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Law Making and the Scottish ParliamentThe Early Years$

Elaine E Sutherland and Kay E Goodall

Print publication date: 2011

Print ISBN-13: 9780748640195

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748640195.001.0001

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Criminal Law and Criminal Justice: An Exercise in Ad Hocery

Criminal Law and Criminal Justice: An Exercise in Ad Hocery

(p.208) 11 Criminal Law and Criminal Justice: An Exercise in Ad Hocery
Law Making and the Scottish Parliament

Pamela R Ferguson

Edinburgh University Press

Abstract and Keywords

At the time of writing the Scottish Parliament has passed 147 statutes, more than a third of which affect criminal procedure, sentencing, or the substantive criminal law. Such is the extent of these changes that this chapter can do no more than highlight some of the main provisions and offer some critique. The discussion covers criminal procedure, sentencing powers, the substantive criminal law and the parliamentary process.

Keywords:   Scottish Parliament, criminal procedure, sentencing







A. Introduction

At the time of writing1 the Scottish Parliament has passed 147 statutes, more than a third of which affect criminal procedure, sentencing, or the substantive criminal law.2 Such is the extent of these changes that this chapter can do no more than highlight some of the main provisions and offer some critique.3 Prior to the re-establishment of the Scottish Parliament, Scots criminal procedure had frequently been amended by legislation, and it is unsurprising that this has continued post-devolution. While many of the changes have been highly successful,4 it may be suggested that we have moved further along the spectrum from a largely adversarial process to one which now bears a greater number of features of an inquisitorial system - often in the name of “managerial efficiency”.5 Whether or not one favours the changes that have (p.209) been made to criminal procedure, these have at least been based largely on the recommendations of commissions, established by the Scottish Executive and chaired by senior members of the judiciary.6 The same cannot be said for the substantive law, which has frequently been amended, and new offences created. The Westminster Parliament was often castigated for failing to find time for Scottish legislation, and there were hopes that devolution would lead to consolidation of the statutory criminal law, and possibly even codification of the common law.7 Devolution has created the ideal opportunity for a re-assessment of our criminal law, but there is little evidence that this is being attempted in any systematic fashion. As a starting point, the Scottish Parliament should formulate principles of criminalisation. For instance, many would argue that the criminal sanction should be employed as a last resort, and that strict liability offences should be employed sparingly, with careful consideration being given to the provision of statutory defences. The extent of new offences, many of which impose strict liability, suggests that these are not principles to which the Parliament adheres.

B. Criminal procedure

The Scottish Parliament has been particularly active here. District courts are gradually being replaced by justice of the peace courts,8 and a variety of specialist courts have been established, focusing on domestic abuse,9 youth offending10 and drug abuse.11 These courts were created to ensure that certain types of offender are dealt with expeditiously. More generally, the courts have been given powers to impose a range of orders designed to control future behaviour. These include orders for lifelong restriction (OLRs),12 (p.210) football banning orders (FBOs),13 risk of sexual harm orders (RSHOs),14 parenting orders (POs)15 and greater power to impose antisocial behaviour orders (ASBOs).16 Orders for lifelong restriction can be imposed on persons convicted of certain violent or sexual offences where the court is satisfied on the balance of probabilities that liberating such a person would “seriously endanger the lives, or physical or psychological well-being, of members of the public at large”. Football banning orders prohibit those against whom they are granted from attending regulated football matches, and require them to report at a police station when certain matches are being held overseas.17 The Scottish FBO has been described as “more draconian” than similar provisions enacted for England and Wales.18 Orders for lifelong restriction and FBOs can be imposed as part of the sentencing process, but the latter can also be granted by a sheriff on the application of the police, without there having been a criminal conviction. Likewise, the police may apply for an RSHO where the person to whom the order relates has, on at least two occasions, engaged in sexually explicit conduct or communication with a child. Both RSHOs and ASBOs prohibit those against whom they are granted from “doing anything described in the order”19 for a fixed period.20 Controversially, sheriffs have been empowered to make ASBOs for persons as young as twelve,21 and to make interim ASBOs pending a final decision.22 Although RSHOs, ASBOs, POs and FBOs can each be created using civil court procedures, breaching their requirements without reasonable excuse is a criminal offence.23 In the case of ASBOs and RSHOs, the maximum penalty is five years’ imprisonment.24 The increasing use of civil law orders enforced by criminal law sanctions to regulate a wide range of anti-social behaviour is regarded by (p.211) many as an unwelcome development;25 it circumvents many of the safeguards inherent in criminal procedure, such as its more stringent rules of evidence, which do not apply when such orders are imposed in civil courts. Breach of the order is tantamount to a strict liability offence - no mens rea of having done so intentionally or even recklessly need be established - and this can be for engaging in behaviour which would not otherwise be criminal. This raises issues as to the integrity of the criminal process.26

A concern with more effective management of cases is reflected in reforms of High Court procedure, designed to reduce “churning”, whereby cases set down for trial were being repeatedly adjourned.27 This led to the introduction of mandatory “preliminary hearings”,28 at which the Crown and the defence are encouraged to agree uncontroversial evidence. Scotland had long taken pride in the fact that the maximum period for which an accused person could be imprisoned prior to commencement of his or her trial was 110 days. If the prosecution did not start the trial before this time period elapsed, then the accused person had to be liberated and could not be tried thereafter. This has been changed, such that the limit is now 140 days.29 These changes are intended to improve the efficiency of the criminal process, and few would doubt the value of this. It is, however, imperative that savings in time and money are not gained by sacrificing valuable aspects of criminal procedure, in terms of its overall fairness to those who stand accused of breaching the criminal law.

