Throughout the world, there are jurisdictions which follow a civil law system and some who choose to follow a common law system. On observation, it is clear to see that Scotland follows a ‘hybrid system’ where the criminal law is based on both elements of civil law and common law, and the fact that there is no criminal code in Scotland.
There are a number of characteristics which are different within a civil law system and a common law system. At the most basic level, the main characteristics of a civil law system are that law and procedure are governed by comprehensive codes of rules to anticipate all situations and that legal codes are developed through scholarly analysis. On the other hand, common law is characterised by precedent, which uses past cases to guide future decisions.
To highlight why Scotland is considered to follow a hybrid approach, it is important to look at examples of this. There are some elements of Scots criminal law which are dealt with by legislation. Examples would include the Misuse of Drugs Act 1971, the Criminal Procedure (Scotland) Act 1995 and the Sexual Offences (Scotland) Act 2013. However, it has been noted that much of the criminal law in Scotland is still based on the common law – including many of the more common and most serious offences, such as murder, theft and assault. In relation to common law, it can be said that the principles may be traced back to various sources, including the works of a number of authoritative writers from previous centuries, such as Hume.
There have been discussions as to whether Scotland would benefit from a codified system. The most obvious attempt has been the publication of a draft criminal code from the Scottish Law Commission (SLC) in 2003. Within their news release regarding the draft criminal code for Scotland, the SLC state that they have not formed any view that their work should be used as the basis for enacting a criminal code in Scotland. However, it is interesting to see what major changes were proposed, and again, the SLC explained that the draft code is “designed to replace the common law crimes and also a number of statutory offences in the same fields as those crimes”.
Looking at the draft code in-depth, it is interesting to see what has been proposed, especially for the crime of murder. The commentary picks upon the fact that murder required a “wicked” intention to kill, as per Lord Rodger in Drury v HM Advocate. With regards to the recklessness required for the crime of murder, “wicked” recklessness has often been referred to. However, within section 37 of the draft code, the SLC have opted for the term “callous” recklessness. They simply explain that “callous” is a better term to use as the recklessness must be more than ordinary recklessness, but also that it must involve a callous acceptance of the risk of death created by the acts. The commentary within the draft code makes for interesting reading, and sets out in a clear and concise manner the thinking behind the SLC’s proposals.
Looking at the possible advantages of codifying Scots criminal law, it is clear that the law would be easier to access, not only for judges, but ordinary citizens as well. There is also the suggestion that the system in which Scotland operates may be outdated. Relying on precedent has always been an effective way of coming to decisions, but a decision made decades ago might have an unfair bearing on the outcome of a trial in today’s world. With regards to common law, it could be said that there are cases which reflect the changing needs of society, but by contrast, having these crimes within a code would ensure there is no ambiguity.
By having such a system, it is clear to see that there can be benefits. By incorporating both systems, there is greater flexibility and the need to abide by a criminal code is not required. The key word here is “flexibility”: the Scottish system is unique, offering the best of both worlds. Taking elements from the civil law system, as well as the common law system is a way in which the jurisdiction of Scotland has become famous in the legal world. A particularly pleasing example of this system is the way in which sexual offences have been dealt with in Scotland. Legislation for sexual offences is an approach that is sensible, given the nature of such crimes, but also the recognition that same-sex relationships are now a common feature of society. Given that precedent is limited in this area, legislation is an effective solution.
Sensible decision-making is the phrase that comes to mind and, as the saying goes, “if it ain’t broke, don’t fix it”.
By Isaac Kerr, a Guest Contributor