Findlay Stark

Corporate Criminal Liability in Scotland: The Problems with a Piecemeal Approach

This chapter analyzes Scotland’s approach to corporate criminal liability. Through a patchwork of statute and case law, Scots law has struggled to define clearly the conditions under which a corporation – and/or its employees – may be held liable for crime. The chapter first critiques this approach to attribution, before moving on to consider four other issues: the offenses for which a corporation can be held liable in Scotland; the types of corporation which are capable of having criminal liability attributed to them; the range of sentences available to a court once a corporation has been convicted; and procedural concerns, such as the special evidential rules created in order to make the trial of a corporation possible. All of these matters remain, in certain aspects, unclear in Scots law and the paper concludes by making some tentative proposals for reform.

IT'S ONLY WORDS: ON MEANING AND MENS REA

In English law, mens rea terms can be defined differently depending on the context. This article attacks this approach, arguing that it pays insufficient attention to the criminal laws twin needs to communicate effective guidance to citizens who wish to avoid punishment, and to control the discretion accorded to the criminal laws institutions. It would be preferable to have clear definitions of mens rea terms applied uniformly across the criminal law. If there are gaps, these ought to be filled by additional mens rea terms. The practical issues raised by this argument are considered briefly.

Scotland: A Plea for Consistency

Scotland’s Appeal Court fashioned a test for exclusion of evidence gathered in violation of the law already in 1950 a landmark decision of Lawrie v. Muir. In the Scottish test, courts should balance the seriousness of the violation of statutes or the defendant’s rights on the one hand, against the need of the state to prove guilt in criminal cases and punish criminals. Technical, minor or “good faith” violations, especially in serious cases, should not lead to exclusion, whereas serious violations which impact on the fairness of the proceedings, should. This appears to be one of the earliest decisions articulating a “fairness” test for exclusion, and it was admired by prominent jurists in England and Wales. However, in this Chapter the authors thoroughly discuss the case law which has followed Lawrie, and show its inconsistency and failure to set out clear tests for exclusion of illegally gathered evidence. They feel that Scotland’s “fairness” test, now virtually identical to that of the European Court of Human Rights and England and Wales, is too malleable, and that, especially in the area of admissibility of evidence found as a result of unlawful confessions, the courts are too reticent to find a violation of the right to a fair trial.

Bringing the Background to the Fore in Sexual History Evidence

The Court of Appeal’s decision in Evans has renewed interest in reforming section 41 of the Youth Justice and Criminal Evidence Act 1999. This provision allows leave to be given for the defence to adduce evidence of, or cross-examine any witness about, ‘any sexual behaviour or other sexual experience, whether or not involving any accused or other person’ (hereinafter, ‘sexual history evidence’) relating to the complainant in a sexual offences case. One proposal for reform, introduced by Harriet Harman MP into the Prison and Courts Bill before the dissolution of Parliament, would have removed the possibility of leave: section 41 would have become an absolute bar on the admissibility of evidence of the complainant’s sexual history. This proposal, which may conceivably reappear during the next Parliament, was presumably intended to legislate in violation of the right to a fair trial. There is no need to go that far, but there is fresh cause for reflection: Evans indicates (once again) that section 41’s wording and structure obscures more than it clarifies. The legislation also does not quite mean what it says, because of the House of Lords’ decision in A (No 2). Reform would be useful, and a suggested starting point would be to refocus attention on the oft-neglected section 41(2)(b) of the Act, which has the potential to strike an appropriate balance between the competing interests at stake in this area.

The Demise of "Parasitic Accessorial Liability": Substantive Judicial Law Reform, Not Common Law Housekeeping

In Jogee and Ruddock , the Supreme Court/Privy Council decided that the law on secondary liability took a “wrong turn” in 1984 in the Privy Councils decision in Chan Wing-Siu . Chan Wing-Siu s contemplation/foresight-based fault element for secondary liability was alleged by the Supreme Court/Privy Council to have bucked a legal trend towards requiring that the secondary party intended to encourage or assist every one of the principals offences. This article presents an alternative history of secondary liability that explains a wider selection of cases from 1553–1984 than were considered in Jogee and Ruddock . On this alternative account, Chan Wing-Siu was simply a more explicit and intellectually honest decision than its predecessors. If this alternative view of history is accepted, the Supreme Court/Privy Councils claim to be merely “correcting” (rather than substantively reforming) the law of secondary liability should be rejected. Doing so would make more critical a question that was side-stepped in Jogee and Ruddock , namely whether this reform should have been undertaken by the judiciary, rather than the legislature.

Wiping the Slate Clean: Reforming Scots Law's Approach to Evidence of the Accused's Bad Character

This paper discusses the Scottish Law Commission (SLC)s Report on Similar Fact Evidence and the Moorov Doctrine, which proposes revolutionary changes to the way in which Scots law deals with evidence of the accuseds bad character, including his previous convictions. The article sets these proposals in context by explaining the existing Scots law, and comparing it to the English provisions on bad character evidence contained in the Criminal Justice Act 2003. This comparison reveals similarities between the responses of the two jurisdictions. It is remarkable that the SLC did not consider English law to be a viable model for reform, choosing instead to propose legislation which would simply deem certain pieces of bad character evidence relevant in criminal trials. The second part of the paper explains why these proposals should not be implemented.This paper discusses the Scottish Law Commission (SLC)s Report on Similar Fact Evidence and the Moorov Doctrine, which proposes revolutionary changes to the way in which Scots law deals with evidence of the accuseds bad character, including his previous convictions. The article sets these proposals in context by explaining the existing Scots law, and comparing it to the English provisions on bad character evidence contained in the Criminal Justice Act 2003. This comparison reveals similarities between the responses of the two jurisdictions. It is remarkable that the SLC did not consider English law to be a viable model for reform, choosing instead to propose legislation which would simply deem certain pieces of bad character evidence relevant in criminal trials. The second part of the paper explains why these proposals should not be implemented.