(p.212) Some reforms, for example in relation to bail,30 were intended to ensure compliance with the requirements of the European Convention on Human Rights (ECHR). A court must now explain its reasoning if it decides not to impose a higher sentence where the accused has breached bail.31 A move to greater transparency is also evident in the enactment of the Judiciary and Courts (Scotland) Act 2008, which put the Judicial Appointments Board for Scotland on a statutory footing, following criticism of the ad hoc nature of the Board when it was first established.32 This also makes the Lord President/ Lord Justice-General the head of the judiciary, including the justice of the peace courts.

A detailed examination of changes made to police powers in the past ten years is beyond the scope of this chapter, but since these can impact on criminal procedure a few observations are in order. Even as the High Court has been narrowing the ambit of the crime of breach of the peace33 to ensure that it is compatible with the ECHR,34 legislation has increased police powers to deal with disorderly behaviour. A constable now has statutory authority to direct a group of individuals (defined as two or more people) in a public place to disperse, purely on the basis that there are “reasonable grounds for believing that [their] presence or behaviour…is causing or is likely to cause alarm or distress to any members of the public”.35 Thus, the officer can take pre-emptive action, rather than waiting for a breach of the peace to occur. A constable may prohibit such a group from returning for a period of up to twenty-four hours.36 As with ASBOs, this restricts the liberty of the individual without prosecution, let alone conviction. Civil liberties have also been narrowed by the requirement that those planning to hold a procession must generally give the local authority twenty-eight days’ notice of this (the notice period was formerly seven days).37 The police have been given (p.213) greater authority to take finger- and palm-prints, as well as DNA samples, from certain categories of arrested persons,38 and to test those arrested for a “relevant offence” for Class A drugs.39 The relevant offences encompass a broad range; as well as misuse of drugs, they include many dishonesty offences (theft, robbery, fraud, reset, uttering a forged document, and embezzlement) and assault. It is an offence to refuse to comply with a drugs test.40

Further amendments to the Criminal Procedure (Scotland) Act 1995 have increased police powers in relation to suspects, witnesses and persons detained on suspicion of having committed an offence. Suspects and witnesses must now specify not only their name and address41 but also their nationality, date of birth, and such details of their place of birth as the constable considers necessary to establish the person’s identity.42 Failure to provide this information without reasonable excuse is an offence. Those detained for questioning were obliged hitherto to provide only their names and addresses. This obligation has been increased to include details of nationality, and date and place of birth.43 The police can now take a suspect’s fingerprints for the limited purpose of verifying identity.44 Refusal to co-operate is an offence. DNA samples taken from those detained on suspicion of having committed certain sexual or violent offences may be retained by the police for three years, so long as criminal proceedings have been instituted, even if the proceedings do not result in a guilty plea or conviction.45 Again, these developments raise issues as to the appropriate balance between protecting the public from future offences, and safeguarding individuals’ privacy and liberty. The European Court of Human Rights has declared unlawful the more extensive powers of retention provided in England.46

Victims of crime have been given a more active role.47 Certain categories of victim are entitled to make a statement to the court, describing the impact (p.214) of the crime, and such statements must be taken into account when the court is passing sentence.48 The list of offences to which this applies has been extended to include most crimes involving personal violence or indecency, and also theft by housebreaking, fire-raising, and road traffic offences which involve fatalities.49 Those who are victims of a prescribed offence50 which has resulted in a sentence of imprisonment or detention for a period of at least eighteen months51 are entitled to receive information about the convicted person, including details about that person’s release, transfer, death in custody or escape,52 and to make written representations to the Scottish Ministers concerning release.53 Victims who are deemed to be especially vulnerable may be afforded special measures to facilitate the giving of their evidence in criminal trials.54

The crimes for which prosecutors can offer fixed penalties (commonly referred to as fiscal fines) have been extended, and the maximum penalty increased to £300.55 Taking no action is now to be treated as acceptance of the offer of a fiscal fine.56 Procurators fiscal can impose compensation orders (to a maximum of £5,000)57 and “work orders” requiring the performance of unpaid work for between ten and fifty hours.58 The tendency for alleged offences to be dealt with otherwise than by prosecution is apparent also in the increase in the range of offence categories for which the police may issue fixed penalties.59 These include several statutory offences60 as well as some (p.215) common law ones.61 The growth of alternatives to prosecution is a cause for concern;62 it is a further example of the prosecution process being circumvented in order to process a greater number of cases more efficiently, with police and prosecutors increasingly exercising a judicial role.

C. Sentencing powers

The general trend here has been the introduction of a greater range of sentencing options,63 and the power to impose harsher sentences.64 The maximum penalties in the sheriff courts have been increased to imprisonment for twelve months in summary procedure,65 and five years in solemn cases.66 In determining the appropriate sentence, a court must now take into account whether and at what stage an accused person pled guilty.67 A judge who does not impose a lesser sentence for a plea of guilty tendered at an early stage must give reasons for this decision.68 The provision of sentencing discounts for guilty pleas raises concerns as to whether such pleas can always be said to be voluntary; the possibility of greater punishment if convicted after trial offers a high incentive for pleading guilty.

