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The following information is intended as a guide
only and does not represent legal advice in relation to any
particular case.
To discuss any criminal matter please contact us
on 0141 552 8880. We do not deal with general enquiries.
Please contact us regarding specific cases only. At Harding &
Company your first interview is always FREE
SCOTS CRIMINAL LAW
The independence of the Scottish legal system is guaranteed by the
Act of Union of 1707. Although subject to legislation of the UK
Parliament, Scots law is separate from that of England and Wales.
There is no appeal in a criminal matter to the House of Lords. Only
a Scottish solicitor (registered with the Law Society of Scotland)
may represent you on a professional basis in any matter calling
before a Scottish court.
CRIMES
Criminal charges have two origins. They may be based on common law
or statute. Common Law crimes are those which have been established
over the centuries by courts and the decisions of Judges, for
example, murder, rape, assault, theft or breach of the peace.
Statutory offences are those created by Parliament (at Westminster
or Holyrood) through legislation, for example. road traffic
offences, some sexual offences, offensive weapons, terrorism or
drugs offences.
PLEA OF GUILTY
A person accused of criminal offence may decide to plead guilty
either by themselves or with the benefit of legal advice – which
would be based on a knowledge of the law and of previously decided
cases. A plea of guilty will normally attract a discount in the
sentence applied – depending upon the stage at which it is tendered.
Prior to the calling of a case, a defence solicitor will have an
opportunity to discuss matters with the Procurator Fiscal (the
prosecutor) and, if appropriate, negotiate a plea on behalf of a
client.
BAIL
Where a person appears from custody and their case is not finally
disposed of at that time, they will be entitled to bail, unless
there are good reasons for it not to be granted, for example, a bad
record or the fact that they are already on bail. Bail is now
normally granted on conditions such as to attend on dates given or
not to approach witnesses. Money bail is only required in the most
exceptional circumstances. A decision to refuse bail can be appealed
to the High Court.
MOTORING OFFENCES
Most driving offences are governed by the Road Traffic Act 1988.
Although this act applies to the whole of the UK, it is enforced and
interpreted separately by the Scottish courts.
In terms of sentences, offences fall into distinct categories: there
are those that carry automatic disqualification like drink driving
or dangerous driving. Others may be subject either to
disqualification or penalty points – it is for the Judge to decide –
such as no insurance. Some offences simply require endorsement upon
your driving licence, for example, not having a tax disc.
Totting- up applies to points endorsed onto a licence. Once 12
points are reached within a 3 year period in relation to the dates
of offences, disqualification is automatic, unless there are special
reasons or exceptional hardship. These figures are 6 points and
within the first 2 years of holding a licence for newly- qualified
drivers.
In addition to these penalties, the offender will also be liable to
a sentence from the usual range available, such as a fine.
TRIAL
Where a person pleads not guilty, a trial will be fixed. This is a
hearing where the prosecution must prove its case beyond a
reasonable doubt. The accused may lead defence evidence in the form
of witnesses or documents or by giving evidence himself. After
hearing arguments on the law and the evidence from the prosecution
and the defence, guilt or innocence will be decided. This will
either be done by a jury (fifteen people on a simply majority) in a
serious or "solemn" case or by a Judge alone in a more minor or
"summary" case.
SENTENCING
All convictions attract a sentence from the usual range of disposals
available to the court such as imprisonment or community service (in
more serious cases), a fine, probation, deferred sentence or
admonition. The Judge will decide upon a sentence after hearing
about the facts of the offence presented by the prosecution and
additional information about the case and the personal circumstances
of the accused as put forward by the defence. All sentences are
appealable to the High Court in Edinburgh.
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