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Journal articles on the topic 'Criminal law – Scotland – History'

Author: Grafiati

Published: 10 March 2023

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1

Kozhevnikov, Vladimir V. "About the legal system of Scotland." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 44 (2022): 127–41. http://dx.doi.org/10.17223/22253513/44/11.

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This research paper analyses the Scottish legal system, which both legal theory and comparative jurisprudence often treat very superficially. It is usually just an observation that the Scottish legal system is not subordinate to English law. The paper describes the history of formation and development of the Scottish legal system, drawing attention to the French legal orientation on the one hand and to the strengthening of the common law tradition on the other. The paper also highlights the Scottish legal system, the criminal court system, the criminal procedure, the civil court system and the lower courts as being significantly different from English law for historical reasons. The paper describes the legal sources of law - case law and legislation, as well as certain branches of law. Emphasising that the Scottish legal system is part of a mixed (hybrid) legal family as a result of state-legal integration and convergence of legal systems, the latter must be distinguished from a mixed (pluralistic) legal family which combines elements of the common law legal family with elements of the Romano-Germanic legal family as well as with institutions of traditional and religious legal systems. In conclusion, it is emphasised that, firstly, the actualisation of mixed legal systems is largely linked to globalisation; secondly, it is argued that mixed legal families should be taken into account in their classifications. The author declares no conflicts of interests.

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2

Dropuljic, Stephanie. "The Role of Women in Pursuing Scottish Criminal Actions, 1580–1650." Edinburgh Law Review 24, no. 2 (May 2020): 232–50. http://dx.doi.org/10.3366/elr.2020.0628.

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This article examines the role of women in raising criminal actions of homicide before the central criminal court, in early modern Scotland. In doing so, it highlights the two main forms of standing women held; pursing an action for homicide alone and as part of a wider group of kin and family. The evidence presented therein challenges our current understanding of the role of women in the pursuit of crime and contributes to an under-researched area of Scots criminal legal history, gender and the law.

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3

Kennedy, Allan. "State Formation, Criminal Prosecution and the Privy Council in Restoration Scotland*." English Historical Review 135, no. 572 (February 2020): 29–62. http://dx.doi.org/10.1093/ehr/ceaa004.

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Abstract Historians have begun to think about the emergence of the early modern ‘state’ in complex and creative ways, far from the conventional focus on overweening central bureaucracies. One component of this discourse is the role of criminal law and criminal prosecution, which, it has been argued (particularly by English scholars), assisted state-forming processes by providing a universal interface between ruler and ruled, and by demarcating common patterns of behaviour. This paper attempts to apply these ideas to the case of early modern Scotland—whose decentralised legal system and reputation for judicial barbarity has tended to discourage research—through detailed analysis of the judicial activities of the Privy Council. Focusing on the reigns of Charles II and James VII & II, the paper assesses the Council’s theoretical competence as a criminal court, and also reconstructs its day-to-day activities in terms of the kinds of cases tried, the varieties of punishment imposed, and the use of alternative mechanisms such as judicial commissions. The paper argues that the Restoration Privy Council was clearly able to utilise its judicial powers as a state-building tool, despite the general diffuseness of judicial authority in Scotland. It is suggested, therefore, that the Scottish data confirms the utility of criminal prosecution in early modern projects of state formation, underlining historians’ need to conceptualise the process in broad, multi-faceted terms.

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McPherson, Rachel. "Diminished Responsibility Post Codification: Lost Opportunities, Tensions and Gendered Applications." Edinburgh Law Review 25, no. 2 (May 2021): 173–91. http://dx.doi.org/10.3366/elr.2021.0693.

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Following from the Scottish Law Commission's Report on Insanity and Diminished Responsibility, the Criminal Justice and Licensing (Scotland) Act 2010 codified the plea of diminished responsibility. Part of the justification for this codification arose from the need to clarify the rule in relation to drugs and alcohol. With this change there existed scope to develop the plea in a way which appreciated the complex interplay between mental conditions and intoxication- something which was absent under common law. At a time when mental health law is under review in Scotland, this paper seeks to examine the landscape of diminished responsibility, asking whether s51B is able to properly appreciate the realities of offending and whether it is applied to all accused fairly and consistently.

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5

Wilton, Carol. "“Lawless Law”: Conservative Political Violence in Upper Canada, 1818–41." Law and History Review 13, no. 1 (1995): 111–36. http://dx.doi.org/10.2307/743957.