(p.216) The Scottish Parliament has empowered the courts to impose increased sentences for a number of specific aggravations, based on certain characteristics of the victim. For example, it is a statutory offence to assault, obstruct or hinder emergency workers such as police, fire-fighters and ambulance workers.69 Courts must also take into account whether an offence was aggravated by prejudice based on the victim’s religion,70 disability,71 sexual orientation or transgender identity.72

D. The substantive criminal law

It is difficult to determine the precise number of offences created by the Scottish Parliament, particularly since some provisions have re-enacted, amended or added to existing offences, rather than creating entirely new ones. A conservative estimate suggests that there are more than 400 offence provisions in statutes passed by the Scottish Parliament in the past ten years. There seems to be only two examples of de-criminalisation.73 Some statutes regulate an activity in large part by proscription.74 The Charities and Trustee Investment (Scotland) Act 2005 and the Housing (Scotland) Act 2006 each contain more than a dozen offences. There are thirty-five offences in the Sexual Offences (Scotland) Act 2009, and a similar number in the Animal Health and Welfare (Scotland) Act 2006. What conclusions can be drawn from the motley collection of new offences? Many Scottish provisions are enacted to ensure that the criminal law is the same north and south of the Border.75 Other criminal law statutes paint a picture of Scotland as a largely (p.217) rural nation concerned with land management76 and animal welfare,77 which is what one might expect in a country in which agriculture plays a prominent role.78 Examination of criminal legislation also provides an indication of the types of problems perceived to be facing Scottish society, with measures designed to tackle the culture of alcohol misuse,79 the carrying of knives and other potential weapons,80 and the activities of paedophiles.81 Children are also the focus of the vexed question of parental punishment; there is now no defence of reasonable chastisement if this involved shaking, hitting on the head or using an implement to strike a child.82 This may not offer Scottish children sufficient protection from harm, and the legislation may well be challenged as being contrary to art 3 of the ECHR.83

One might imagine that the Land Reform (Scotland) Act 2003 would not impact on the criminal law, but in fact it contains a section headed “Ploughing” (p.218) which provides that a landowner who has ploughed or otherwise disturbed a path or right of way must reinstate it. Failure to do so within fourteen days is an offence.84 Just as this provision applies only to landowners, other statutes criminalise the activities of certain categories of persons. These include traders,85 the directors of diagnostic laboratories,86 the operators of sunbed premises,87 fish farmers and shellfish farmers.88 Other provisions are of more general application,89 such as the prohibition on smoking in “no-smoking” premises.90 The Licensing (Scotland) Act 2005 is an example of a statute containing many offences which can only be committed by certain categories of people, such as those in the licensing trade, and others which apply to the wider public. These few examples illustrate that offence provisions are frequently found in unexpected locations, making it far from simple to keep abreast of developments in the criminal law.

Mention has already been made of the Sexual Offences (Scotland) Act 2009. This is the most important reform of the criminal common law enacted to date by the Scottish Parliament. A detailed description would require a chapter in itself, but key provisions include a more appropriate definition of the actus reus of rape: it expands the common law definition of penetration of the vagina to include anal or oral penile penetration.91 It reforms the mens rea of the crime, such that it is rape if an accused had no reasonable belief that a victim was in fact consenting to the penetration.92 There are now statutory offences of, inter alia, coercing a person into being present during a sexual activity,93 or into looking at a sexual image,94 indecent communications,95 and (p.219) voyeurism.96 Several offences are restatements or reformulations of what had hitherto been common law crimes - “coercing a person into being present during a sexual activity”97 or “communicating indecently”98 could have been charged at common law as a breach of the peace. Nonetheless, this codification of the law on sexual offences is to be welcomed.99 It may pave the way for enactment of a more substantial criminal code.

Further changes to the substantive law include the criminalisation of the clients or potential clients of prostitutes, in that soliciting or loitering in a “relevant place” in order to engage the services of a prostitute is now an offence.100 This recognises the gender imbalance in criminalising the behaviour of prostitutes (most of whom are female) but not their clients. Many prostitutes are the victims of earlier sexual abuse and/or human trafficking, and the 2003 Act creates new offences of trafficking for the purposes of sexual exploitation.101 This Act also gave effect in Scots law to the UK’s obligations under the Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials 1997102 by giving the crime of bribery extraterritorial effect.103 Likewise, the fulfilment of international obligations was the motivation for the incorporation into domestic law of genocide, crimes against humanity, war crimes, and offences against the administration of justice of the International Criminal Court.104

As previously mentioned, some attempt at consolidation would be beneficial. For instance, the offences of having an offensive weapon105 or article with a blade or sharp point106 in a public place have been supplemented by a provision which makes it an offence to have such items in a prison.107 Earlier amendments by the Westminster Parliament had applied these prohibitions to schools.108 These various sections could usefully be amalgamated to create (p.220) one offence. The defences also require attention; there seems little reason for providing a defence of “reasonable excuse” for offensive weapons in public places,109 but requiring a “good reason” for offensive weapons or articles with a blade or sharp point in prisons110 or in school premises,111 and for articles with a blade or sharp point in public places.112

Specific offences have been enacted to govern situations which could already be prosecuted under the common law. Hence, s 1 of the Emergency Workers (Scotland) Act 2005 originally applied to assaulting, obstructing or hindering constables, members of a fire brigade or persons acting for the Scottish Ambulance Service Board. More recent amendments have added registered medical practitioners, nurses and midwives to this list.113 It is a separate offence, in s 2 of that Act, to assault, obstruct or hinder certain other people who are responding to emergency circumstances. The relevant capacities for this section include prison officers; members of the crew of a vessel operated, inter alia, by the Royal National Lifeboat Institution; social workers; and mental health officers.114 Registered medical practitioners, nurses and midwives had been included in this section in the original version of the Act, but were later removed,115 presumably owing to their inclusion in s 1 instead. It is a separate offence to assault or impede a person who is assisting an emergency worker,116 and yet another offence to assault or impede health workers in hospital premises.117 Much of this could readily be dealt with by the common law crime of assault. The maximum penalty for this statutory assault was originally nine months’ imprisonment,118 which was higher than the sheriff courts’ summary sentencing powers for common law assault. Once sentencing powers for common law offences in summary proceedings were increased to twelve months’ imprisonment, the 2005 Act’s sentencing provisions also required to be increased.119 Now that the maximum penalty under the statute equates to that for common law crimes, the 2005 Act appears to be largely redundant. It is at best symbolic, emphasising to the public that assaulting emergency workers will not be (p.221) tolerated.120 There are similar offences in the Fire (Scotland) Act 2005 and the Police (Scotland) Act 1967. Consolidation is required.

