A Criminal Code for Scotland

Is there a need for a criminal code?

The Scottish criminal justice system works, and most of the time it appears to work reasonably well, even if parts of the substantive law do appear old-fashioned and obscure. Those who subscribe to the hillbilly maxim “If it ain’t broke, don’t fix it” will doubtless draw the conclusion that there is no need for a criminal code. If, however, the law of Scotland is to be as fair, efficient, accessible, coherent and democratically respectable as it could be, then there is a need for a criminal code.

Scotland is unusual in not having a codified system of criminal law. Almost all developed countries, including the great majority of common law jurisdictions, have a criminal code. England does not, but one has been recommended by the English Law Commission and the recommendation has received much support. This, of course, does not demonstrate that there is a need for a criminal code - they could a’ be oot o’ step but oor Jock - but it does suggest that there is no need not to have one.

Arguments for a criminal code

Fairness. There appears to be something unfair in a system which, in the case of common law crimes, allows a person to be prosecuted for doing something without it being possible to direct that person to the text of the law which has allegedly been contravened. People are used to this, of course. They think nothing of it. Most common law crimes involve obvious wrongdoing. Mobs are not chanting “Nullum crimen sine lege” outside the Scottish courts. But the point remains. Scotland is one of the few countries where a challenge to a complaint or indictment on the ground that it does not disclose a recognised crime is an unsurprising part of criminal practice.

It is not suggested here that a common law system of crimes is in itself contrary to human rights. It is, however, suggested that some features inherent in the Scottish common law system become more difficult to justify at a time when there is an increasing emphasis on human rights.

Efficiency. A common law system of crimes is interesting, because there is endless room for argument about what the law is, but it is not efficient. A codified system would be easier to teach, easier to learn, easier to apply, easier to explain to lay jurors and justices, and easier to update. This is an important consideration in a country where it is not unknown for lawyers to have to deal with criminal cases, sometimes at quite a high level, without much recent experience of criminal practice, and where a great deal of crime is dealt with, at the lower levels and at the most serious levels, by lay people.  

Accessibility. The common law is not accessible. Not many people have access to the institutional writers. There are excellent modern books but they do not contain the actual text of the law and often contain a good deal of theoretical discussion which is not necessarily what all users want. Recent reports of cases are available at the click of a mouse on the excellent Scottish Courts website but this information is raw and undigested. A code would give the text of the law on the web (and in other forms) with links to cases, commentary and related legislation.

The basic criminal law of a country ought not to consist of mysteries into which experts are initiated over many years. It ought to consist of rules which can be read and understood by everybody.

Coherence. It is of the nature of the common law to be less than coherent. The law develops in response to the facts of particular cases. Some types of case receive a great deal of attention; others hardly any. Different lines of precedents develop independently of each other. Bad decisions can have ill-effects for many years simply because a suitable case for reconsideration does not arise2 and because piecemeal legislative reform is not always an attractive option. A well-drafted code would bring increased coherence.

Democratic respectability. Scotland has a Parliament with the power to deal with most areas of Scottish criminal law. A criminal code enacted by the Scottish Parliament for the first part of the 21st century would be more democratically respectable than a system created by writers and judges largely before the early 19th century and “explained” and developed incrementally since. If any part of the law of Scotland deserves the early attention of the Scottish Parliament it is the general criminal law. Everybody is constrained by the criminal law. Anybody can at any time be a victim of a crime.

Arguments against a criminal code

Cost of change. There would be new rules to learn, apply and argue about. This would lead to more litigation, at least in the short term, than leaving things alone.

Risk of change. Better the devil we know than the devil we don’t know. It would not be easy to avoid errors and oversights in a new code.

Loss of flexibility. The common law is flexible. This is its great advantage. A code would make the law rigid.

Need for a draft

People will assess the above arguments differently. Most could be met by qualifications and counter-arguments. It is hardly possible, however, to reach a rational decision in good faith on the question of codification without relating it to a particular draft code. A badly drafted code, for example, might not bring any gain in accessibility or coherence but might bring excessive detail and rigidity. A well-drafted code might be readable, compact and coherent while leaving ample flexibility for the development of the law.3 It was partly to move the debate from the level of assertion and counter assertion to the level of reasoned argument in good faith on an actual text that we produced the draft criminal code for Scotland which was discussed at the recent conference (henceforth “the draft code”).

What would be involved in codification?

There are many options. The two most important questions relate to coverage and reforming content.

Coverage. A code could be confined to putting the common law crimes and related general principles and defences into statutory form. This would lead to a draft Bill of about 65 sections. It would, however, be less comprehensive than people might expect. It would not, for example, contain much on sexual offences because many sexual offences are now statutory.4 At the other extreme, a code could attempt to include all offences, common law or statutory. This would lead to an enormous draft, containing many regulatory offences which might be more appropriately left in their regulatory context.5 An intermediate possibility would be for the code to contain the common law offences and those offences which, because of their general application, seem to belong appropriately with the common law offences. It is this last solution which has been adopted in the draft code. Road traffic offences, drug offences and many other statutory offences are omitted, partly because of the limitations on the powers of the Scottish Parliament but partly also to keep the draft within manageable size.