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The Types Riot of June 8, 1826, is the most celebrated episode of conservative political violence in Upper Canada. It was directed against William Lyon Mackenzie, an immigrant from Scotland and a newspaper editor in York (Toronto) who had perfected a style of journalism characterized by scathing personal abuse of the colony's leaders. About a dozen well-connected individuals, most of them lawyers or law students, broke into the offices of Mackenzie'sColonial Advocatenewspaper in its owner's absence. Terrorizing Mackenzie's mother, son, and assistants, the rioters wrecked the press and scattered the types, throwing some of them into the bay nearby. In a harbinger of what was to come, more than one magistrate looked on without interfering. The attorney general, John Beverley Robinson, neither disciplined the lawyers and law students among the rioters nor prosecuted them in the criminal courts.

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6

Ekirch, A. Roger. "The Transportation of Scottish Criminals to America during the Eighteenth Century." Journal of British Studies 24, no. 3 (July 1985): 366–74. http://dx.doi.org/10.1086/385840.

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In the last few years there has been a growth of interest in the history of crime and law enforcement in early modern Scotland. Recent studies by Stephen Davies, Bruce Lenman, and Geoffrey Parker have described the intricate operation of the country's criminal justice system. Relatively little attention, however, has been paid to the role played by transportation. During the eighteenth century, banishing criminals to the American colonies became the most common punishment employed by higher courts. By providing a merciful alternative to the death penalty without putting the public at serious risk, transportation carried enormous appeal. An attorney in Edinburgh commented, “In many cases it is absolutely necessary for the safety of the state, and the good order of society, that the country should be rid of certain criminals.” This article seeks to explore the nature of Scottish transportation, from its growing popularity in the early 1700s to its demise in 1775, a result of the American Revolution. Questions basic to an understanding of this punishment and its operation remain unanswered. How often was it utilized by courts? How many offenders were exiled during the century? What sorts of crimes had they committed? By what means were they transported to America? How did Scottish procedure differ from the system employed in England? Answers to these questions, besides shedding new light on the internal mechanics of transportation, should open a valuable window onto the Scottish criminal justice system.

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7

Kirchengast, Tyrone. "Victim legal representation and the adversarial criminal trial: A critical analysis of proposals for third-party counsel for complainants of serious sexual violence." International Journal of Evidence & Proof 25, no. 1 (January 2021): 53–72. http://dx.doi.org/10.1177/1365712720983931.

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The past several decades have witnessed a shift toward victim interests being considered and incorporated within adversarial systems of justice. More recently, some jurisdictions have somewhat contentiously considered granting sex offences complainants’ legal representation at trial. In Australia, the Royal Commission into Institutional Responses to Child Abuse (2017), the Royal Commission into Family Violence (2016) and the Victorian Law Reform Commission (2016) considered the potential role of legal counsel for complainants in the criminal trial process. While contrasting quite significantly with the traditional adversarial framework—which sees crime as contested between state and accused—legal representation for complainants is not unprecedented, and victims may already retain counsel for limited matters. Despite broader use of victim legal representation in the United States, Ireland and Scotland, and as recently considered by the Sir John Gillen Review in Northern Ireland, legal representation for sex offences complainants is only just developing in Australia. Notwithstanding recent reference to legal representation for complainants where sexual history or reputational evidence may be adduced, there exists no sufficient guidance as to how such representation may be integrated in the Australian criminal trial context. This article explores the implications of introducing such counsel in Australia, including the possible role of non-legal victim advocates.

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8

White, T. "Patients with Affective Disorders Admitted to Maximum Secure Care (1999-2003)." Medicine, Science and the Law 45, no. 2 (April 2005): 142–46. http://dx.doi.org/10.1258/rsmmsl.45.2.142.

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The State Hospital, Carstairs, is a special secure psychiatric facility for Scotland and Northern Ireland. This study describes the background, illness and offence (where appropriate) characteristics of 25 patients admitted between 1999 and 2003 with a diagnosis of any affective disorder. Patients were, on average, 37 years old and had a lengthy history of psychiatric contact. Patients with an affective disorder were more likely to be admitted under civil proceedings, following a transfer from hospital, as opposed to being admitted under criminal procedure. Sixty per cent were discharged to prison, court or local hospitals within one year of their admission to special secure care. Significant violence during an episode of mania or hypomania (even in the presence of psychotic symptoms) appears rare. Recurrent unipolar depression resistant to first and second line treatments in women, and lithium withdrawal mania in male bipolar patients were the most common clinical problems. Treatments aimed at reducing co-morbid substance misuse, and improving compliance with mood stabilisers, appear important in managing this patient group.

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9

Fincham, Derek. "A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin." International Journal of Cultural Property 15, no. 3 (August 2008): 347–70. http://dx.doi.org/10.1017/s094073910808020x.