As we have already noted, other statutory aggravations relate to various forms of prejudice. Is such legislation desirable? It sends a strong message that as a society we deplore this form of abuse, and this in turn may lead to greater tolerance of others’ differences. On the other hand, it is questionable whether it is in fact worse to be targeted because of one’s sexual orientation, religion or race than for other reasons (for example, because of one’s mode of dress).121 It does, however, result in a proliferation of offences. As with the statutory offences of assaulting emergency services personnel, it would be preferable if these various aggravations based on prejudice could at least be consolidated in one statute. Another example of unnecessary criminalisation is the Breastfeeding etc (Scotland) Act 2005. Its preamble states that its objectives are “to make it an offence to prevent or stop a person in charge of a child who is otherwise permitted to be in a public place or licensed premises from feeding milk to that child in that place or on those premises; to make provision in relation to the promotion of breastfeeding; and for connected purposes”. Its primary purpose was surely the second of these: to promote breastfeeding, which is a laudable aim. But the mechanism for achieving this – the creation of an offence coupled with the imposition of vicarious liability – is inappropriate. Scotland certainly has a low level of breastfeeding,122 but a tendency of licensees to eject nursing mothers from their premises is surely not a major cause of this.123

Several statutes create specific crimes for behaviours which could be prosecuted at common law as fraud. For instance, it is an offence for a person falsely to pretend to be a fire services enforcement officer,124 a wildlife inspector,125 a social worker126 or social service worker.127 Other statutes provide offences of (p.222) making false statements in documents.128 Some of these provisions are more extensive than common law fraud, since they criminalise reckless mis-statements.129 Whether recklessness ought to be a sufficient mens rea is a moot point but, on the assumption that it should, a better means of achieving this would be to create a general (statutory) offence of fraud, with intention or recklessness as alternative forms of mens rea. This would avoid the creation of many separate offences.

E. The parliamentary process

In its first two sessions the Scottish Parliament passed seventy-seven “legislative consent motions”,130 thereby agreeing that a devolved matter could be dealt with by Westminster legislation.131 Several of these related to criminal law matters.132 One can see the logic in allowing the Westminster Parliament to legislate both for England and Wales, and Scotland. The process has been defended on the basis that

there is a cross-border interest in issues such as immigration, organised crime and customs. Criminals who operate in the UK will be the first to look for gaps in co-operation, fault lines in legislation or loopholes in police powers…Increasingly, crime has an international dimension.133

However, the use of legislative consent motions does make it yet more difficult to keep abreast of the law, since one has to consider enactments and amendments from both parliaments. For example, while most sexual offences will be found in the Sexual Offences (Scotland) Act 2009 once this is brought into force, for a complete picture one must take account not only of those common law and statutory offences which remain outwith the Act,134 but also of the reform of homosexual offences enacted by the Westminster (p.223) Parliament.135 When in opposition, the Scottish National Party was highly critical of the use of legislative consent motions.136 Academic commentators have also questioned whether, in the words of Stephen Tierney, “this procedure is simply an efficient device in the management of interparliamentary relations, or an instance of Westminster encroaching upon the Scottish Parliament’s autonomy”.137

F. Conclusions

I have argued elsewhere that several common law crimes and defences require clarification by legislation, and that there are lacunae which ought to be filled by enactment of new offences.138 As previously noted, the Sexual Offences (Scotland) Act 2009 represents Holyrood’s greatest achievement to date. It should, however, be borne in mind that Parliament asked the Scottish Law Commission to recommend reform only because of public outcry resulting from an acquittal in a rape prosecution. The judge had been correct to order an acquittal; it was not rape where a woman offered no resistance to sexual intercourse, according to the common law definition which applied at that time. Yet academics had been critical of that same definition for many years.139 It should not require a cause célèbre to instigate reform of the common law. Perhaps the greatest concern lies in the sheer difficulty in finding out what exactly the criminal law provides. This would be made far easier, and the possibility of overlapping or redundant provisions decreased, if the common law were to be codified, and existing statutory offences – or at least those in relatively obscure places – consolidated. Such a codifying and/or consolidating (p.224) measure might help to guard against the creation of offences for largely symbolic purposes, such as the proliferation of statutory aggravations. The issue confronting the Scottish Parliament was well expressed by Eric Clive:

The question is not whether there will be legislative intervention in the substantive criminal law of Scotland. There will be. The question is whether it will be coherent or incoherent. Will the Scottish Parliament in twenty years’ time have left a legacy of legislative chaos in this area or something of which it and Scotland could be proud?140

The answer to this after the first ten years, at least, is that there is more chaos than one would like, and less coherence than one might have hoped for.


(*) Professor of Law, University of Dundee. I am indebted to Pete Duff and Robin White for helpful comments on an earlier version of this chapter.

(1) January 2010.

(2) This estimate includes statutes which do not contain any offence provisions as such, but empower the Scottish Ministers to make regulations which create offences. For a recent example, see the Climate Change (Scotland) Act 2009.

(3) The law of evidence relating to criminal cases is considered in chapter 13 of this volume.

(4) See J Chalmers et al, An Evaluation of the High Court Reforms Arising from the Criminal Procedure (Amendment) (Scotland) Act 2004 (2007).

(5) See P Duff, “Changing conceptions of the Scottish criminal trial: the duty to agree uncontroversial evidence”, in A Duff et al (eds), The Trial on Trial: Truth & Due Process (2004) 29. This tendency is also apparent in the provisions of the Criminal Justice and Licensing (Scotland) Bill relating to disclosure of evidence by the prosecution, and the requirement for the accused in solemn proceedings to provide a “defence statement” in advance of the trial.

