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Scots criminal law relies far more heavily oncommon law than inEngland and Wales. Scottish criminal law includes offences against the person ofmurder,culpable homicide,rape andassault, offences against property such astheft and malicious mischief, and public order offences includingmobbing andbreach of the peace. Scottish criminal law can also be found in thestatutes of theUK Parliament with some areas of criminal law, such asmisuse of drugs andtraffic offences appearing identical on both sides ofthe Border. Scottish criminal law can also be found in the statute books of the Scottish Parliament such as the Sexual Offences (Scotland) Act 2009 (2009 asp 9) and Prostitution (Public Places) (Scotland) Act 2007 (2007 asp 11) which only apply to Scotland. In fact, the Scots requirement ofcorroboration in criminal matters changes the practical prosecution of crimes derived from the same enactment. Corroboration is not required in England or incivil cases in Scotland.Scots law is one of the fewlegal systems that require corroboration.
TheCrown Office and Procurator Fiscal Service (COPFS) provides independentpublic prosecution of criminal offences in Scotland (as the more recentCrown Prosecution Service does inEngland andWales) and has extensive responsibilities in the investigation and prosecution of crime. The Crown Office is headed by theLord Advocate, in whose name all prosecutions are carried out, and employsAdvocates Depute (for theHigh Court of Justiciary) andProcurators Fiscal (for theSheriff Courts) aspublic prosecutors.
Private prosecutions are very rare in Scotland and these require "Criminal Letters" from the High Court of the Justiciary. Criminal Letters are unlikely to be granted without the agreement of theLord Advocate.
The Scots legal system is unique in having three possibleverdicts for a criminaltrial: "guilty", "not guilty" and "not proven". Both "not guilty" and "not proven" result in anacquittal.
The 'not proven' verdict in modern Scots criminal law can be described as an historical accident. Historically, there were no set forms for verdicts used by early juries, and their role was simply to find the guilt or innocence of the accused.[1] The role of the jury changed when it became customary in the Justice Court to compose lengthy indictments, where facts were listed which culminated in a statement of the punishable character of such conduct in general of which the accused ought to be punished for his commission of it. In these situations the role of thejury was to deliver one of the 'special verdicts' of "proven" or "not proven" for individual factual issues one-by-one.[2] It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. This practice persisted until the 1728 trial of Carnegie of Finhaven, where the jury's right to return a verdict of not guilty, and essentially pronounce on innocence and guilt, was re-established. By the 19th century, the legal profession had come to view these 'special verdicts' as obsolete, and yet the "not proven" verdict continued to be used.[3]
The 'not proven' verdict is often taken by juries and the media as meaning "we know they did it but there is not enough proof". The verdict, especially in high-profile cases, often causes controversy. A study was commissioned in September 2017) by academics at the Universities of Glasgow and Warwick, in collaboration with Ipsos Mori, to consider, among other things, the three verdict system in Scotland in order to inform future reform of the criminal justice system in Scotland.[4]
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