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Draft Criminal Code for Scotland with Commentary

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Draft Criminal Code for Scotland with Commentary PLEASE NOTE THAT DUE TO THE TEMPLATE USED FOR THIS DOCUMENT THE LAYOUT OF THE WEBSITE VERSION MAY DIFFER SLIGHTLY FROM THE PRINTED VERSION A DRAFT CRIMINAL CODE FOR SCOTLAND WITH COMMENTARY Prepared by Eric Clive, Pamela Ferguson, Christopher Gane, and Alexander McCall Smith Published under the auspices of the Scottish Law Commission 140 Causewayside, Edinburgh EH9 1PR ii © Eric Clive, Pamela Ferguson, Christopher Gane, Alexander McCall Smith Permission is given by the copyright owners for unlimited reproduction for non-commercial and educational purposes. Applications for permission to copy for other purposes should be made to one of the authors, each of whom is authorised to act on behalf of the group. Addresses are given at the end of the paper. The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Eassie, Chairman Professor Gerard Maher Professor Kenneth G C Reid Professor Joseph M Thomson. The Commission would be grateful if comments on the draft code were submitted by 15 December 2003. All correspondence should be addressed to: Miss Jane L McLeod Secretary Scottish Law Commission 140 Causewayside Edinburgh EH9 1PR Telephone: 0131 668 2131 Fax: 0131 662 4900 Email: [email protected] Online comments: www.scotlawcom.gov.uk - select "Submit Comments" NOTES 1. Consultees should be aware that copies of comments received (i) will be passed to the authors of the draft code and, in relation to the principle of codification, also to the Scottish Executive; and (ii) may be made available to any interested party, unless consultees indicate that all or part of their response is confidential. Such confidentiality will, of course, be strictly respected. 2. Where possible, we would prefer electronic submission of comments to the email or online comments address above. 3. The draft code is available on our website at www.scotlawcom.gov.uk or can be purchased from TSO Scotland Bookshop. iii A DRAFT CRIMINAL CODE FOR SCOTLAND WITH COMMENTARY Contents Foreword by the Chairman of the Scottish Law Commission viii About the draft code How it began 1 Method of working 1 Consultation and conferences 2 What is meant by a code in this context? 2 The case for codification 3 Legitimacy of the project 4 Underlying values 4 Form, size and style 5 Structure and contents 5 Coverage 6 Attitudes to codification of the criminal law 7 Submission to Minister for Justice 8 The draft code and commentary Notes on the Commentary 9 Long title of draft Bill 11 Part 1 .............................................................................................................................................. 14 General....................................................................................................................................... 14 General effect and method of interpretation .......................................................................... 14 1 Statutory basis of the criminal law................................................................................. 14 2 Relationship of this Act to existing law......................................................................... 16 3 Method of interpretation ................................................................................................ 17 Presumption of innocence and burden of proof..................................................................... 18 4 Presumption of innocence.............................................................................................. 18 5 Proof in criminal proceedings........................................................................................ 19 6 Overlapping offences..................................................................................................... 22 7 Aggravated offences...................................................................................................... 25 8 General rules on state of mind required......................................................................... 27 9 Intention ......................................................................................................................... 29 10 Recklessness .............................................................................................................. 32 11 Knowledge ................................................................................................................. 34 iv 12 Culpably self-induced state of mind .......................................................................... 35 Causation................................................................................................................................ 37 13 General rules on causation ......................................................................................... 37 14 Liability for result caused by omitting to act ............................................................. 40 15 Children...................................................................................................................... 42 16 Legal persons ............................................................................................................. 43 17 Persons involved as accomplices or art and part........................................................ 47 Attempt, incitement and conspiracy....................................................................................... 52 18 Attempt ...................................................................................................................... 52 19 Incitement .................................................................................................................. 54 20 Conspiracy ................................................................................................................. 56 21 Impossibility of committing principal offence........................................................... 58 Defences................................................................................................................................. 59 22 Lawful authority......................................................................................................... 59 23 Self defence................................................................................................................ 64 24 Necessity .................................................................................................................... 66 25 Involuntary conduct................................................................................................... 68 26 Impossibility .............................................................................................................. 70 27 Mental disorder.......................................................................................................... 71 28 Error ........................................................................................................................... 73 29 Coercion..................................................................................................................... 75 30 Saving for diplomatic and other immunities.............................................................. 77 Penalties ................................................................................................................................. 78 31 General....................................................................................................................... 78 32 Penalty for aggravated offence .................................................................................. 80 33 Penalty for attempt, incitement or conspiracy ........................................................... 81 34 Savings for other powers and duties .......................................................................... 82 Territorial application of Scottish criminal law ..................................................................... 83 35 Application of Scottish criminal law to acts within Scotland.................................... 83 36 Application of Scottish criminal law to acts outside Scotland................................... 84 Part 2 .............................................................................................................................................. 86 Non-sexual offences against life, bodily integrity, liberty and other personal interests ............ 86 Causing death......................................................................................................................... 86 37 Murder........................................................................................................................ 86 38 Culpable homicide ..................................................................................................... 88 39 Torture........................................................................................................................ 92 40 Inhuman or degrading treatment................................................................................ 95 41 Assault........................................................................................................................ 96 42 Causing unlawful injury............................................................................................. 98 43 Causing an unlawful risk of injury............................................................................. 99 Interference with freedom of action
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