(6) See the Maclean Report (Report of the Committee on Serious Violent and Sexual Offenders (2000)); the Bonomy Report (Review of the Practices and Procedure of the High Court of Justiciary (2002)); the McInnes Report (Report of the Summary Justice Review Committee (2004)) and the Coulsfield Report (Review of the Law and Practice of Disclosure in Criminal Proceedings (2007)).

(7) Although Scotland has no criminal code, there is an unofficial draft code: see E Clive et al, A Draft Criminal Code for Scotlandwith Commentary (2003), published under the auspices of the Scottish Law Commission.

(8) Criminal Proceedings etc (Reform) (Scotland) Act 2007 (hereafter “the 2007 Act”) Pt 4.

(9) See Scottish Executive, Evaluation of the Pilot Domestic Abuse Court (2007).

(10) See Scottish Executive, Evaluation of the Airdrie and Hamilton Youth Court Pilots (2006).

(11) See Scottish Executive, Establishing Drug Courts in Scotland: Early Experiences of the Pilot Drug Courts in Glasgow and Fife (2003).

(12) Criminal Justice (Scotland) Act 2003 (henceforth “the 2003 Act”) s 1, which inserts ss 210B-210 H into the Criminal Procedure (Scotland) Act 1995 (henceforth “the 1995 Act”).

(13) Police, Public Order and Criminal Justice (Scotland) Act 2006 (henceforth “the 2006 Act”) s 51(2).

(14) Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (henceforth “the 2005 Protection Act”) s 2.

(15) Antisocial Behaviour etc (Scotland) Act 2004 (henceforth “the 2004 Act”) s 102.

(16) ASBOs were first introduced in Scotland by the Crime and Disorder Act 1998 s 19, but their ambit has been widened by the 2004 Act.

(17) 2006 Act s 53(1).

(18) M James and G Pearson, “Football banning orders: analysing their use in court” (2006) 70 J Crim L 509 at 529.

(19) 2005 Protection Act s 2(7)(a) (RSHO); 2004 Act s 4(5) (ASBO). The 2005 Act is likely to be amended on enactment of the Criminal Justice and Licensing (Scotland) Bill, s 75 of which allows such an order to require the doing of certain things.

(20) In the case of an RSHO the specified period is to be at least two years (2005 Protection Act s 2(7)(b)).

(21) 2004 Act s 4(1).

(22) By the 2003 Act s 44 which amends the Crime and Disorder Act 1998 s 19.

(23) 2004 Act ss 9(1) and 107(1) (ASBO, PO); 2005 Protection Act s 7(1) (RSHO); 2006 Act s 68(1) (FBO).

(24) 2004 Act s 9(2)(b), and 2005 Protection Act s 7(4)(b), respectively.

(25) ASBOs, in particular, have been subject to a great deal of criticism, both here and in England. See, e.g., S Cracknell, “Antisocial behaviour orders” (2000) 22 Journal of Social Welfare and Family Law 108; R H Burke and R Morrill, “Anti-social behaviour orders: an infringement of the Human Rights Act 1998?” (2002) 11 Nottingham LJ 1; A Cleland and K Tisdall, “The challenge of antisocial behaviour: new relationships between the state, children and parents” (2005) 19 International Journal of Law, Policy and the Family 395; A Cleland, “The Antisocial Behaviour etc (Scotland)Act 2004: exposing the punitive fault line below the children’s hearing system” (2005) 9 Edin LR 439; A Samuels, “Anti-social behaviour orders: their legal and jurisprudential significance” (2005) 69 J Crim L 223; A Ashworth, Sentencing and Criminal Justice, 4th edn (2005) ch 11.

(26) In Clingham v Royal Borough of Kensington and Chelsea; R (on behalf of McCann) v Crown Court of Manchester [2003] 1 AC 787 the House of Lords confirmed that the creation of an ASBO under the Crime and Disorder Act 1998 was a civil law matter, but that the grounds for imposing an order required proof beyond reasonable doubt. The civil law rules of evidence continue to apply, however, such that there is no need for witnesses to testify, and hearsay evidence is admissible.

(27) See the Bonomy Report para 4.4.

(28) Criminal Procedure (Amendment) (Scotland) Act 2004 s 1, which inserts a new s 72 into the 1995Act. See the Bonomy Report para 4.4.

(29) Criminal Procedure (Amendment) (Scotland) Act 2004 s 5, which amends s 65(4) of the 1995 Act. Failure by the Crown to adhere to this timetable results in liberation of the accused, but the trial can nonetheless proceed thereafter. See also the 2007 Act s 11 which amends s 147 of the 1995 Act to allow a sheriff to extend the pre-trial forty-day detention period in summary cases, on cause shown.

(30) See the 2007 Act Pt 1, which in large part codifies the common law on bail.

(31) 2007 Act s 3(1)(c), which amends s 27 of the 1995 Act. Earlier bail reforms were effected by the Bail, Judicial Appointments etc (Scotland) Act 2000 Pt 1; the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 s 5; the 2003 Act ss 48 and 66; and the Criminal Procedure (Amendment) (Scotland) Act 2004, Pts 2 and 3. Legislation has increasingly imposed a duty on courts to state their reasoning, particularly where a decision is not to impose a higher sentence where one would generally be expected; see also below in relation to sentencing for certain statutory aggravations.

(32) See J Gilmour, “The Judicial Appointments Board - a misnomer” (2002) JLSS, 1 August 2002, at 25.

(33) See, in particular, Smith v Donnelly 2002 JC 55; and Harris v HM Advocate [2009] HCJAC 80, 2009 SLT 1078.

(34) In particular, art 7 (criminal offences to be clearly defined by law); art 10 (freedom of expression); and art 11 (freedom of assembly and association).

(35) 2004 Act s 21(1).

(36) 2004 Act s 21(3).

(37) 2006 Act s 70 which amends the Civic Government (Scotland) Act 1982 s 62.

