMARY procedure

• Leave is decided by an Appeal Sheriff of the Sheriff Appeal Court. • The prosecutor MAY appeal by stated case on a point of law against an acquittal or sentence, and against an unduly lenient sentence. This is unlike solemn procedure. • Any party may appeal on a point of law from the Sheriff Appeal Court to the High Court, only with the High Court's permission.

Scottish Criminal Cases Review Commission (SCCRC)

An independent body that reviews alleged miscarriages of justice after the normal appeal routes are exhausted. It can refer a case back to the High Court for a fresh appeal.

What verdicts can a Scottish criminal court return today?

GUILTY (conviction) or NOT GUILTY (acquittal). The third verdict, 'NOT PROVEN', was abolished by the Victims, Witnesses, and Justice Reform (Scotland) Act 2025. After conviction, punishment depends on the sentencing powers of the trial court.

Parties to a criminal case: the Accused, the Crown and the Complainer

• Accused: the person on trial. • The Crown: the prosecution (the Lord Advocate / Procurator Fiscal). • Complainer: the alleged victim. They are a witness, NOT officially a party to the case.

Mala in se vs Mala prohibita

• MALA IN SE: wrongs in themselves, morally reprehensible, e.g. murder, rape, assault. • MALA PROHIBITA: 'mere regulatory offences' with no obvious moral content, wrong only because prohibited. Criminal sanctions give administrative rules extra force (e.g. many strict-liability statutory offences).

Conduct crimes vs Result crimes

Added: • CONDUCT crime: the actus reus is complete on the conduct itself, whatever its consequences, e.g. breach of the peace or perjury. • RESULT crime: the actus reus requires a specified consequence, e.g. murder (death) or culpable homicide. CAUSATION must therefore be proved.

Basic principles of the Scottish criminal system (list)

1. Jurisdiction: a Scottish court must have jurisdiction over the crime AND the accused.
2. Prescription: time limits on prosecution (added: common-law crimes do not prescribe; summary-only statutory offences generally 6 months, CP(S)A 1995 s.136).
3. Prosecutable persons: can this person legally be prosecuted?
4. Double jeopardy: no one is tried twice for the same offence (added: exceptions under the Double Jeopardy (Scotland) Act 2011, e.g. new compelling evidence or a tainted acquittal).
5. Fair trial: Art 6 ECHR
6. Fair sentencing
7. Rights of appeal: on the ground of a miscarriage of justice.

Structure of criminal liability: what must be established for a conviction?

1. The accused COMMITTED AN OFFENCE: actus reus (wrongful act) + mens rea (guilty mind), unless it is a strict-liability offence.
2. The accused LACKS ANY DEFENCE. The burden of proof is always on the Crown, and the standard is BEYOND REASONABLE DOUBT.

Actus reus and Mens rea

• ACTUS REUS: the conduct element (act/omission, circumstances and, for result crimes, the result). • MENS REA: the mental element (e.g. intention, recklessness, knowledge). Hume's term is 'dole': the 'wicked and felonious' or evil intent. Mens rea ensures people are not convicted for purely accidental acts.

Strict liability offences

Offences that need NO mens rea for at least one element of the actus reus. They can be committed accidentally or unknowingly. They are almost always statutory and regulatory ('mala prohibita'), e.g. many road-traffic offences.

Evidential burden for defences: how does it work?

A defence only becomes a live issue once the ACCUSED raises some evidence of it (the evidential burden), e.g. evidence of self-defence. Once raised, the Crown must disprove it beyond reasonable doubt. The legal/persuasive burden stays on the Crown. Added: 'special defences' (self-defence, alibi, incrimination, mental disorder) require advance notice. Lambie v HMA 1973 confirms the onus stays on the Crown.

What LEGAL limits exist on what can be criminalised in Scotland?

Virtually none. The main ones are:

1. Compatibility with the ECHR (Art 8 privacy, Arts 9–11 freedoms, Art 6 fair trial). These rights can be restricted where necessary for a legitimate purpose.
2. The legality principle (Art 7 ECHR).
3. Devolution limits on the Scottish Parliament (reserved matters). Because the LEGAL limits are few, the real debate is about MORAL limits.