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AbstractBlanket ownership laws, export restrictions, and the criminal law of market nations are the default legal strategies currently used by nations of origin to prevent the looting of archaeological sites. Although they have been remarkably successful at achieving the return of looted objects, they may not be the best strategies to maximize the recording and preservation of archaeological context. In England and Wales a more permissive legal regime broadly applied and adopted by the public at large has produced dramatically better results than the strong prescriptive regime of Scotland, which can be easily ignored.This article attempts to clear up any misconceptions of the cultural policy framework in England and Wales. It accounts for the legal position accorded undiscovered portable antiquities, and describes how this legal framework is perfected by a voluntary program called the Portable Antiquities Scheme (PAS). This approach stands in stark contrast to Scotland, which has used a legal strategy adopted by most other nations of origin.The domestic legal framework for portable antiquities in England and Wales is unique and differs from the typical approach. Coupled with the PAS, this legal structure has resulted in a better cultural policy, which leads to less looting of important archaeological sites, allows for a tailored cultural policy, and has produced more data and contextual information with which to conduct historical and archaeological research on an unprecedented scale. Compensating finders of antiquities may even preclude an illicit market in antiquities so long as this compensation is substantially similar to the market price of the object and effectively excludes looters from this reward system. Although the precise number of found versus looted objects that appear on the market is open to much speculation, an effective recording system is essential to ensure that individuals who find objects are encouraged to report them.

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10

Abeyratne, Ruwantissa. "Negligent Entrustment of Leased Aircraft and Crew: Some Legal Issues." Air and Space Law 35, Issue 1 (February 1, 2010): 33–44. http://dx.doi.org/10.54648/aila2010003.

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Negligent entrustment is a civil wrong grounding an action in tort law which arises when one party is held liable for negligence because he negligently provided another party with a an object that could cause harm to another and the latter caused injury to a third party with that object. The cause of action most frequently arises where one person allows another to drive his vehicle. Common law countries apply the The Corporate Manslaughter and Corporate Homicide Act of 2007, which provides that an organization is guilty of an offence if the way in which its activities are managed or organized causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organization to the deceased. The Act applies inter alia to a corporation. The offence is termed ‘corporate manslaughter’, insofar as it is an offence under the law of England and Wales or Northern Ireland; and ‘corporate homicide’, insofar as it is an offence under the law of Scotland. An organization that is guilty of corporate manslaughter or corporate homicide is liable on conviction to a fine and the offence of corporate homicide is indictable only in the High Court of Justiciary. The Act provides, inter alia, that the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the Organization that were likely to have caused failures in the provision of services by the corporation could be taken into account in determining the culpability of that entity. The possible application of this legislation to air transport is a reality, as exemplified in the Helios trial which opened on 26 February 2009 in Cyprus. The trial pertains to the island’s worst air tragedy, when 121 people perished on a charter plane that slammed into a Greek hillside nearly four years ago. According to reports, at the time of writing, Helios Airways and four airline officials faced charges of manslaughter and reckless endangerment in one of the most complex and high-profile cases in the eastern Mediterranean island’s legal history. Plaintiffs, who are relatives of the dead, have called for criminal action against those deemed responsible when the Helios Airways Boeing 737–300 ran out of oxygen and crashed outside Athens in August 2005. It has also been reported that, although the authorities have not named those to be charged, the accused are known to be officials who held top management positions in the airline at the time of the crash. Against this backdrop, this article analyses the offence of negligent entrustment and draws a link between the offence and the leasing of aircraft and crew.

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11

Chalmers, James. "Criminal Law Reform in Scotland." Edinburgh Law Review 19, no. 3 (September 2015): 399–403. http://dx.doi.org/10.3366/elr.2015.0302.

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12

Shaw, Mandy. "Book Review: Criminal Justice in Scotland." International Criminal Justice Review 12, no. 1 (May 2002): 131–32. http://dx.doi.org/10.1177/105756770201200121.

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13

McAra, Lesley. "Crime, Criminology and Criminal Justice in Scotland." European Journal of Criminology 5, no. 4 (October 2008): 481–504. http://dx.doi.org/10.1177/1477370808095127.

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14

Kennedy, Chloë. "Criminal Law and Religion in Post-Reformation Scotland." Edinburgh Law Review 16, no. 2 (May 2012): 178–97. http://dx.doi.org/10.3366/elr.2012.0102.

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15

Shiels, Robert. "The Lockerbie Case Law." Journal of Criminal Law 66, no. 4 (August 2002): 374–79. http://dx.doi.org/10.1177/002201830206600407.

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The destruction of an aircraft while it was in flight over Lockerbie in Scotland in 1988 led to a criminal trial 12 years later. That trial took place in The Netherlands within a specially constituted court where the law applied was that of Scotland. This article describes and considers the nine reported cases that have so far resulted from the arrest and prosecution of those accused of the Lockerbie bombing.

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16

Burnam, Michele. "Changing policy and practice? Criminal justice research in Scotland." Criminal Justice Matters 72, no. 1 (June 2008): 34–36. http://dx.doi.org/10.1080/09627250802058540.

