England and Scotland might share the same island, but they maintain separate judicial systems derived from their independent histories. Scottish law is maintained as separate, through the 1707 Act of Union. Criminal defence lawyers need to be aware of the differences in laws between Scotland and England because it can affect a case.
English criminal law is considered part of public law – a relationship between the individual and the state, which defines acceptable codes of conduct within society.
Scottish criminal law is a hybrid common law system, sourced from the many cultural groups in its history.
As criminal law lawyers, we often encounter clients who don’t understand what differentiates these two judicial systems. Here are some legal distinctions to be mindful of.
Both England and Scotland permit voluntary and compulsory criminal interviews. It is a good idea to have legal aid or criminal defence solicitor present for any interview.
Scottish criminal law maintains a right to remain silent, without guilt being inferred.
In England, the information provided in compulsory interviews cannot be used against the interviewee. However, there is no right to silence. Negative inferences can be drawn; an interviewee fails to reveal information or refuses to answer a question; then while in court, answers those questions or brings up information to rely on it.
English criminal law permits voluntary, signed witness statements to be used as evidence in court.
Scottish criminal law treats these as having little value, and they have a more limited place. They can be used in court when the witness cannot physically be there or to show proof of earlier statements should the witness change their testimony.
However, in serious Scottish criminal law cases, witnesses can be compelled to give a “precognition” statement to assist the investigation. The witness does not retain the right to have a criminal defence lawyer present, so these statements cannot be used in court.
Evidence and Corroboration
Scotland has higher requirements for evidence than England.
English criminal law permits conviction from a single source of evidence. Scottish criminal law requires corroboration from more than one source.
This means that in Scotland, each prime fact of the case (that the crime was committed and that it was done so by the accused) must be supported by at least two, different, independent evidence sources.
This holds true, even if the accused confesses. Confessions alone are not enough to convict under Scottish criminal law. Another piece of evidence must corroborate them.
Circumstantial evidence can be used as corroborating evidence, in which case a criminal defence lawyer should be used.
Formal Caution Vs Warnings
England permits the issuance of formal cautions, as an alternative to prosecution of minor crimes. This is a written warning given by police and requires admittance of guilt. Should the person choose not to admit guilt, they are then subject to criminal prosecution.
English formal cautions can be simple or conditional. When conditional, the offender must satisfy specific conditions.
These cautions are not convictions but do become part of the criminal record.
Scottish police will issue verbal or written warnings for minor offences. They can also attach penalties which must be paid or will result in prosecution. These warnings do not become part of a criminal record.
Legal aid lawyers or criminal lawyers should be consulted in these cases since prosecution or admittance of guilt can have long-lasting consequences.
Charges brought in Scotland must include all the points of the offence committed. Criminal defence lawyers can then challenge these details during preliminary case stages.
In England, charges are briefer, with the case summary being done separately.
Scottish jury trials do not require unanimous verdicts. Criminal trial juries consist of 12-15 people. Conviction is determined by majority vote, with eight being the deciding number. Hung juries are not permitted. Scottish verdicts are either guilty (convicted), not guilty (acquitted), or not proven (an acquittal).
Scottish law permits three verdict options: “guilty”, “not guilty”, or “not proven”. The “not proven” verdict is an acquittal that acknowledges doubt of the accused’s innocence. Please consult a lawyer near you, whenever interacting with the judicial system. Even simple cases, such as warnings, can result in life-altering consequences.
Our Criminal defence solicitors
At Graham Walker Solicitors our criminal law lawyers are extremely knowledgable in the differences between English Law and Scottish Law. If you need representation, contact us today, we are available 24/7, a legal aid solicitor will answer your call.