Reforming content. A difficult question is whether a new code should simply restate the existing common law, with all its defects, or should attempt to reform it. Uncritical restatement would lose many of the benefits of codification. Too much reform would invite controversy on the merits of particular solutions rather than on the merits of codification as such. Again the draft code attempts to steer a middle course.

The draft code

The draft code is in the form of a draft Bill for the Scottish Parliament with 110 sections, a schedule of penalties, a schedule of minor and consequential amendments and a schedule of repeals. It has general provisions at the beginning on such matters as the presumption of innocence, the burden of proof, overlapping offences, aggravated offences, the state of mind required, criminal omissions, art and part guilt and the criminal capacity of children and legal persons. It then has parts on offences against interests in the person and family relationships; sexual offences; offences against property and economic interests; offences against public order and safety; offences against public interests in lawful government and the administration of justice; offences involving obscene or indecent material; offensive conduct and criminal nuisances; offences involving animals; preparatory offences (including attempt, incitement and conspiracy); defences and penalties.

It could easily be shortened by excising some statutory material - for example the offences derived from the Civic Government (Scotland) Act 1982. It could easily be lengthened by including more statutory material.

The consultation conference

A consultation conference was held in Edinburgh on 20 November 2000 to obtain views on the draft code from interested and knowledgeable people, including in particular those involved in the actual operation of the criminal justice system.

The conference was attended by an invited audience including sheriffs and representatives of the Association of Scottish Police Superintendents, the Crown Office, the Faculty of Advocates, the Justice Department, the Law Society of Scotland, SACRO, SCOLAG, the Scottish Association for the Study of Delinquency, the Scottish Consortium on Crime and Criminal Justice, the Scottish Criminal Cases Review Commission, the Scottish Law Commission, the Scottish Parliament Information Centre, the Scottish Police College, the Scottish Society for Computers and Law, the universities of Aberdeen, Dundee, Edinburgh, Glasgow, Stirling and Strathclyde, and Victim Support Scotland. Unfortunately, but not surprisingly in view of the current pressures of court work, the High Court Judges who had been invited were unable to attend.

At the conference, members of the code group introduced different parts of the code. There were prepared reactions from Sir Gerald Gordon QC; Mr Graham Bell QC, chair of the Faculty of Advocates’ Criminal Practice Group; Sheriff Alastair Stewart; Mr Andrew Normand, the Crown Agent; and Sheriff Principal Gordon Nicholson QC. After the introduction of, and reaction to, each part there was a general discussion. In order to foster a free exchange of views it was agreed that comments would be unattributed.

Results of the conference

The objective of the consultation conference was primarily to obtain constructive criticisms and comments, not to debate the general question of codification or no codification. No decision was expected or taken on the general question.

Many practical and useful comments were made on points of coverage, policy and drafting. There appeared to be a fairly widespread view that in certain areas, notably the treatment of intoxication and some sexual offences, the draft should be less reformist and more traditional. It also became obvious that the draft would need to be more explicit about its approach to the mental element required for offences under the code. This approach is more objective and, in theory at least, less benign to some offenders than the existing law, but this was not made sufficiently clear.

There were some suggestions for re-ordering of material, principally in relation to defences,6 but no other criticism of the general structure, style or readability of the code.

Further action

All the suggestions made at the conference will be carefully considered and taken into account by the group, although not all will be accepted. Some of them point in different directions. A revised version of the draft code will be prepared. Explanatory notes will be expanded and refined. The revised draft code will then be circulated to those who have expressed an interest in receiving and commenting on later versions. If any readers of the Journal would like a copy of the revised version in exchange for a moral obligation to read it and submit comments within a period of two weeks of receipt could they please email the undernoted7. In the light of further comments received, the draft will be revised again and then submitted to the Minister for Justice with a request that it be considered. It was suggested at the conference that a copy should also be sent to the Justice and Home Affairs Committee of the Scottish Parliament. The text and explanatory notes will also be placed on a website, the precise site yet to be determined.

Many specific issues will have to be reconsidered by the group but the conference gave some reason to suppose that a draft which took due account of the suggestions made would be on the right lines and would provide the Scottish Executive and the Scottish Parliament with an option for useful legislation.

Other developments

The best development since the conference is that Sir Gerald Gordon has agreed to join the group working on the draft code. Sir Gerald would not describe himself as a code enthusiast but he is interested in the project and willing to contribute. Nobody has more to offer. Nobody is better placed to ensure that the draft code does not contain avoidable errors. The group is delighted and privileged to have him on board.

Professor Chris Gane will address the general question of codification of the criminal law of Scotland in a public lecture (part of the Scrymgeour Lecture series) at Dundee Law School on 24th January 2001. Other possibilities for widening the public debate on this important question are under consideration.

Final thought

Hillbilly maxims can have a certain appeal, particularly to the hard-pressed, but it would be a pity if they were to play too great a role in the development of Scottish legal policy. Progressive pragmatism presumably does not mean inactivity and stagnation. We live in an age when it is common, and often wise, to replace old models by better models even if the old models “ain’t broke”.