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17

Nellis, Mike. "Setting the parameters of ‘digital (criminal) justice’ in Scotland." Probation Journal 64, no. 3 (June 8, 2017): 191–208. http://dx.doi.org/10.1177/0264550517712625.

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The term ‘digital justice’ has been used by the Scottish Government to delineate the potential of information and communication technology (ICT) in its civil, administrative and criminal justice systems. This paper concentrates on the latter area, outlining the content of the original 2014 digital justice strategy document and the subsequent Holyrood conferences used to promote it (Scottish Government, 2014). It notes gaps in the strategy, not least a failure to specify what human beings could and should be doing in digitized justice systems, and ambiguity about the endpoint of ‘full digitization’, which could be very threatening to existing forms of professional practice. It sets the policy debate in the broader context of increasing automation and the more critical literature on digitization, concluding with recommendations for a revised policy document, ideas which may be of interest outside Scotland.

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18

Jones, Timothy H. "Towards a Good and Complete Criminal Code for Scotland." Modern Law Review 68, no. 3 (May 2005): 448–63. http://dx.doi.org/10.1111/j.1468-2230.2005.00546.x.

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19

Middlemiss, Sam, and Laura Sharp. "A Critical Analysis of the Law of Stalking in Scotland." Journal of Criminal Law 73, no. 1 (February 2009): 89–114. http://dx.doi.org/10.1350/jcla.2009.73.1.550.

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This article analyses the current law of stalking in Scotland in the light of various legal changes which have taken place since the enactment of the Protection from Harassment Act 1997. The various types of crime that can apply to stalking in Scotland are given detailed consideration particularly in relation to monitoring and control of stalkers and enforcement of legal measures against them. Changes in the common law rules dealing with criminal law in Scotland have cast doubt on its continued ability to deal with this problem and the complex, ad hoc nature of statutory protection introduced in recent years against stalkers in Scotland has done little to provide certainty in this area. Although the legal rules in England dealing with this are by no means perfect the utilisation of the two criminal offences in the Protection from Harassment Act 1997 to combat stalking behaviour has had some success. The current legal rules in Scotland are compared with those in England where arguably there is a more developed system of legal protection.

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20

Maybee, James. "The Challenge Ahead For Criminal Justice Social Work In Scotland." Probation Journal 47, no. 3 (September 2000): 193–99. http://dx.doi.org/10.1177/026455050004700304.

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21

Krause, Thomas. "Criminal Justice History." Rechtsgeschichte - Legal History 2005, no. 06 (2005): 181–90. http://dx.doi.org/10.12946/rg06/181-190.

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22

Holligan, Chris, Robert McLean, and Richard McHugh. "Exploring County Lines: Criminal Drug Distribution Practices in Scotland." Youth Justice 20, no. 1-2 (February 26, 2020): 50–63. http://dx.doi.org/10.1177/1473225420902850.

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The concept of ‘County Lines’ denotes an exploitative type of illegal drug distribution and dealing criminal enterprise that is indicative of the development of new strategies to underpin criminal markets in Britain. It is a growing phenomenon characterizing the evolution and working of drug distribution networks in contemporary Britain which often establish ‘nests’ in the homes of vulnerable persons domiciled within drug traffic hubs. This article draws upon qualitative data generated from interviews with active and former offenders and members of intervention agencies in order to understand more about the denizens of this embryonic criminal world.

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23

Neff, Stephen C. "I. International Law and Nuclear Weapons in Scottish Courts." International and Comparative Law Quarterly 51, no. 1 (January 2002): 171–76. http://dx.doi.org/10.1093/iclq/51.1.171.

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Britain's Trident nuclear missile programme has long been politically controversial. In 1999, the controversy entered the judicial arena in Scotland, in two cases involving ‘direct action’ against Trident installations by anti-nuclear activists. In both cases, the actions were intended not as protests against Britain's nuclear-weapons policy, but rather as actual operations to disable the weapons themselves. The acts were, in other words, in the nature of acts of sabotage. Both incidents led to criminal prosecutions. In both cases, the accused parties sought to use international law as a defence. In both cases, the Appeal Court of the High Court of Justiciary—the highest court for criminal cases in Scotland—rejected the defence. In the process, however, the Appeal Court had occasion to expound upon some controversial points regarding nuclear weapons. Each of these cases will be discussed in turn.

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24

Wormald, Patrick. "Anglo-Saxon Law and Scots Law." Scottish Historical Review 88, no. 2 (October 2009): 192–206. http://dx.doi.org/10.3366/e0036924109000857.

