The Codification of Scottish Criminal Law - Essay Example

? Arguments For and Against the Codification of Scottish Criminal Law The Scottish Law Commission published a draft criminal code for Scotland with commentary on September 19, 2003. The code and commentary was made as an informal project by a small group of Scottish law professors, and in July 2003 they presented it to the Minister for Justice. This code was published by the commission as a consultation paper in the practice of its constitutional purpose of keeping the Scottish law under review with an observation of its methodical development and modification including certain codification of the law (Zander, 2004). The commission did not articulate its own view on the appeal of using the draft as the foundation for passing a Scottish criminal code by articulated the belief that an extensive public discussion on the issues emerging from the draft code would be essential. Consequently, it provoked comments on December 15, 2003. The draft code was aimed at substituting the common law crimes, in addition to several constitutional offences, in the same sector with those crimes. It did not try to substitute decrees like the Acts on road traffic or drug-related crimes or on health and safety at workplaces, or gaming which are already controlling certain issues in an inclusive manner (Chan et al., 2009). The authors were not opposed to involving such matters ultimately by any means. This is because a better code is one that is highly inclusive. Not only did it appear less essential to involve crimes already in mind-codes, but also numerous issues of this kind are preserved issues under the Scotland Act 1998. Hence, the draft code was incomplete code. Because of this reason, many people argued for and against this code citing many succinct reasons as to why they took their position. While the codification of Scottish criminal law was aimed at improving current laws, it had shortfalls which if not amended, will have adverse effects on the Scottish people. The codification of Scottish criminal law had both advantages and disadvantages. For instance, the codification of Scottish criminal law would avoid the need for recurrence and stop certain kinds of gap in new legislation. Nevertheless, it did not appear to be a lucid case for substituting the current criminal law with a code (MacQueen et al., 2003). Courts will be required by the introduction of a code to stick to the letter of the code even where it create outcomes that are unjust on, not in accordance with sound principle. It might not be sure on how far it would be helpful to refer to institutional authors and preceding decisions. The codification of Scottish criminal law could have involved a variety of constitutional crimes encountered frequently in legal practice. According to Reid & Zimmermann (2000), it was difficult for the Sheriffs Principal to reach a view on whether the codification of the criminal law was in principle a project to be pursued by the Scottish Law Commission. They realized that illustrious judges in England had called for codification of the criminal law and called for a fully informed discussion on the matter in the Scotland. Scottish Law Commission is supposed to think to supplement the draft with a debate paper in a conservative style analyzing the misbehavior to be tackled, the section of the current law believed to be substandard and the different alternatives for reform. They were especially anxious to discover what had been the experience of judges and practitioners in other ordinary law authorities where the criminal law had been codified. Smith (1962) asserts that even though the codification of Scottish criminal law was approved initially at the abstract, it is now considered that when human rights needs had a helpful impact on the ordinary law; it was not time to codify the Scottish Criminal Law. This is because a code is supposed to codify the entire law including constitutional crimes. In the code, offence-creating conditions should be framed in a exceedingly straightforward manner, organized by technical rules on issues like the defenses and mental element. There was also increased need for an extra consultation on some of the precise proposals. This informal, unfunded nature of the scheme is imperfect. The construction of a nation’s criminal set of laws is significant enough to value the investment of resources. An alternative mechanism should be found suppose the Scottish Law Commission is not capable or not willing to make the necessary commitment. While I am in support of the criminal code, I am also concerned with the relationship of the draft’s conditions to current and prospect constitutional law, and the possible width of the conditions on theft and squatting. The drafting of these conditions should be patently revised in light of these comments (Farmer, 2005). Any practice of codification is supposed to be bureaucrat and done in a correctly constituted and representative commission selected by the Scottish Executive or Scottish Law Commission. There will be no time for appropriate inspection of all significant queries covered in it if anything like the draft criminal code were to be placed before the Scottish Parliament all