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The following information is intended as a guide only and does not represent legal advice in relation to any particular case.
To discuss any criminal matter please contact us on 0141 552 8880. We do not deal with general enquiries. Please contact us regarding specific cases only. At Harding & Company your first interview is always FREE.
SCOTS CRIMINAL LAW.
The independence of the Scottish legal system is guaranteed by the Act of Union 1707. Although subject to the legislation of the UK Parliament, Scots law is separate from that of England and Wales. However an appeal can be taken to the Supreme Court in London should that matter involve a devolution issue. Only a Scottish solicitor (registered with the Law Society of Scotland) may represent you on a professional basis in any matter calling before a Scottish court.
CRIME.
Criminal charges have two origins. They may be based on common law or statute. Common Law crimes are those which have been established over the centuries by courts and the decisions of Judges, for example, murder, rape, assault, theft or breach of the peace. Statutory offences are those created by Parliament (at Westminster or Holyrood) through legislation, for example. road traffic offences, some sexual offences, offensive weapons, terrorism or drugs offences.
PLEA OF GUILTY.
A person accused of criminal offence may decide to plead guilty either by themselves or with the benefit of legal advice – which would be based on a knowledge of the law and of previously decided cases. A plea of guilty will normally attract a discount in the sentence applied – depending upon the stage at which it is tendered.

Prior to the calling of a case, a defence solicitor will have an opportunity to discuss matters with the Procurator Fiscal (the prosecutor) and, if appropriate, negotiate a plea on behalf of a client.

BAIL.
Where a person appears from custody and their case is not finally disposed of at that time, they will be entitled to bail, unless there are good reasons for it not to be granted, for example they may have a bad criminal record or the fact they are already on bail. Bail is granted on standard conditions and in some situations the court can impose additional conditions such as not to approach or contact a particular witness or that an accused person remains within their home address between certain times (curfew). Money bail is only required in the most exceptional circumstances. A decision to refuse bail can be appealed.
MOTORING OFFENCES.
Most driving offences are governed by the Road Traffic Act 1988. Although this act applies to the whole of the UK, it is enforced and interpreted separately by the Scottish Courts.

In terms of sentences, offences fall into distinct categories: there are those that carry automatic disqualification like drink driving or dangerous driving. Others may be subject either to disqualification or penalty points - it is for the Judge to decide - such as driving without insurance. Some offences simply require endorsement upon your driving licence, for example, driving through a red light.

Totting - up applies to points endorsed onto a licence. Once 12 points are reached within a three year period in relation to the dates of offences, disqualification is automatic unless there are special reasons for not disqualifying or if an accused would suffer exceptional hardship.

A new driver may have their driving licence revoked by DVLA if they receive six penalty points within a period of two years.

In addition to these penalties, the offender will also be liable to a sentence from the usual range available, such as a fine.

TRIAL.
Where a person pleads not guilty, a trial will be fixed. This is a hearing where the prosecution leads evidence and must prove its case beyond a reasonable doubt. The accused may lead defence evidence in the form of defence witnesses or documents. In addition an accused may give evidence in their own defence.

After hearing the evidence and any arguments on the law, guilt or innocence will be decided. This will either be done by a jury (fifteen people on a simple majority) in a more serious or "solemn" case or by a Judge alone in a less serious or "summary" case. A conviction may be appealed against on the ground that a miscarriage of justice has occurred.

SENTENCING.
All convictions attract a sentence from the usual range of disposals available to the court such as imprisonment, community payback order, fine, deferred sentence or admonition. The Judge will decide upon a sentence after hearing about the facts of the offence presented by the prosecution and any additional information and circumstances of the accused as put forward by the defence. All sentences may be appealed. In summary cases to the newly established Sheriff Appeal Court and in solemn cases to the High Court.

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Harding & Company

79Saltmarket, Glasgow, G1 5LE
0141 552 8880