Article 7 ECHR: the legality principle

'No punishment without law': • No RETROACTIVE criminalisation or heavier penalties. • The criminal law must be tolerably CLEAR and FORESEEABLE in its scope and implications, so a person can know in advance what is criminal. Added: gradual judicial development is allowed if it is 'reasonably foreseeable' and consistent with the essence of the offence (S.W. v UK (1995), abolition of the marital rape exemption).

Case study 1 (Consent & sadomasochism): what is the central question?

Should the victim's CONSENT defeat liability for causing injury to another? Where should the line be drawn between personal autonomy (Mill / Mustill) and state paternalism or moralism (Devlin / Templeman)? Key authorities: R v Brown; R v Wilson; Kirkup v HMA (Scots).

Situations where consent is NOT a defence

• You cannot consent to being killed. Added: HMA v Rutherford 1947 JC 1 (consent no defence to homicide). • Consent is no defence to unregulated fighting. Added: Smart v HMA 1975 JC 30 (a 'square go': consent is no defence to assault because the evil intent is still present). • Serious injury in sadomasochistic sexual activity: R v Brown, followed in Scotland by Kirkup v HMA.

Case study 2: Possession offences: what are they and why are they controversial?

PREVENTATIVE / pre-emptive offences: they criminalise people BEFORE any harm is caused. Examples: • Misuse of Drugs Act 1971 ss.5, 28 • Criminal Law (Consolidation) (Scotland) Act 1995 ss.47, 49 (offensive weapons / bladed articles) • Firearms Act 1968 ss.1, 2, 5, 51A • Terrorism Act 2000 s.58: possessing information likely to be useful to a terrorist Concern: a wide impact on civil liberties, and liability far removed from actual harm.

Case study 3: Breach of the peace: what problem does it illustrate?

Criminalising conduct that is not HARMFUL but merely alarming, offensive or indecorous (so it goes beyond Mill's harm principle). The offence covered a huge range of conduct and was vague, which raised an Art 7 legality problem. This was addressed in Smith v Donnelly.

Modern test for breach of the peace

Conduct severe enough to: (i) cause ALARM to ordinary people / any reasonable person, AND (ii) threaten SERIOUS DISTURBANCE TO THE COMMUNITY (the 'public element'). From Smith v Donnelly 2002, refined in later cases. Limb (i) matters most where nobody was actually alarmed (Wotherspoon v Orr). Limb (ii) makes a public element essential (Harris; Hatcher v Harrower; but see Bowes v McGowan).

What fills the gap for alarming conduct that fails the 'public element' of breach of the peace?

Added: Criminal Justice and Licensing (Scotland) Act 2010 s.38: threatening or abusive behaviour. It covers threatening/abusive conduct likely to cause a reasonable person fear or alarm, and has NO public element. It was enacted in response to Harris v HMA and is often charged in domestic cases like Hatcher v Harrower.

CASE: R v Brown [1994] 1 AC 212 (HL)

Issue: Is CONSENT a defence to serious assaults (ABH/wounding) inflicted during consensual sadomasochistic sexual activity? Facts: A group of men engaged in BDSM activity including genital and anal torture. It was fully consensual, with safety practices (safe words, sterile equipment). There were no complaints; police found video tapes by accident during an unrelated raid. Held: 3–2, consent is NOT a defence in the context of sadomasochistic activity causing actual bodily harm or worse. • Majority (Lord Templeman): moralistic. The activity was cruel, immoral and unpredictably dangerous and could spiral out of control. • Dissent (Lord Mustill): a matter of PRIVATE morality and personal autonomy, 'not the Lords' business'. He rejected Templeman's moralism. Added: upheld at Strasbourg in Laskey, Jaggard & Brown v UK (1997): no breach of Art 8. Followed in Scotland: Kirkup v HMA 2025.

CASE: R v Wilson [1997] QB 47 (CA)

Issue: Was consent a defence to ABH inflicted by a husband on his wife at her request? Facts: Added: the husband used a hot knife to brand his initials on his wife's buttocks at her instigation. She was not a complainer; the matter came to light through a doctor. Held: Consent WAS a valid defence, and the conviction was quashed. The act was closer to TATTOOING (a lawful body adornment) than to Brown's infliction of pain for sexual gratification, and consensual activity between spouses in the home was not a proper matter for prosecution.

