Common-Law Offences in Scotland

What Is Common Law?

Common law offences in Scotland are crimes such as assault, theft, murder, fraud and breach of the peace. These were not created by Parliament, and as such are not defined in legislation.

Common laws are developed based on previous court rulings and findings. In a justice system, like Scotland that uses common laws, these rulings or decisions of courts serve as a precedent for all future cases dealing with similar circumstances.

It forms part of the systems of law – used in jurisdictions of the UK, such as Scotland, as well as places that used to be part of the British empire. It is based on precedents from judges’ decisions rather than statutory law.

Common law is created by judges who study reports of older cases which have been decided and take the principles to be applied in future.

What’s the difference between Common Law and Statutory law?

Common law is a legal system in which decisions were made by judges in the past, which forms a basis for similar cases in future. Whilst statutory law is a formally written law established by legislative bodies and regulates the behaviour of the members.

Common law relies on the recorded cases, meaning that the judges will take into account the relevant facts and evidence of the case but also look for prior decisions made by the court, such as case law.

Statutory law states the rights and duties of the citizens, along with punishment for non-compliance of rules.

Common law can be amended by statutory law, but to amend the statutory law, a new, separate statute must be established.

Abduction

Definition of Abduction

Abduction is a crime at common law and is the taking or confining of a person forcibly and without lawful authority.

If the person taken is under the age of puberty then the common law offence of plagium is committed. This is a theft-related offence however it is no less serious than the charge of abduction.

Definition of Assault

Assault is a crime at common law and is any attack directed upon the person of another, whether or not actual injury is inflicted. 

Essential Elements of assault

• There must be criminal intent for an assault to have occurred. If injury is caused as part of a genuine accident an assault has not taken place. 

• Injury need not be present for an assault to have occurred. If a punch is thrown with intent but misses. An assault has still taken place. 

Assault

Types of assault

There are several different types of assault. These are: 

• Assault by Menaces – Threatening gestures that induce a state of bodily fear would be sufficient for an assault charge to be preferred. 

• Direct – An attack by a person on another, ie punch kick stab. 

• Indirect – A person may assault someone indirectly, for example by setting a dog on another person. 

Assault aggravations

An assault may be aggravated by a number of factors that the court and the procurator fiscal would consider when dealing with the case. Aggravations of assault tend to imply the incident is more serious.

The following factors would aggravate an assault: 

• Danger to Victim

• Intent (to kill; sexually assault)

• Mode or Perpetration (use of weapons or another tool)

• Persons Character (This can be applied to the victim where they are very young or very old etc, or the offender where they are in a position of trust or responsibility for example a police officer or social worker). 

• Locus of Assault 

• Extent of Injury (Whether or not a person’s life was endangered, they were caused serious injury or permanent disfigurement). 

• Racial or other hate motivation. 

Attempted theft by housebreaking with intent to steal

Housebreaking in itself is not a crime, to break into a house and thereafter steal is an aggravation of the common law crime of Theft, any circumstances must therefore meet the definition of Theft.

Attempted housebreaking with intent to steal is committed when an offender makes an unsuccessful attempt to enter a house with the intent to steal. Felonious intent can be inferred from the circumstances. 

For the definition of a house and a description of the modes of entry that constitute housebreaking, please refer to the Theft by Housebreaking.

Breach Of The Peace in Scotland

Definition Of Breach Of The Peace

It is a crime at common law and is committed by one or more persons conducting himself or themselves in a riotous or disorderly manner where their conduct is so severe that it is enough to cause alarm to an ordinary person or threaten a serious disturbance in the community.

Profanity on its own is not sufficient for the crime to be complete unless it is persistent or accompanied by threatening or abusive behaviour. 

There must be a public element to the offence. It is not required that witnesses should say they are personally alarmed or annoyed. For instances that are not public consider the offence under section 38 of the Criminal Justice and Licensing (Scotland) Act.

It has previously been held as competent to charge a ‘peeping tom’ with a breach of the peace.

Culpable and Reckless

Definition of Culpable and Reckless

Culpable and Reckless conduct is a crime at common law and is an act that exposes another person to danger or serious harm.

Definition of Recklessness

What constitutes a reckless act has not been defined however a good test to apply is if the suspect shows a wanton disregard for the safety of others, if so then they could be said to be acting in a reckless manner.