(38) Primarily sex offenders: see the 2006 Act s 77, which inserts ss 19AA and 19AB into the 1995 Act.

(39) That is, cocaine and diamorphine/heroin: 2006 Act s 84, which inserts ss 20 A and 20B into the 1995 Act.

(40) 1995 Act s 20 A(7).

(41) 1995 Act s 13.

(42) 2006 Act s 81(3), which inserts s 13(1 A) into the 1995 Act.

(43) 2006 Act s 81(6), which inserts s 14(10) into the 1995 Act.

(44) 2006 Act s 82, which inserts s 13(1B) and (1 C) into the 1995 Act. At the time of writing, these provisions are not yet in force.

(45) 2006 Act s 83, which inserts s 18 A into the 1995 Act. The retention period can be extended forfurther two-year periods if a chief constable persuades a sheriff that there are reasonable groundsfor so doing.

(46) By the Criminal Justice and Police Act 2001: see S and Marper v United Kingdom [2008] ECHR 1581, (2009) 48 EHRR 50.

(47) 2003 Act Pt 2, based on the Scottish Executive’s Scottish Strategy for Victims (2001).

(48) 2003 Act s 14(2). The court can disregard any irrelevant aspects of a victim statement. See Scottish Executive Social Research, An Evaluation of the Pilot Victim Statement Schemes in Scotland (2007; available at http://www.scotland.gov.uk/Publications/2007/03/27152727/0); and J Chalmers et al, “Victim impact statements: can work, do work (for those who bother to make them)” [2007] Crim LR 360.

(49) Victim Statements (Prescribed Offences) (No 2) (Scotland) Order 2009, SSI 2009/71.

(50) Prescribed by virtue of the Victim Notification (Prescribed Offences) (Scotland) Order 2004, SSI 2004/411.

(51) Victim Notification Scheme (Scotland) Order 2008 SSI 2008/185 art 2 amends the 2003 Act s 16(1)(a) to reduce the original minimum period of four years which triggers victims’ rights to receive the specified information.

(52) 2003 Act s 16(1).

(53) 2003 Act s 17.

(54) Vulnerable Witnesses (Scotland) Act 2004. These provisions are discussed in more detail by F P Davidson in chapter 13 of this volume.

(55) 2007 Act s 50(1); and the Criminal Procedure (Scotland) Act 1995 Fixed Penalty Order 2008, SSI 2008/108, which amends s 302 of the 1995 Act.

(56) 2007 Act s 50(1)(a)(iv) which inserts s 302(2)(ca) into the 1995 Act.

(57) 2007 Act s 50(2) which inserts s 302 A into the 1995 Act.

(58) 2007 Act s 51 which inserts s 303ZA into the 1995 Act. At the time of writing, these provisions are in force in relation to only some parts of Scotland. See the Criminal Proceedings etc (Reform)(Scotland) Act 2007 (Commencement No 4) Order 2008, SSI 2008/192.

(59) 2004 Act s 129.

(60) Disorderly conduct while drunk in licensed premises; refusing to leave such premises on being requested to do so; being drunk and incapable, or while in charge of a child; consuming alcohol in a public place; persisting, to the annoyance of others, in playing musical instruments, singing, playing radios etc; urinating and defecating causing annoyance; vandalism. (The first two were substituted by the Licensing (Scotland) Act 2005 (Consequential Provisions) Order 2009, SSI 2009//248, Sch 1(1) para 10.)

(61) That is, malicious mischief and breach of the peace (2004 Act s 128).

(62) See R White, “Out of court and out of sight: how often are ‘alternatives to prosecution’ used?” (2008) 12 Edin LR 481.

(63) See the discussion of OLRs, FBOs and so on, above; and s 14 of the Criminal Justice and Licensing (Scotland) Bill which will introduce, inter alia, “community payback orders”, “unpaid work or other activity requirements”, “programme requirements”, “mental health treatment requirements”, “drug treatment requirements”, and “alcohol treatment requirements”.

(64) If enacted, ss 3–5 of the Criminal Justice and Licensing (Scotland) Bill will establish a Sentencing Council to promote consistency in sentencing practice by the promulgation of sentencing guidelines.

(65) By the 2007 Act s 43(a), which amends s 5(2)(d) of the 1995 Act.

(66) This was by statutory instrument: the Crime and Punishment (Scotland) Act 1997 (Commencement No 6 and Savings) Order 2004, SSI 2004/176 art 2 brought into force the Crime and Punishment (Scotland) Act 1997 s 13(1)(a), which amended s 3(3) of the 1995 Act. Although the sentencing powers of justice of the peace courts currently remain the same as those of the district courts, the Scottish Ministers have the power to amend this: see the 2007 Act s 46. Note also the shift in responsibility from the courts to the executive for the enforcement of fines, introduced by the 2007 Act s 55, which introduces s 226 A into the 1995 Act. This was based on the recommendations of the McInnes Report at para 32.53.

(67) Criminal Procedure (Amendment) (Scotland) Act 2004 s 20, which amended s 196 of the 1995 Act. (A similar requirement was recognised in Du Plooy, Alderdice, Crooks and O’Neil v HM Advocate 2003 SLT 1237.)

(68) Criminal Procedure (Amendment) (Scotland) Act 2004 s 20(3).

(69) Emergency Workers (Scotland) Act 2005 s 1(1). See also the Fire (Scotland) Act 2005 s 39.

(70) 2003 Act s 74.

(71) Offences (Aggravation by Prejudice) (Scotland) Act 2009 s 1.

(72) Offences (Aggravation by Prejudice) (Scotland) Act 2009 s 2. At the time of writing, this is not inforce.