CASE: Kirkup v HM Advocate 2025 JC 135

Issue: Does Scots law follow R v Brown, i.e. is consent no defence to injury inflicted in sexual activity? Facts: Not recorded in your notes. Check the report or lecture slides. Held: Scots authority FOLLOWS Brown. The basic principle that consent does not defeat liability for such injuries stands in Scotland.

CASE: Smith v Donnelly 2002 JC 65

Issue: Had the crime of breach of the peace become so VAGUE that convicting under it breached Art 7 ECHR (legality)? Facts: Added: an anti-nuclear protester at Faslane naval base lay down in the road and was charged with breach of the peace. She argued the definition was too uncertain. Held: No breach of Art 7. The court (Full Bench) restated and CLARIFIED the definition: the conduct must be genuinely alarming and disturbing in its context to any reasonable person, and severe enough to threaten serious disturbance to the community. This gave the offence sufficient clarity.

CASE: Wotherspoon v Orr 2018 JC 79

Issue: Is it a breach of the peace if nobody is actually ALARMED, but only uncomfortable? Facts: A man living in a housing development frequently walked around wearing a pink bra. Other residents were disturbed and uncomfortable, and he was arrested. Held: Not a breach of the peace. Feeling uncomfortable is not the same as being genuinely alarmed, and the conduct did not threaten serious disturbance to the community (no public effect).

CASE: Harris v HM Advocate 2010 JC 245

Issue: How 'public' must conduct be for breach of the peace? Is conduct directed only at specific individuals enough? Facts: Menacing voicemails/conduct directed at police officers. Held: The conduct was alarming, but there was no realistic risk of disturbance to the wider COMMUNITY, so there was no breach of the peace. A PUBLIC ELEMENT is essential. Added: this prompted the new s.38 CJL(S)A 2010 offence (threatening or abusive behaviour).

CASE: Hatcher v Harrower 2011 JC 90

Issue: Can private, domestic conduct amount to breach of the peace (public element)? Facts: Violent shouting matches in a home where teenage children were present. Held: The conduct was alarming, BUT it had no impact on the wider community, so no breach of the peace (following Harris). Added: such conduct is now usually charged under s.38 CJL(S)A 2010.

CASE: Bowes v McGowan 2010 JC 297 (also reported as Bowes v Frame)

Issue: Was the public element of breach of the peace satisfied by conduct in a private setting (a taxi)? Facts: A taxi driver asked a 14-year-old girl sexualised, inappropriate questions. Held: The public element WAS present, so the conviction stood. This shows the 'public element' line is not applied consistently (contrast Harris and Hatcher).

CASE: Smart v HM Advocate 1975 JC 30

Added (supports 'consent is no defence to fighting' in your notes). Issue: Is consent a defence to assault in a consensual fight (a 'square go')? Facts: The accused invited the victim to a 'square go', and the victim agreed and was injured. Held: Consent is NO defence to assault. The evil intent (dole) of assault is still present, and the public interest overrides the victim's consent.

CASE: HM Advocate v Rutherford 1947 JC 1

Added (supports 'you cannot consent to be killed'). Issue: Can the victim's consent (request) excuse causing their death? Facts: The accused strangled a woman with a tie, claiming she had asked him to do it. Held: Consent is NO defence to homicide. The jury was directed that her request could not reduce or excuse the killing.

CASE: Webster v Dominick 2005 JC 65

Added (links to the declaratory power heading in your notes). Issue: Was the broad crime of 'shameless indecency' valid, and how far can the court extend the criminal law? Facts: The accused was charged with 'shameless indecency' and challenged the scope and certainty of that crime. Held: The High Court (Full Bench) rejected 'shameless indecency' as a general crime and recast it as PUBLIC INDECENCY. It signalled the declaratory power should not be used to create new crimes, a key example of legality / Art 7 limits on judicial creativity.

CASE: Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39

Added (the ECHR sequel to R v Brown). Issue: Did the convictions in R v Brown violate Art 8 ECHR (right to private life)? Facts: The Brown defendants took their case to Strasbourg after losing in the House of Lords. Held: No violation. The interference was 'necessary in a democratic society' to protect health, and states have a wide margin of appreciation over the level of physical harm the law tolerat