The Offence

The offence of reckless conduct is extremely wide in scope. It has successfully been applied to reckless and aggressive driving, throwing objects onto roads and paths from overhead bridges and placing dangerous objects on a roadway.

Culpable and reckless fire-raising

Definition of Culpable and reckless fire-raising

Culpable and Reckless Fireraising is a crime at common law and is committed when a person sets fire to any form of property as a result of a reckless act. Note that there is a different offence of Willful Fireraising. 

Essential elements of Culpable and reckless fire-raising

• It must be shown that the lighting of the fire was a result of a reckless act. 

• The setting of the fire cannot be accidental. 

Where property is not set on fire but fire is set in a public place to cause alarm or danger to the public there is a separate offence under section 56 of the Civic Government (Scotland) Act 1982

Forgery and uttering

Definition of Forgery and uttering

Forgery and Uttering is a crime at common law and consists in the making and publishing of writing, feloniously intended to represent and pass for the genuine writing of another person.

Uttering is the tendering or presenting of a document. 

Essential Elements of Forgery and uttering

• The document tendered was a forged document; 

• The document was tendered under the pretence that it was genuine; and 

• The document was uttered with the intention of disadvantaging the interests of another. 

If a different person forged the document as tendered it then the person tendering it is the main accused and should be charged with this crime. To competently charge the forger with this crime it must be shown that he had guilty knowledge that the forgery would be used in the commission of a crime.

Fraud

There is no accepted simple definition of fraud in Scots Law however there are three accepted essential elements that must be present for Fraud to have been committed. These are: 

Essential Elements of Fraud

• Falsehood – False representation by word, writing or actions; 

• Fraud – Intention to deceive and defraud; 

• Willful Imposition – The plan that was contrived was successful by gaining a benefit or advantage of prejudicing or tending to prejudice the interests of another. 

For the crime to be complete it is not required for the accused to gain or for the target of the fraud to suffer a loss but there must be some measure of success. A charge of attempted Fraud may be more appropriate where there is not a measure of success however the offender had begun a course of conduct indicating fraud tending to prejudice the interests of another. 

It has been held as competent for an accused who was charged with Fraud to be found guilty of Theft and vice versa. 

Homicide (murder and culpable homicide)

Definition of Homicide

Homicide is defined as the killing of a person by another person. 

Essential Elements of Homicide

• The person killed must be self-existant, meaning it cannot be an unborn child. 

Types of Homicide

There are different types of homicide, these can be categorised as either criminal or non-criminal. Non-criminal homicide would be characterised as justifiable homicide or casual homicide. 

Criminal Homicide can either be classed as Murder or Culpable Homicide. Each is covered below. 

Definition of Murder 

Murder is a crime at common law and is committed when a person kills another without necessary cause where there is either:

• An intention to kill; or 

• A willful act so reckless as to show utter disregard for the consequences. 

Where death occurs as part of the commission of a serious crime which could endanger life, even if there was no intent to kill the victim, the offender could be charged with murder. 

Diminished responsibility for murder

If a murder is committed by a person suffering from serious mental illness that means they are only partially responsible for their actions then the charge may be reduced to that of culpable homicide. If the offender is shown to be insane at the time of the offence they may be acquitted but detained in hospital. It is for the defence to show that these circumstances exist. 

Provocation

If there is immediate provocation prior to the killing of another person the charge of murder may be reduced to that of culpable homicide. The provocation will not be taken into account if there is a time-lapse between it and the killing taking place. It is for the defence to show that these circumstances exist. 

Definition of Culpable Homicide

Culpable Homicide is a crime at common law and is where a person is killed by another person unlawfully but the guilt is less than murder. Culpable Homicide falls into the following categories: 

• Intentional Killing Where a person intentionally kills another but in circumstances that would not be constituted as murder (see the provocation and diminished responsibility above). 

• Following an unlawful act If death occurs and is the result of an unlawful act and that death was not intended or probable. Whether the offender is charged with Culpable Homicide or Murder depends on the seriousness of the incident. 

• Undue Negligence Where a person has not carried out an unlawful act but the death of a person has occurred due to their undue negligence in carrying out their lawful act. For someone to be charged with Culpable Homicide their negligence must be serious and obvious. 

Definition of Casual Homicide

This is where a death occurs due to misadventure as part of a lawful act done properly with no intent to kill or injure. 