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Patrick Wormald used legal material buried deep in volume i of the Acts of the Parliaments of Scotland to argue for a comparatively maximalist view of early Scottish royal government. The paper compares this Scottish legal material to two Old English codes to show that there existed in Scotland structures of social organisation similar to that in Anglo-Saxon England and a comparable level of royal control over crime by the early eleventh century. The model of a strong judicial regime in the Anglo-Saxon kingdom, put forward fully by Wormald in volume i of The Making of English Law, suggests that the kingdom of the Scots could have been inspired by (or followed a parallel trajectory to) its Anglo-Saxon neighbour in its government's assumption of rights of amendment previously controlled by kin-groups. English influence on Scottish legal and constitutional development can therefore be seen in the tenth and eleventh centuries as much as it can in the twelfth and thirteenth centuries. The paper also suggests methods of examining the legal material in volume i of the Acts of the Parliaments of Scotland and effectively clears the way for further study of this neglected corpus of evidence.

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25

Lacey, Nicola. "Philosphy, History and Criminal Law Theory." Buffalo Criminal Law Review 1, no. 2 (January 1, 1998): 295–328. http://dx.doi.org/10.1525/nclr.1998.1.2.295.

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26

Kilday, Anne-Marie. "Hell-Raising and Hair-Razing: Violent Robbery in Nineteenth-Century Scotland." Scottish Historical Review 92, no. 2 (October 2013): 255–74. http://dx.doi.org/10.3366/shr.2013.0177.

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This piece investigates trends in criminal prosecutions in nineteenth-century Scotland and considers whether fears of a crime epidemic which were prevalent in England at that time were also relevant in the northern context. Using legal prosecutions for robbery more specifically, the article offers an analysis of indictment trends which suggests the existence of a paradox in Scottish criminality, where in a context of heightened awareness and intensified concern about criminality (especially in relation to violent offences) the incidence of this type of criminality declined after the mid-point of the century. The piece also offers an investigation of the nature and incidence of robbery in Scotland during the nineteenth century and determines how the crime was carried out, by whom, and for what purpose. Comparisons are drawn between the Scottish and English experience of violent theft in order to establish certain distinctive characteristics about how robbery was committed north of the Tweed and to reason why a wider and more detailed analysis of crime in nineteenth-century Scotland is warranted. Finally, the article offers some explanations for the decline in robbery and other violent offences in Scotland after 1850, including reference to the ‘civilising process’ hypothesis which merits closer attention in the context of Scottish criminal history.

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27

Brooks, Oona, and Michele Burman. "Reporting rape: Victim perspectives on advocacy support in the criminal justice process." Criminology & Criminal Justice 17, no. 2 (September 19, 2016): 209–25. http://dx.doi.org/10.1177/1748895816667996.

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Concerns about the criminal justice response to rape have prompted the development of victim advocacy services across a range of jurisdictions, yet research evidence about the nature, meaning and value of advocacy remains limited. This article draws upon a study evaluating an innovative advocacy model introduced in Scotland to assist reporting rape to the police. Findings from interviews with nine victims highlight the importance of advocacy that is independent of statutory and criminal justice agencies. However, it is argued that this does not mitigate the need for specialization or reform in the criminal justice response to rape and, further, that the distinction between advocacy at an individual and societal level represents a false dichotomy.

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28

Levack, Brian P. "The Prosecution of Sexual Crimes in Early Eighteenth-Century Scotland." Scottish Historical Review 89, no. 2 (October 2010): 172–93. http://dx.doi.org/10.3366/shr.2010.0204.

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A session of the north circuit held at Perth on 20 May 1709 marked a turning point in the prosecution of sexual crimes in Scotland and a significant change in the administration of Scottish criminal justice. By pardoning more than 300 men and women charged with fornication and adultery, the court brought about the de facto decriminalisation of those crimes in the Scottish secular courts. An incest trial held before the court the same day revealed difficulties in the prosecution of this crime and challenged prevailing male and clerical attitudes towards rape. The proceedings of the court also demonstrated the growing reluctance of Scottish advocates to appeal to biblical authority in criminal prosecutions. The legal developments at Perth were made possible by a bill of indemnity passed by the British parliament in 1708, the abolition of the Scottish privy council in the same year, and the establishment of a comprehensive circuit court system in Scotland.

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29

Shiels, Robert S. "Scottish Criminal Case Review Commission v Swire." Journal of Criminal Law 81, no. 5 (October 2017): 356–58. http://dx.doi.org/10.1177/0022018317734703.

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The disaster over Lockerbie, a small town in Scotland, in 1988 was an atrocious event that resulted in the deaths of 259 crew and passengers, as well as 11 residents all of whom were killed when the disintegrating aircraft fell to the ground. Twenty-seven years after the event the criminal case law continues to accumulate.

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Sutherland, Elaine E. "Raising the minimum age of criminal responsibility in Scotland: law reform at last?" Northern Ireland Legal Quarterly 67, no. 3 (July 17, 2018): 387–406. http://dx.doi.org/10.53386/nilq.v67i3.125.