(73) Convention Rights (Compliance) (Scotland) Act 2001 s 10 repeals a provision which criminalizes homosexual acts involving more than two people (this amends the Criminal Law (Consolidation) (Scotland) Act 1995 s 13). Crofting Reform etc. Act 2007 s 28 provides a new means of enforcing common grazings regulations, resulting in a breach of such regulations no longer being a criminal offence.

(74) See, e.g., the Protection of Wild Mammals (Scotland) Act 2002; the Fur Farming (Prohibition) (Scotland) Act 2002; the Dog Fouling (Scotland) Act 2003; the Breastfeeding etc (Scotland) Act 2005; the Emergency Workers (Scotland) Act 2005; the Prohibition of Female Genital Mutilation (Scotland) Act 2005; the Prostitution (Public Places) (Scotland) Act 2007; and the Christmas Day and New Year’s Day Trading (Scotland) Act 2007.

(75) For example, the Fur Farming (Prohibition) (Scotland) Act 2002 (designed to deter fur farmers from relocating to Scotland as a result of the English ban - there were no fur farms in Scotland at the time of the passing of the legislation); the Prohibition of Female Genital Mutilation (Scotland) Act 2005; the Charities and Trustee Investment (Scotland) Act 2005; the Christmas Day and New Year’s Day Trading (Scotland) Act 2007 (but note that the English legislation applies only to Christmas Day); the Protection of Vulnerable Groups (Scotland) Act 2007; and the Offences (Aggravation by Prejudice) (Scotland) Act 2009. FBOs and ASBOs have their origins in English law.

(76) See Land Reform (Scotland) Act 2003; Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Act 2003; and Nature Conservation (Scotland) Act 2004.

(77) Protection of Wild Mammals (Scotland) Act 2002; Fur Farming (Prohibition) (Scotland) Act 2002; and Animal Health and Welfare (Scotland) Act 2006. The first of these (which banned hunting with dogs of wild mammals such as foxes) was challenged as being contrary to the ECHR art 1 Protocol 1, which states that individuals are entitled to peaceful enjoyment of their possessions. The vires of the statute was upheld by the courts: Adams v Scottish Ministers 2004 SC 665; and Whaley and Friend v Lord Advocate [2005] CSIH 69, 2006 SC 121. Friend’s appeal to the House of Lords was refused: [2007] UKHL 53, 2007 SLT 1209.

(78) There are several statutes involving fishing - see, e.g., Salmon Conservation (Scotland) Act 2001; Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003; and Aquaculture and Fisheries (Scotland) Act 2007. The 2003 Act contains more than thirty offences.

(79) See the detailed provisions of the Licensing (Scotland) Act 2005 which, inter alia, regulates the sale of alcohol to children and young persons, and to persons who are already inebriated.

(80) This is discussed in more detail, below. Knife dealers are further regulated by ss 58 and 59 of the 2007 Act. The 2006 Act s 75 amends the Criminal Justice Act 1988 s 141 A to increase the age at which knives can be purchased to eighteen, unless the knife is for domestic use. It also makes clear that swords are included in the list of items to which this provision applies.

(81) The concern with potential paedophiles is exemplified by several enactments. For example, the Criminal Justice (Scotland) Act 2003 s 19 increases the penalty for breach of s 52 of the Civic Government (Scotland) Act 1982 (relating to the taking, showing, distribution or possession of indecent photographs of children); the Protection of Children (Scotland) Act 2003 s 3 empowers the Scottish Ministers to establish a list of individuals who are considered unsuitable to work with children, and makes it a criminal offence for anyone on the list to work with children; the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 introduces an offence colloquially referred to as the “grooming” of a child for sexual purposes (s 1). See also the Protection of Vulnerable Groups (Scotland) Act 2007 which prohibits certain individuals from working with children.

(82) 2003 Act s 51(3). Other forms of chastisement will be judged against various criteria, including the child’s age, gender and state of health, the nature of any injuries sustained, the duration and frequency of the punishment, the reason for its administration, and so on (s 51(1)).

(83) See H Keating, “Protecting or punishing children: physical punishment, human rights and English law reform” (2006) 26 Legal Studies 394.

(84) Land Reform (Scotland) Act 2003 s 23(3). There are several offence provisions in the Local Electoral Administration and Registration Services (Scotland) Act 2006 and the Planning etc (Scotland) Act 2006.

(85) For example, the Christmas Day and New Year’s Day Trading (Scotland) Act 2007 s 1, aimed at the occupiers or managers of large shops (see s 4).

(86) Public Health etc (Scotland) Act 2008 s 17(1).

(87) Public Health etc (Scotland) Act 2008 ss 95(1), 96(1) and (2), and 98(1).

(88) Aquaculture and Fisheries (Scotland) Act 2007 s 2.

(89) For example, the touting offence in the Glasgow Commonwealth Games Act 2008 s 17(1).

(90) Smoking, Health and Social Care (Scotland) Act 2005 s 2. It is also an offence for the manager of premises to allow smoking in such premises (s 1). The Scottish Ministers have power to modify the offence of selling tobacco to under-age persons (s 9) and this has been used to increase the minimum permitted age to eighteen (Smoking, Health and Social Care (Scotland) Act 2005 (Variation of Age Limit for Sale of Tobacco etc and Consequential Modifications) Order, SSI 2007/437).

(91) Sexual Offences (Scotland) Act 2009 (hereafter “the 2009 Act”) s 1(1).

(92) 2009 Act s 1(1).

(93) 2009 Act s 5. See also s 22 where the complainer is a child aged twelve or younger, and s 32 where the complainer is an older child (aged thirteen to fifteen).

(94) 2009 Act s 6. See also ss 23 and s 33.

(95) 2009 Act s 7. See also ss 24 and 34.

(96) 2009 Act s 9. See also ss 26 and 36.

(97) 2009 Act s 5(1).

(98) 2009 Act s 7(1).

(99) Albeit it is an incomplete codification – see further, below.