Definition of Justifiable Homicide

Where there is an intention to kill or seriously injure but the circumstances excuse the killer due to the act being lawful or in self-defence.

Malicious Mischief

Definition of Malicious Mischief

Malicious Mischief is a crime at common law and is the willful, wanton and malicious destruction of, or damage to the property of another. 

Essential Elements of Malicious Mischief

The essential elements of Malicious Mischief are the same as those of Vandalism. Generally, the crime of Malicious Mischief will be chosen over that of Vandalism in more serious cases. This is usually quantifiable by the value of the damage caused. 

With Malicious Mischief damage to actual property is not required. It would be sufficient to prove that a substantial financial loss had been incurred as a result of a criminal act.

Mobbing and Rioting

Definition of Mobbing and Rioting

Mobbing and Rioting is a crime at Common Law and is committed by a number of persons combine in assembly with a common purpose to the alarm of the lieges. 

The group of people does not need to be large. There must be a common purpose but this does not have to have been prearranged.

Perjury

Definition of Perjury

Perjury is a crime at common law and is constituted by a person who wilfully makes a false statement on oath or affirmation.

Essential elements of Perjury

• The oath or affirmation but be taken in court, whether civil or criminal.

• There must be a deliberate falsehood of fact.

• The falsehood must be shown to be relevant to the case.

Subornation of Perjury

There also exists a common-law offence called subornation of perjury where a person incites a witness to commit perjury. The crime is complete as soon the perjury takes place. If that perjury does not take place the offence of attempted subornation of perjury can still be libelled.

Pervert the Course of Justice

Definition of Pervert The Course of Justice

Perverting the Course of Justice is a crime at common law and is committed by a person who destroys or withholds evidence relevant to a criminal investigation or prosecution. The crime of attempting to pervert the course of justice is also relevant if the accused fails in their act.

Police Scotland Powers to Enter Property

In general, the police have no power to enter private premises without a warrant, unless: 

• A constable is given permission to enter by the owner/occupier of the property. 

• An accused person is in custody on a serious charge and it would defeat the ends of justice in pausing to obtain a warrant. 

• A constable is aware of an ongoing disturbance within the property. A constable may enter to enquire as to what the disturbance is and seek to stop the disorder. 

• When a constable is in hot pursuit of an offender who has committed or has attempted to commit a serious crime. 

• To ensure the safety of those within. (In the case of possible sudden death or serious incident where a member of the public may need immediate assistance) 

Force can be used to affect entry however this should only be considered if entry is refused by persons within or any person within cannot answer due to incapacitation.

Reckless discharge of a firearm

Definition of Reckless Discharge of a firearm

It is a crime at common law for any person to recklessly discharge a firearm, whether or not actual injury is inflicted.

Reset

Definition of Reset

Reset is a crime at common law committed by any person with intent to deprive the owner to receive and keep property knowing that it has been appropriated by theft, robbery, embezzlement or fraud.  

An offender charged with the original Theft cannot also be charged with Reset.  

Essential elements of Reset

• Guilty Knowledge – The accused must know the property is stolen; 

• Criminal Intent – There must be intent to deprive the owner. The resetter need only possess the property for an instant.  

• Receipt of Property – The resetter must have received the property. This can mean having physical possession or ‘control’ of the property.

• Property Dishonestly Obtained – The item being reset must have been dishonestly obtained prior to being reset by theft, robbery, embezzlement or fraud. 

The key to proving an offender is guilty of Reset is displaying their guilty knowledge. This can be demonstrated in several ways however the following are most common: 

• Rogues Bargain – If the person purchased the reset-ed item at a price significantly lower than its value. 

• Property in Place of Concealment – If the item is recovered from an area that purpose was to conceal the item. 

• Adulteration of the item – If the item has been altered or adulterated to hide its provenance. 

Robbery

Definition of Robbery

Robbery is a crime at common law committed by any person, who feloniously appropriates property, by means of violence or threats of violence. 

Essential Elements of Robbery

• There must be Violence or the threat of violence; 

• Intent to steal property; 

• The offender must take possession of the property 

For a robbery to have been committed the violence or threat of violence must be carried out at the same time the property is taken. If a person is assaulted and then the offender steals items from the victim after assaulting them. This would be two charges of Assault and Theft. If an offender steals or attempts to steal an item from another person and on being discovered, assaults the victim to get away this does not constitute robbery.  

