Scottish criminal law

The Crown Office and Procurator Fiscal Service (COPFS) provides independent public prosecution of criminal offences in Scotland (as the more recent Crown Prosecution Service does in England and Wales) and has extensive responsibilities in the investigation and prosecution of crime. The Crown Office is headed by the Lord Advocate, in whose name all prosecutions are carried out, and employs Advocates Depute (for the High Court of Justiciary) and Procurators Fiscal (for the Sheriff Courts) as public prosecutors.

Private prosecutions are very rare in Scotland and these require "Criminal Letters" from the High Court of the Justiciary. Criminal Letters are unlikely to be granted without the agreement of the Lord Advocate.

The Scots legal system is unique in having three possible verdicts for a criminal trial: "guilty", "not guilty" and "not proven". Both "not guilty" and "not proven" result in an acquittal.

The 'not proven' verdict in modern Scots criminal law can be described as an historical accident. Historically, there were no set forms for verdicts used by early juries, and their role was simply to find the guilt or innocence of the accused.[1] The role of the jury changed when it became customary in the Justice Court to compose lengthy indictments, where facts were listed which culminated in a statement of the punishable character of such conduct in general of which the accused ought to be punished for his commission of it. In these situations the role of the jury was to deliver one of the 'special verdicts' of "proven" or "not proven" for individual factual issues one-by-one.[2] It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. This practice persisted until the 1728 trial of Carnegie of Finhaven, where the jury's right to return a verdict of not guilty, and essentially pronounce on innocence and guilt, was re-established. By the 19th century, the legal profession had come to view these 'special verdicts' as obsolete, and yet the "not proven" verdict continued to be used.[3]

The 'not proven' verdict is often taken by juries and the media as meaning "we know they did it but there is not enough proof". The verdict, especially in high-profile cases, often causes controversy. A study was commissioned in September 2017) by academics at the Universities of Glasgow and Warwick, in collaboration with Ipsos Mori, to consider, among other things, the three verdict system in Scotland in order to inform future reform of the criminal justice system in Scotland.[4]

• Concealment of pregnancy[8]
• Clandestine injury to women (i.e. sex with an unconscious woman)[9]
• Lewd, indecent or libidinous practice or behaviour[9]
• Sodomy[9]
• Shameless indecency[10]
• Offences under the Forgery of Foreign Bills Act 1803 (repealed)

• Diminished responsibility
• Special defence

• Brennan v HM Advocate 1977 JC 38 – authority against automatism in cases of voluntary intoxication
• Cadder v HM Advocate [2010] UKSC 43 - not being permitted access to a solicitor while in police custody was a breach of Article 6(1) of the European Convention on Human Rights
• Cawthorne v HM Advocate 1968 JC 32
• Crawford v HM Advocate 1950 JC 67
• Drury v HM Advocate 2001 SCCR 538 – provided modern definition of murder
• Jamieson v HM Advocate 1994 SLT 537
• Khaliq v HM Advocate 1984 JC 23
• Ross v HM Advocate 1991 JC 210 – first authoritative recognition of non-insane automatism
• Smart v HM Advocate 1975 JC 30
• Sutherland v HM Advocate 1994 SLT 634
• Moorov v HM Advocate 1930 JC 68 - admissibility of similar fact evidence - established a precedent named the Moorov doctrine

• Corroboration in Scots law
• English criminal law
• Lord Advocate's Reference
• Stair Memorial Encyclopaedia
• Trial by jury in Scotland