Criminal Law

1
Criminal Law

• These slides are available from the Criminal Law
  Web CT site

2
Sources of the Criminal Law

• Where does the criminal law come from?

3
Sources Legislation

• Acts of the UK Parliament
• Acts of the Scottish Parliament
• Only after 1999
• Acts of the Parliaments of Scotland
• Prior to 1707
• Subordinate Legislation

4
Legislation as a source of criminal law

• Much of the criminal law is untouched by
  legislation
• Legislation is, however, important in some areas
  
• road traffic
• health and safety
• drugs
• firearms and other weapons
• some sexual offences

5
Human Rights

• Two Acts of Parliament of particular importance
• Human Rights Act 1998
• Scotland Act 1998
• Together they give effect to the rights set out
  in the European Convention on Human Rights

6
The ECHR

• Protects a wide range of civil and political
  rights
• Right to life (art 2)
• Freedom from torture etc (art 3)
• Due process (arts 5 6)
• No retrospective criminality (art 7)
• Private and family life (art 8)
• Thought, conscience and religion (art 9)
• Freedom of expression (art 10)
• Freedom of association (art 11)
• Right to marry and found a family (art 12)

7
Human Rights

• Scottish Parliament cannot pass legislation which
  is incompatible with ECHR
• All legislation must be read and given effect in
  a way that is compatible with ECHR
• Lord Advocate, as head of the system of public
  prosecution cannot act in a way that is
  incompatible with ECHR
• Essentially, the criminal law can only be
  enforced to the extent that it is compatible with
  ECHR

8
Where do we find rules of criminal law?

• Criminal law has become codified law. Everyplace
  you go in the Western world, you will find a
  criminal code that lays out the definitions of
  offenses in the codes special part and
  prescribes general principles of responsibility
  in the codes general part. (Fletcher again,
  Basic Concepts of Criminal Law (1998), 3).
• Everyplace except Scotland (and the rest of the
  UK and Ireland, in fact)
• There is, however, an unofficial Draft Criminal
  Code for Scotland (published in 2003).

9
Codification of the Criminal Law

• Draft Criminal Code for Scotland
• Part 1 General principles
• Part 2 Non-sexual offences against the person
• Part 3 Sexual Offences
• Part 4 Offences against property and economic
  interests
• Part 5 Offences involving extortion, deception
  or dishonesty
• Part 6 Offences against public order, safety and
  security
• Part 7 Offences against lawful government and
  the administration of justice
• Part 8 Offensive condcut
• Part 9 Offences involving animals
• Part 10 Rules on consent, interpretation etc.
• Schedule 1 Sentencing framework

10
Sources The Common Law

• Judge-made law
• Legal writings Institutional Writers

11
Judge-made law

• Rules of law developed by the courts
• But today the courts must develop the criminal
  law in line with human rights
• Common law offences often quite flexible
• H.M. Advocate v Wilson
• Courts will respond to changing social attitudes
• Stallard v H.M. Advocate
• The declaratory power of the High Court
• Bernard Greenhuff (1838)

12
Legal Writings

• Some legal writers are known as institutional
  writers
• Their views on the law are accorded particular
  respect
• If no statute or judicial decision
  institutional writers opinions may be accepted
  as determining the law
• Brennan v H.M. Advocate
• But not always
• In criminal law, institutional status is given
  to Baron David Humes Commentaries and to Sir
  George Mackenzies Criminal Law