It is important to note that Robbery is a crime in itself and it is not an aggravation of theft, albeit they are very similar crimes relating to the taking of property belonging to another. As these are so similar Scots Law allows a person charged with Robbery to be convicted of Theft.

Theft

Definition of theft

Theft is a crime at common law and is the taking and appropriating of the property of another without lawful authority or consent of the rightful property owner. 

Essential Elements of Theft

There must be dishonest intent to deprive the owner. For the crime of theft to be complete, the offender does not have to gain anything from the act the need only deprive the owner of the knowledge that this is wrong. 

The offender must take possession of the property if only for an instant. 

Theft of Dead Bodies

Dead bodies prior to burial and children under the age of puberty are considered property in Scots law. The age of puberty is 12 and 14 for girls and boys respectively. If a child under the age of puberty is taken the specific common law crime of plagium applies. 

Theft by Finding

Property that has been abandoned falls into the possession of the crown and can be stolen.

Should someone find a property and fail to hand that property to the police they have not committed theft however they have committed an offence under Section 67 of the Civic Government (Scotland) Act 1982. 

Clandestine Possession

Clandestine possession means to take possession of another person’s property in the knowledge that permission to take the property would not have been given. 

Constructive Possession

An offender can be said to be in possession of property that is not found upon his person if it can be shown that it is within his direct access and control. 

The Doctrine of Recent Possession

The crime of theft can be proven where it can be proven when an item was stolen and an offender is caught in possession of the property a short time later without a reasonable excuse. 

Use Of Violence

If violence is used against the owner of the property whilst the offender obtains the property then they commit the offence of Robbery. If violence is used before or after the theft then the offender has committed Theft and Assault. 

Attempted Theft

Attempted theft can be proven where the offender has not obtained control of the property but has made a clear attempt to do so. This applies where an attempt to steal property is made where it turns out there is no property to steal.

Theft by Housbreaking

Housebreaking in itself is not a crime, to break into a house and thereafter steal is an aggravation of the common law crime of Theft, any circumstances must therefore meet the definition of Theft.

Essential elements of theft by Housebreaking

There must be:- 

• An overcoming of the security of the house; and 

• Appropriation of property without permission lawful authority from within the house; and 

• Intent to deprive the owner. 

Overcoming security 

The following methods are accepted as meeting the criteria for overcoming the security of a house: 

• Force:- By forcing entry through a locked door window or a wall etc. 

• Overcoming a lock:- The lock must first be locked and secured, it is not sufficient to prove theft by housebreaking if an unlocked door is opened or a key is left in the lock of a locked door. 

• True Key:- By using a previously stolen or found key in a locked door. If a key is used that the person is permitted to have but used in an unauthorised manner, for example, a storeman unlocking storage shed to steal then they have committed theft by housebreaking.

• Open Window:- If the window is open then it must be deemed inaccessible from the ground enough for there to be no obvious risk of leaving it open. If the window is closed or ajar then if the window is opened further then theft by housebreaking has been committed. 

• Trickery:- Where an offender colludes with another person who has the authorisation to be within the house to gain entry. 

• Unusual Entry:- If entry is gained through abnormal means such as a chimney or sewer etc. 

Definition of a House

A House in terms of theft by housebreaking is defined as any dwelling house or other roofed building, finished or unfinished, or any part of a building used as a separate dwelling which is secured against intrusion by unauthorised persons.

Where a contractor has exceeded their instructions and carried out work without prior agreement or authority and has then refused to return the property being worked upon without first receiving payment commits theft as he is holding the property to ransom. 

Threats

Definition of Threats

Issuing threats is a crime at common law where they menace substantial injury to the target of the threats or their property. 

Threats may be written or verbal. If the threats are written then the crime is only complete when the written document is received by the person intended. It is not enough for them to be merely written. 

Extortion

Definition of Extortion

If a person issuing the threats obtains money items or any other advantage due to the threats then they have committed the crime of extortion.

Wilful Fireraising

Definition of Wilful Fireraising

Wilful Fireraising is a crime at common law and is committed when a person intentionally sets fire to any form of property. Note that there is a different offence of Culpable and Reckless Fireraising. 

Essential Elements of Wilful Fireraising

• It must be shown that the lighting of the fire was intentional. 

Where property is not set on fire but fire is set in a public place to cause alarm or danger to the public there is a separate offence under section 56 of the Civic Government (Scotland) Act 1982