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Children in Scotland are held criminally responsible from the age of 8, something that has attracted wholly justified criticism within the country and from international organisations, including the UN Committee on the Rights of the Child. Despite the fact that this puts Scots law in the same camp as some of the world’s least progressive regimes, proposals to raise the minimum age of criminal responsibility have, to date, been rejected. For the second time this century, a government-appointed advisory group recently recommended raising the age to 12. Setting the minimum age of criminal responsibility in Scotland in the context of historical, international and comparative developments and the burgeoning contemporary literature, this article argues that the climate for change has never been better. It predicts that, this time, the advisory group’s recommendation will result in legislative reform and highlights the challenges that will result.

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31

Whish, Richard. "Competition law in Scotland." Competition Law Journal 18, no. 4 (January 29, 2020): 133–40. http://dx.doi.org/10.4337/clj.2019.04.01.

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The Competition and Markets Authority has recently opened an expanded office in Edinburgh. This article reviews the history of the enforcement of competition law (whether in antitrust, markets or merger control) by the CMA and its predecessors and in the Competition Appeal Tribunal and the Scottish courts. With Brexit, calls for increased devolution in competition law and a possible second referendum on Scottish independence, there will be further changes in the enforcement of competition law in Scotland, with the future likely to see more, rather than less, competition law enforcement there than has been the case to date.

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32

Grant, Scott. "Learning on the job? Exploring first-year experiences of newly-qualified criminal justice social workers in Scotland." Probation Journal 64, no. 1 (January 5, 2017): 33–49. http://dx.doi.org/10.1177/0264550516682106.

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Little is known about the experiences of newly-qualified criminal justice practitioners as they enter the field of community justice for the first time. This article reports on isolated data on newly-qualified criminal justice social workers who participated in a national mixed-method study of readiness to practice in Scotland. Findings suggest that new staff felt well-prepared for practice, but many felt employers failed to provide adequate support and development opportunities. Participants report that disproportionate emphasis is placed on workload management during professional supervision sessions where learning needs and emotions are often underplayed. Professional guidance is often sought from informal sources.

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33

Twining, William. "Freedom of Proof and the Reform of Criminal Evidence." Israel Law Review 31, no. 1-3 (1997): 439–63. http://dx.doi.org/10.1017/s0021223700015363.

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In recent years reform of the Law of Evidence has been the subject of renewed interest in many common law countries. Since the adoption of the Federal Rules, debate about wholesale reform has been relatively muted in the United States. But this is exceptional. Major reports have been produced in Australia, New Zealand, Canada, Scotland, and England. With the exception of Canada, most of these have led, or are likely to lead, to significant legislative changes. This period of reformist activity has coincided with a greatly increased interest in theoretical aspects of evidence and proof, sometimes referred to as “The New Evidence Scholarship”. The historical origins of these two movements are rather different, but their ways of talking and thinking about the subject are, of course, intimately connected.

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34

Whatley, Christopher A. "Mitchison, The Old Poor Law in Scotland." Scottish Historical Review 81, no. 1 (April 2002): 134–36. http://dx.doi.org/10.3366/shr.2002.81.1.134.

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35

Raitt, Fiona E. "The Evidential Use of “Similar Facts” in Scots Criminal Law." Edinburgh Law Review 7, no. 2 (May 2003): 174–93. http://dx.doi.org/10.3366/elr.2003.7.2.174.

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This article traces the development of the similar fact rule in Scots law and explores its relative underdevelopment compared to English law and the law of other Commonwealth jurisdictions. Drawing on the recent House of Lords decision in R v Z1 the article suggests that the operation of a similar fact rule is considerably more limited in Scotland than elsewhere. The article acknowledges that the existence of the rule of mutual corroboration arising from the Moorov doctrine partly explains and compensates for this lack of a fully developed similar fact rule in Scots law. However, the article argues that the restricted opportunities for prosecution based on previous misconduct evidence are disadvantageous to Scots law.

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36

Davis, Gayle, and Roger Davidson. "“A Fifth Freedom” or “Hideous Atheistic Expediency”? The Medical Community and Abortion Law Reform in Scotland, c.1960–1975." Medical History 50, no. 1 (January 1, 2006): 29–48. http://dx.doi.org/10.1017/s0025727300000120.

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The purpose of the Medical Termination of Pregnancy Bill, published on 15 June 1966, was to amend and clarify the law relating to termination of pregnancy by a registered medical practitioner. When David Steel, a young Liberal MP from the Scottish Borders, put this bill forward, some suggested that a Scottish politician had no need to introduce abortion reform since Scots law was already satisfactory in this regard. Certainly, abortion law in Scotland was more flexible than its English counterpart, and the number of prosecutions few. The line between criminal and non-criminal abortion was, however, just as indistinct, with great medical uncertainty in this area. On becoming law, the 1967 Abortion Act was the first piece of abortion-related legislation to cover Scotland, England and Wales collectively. None the less, for a variety of legal and moral reasons, abortion policy and practice continued to differ on either side of the Border.