at once. Hence, each specific section of the law is supposed to be dealt with independently in a suitable law. There was no any convincing case for clearing the common criminal laws in Scotland at this moment. When a need for modification emerges it could be met by ad hoc legislation. Additional consultation and discussion would be required and would occur without doubt if the concept of codification were to be taken up. It is, therefore, difficult to know whether some of the conditions were too simply expressed. There is also not to review the proposals on provocation, murder, the criminal liability of bodies corporate and art and part (Farmer, 2005). A close review of conditions of the draft code in a manner which is mostly impartial will invite some suggested transformations like the proposed change to the law on breaking into the building and the dividing of the law on violation of the peace into more described sub-categories. Even though, there was the need to undertake some modernization of the law, there would be resistance on the principle of codification. The draft criminal code attained much of what it set out to do in terms of unity and a universal decrease in replication and vague language from the initial inspection. Hence, there might be value in a combined staff association short term working group to offer observations on each of the offences and crimes as appropriate if the draft became part of the Scottish Executive’s legislative program. The concept underlying the draft code is very significant. This is because it is significant to label crimes. The nature of the draft Bill and observations was such as to ease significantly the task of any temporary working group established to place the proposals into consideration. The Scottish Parliament had the ability to provide the project with the degree of inspection and discussion that would be essential to take it forward (Ferguson & McDiarmid, 2009). Large amount needed lucidity in many sections including crimes relating to children and sexual offences would be provided by the proposed Bill. Experts will be required to examine the fine details of the proposed sections within the legal system and the police service, but the draft had the probability to take the criminal law forward in a fair and transparent manner. The most important issue here is the suppleness intrinsic in the common law yet a new criminal code would confirm to be very expensive from the point of view of retraining. The plan behind the draft code is good, and its further development will be of great significance. However, its thorough comments to lawful aid particularly cost implications for the Scottish Legal Aid Fund is confined. The draft code does not expect that the code of this type will have very important legal aid implications or any important cost implications for the fund. This proposal will be important in that it will be better if it is placed in an organized form (Ferguson & McDiarmid, 2009). The Parliament will determine the law democratically. The drafting of new legislation will not be highly complicated. The law will be highly accessible, easily applicable, easier to explain and easier to amend by legislation. It will be easier for specialists to use the law because it will be easy, less uncertain and clear. Nevertheless, the English experience of placing criminal law into constitutional form had not been completely positive hence; this experience should be researched thoroughly and put the lessons learned before a Bill to the Scottish Parliament. The proposals in the draft code are good compared to the approach taken in the English Sexual Offence Act which over-criminalized common sexual touching between teenagers, an ordinary and healthy section of sexual development. The neutral approach of the draft code is also very crucial (Ferguson & McDiarmid, 2009). It is, therefore, apparent when looking at the codification of Scottish criminal law that it has both advantages and disadvantages. Nonetheless, a constitution or laws are not supposed to have shortcomings because it will be leading to misunderstandings and confusion when being referred to so as to make a decision. Thus, all these laws are supposed to be reviewed closely, and all debated sections be removed or amended accordingly so as to eliminate any future conflict or misunderstandings. References Chan, W., Wright, B. and Yeo, S. (2011). Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform. New York: Ashgate Publishing, Ltd. Farmer, L. (2005). Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present. Cambridge University: Cambridge University Press. Ferguson, P. and McDiarmid, C. (2009). Scots Criminal Law: A Critical Analysis. Dundee University: Dundee University Press. MacQueen, H., Vaquer, A. and Espiau, S. (2003). Regional Private Laws and Codification in Europe. Cambridge University: Cambridge University Press. Reid, K. and Zimmermann, R, (2000). A History of Private Law in Scotland: Volume 1: Introduction and Property. Oxford University: Oxford University Press. Smith, S. (1962). Scotland: the development of its laws and constitution. New York: Stevens & Sons. Zander, M. (2004). The Law-Making Process. Cambridge University: Cambridge University Press. Read More