No CrossRef data available.
Article contents
Judicial Creativity in a Common Law System
Published online by Cambridge University Press: 04 July 2014
Extract
The most remarkable feature of Scots criminal law is that it is still a common law system. It contains, of course, many statutory offences, mostly recent and concerned with the regulation of modern developments such as road traffic or wireless telegraphy. There are also a large number of statutory frauds, dealing with all kinds of things, such as companies, bankruptcies, the regulation of professions, etc., but many of those are unnecessary, in the sense that the behaviour they prohibit can be dealt with as common law fraud, which covers the achievement of any practical result. There are also some modern preventive crimes created by statute, such as carrying offensive weapons in public, but other preventive offences, such as housebreaking with intent to steal, were created by the common law. There are very few of what might be regarded as basic crimes which are statutory. The most striking example is the crime of incest which, until recently, was dealt with under the Incest Act of 1567, passed by the Scottish Parliament in the wake of the Reformation. The Incest Act incorporated the 18th chapter of Leviticus into the law of Scotland, and with some amendments, it remained the law until the passing of the Incest and Related Offences (Scotland) Act 1986. But that was an oddity, and there is some authority that parent-child incest is a common law crime. The basic crimes, such as those concerned with injuring the person or property of others, are essentially matters regulated by the common law, the creations of judges, without any statutory definitions, and all with the same maximum penalty of life imprisonment.
- Type
- Articles
- Information
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993
References
1 Including the making of an entry in a register: Adcock v. Archibald (1925) J.C. 58.
2 Prevention of Crime Act, 1953.
3 See Gordon, , The Criminal Law of Scotland (Edinburgh, W. Green, 2nd ed., 1978) para. 35.01.Google Scholar
4 Sentences of life imprisonment are rare in practice, and most instances of common law crimes are dealt with in the sheriff court with a maximum sentence of imprisonment for three or six months when the sheriff site alone, and three years when he sits with a jury.
5 References in this article are to vol. 1 of the 3rd ed., published in 1829. Hume was a nephew of his namesake, David Hume, the great philosopher, and was Professor of Scots Law at Edinburgh University.
6 See, e.g., Cardle v. Mulrainey 1992 S.C.C.R. 658.
7 Supra n. 5, at 2.
8 Supra n. 5, at 13.
9 Ibid., at 12.
10 This applies to questions of evidence as well, and in particular, to the rule that confessions are admissible if they have been obtained fairly: see my article in Glazebrook, , ed., Reshaping the Criminal Law, (London, Stevens, 1978) 317.Google Scholar
11 Macdonald, , The Criminal Law of Scotland (5th ed., 1948).Google Scholar Although described by its author as “a practical handbook”, it came to be regarded as of considerable authority, partly because its author became a senior judge, and partly because generations of judges were brought up on it, so to speak, when it was the only modern textbook of any size.
12 (1838) 2 Swin. 236.
13 See infra, at n. 49.
14 Supra n. 12, at 274.
15 See also H.M. Advocate v. Wilson 1983 S.C.C.R. 420 where the crime of “malicious mischief” was extended to causing financial injury by interfering with a stop button on a generator without causing any physical damage.
16 See Smith, T. B., A Short Commentary on the Law of Scotland (Edinburgh, 1962) 128.Google Scholar
17 1987 S.C.C.R. 402.
18 Ibid., at 408.
19 [1962] A.C. 220, at 275, a dissenting speech by a Scots law lord in a case in which the majority of the House approved a very wide application of English criminal law to immoral activities, in that case the publication of a directory of prostitutes.
20 H.M. Advocate v. Smith (1839) 2 Swin. 28.
21 H.M. Advocate v. Brown (1839) 2 Swin. 394.
22 Summary Jurisdiction (Scotland) Act 1908.
23 See Hume, supra n. 5, at 75.
24 Supra n. 17.
25 Apart from the inconclusive case of H.M. Advocate v. Mackenzies 1913 S.C.(J.) 197.
26 1926 J.C. 100.
27 Ibid., at 102.
28 Murray v. Robertson 1927 J.C. 1, where the accused's conviction was quashed for lack of evidence of unlawful taking.
29 Kivlin v. Milne 1979 S.L.T. (Notes) 2.
30 Mcleod v. Mason & Ors., 1981 S.C.C.R. 75.
31 1981 J.C. 53.
32 1984 S.C.C.R. 20.
33 Supra n. 21.
34 Supra n. 23.
35 Supra n. 26.
36 Sandlam v. H.M. Advocate 1983 S.C.C.R. 71.
37 Supra n. 32.
38 The fact that the car might have come into the clamper's possession when it was left on his land does not seem to have entered into the matter.
39 1992 S.C.C.R. 709.
40 Supra n. 31.
41 Supra n. 32.
42 Supra n. 26.
43 (1853) 1 Irv. 218.
44 H.M. Advocate v. Philip (1855) 2 Irv. 243.
45 In the so called Labouchere amendment; the offence for which Oscar Wilde went to Reading Gaol.
46 1934 J.C. 19.
47 Supra n. 43.
48 Supra n. 46.
49 1978 J.C. 84.
50 Ibid., at 89.
51 Supra n. 19.
52 Supra n. 46.
53 Parliament has, in fact, produced a rather odd situation. The only relevant legislation is sec. 80 of the Criminal Justice (Scotland) Act 1980 which creates certain homosexual offences and provides that subject to those provisions a homosexual act between consenting adults in private shall not be an offence. So indecent behaviour between consenting male adults in private cannot be prosecuted as shameless indecency, but such conduct between men and women (or even between lesbians, because the statutory definition of homosexuality refers only to males) can still be prosecuted as shameless indecency.
54 Supra n. 49.
55 R. v. H.M. Advocate 1988 S.C.C.R. 254.
56 Hume, supra n. 5, at 439.
57 Dougall v. Dykes (1861) 4 Irv. 101.
58 Ferguson v. Carnochan (1889) 2 White 278.
59 Raffaelli v. Heatly 1949 J.C. 101.
60 Ibid., at 104.
61 1959 J.C. 66.
62 Cameron v. Normand 1992 S.C.C.R. 866.
63 Wyness v. Lockhart 1992 S.C.C.R. 808.
64 The beggars in Wyness v. Lockhart (ibid.) were convicted of breach of the peace, although the persons they approached were not alarmed or annoyed.
65 Reynolds v. Normand 1992 S.C.C.R. 859, an unusual case in which the accused alarmed a schoolgirl by beckoning her over to him, but the alarm was aroused because of a previous encounter which was not proved at the trial.
66 McMillan v. Normand 1989 S.C.C.R. 269.