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Flin, Rhona, Ray Bull, Julian Boon, and Anne Knox. "Child Witnesses in Scottish Criminal Trials." International Review of Victimology 2, no. 4 (September 1993): 309–29. http://dx.doi.org/10.1177/026975809300200403.

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This paper presents the results of the first British study to record systematically observations of children giving evidence in criminal trials. Psychologists watched a total of 89 children aged between 5–15 years being examined as prosecution witnesses in a wide range of riminal cases being heard in the District, Sheriff and High Courts of Glasgow, Scotland. Ratings were made of the child's demeanour and of the lawyers' questioning techniques. Most children were able to give their evidence reasonably well; nevertheless a third of them did appear tense and unhappy while in the witness box. The results are discussed in the context of recent attempts to reform the procedures for hearing and testing children's evidence in British criminal courts.

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Antonov, V. I., and E. V. Antonov. "ADMINISTRATIVE PREJUDICE IN FOREIGN CRIMINAL LAW: HISTORY AND MODERNITY." Bulletin of Udmurt University. Series Economics and Law 30, no. 6 (December 28, 2020): 844–50. http://dx.doi.org/10.35634/2412-9593-2020-30-6-844-850.

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The article examines criminal law with administrative prejudice, as well as the history of the emergence and development of norms with administrative prejudice in the modern criminal legislation of Russia on various grounds. This topic is relevant today because the Russian legislator constantly includes new norms containing administrative prejudice in the criminal code of the Russian Federation. The problems of applying norms with administrative prejudice in practice are considered. It is noted that the criminal legislation in force in the XX century actively applied administrative prejudice as a method of legal regulation of public relations arising in the process of implementing the criminal policy of the Soviet state. The article analyzes the criminal legislation of Russia from the point of view of further development of criminal legislation in the direction of improving the institution of administrative prejudice and increasing the number of norms with administrative prejudice.

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Donaldson, Anni. "Working patriarchies? Police and criminal justice responses to domestic abuse in Scotland 1960–1990." Kriminologijos studijos 9 (June 14, 2022): 47–76. http://dx.doi.org/10.15388/crimlithuan.2021.9.2.

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Post-war Scotland remained a deeply patriarchal country. Domestic abuse was common yet widely under-reported by the women it affected. This article argues that police and criminal justice agencies in Scotland 1960–1990 were ‘working patriarchies’ which created significant barriers to reporting. Oral history narratives from domestic abuse survivors, police and criminal justice professionals reveal deeply patriarchal workplaces and practices designed to maintain longstanding traditions of the patriarchal family. These inhibited reporting, denied women access to safety and justice in private life and contributed to women’s continuing inequality in post-war Scottish society.

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Krause, Thomas. "Networking across the North Sea: The Influence of German Civilian Authors on Sir George MacKenzie's “Laws and Customs of Scotland on Matters Criminal”." Edinburgh Law Review 22, no. 3 (September 2018): 368–79. http://dx.doi.org/10.3366/elr.2018.0504.

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In his treatise “The Laws and Customs of Scotland in Matters Criminal”, which was first published in 1678, Sir George Mackenzie gave the first thorough account of Scots criminal law. Being heavily influenced by Roman and Civil Law authorities most of the latter ones hail from Italy, France, the Low Countries, and Spain. There are, however, also a number of German civilian authors Mackenzie relies on. Their influence on his line of argumentation is the subject of Thomas Krause's article.

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Tolmie, Julia R. "Coercive control: To criminalize or not to criminalize?" Criminology & Criminal Justice 18, no. 1 (December 12, 2017): 50–66. http://dx.doi.org/10.1177/1748895817746712.

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Criminalizing coercive or controlling behaviour in an intimate relationship, as has been done in England and Wales and is proposed in Scotland, has the advantage of offering an offence structure to match the operation and wrong of intimate partner violence. This article raises the question as to whether other jurisdictions should follow suit. It argues that the successful implementation of such an offence may require a complexity of analysis that the criminal justice system is not currently equipped to provide and will require significant reforms in practice and thinking. If it is not successful such an offence could conceivably operate to minimize the criminal justice response to intimate partner violence and be used to charge primary victims.

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Brundage, James A. "Proof in canonical criminal law." Continuity and Change 11, no. 3 (December 1996): 329–39. http://dx.doi.org/10.1017/s0268416000003441.