(100) Prostitution (Public Places) (Scotland) Act 2007 s 1.

(101) 2003 Act s 22. This implements the European Council Framework Decision on Trafficking in Human Beings.

(102) 2003 Act s 68(1).

(103) It has, however, been argued that Scots law has failed fully to comply with its international obligations: see P Arnell, “The crime of bribery in Scotland” (2009) SLT 1.

(104) International Criminal Court (Scotland) Act 2001 ss 1 and 4. The equivalent legislation for the rest of the UK is the International Criminal Court Act 2001. Both Acts are designed to implement the UK’s obligations under the Rome Statute of the International Criminal Court.

(105) See the Criminal Law (Consolidation) (Scotland) Act 1995 s 47.

(106) Criminal Law (Consolidation) (Scotland) Act 1995 (hereafter “the 1995 Consolidation Act”) s 49.

(107) 1995 Consolidation Act s 49 C, inserted by the Custodial Sentences and Weapons (Scotland) Act 2007 s 63.

(108) 1995 Consolidation Act s 49 A, inserted by the Offensive Weapons Act 1996 s 4(3).

(109) 1995 Consolidation Act s 47(1).

(110) 1995 Consolidation Act s 49 C(2).

(111) 1995 Consolidation Act s 49 A(2).

(112) 1995 Consolidation Act s 49.

(113) Emergency Workers (Scotland) Act 2005 (Modification) Order 2008, SSI 2008/37 art 2(b).

(114) Emergency Workers (Scotland) Act 2005 s 2(3) (henceforth “the 2005 Workers Act”).

(115) By the Emergency Workers (Scotland) Act 2005 (Modification) Order 2008, SSI 2008/37 art 3.

(116) 2005 Workers Act s 3.

(117) 2005 Workers Act s 5. These are defined as registered medical practitioners, nurses and midwives.

(118) 2005 Workers Act s 6.

(119) This was done by the 2007 Act s 44(4).

(120) The provisions on hindering and obstructing may be more useful; the Act specifies that “obstruction” does not require a physical element, and the provision of false information amounts to “hindering” (2005 Workers Act s 4).

(121) This seems to have been the motivation behind the murder of Sophie Lancaster, who was dressed as a “goth” (see BBC News, 30 March 2008). I am indebted to Robin White for the example.

(122) The Scottish NHS had set itself a target to increase the proportion of newborns exclusively breastfed at six to eight weeks from the 2006/7 figure of around 26% to nearly 33%. See http://www.isdscotland.org/isd/5939.html.

(123) In fact, the rates seem to have decreased since the passing of the Act: see H Puttick, “Health fear as fewer mothers breastfeed their babies”, The Herald, 15 May 2007.

(124) Fire (Scotland) Act 2005 s 72(4)(b).

(125) Nature Conservation (Scotland) Act 2004 Sch 6, para 17. This amends the Countryside and Rights of Way Act 2000.

(126) Regulation of Care (Scotland) Act 2001 s 52(1)(a).

(127) Regulation of Care (Scotland) Act 2001 s 52(1)(b).

(128) See the Mental Health (Care and Treatment) (Scotland) Act 2003 s 318; and the Building (Scotland) Act 2003 ss 11(4) and 16(1).

(129) Building (Scotland) Act 2003 s 16(1)(b). See also ss 19(4)(b), 20(1)(b), 34(2) and 37(4)(c).

(130) From 1999 to 2003 (thirty-nine motions); 2003 to 2007 (thirty-eight motions).

(131) There is a convention that the Westminster Parliament will not generally legislate with regard to devolved matters without the consent of the Scottish Parliament. Prior to 30 November 2005,the process by which the Scottish Parliament was asked to give its consent was referred to as a “Sewel motion” (Hansard: HL Deb 21 July 1998 vol 592, col 791).

(132) See, e.g., Sexual Offences (Amendment) Act 2000; Tobacco Advertising and Promotion Act 2002; Anti-Terrorism, Crime and Security Act 2001; Sexual Offences Act 2003; Fireworks Act 2003; Serious Crime Act 2007.

(133) Scottish Parliament, Official Report, col 14146 (2 February 2005), per Jeremy Purvis, Liberal Democrat MSP.

(134) For example, a common law charge of sexual assault remains competent, and incest remains an offence by virtue of the 1995 Consolidation Act s 1(1).

(135) Sexual Offences (Amendment) Act 2000 s 1(3). This reduced the age of consent from eighteen to sixteen by amending the 1995 Consolidation Act s 13.

(136) See, e.g., Scottish Parliament, Official Report, col 227 (19 January 2000), per Roseanna Cunningham MSP. It should, however, be noted that the SNP administration has also made use of legislative consent motions. Recent examples include the Policing and Crime Act 2009; Bribery Bill 2009; and Crime and Security Bill 2009.

(137) S Tierney, “Giving with one hand: Scottish devolution within a unitary state” (2007) International Journal of Constitutional Law 730 at 750. See also A Sinclair, “The Supreme Court: a separation of powers or a union of laws? Some further problems of Anglo–Scots legal relations” (2005) Criminal Lawyer 6 at 7; A Batey and A C Page, “Scotland’s other Parliament: Westminster legislation about devolved matters in Scotland since devolution” (2002) Public Law 501;and P Arnell, “Muddy waters: legislative competence and the International Criminal Court in Scotland” (2002) 2 Oxford University Commonwealth Law Journal 281.

(138) See P R Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2009), especially ch22.

(139) For example, C H W Gane, Sexual Offences (1992); P R Ferguson, “Controversial aspects of the law of rape: an Anglo-Scottish comparison’, in R Hunter (ed), Justice and Crime: Essays in Honour of The Lord Emslie (1993) 180.

(140) E Clive, “Submission of a draft criminal code for Scotland to the Minister for Justice” (2003) 7 Edin LR 395 at 398.