Criminal Law Reform in Scotland

Document Cited in Related
DOI10.3366/elr.2015.0302
Published date01 September 2015
Date01 September 2015
Author
Pages399-403
<p>In December 2014, the Scottish Law Commission announced the appointment of two new Commissioners.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p>Scottish Law Commission, “News: new Commissioners”, 23 December 2014, available at <ext-link ext-link-type="uri" xlink:href="http://www.scotlawcom.gov.uk/news/new-commissioners/"><italic>http://www.scotlawcom.gov.uk/news/new-commissioners/</italic> </ext-link>.</p> </fn> Neither of the two new appointees has particular expertise in criminal law. This seems likely to bring an end to the relatively constant programme of criminal work which was carried out under the auspices of two previous Commissioners, Patrick Layden and Gerry Maher,<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>Prior to Maher's appointment in 2000, the Commission addressed criminal law projects somewhat intermittently: see C H W Gane, “Criminal law reform in Scotland” (1998) 3 SLPQ 101.</p> </fn> and the Commission announced in February 2015 that it would remove the law of homicide from its programme of work.<xref ref-type="fn" rid="fn3"><sup>3</sup> </xref><fn id="fn3"><label>3</label> <p>Scottish Law Commission, <italic>Ninth Programme of Law Reform</italic> (Scot Law Com No 242, 2015) para 1.5.</p> </fn></p> <p>Criminal law has featured significantly in the range of legislation passed by the Scottish Parliament and, given the political salience of crime and justice issues, will almost certainly continue to do so.<xref ref-type="fn" rid="fn4"><sup>4</sup> </xref><fn id="fn4"><label>4</label> <p>For a survey of reforms until 2010, see P R Ferguson, “Criminal law and criminal justice: an exercise in ad hocery”, in E E Sutherland, K E Goodall, G F M Little and F P Davidson (eds), <italic>Law Making and the Scottish Parliament</italic> (2011) 208.</p> </fn> Scottish Law Commission reports have been only one source of reform proposals. The purpose of this brief note is to sketch some of the mechanisms which have been used to generate proposals for reform in recent practice, and to highlight some of the difficulties to which they give rise, particularly in the absence of the option of referring an issue to the Commission.</p> CRIMINAL LAW REFORM WITHOUT THE LAW COMMISSION Internal review

Perhaps the simplest approach for the government to take is to deal with law reform in-house, issuing a consultation paper followed by a Bill in due course. This has the attractions of both relative speed and the absence of any requirement for additional expenditure.

A current example of this approach is the consultation paper Equally Safe.5

Scottish Government, Equally Safe – Reforming the Criminal Law to Address Domestic Abuse and Sexual Offences (2015).

This omnibus paper canvasses a number of different issues, with two proposed new criminal offences being particularly prominent: a specific offence of domestic abuse and a new criminal offence to address so called “revenge porn”. This disparate group of measures is presented, somewhat creatively, as having arisen out of a broader Scottish strategy for combatting violence against women and girls.6

Ibid at 6. See Scottish Government and COSLA, Equally Safe: Scotland's Strategy for Preventing and Eradicating Violence against Women and Girls (2014).

This is not the place to discuss the merits of these proposals, but the consultation on “non-consensual sharing of private, intimate images” highlights the limitations of the government's approach. The research basis for the proposal consists of approximately one page of text referring to a seemingly arbitrary selection of jurisdictions: South Australia, Queensland, Germany, Arizona, Delaware, New Jersey and England and Wales (appearing in that order). In all cases, weblinks are provided for the relevant legislation, not always to authoritative versions. In the case of Germany, the reference is to an English translation of the German Strafgesetzbuch.7

Available at http://www.gesetze-im-internet.de/englisch_stgb/ .

Unfortunately, the particular section which the consultation paper quotes was deleted and replaced with a different provision in January of this year.8 ...

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