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Du début à la fin du XHIe siécle, l'appréciation des témoignages et preuves par les tribunaux ecclésiastiques catholiques a considérablement évolué. Le système de procédure criminelle qui se fait jour durant cette période comporte de nombreux éléments qui seront plus tard inscrits dans nos lois. Nous en isolerons deux: d'abord le principe selon lequel les juges ne peuvent condamner que s'il y a crime ou délit avéré, ce qui annonce notre actuelle présomption d'innocence; deuxièmement le corps de preuves à constituer pour conclure à culpabilite. Il y eût en ce domaine aussi une évolution importante. Cet article en examine les aspects les plus importants et en esquisse la logique.

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Mays, Richard. "The Criminal Liability of Corporations and Scots Law: Learning the Lessons of Anglo-American Jurisprudence." Edinburgh Law Review 4, no. 1 (January 2000): 46–73. http://dx.doi.org/10.3366/elr.2000.4.1.46.

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It is the contention of this article that Scotland, in response to the social, economic and physical dangers of corporate crime, requires a properly constructed framework of corporate criminal liability based on ideas drawn from Anglo-American jurisprudence. A proposal for such a framework is put forward and explained.

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Dubber, Markus D. "The Comparative History and Theory of Corporate Criminal Liability." New Criminal Law Review 16, no. 2 (2013): 203–40. http://dx.doi.org/10.1525/nclr.2013.16.2.203.

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An exercise in comparative legal history and legal theory, this article challenges the radical distinction that traditionally has been drawn between corporate criminal liability in German and Anglo-American law. In the familiar account, corporate criminal liability in the common law and the civil law passed each other like ships in the night, sometime around the turn of the nineteenth century: the common law had no corporate criminal liability before 1800, and the civil law had no corporate criminal liability after 1800. Closer inspection, however, reveals that corporate criminal liability was widely accepted in both common law and civil law countries at least since the Middle Ages, and that rejection of corporate criminal liability was complete neither in England before 1800 nor in Germany after 1800.

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Edge, Peter. "The codification of Manx criminal law." Journal of Legal History 15, no. 2 (August 1994): 109–30. http://dx.doi.org/10.1080/01440369408531099.

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Hall, Kermit L., and David L. Bazelon. "Questioning Authority: Justice and Criminal Law." Journal of American History 75, no. 3 (December 1988): 1014. http://dx.doi.org/10.2307/1901706.

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Ferguson, Pamela R. "‘Smoke gets in your eyes …’: the criminalisation of smoking in enclosed public places, the harm principle and the limits of the criminal sanction." Legal Studies 31, no. 2 (June 2011): 259–78. http://dx.doi.org/10.1111/j.1748-121x.2010.00181.x.

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Legislation has been enacted in both England/Wales and Scotland which criminalises smoking in certain places. This paper uses these prohibitions as a way of exploring two prominent theories of criminalisation which were employed in the parliamentary debates on the legislation, namely legal paternalism and the liberal ‘harm principle’. The paper argues that the creation of these offences cannot be justified by paternalism, and that the risk of harm to non-smokers from ‘passive smoking’is a preferable justification. This latter rationale could be used in support of more extensive smoking prohibitions in the future. The paper recognises the desire of many to limit the use of the criminal sanction and concludes by suggesting that unwarranted criminalisation can only be avoided if legislatures proposing new offences clearly articulate their reasons for believing that the criminal law is the best mechanism for reducing or deterring the conduct at issue, and demonstrate that the behaviour cannot adequately be deterred by non-criminal measures.

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Berger, Benjamin L. "Judges, Juries, and the History of Criminal Appeals." Law and History Review 29, no. 1 (February 2011): 297–302. http://dx.doi.org/10.1017/s073824801000129x.

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The three articles offered in this forum on the early history of criminal appeals do us the great service of adding much of interest on this important but neglected issue in the development of Anglo–North American criminal procedure. The opaqueness of the legal history of criminal appeals stands in stark contrast to their centrality and apparent naturalness in contemporary criminal justice systems in England, Canada, and the United States. These three papers look at the period leading up to and immediately following the creation of the first formalized system of what we might call criminal appeals, the establishment of the Court of Crown Cases Reserved (CCCR) in 1848. This key period in the development of the adversary criminal trial was marked by both a concerted political effort to codify and rationalize the criminal law and by profound structural changes in the management of criminal justice.

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Cairns, John W., T. David Fergus, and Hector L. MacQueen. "Legal humanism in renaissance Scotland∗." Journal of Legal History 11, no. 1 (May 1990): 40–69. http://dx.doi.org/10.1080/01440369008530984.

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Goodare, J. "Witch-Hunting in Scotland: Law, Politics and Religion." English Historical Review CXXIV, no. 507 (April 1, 2009): 428–29. http://dx.doi.org/10.1093/ehr/cep031.

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