I’ve been thinking about how to tackle this blog both in the immediate short term and over the course of the next few years. What I’ve decided not to do, at the moment at least, although this may change, is to launch into a lecture by lecture regurgitation. I think that would quickly become stale and even more uninteresting than I intend it to be. So, periodically, it’s my intention to update this hallowed blawg with my amateurish insights into the Scottish Legal System, pertinent in this semester Scottish Criminal Law and Scottish Legal Methods. This will, of course, be in addition to anything that happens to catch my eye in current affairs, sufficient to annoy me enough to rant about it on here. I call this the Warsi principle.
We’re now in week 3 and I’ve just come back from my 3rd lecture on Criminal Law. I’m not sure I can speak for every student of law in this regard; however I have to say that the subject matter at hand is sufficiently fascinating to ensure that the lectures fly by. Already we’ve covered acts which should and should not be covered by criminal law (the harm principle, morality etc), the actus reus (the criminal act), mens rea (the behavioural element), defences, strict liability, crimes against property and art and part liability.
One thing that’s caught my eye thus far is how dynamic criminal law in Scotland can be. Scots Criminal Law is governed not primarily by statute, but by common law. The most obvious crimes (and by that I mean crimes which are clearly criminal in themselves – ‘mala in se’ – such as murder, fire-raising, theft etc) are not primarily governed by statute (by acts of parliament) but have been developed through case law over many years through setting precedent.
There are obvious advantages and disadvantages to this form of law making. There is an argument from a political point of view that it is in itself undemocratic. However, I see the lack of immediate political input as an advantage.
Politicians are likely to complicate matters and often make matters unintentionally worse. With common law, legal experts are able (free of outside interference or fear of backlash) to honestly and impartially judge each case on the facts and make a judgment based on the evidence and the context of the case in front of them. They are then able to set guidelines based on the case in question which can be used in guidance for future cases similar in nature.
However, the High Court in Scotland has a rather controversial (if very rarely used) power to declare an act as criminal – known as the ‘Declaratory Power’. Technically, (and I say technically as it’s a power last used in 1838 and now contravenes Article 7 of the European Convention on Human Rights) the High Court has the power to declare an act which was not hitherto criminal, a criminal offence and deal with it accordingly.
Whilst this power to retrospectively declare an act a criminal offence was, as I mentioned, last used in the case of Greenhuff (1838), Lord Cockburn’s dissenting view is of great interest in that he stated that the Court should not declare a new criminal act, but to judge whether a criminal act had been committed in a new way. Thus, years later ‘joyriding’ was not a new offence when cars became more commonly used (and stolen and left in fields), but was recognised as coming within the remit of the crime of theft.
To wind up then, why is any of this of any importance? Well it offers the basis of my understanding of Scots Law and how I aim to progress. The wonder of law is how dynamic it can be, the great debates that are had, the differing legal perspectives in judgments and how the courts play such a vital role in allowing the criminal law to remain effective when new scenarios are brought in front of them. Contrast that with the rigidity of a system which would try cases on the basis of a laid out set of criteria which had no scope for deviation.
I’ve not touched on everything I’ve learned thus far. In fact the intention of this post was to ramble on about art and part liability – but that can wait. Overall I think I’m getting a grasp of what is an entirely new discipline and I’m enjoying it thus far. Over the course of the weeks ahead I’m hoping that I can offer more of an insight into my thoughts of how my understanding fits with more pertinent events as they come up.
Any advice on how I should progress this blawg would of course be welcome, so too the pointing out of any glaring inaccuracies. :o)
