A Draft Criminal Code for Scotland
| Published date | 01 January 2004 |
| DOI | 10.1350/jcla.68.1.50.25833 |
| Date | 01 January 2004 |
| Subject Matter | Article |
A Draft Criminal Code for Scotland
Robert S. Shiels
In September 2003 the Scottish Law Commission published a draft
criminal code for Scotland, with a commentary of its provisions. Both
the code and the commentary are the work of a group of professors of
law at a number of universities in Scotland. The statutory functions of
the Scottish Law Commission include consideration of the desirability of
codification of areas of the law. The Commission decided to publish the
work of the group with a view to stimulating discussion of the topic. The
code has therefore been supported by the Commission.
Purpose
The draft code is designed in effect to replace common law crimes and
also a number of statutory offences in the same broad areas as those
crimes. The code does not include special statutory offences relating to
particular fields of criminal activity that are regulated extensively al-
ready. It does not, therefore, include road traffic offences or controlled
drugs, both of which are in any event not within the legislative compe-
tence of the Scottish Parliament having been reserved to Westminster. In
short, the practical effect of this code would be to put the broad general
principles of criminal liability and the common law crimes into statutory
form.
A ‘code’?
The draft criminal code is said by its authors1to be a codification of Scots
criminal law with some reform, so that the new law is a restatement
with the elimination of perceived defects and anomalies. The result does
not purport simply to restate the law as it is and neither is it a fresh start.
The code is firmly based on the existing and traditional Scots criminal
law, updated and set out in what is described as the now conventional
modern form.
Legitimacy of the project?
It is probably unusual for a paper of this sort to have the authors
justifying their work. That has been done in regard to this draft code
because Professor Lindsay Farmer of the University of Glasgow raised a
number of questions about the whole project.2These questions are
directed to the legitimacy of an unofficial project at the pre-legislation
stage. He observes that ‘there has never been a strong demand for
1 See pp. 2–3.
2 See ‘Enigma: Decoding the Draft Criminal Code’ (2002) 7 Scottish Law and Practice
Quarterly 68.
50
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