In this essay I will start by defining crime. I will then use case law to illustrate the use of declaratory power in light of the arguments forwarded by Lord Cockburn. I will move on to explore the origins of the declaratory power by citing relevant texts on Scots law, as well as discussing the arguments for and against use of this power. I will also illustrate how judges use their discretion in ensuring immoral acts are brought to justice.
While discussing the development of Scots law I will move on to consider the effects of codifying criminal law by examining the draft criminal code, analysing articles on codification; then, finally, explain why, it is unlikely that this power will be used again in the future to create new crimes. Crimes are defined as acts or omissions that the supreme authority in the state wishes to prevent or suppress. A common law crime must satisfy the two basic elements of actus reus and mens rea1 The case of Bernard Greenhuff (1838) 2 Swin 236 is an excellent illustration of the use of declaratory power by the High Court.
The accused was charged with "keeping and opening of gaming houses for games of chance for money" which had never been considered a crime in Scotland before. There was neither statute nor case law to charge this crime. The British statutes against excessive and deceitful gaming did not apply to Scotland and the only relevant statute in Scotland was The Act of James the Sixth 1621, c. 14, 247 which prohibited the running of gaming establishments in public houses thus did not apply. The Procurator Fiscal decided that charges against the accused would be made under common law, arguing that no harmful act was beyond the reach of common law.
2 Despite having no precedence, Lord Justice Clerk Boyle, while quoting the work of Baron Hume, asserted that the Scottish Supreme court had "an inherent power" to punish every act of an "obvious criminal nature". 3 The judge argued that the High Court had a duty to protect society by punishing immoral acts. By so doing the court was exercising its declaratory powers. Lord Cockburn strongly disagreed. Lord Cockburn argued that power to declare new crimes belonged only to Parliament4, and not with the courts.
He asserted that the decision reached in Bernard Greenhuff was not only unconstitutional, but unsupported under common law, statute, or judicial precedence. He however proposed that an old crime may be committed in a new way, and therefore may be decided using established principles. He went on to disagree with the principle that allows courts under common law to punish any acts that are deemed dangerous, claiming that this is no excuse or justification to make crimes. Lord Cockburn's argument has remained of utmost importance, having challenged use of the declaratory power.
In recent times in the case of Khaliq v H. M Advocate, case 71 and Grant v Allan 1987, S. C. C. R 402, the High Court has acknowledged that it has the power to use its declaratory powers but declined to use the powers because it had alternative avenues to punish the crimes5. One of the main arguments in support of the use of the declaratory power is the opportunity provided to judges to punish crime. The same argument was extended by Lord Meadowbank who 'rejoiced' at the fact that under common law crimes that would otherwise go unpunished were brought to justice6.
Despite this flexibility, it has been argued that use of declaratory power by the High Court goes against the 'principle of legality'7. The importance of this principle is emphasised under Article 7 of the European Convention on Human Rights8 that no one should be punished for a crime which was not a crime at the time it was committed. Crime must be clearly defined. If an act is not defined as a crime, then the individuals have no duty imposed on him. For the same reasons just like statutes, judgments should not have retroactive effect.
In his book, Dworkin9 argues that the role of Judges is to apply the law and where it may be necessary to develop criminal law; judges must act as deputy to legislature and make decisions as would have been intended by legislature. He further argues that the community should be governed by elected people. Judges are not elected. It is also feared that use of declaratory power may influence judges to use the law as a political instrument. Courts would then become instruments of power as evident in most undemocratic countries. It is therefore advisable that judges should concentrate common law issues and leave complex matters to Parliament.
Where Parliament has chosen not to criminalise an act, judges should not take the prerogative. 10 It has been argued that the High Court has not found it necessary to exercise these declaratory powers because the present state of common law provides enough flexibility for the judges to develop criminal law. At the same time Scots criminal law is based largely on common law and therefore courts play a major role in its development. As stated by Lord Justice – General (Clyde) in McLaughlan V. Boyd, 1933, SLT 629, at 631, criminal law is not rigid, but evolving and subject to change..
It has been argued that Lord Cockburn's views provide an avenue for judges to be creative in stretching common law to include new crimes, by claiming that it is within an established principle. The idea that conducts could fall within an established general principle has been challenged as ambiguous, because principles are wide, and many conducts may fall within a given principle, and there is no limits as to what types of conduct apply11. This creates a leeway that has been taken advantage of by High Court Judges to extend criminal law.
A good example of an attempt to use the declaratory power is illustrated by Strathen v Seaforth 1926 J.C 100, where 'clandestinely' taking and using someone's property without permission was charged under s 28 of the Road Traffic Act 1930. It was asserted that a new crime was not created, only an extension of a principle. Criminal law was also extended in S v H. M Advocate 1989 SLT. 469, where it was decided that a man can now be guilty of raping his wife12contrary to Hume's commentaries. When the courts want to convict but lack the authority of precedence or statute, they have used the same principle to claim that the act was always a crime, but hasn't been charged before, or that it's a modern way of committing an old crime.
The principle was used in W Fraser (1847) Ark 280, where the crime of fraud was extended to include intercourse by deception. 13 Likewise, in Charles Sweenie (1858) 3 Irvine 109 though the charge of rape did not apply, it was decided that having intercourse with a woman in her sleep was an immoral act, that should be punished. In H. M Advocate v Wilson 1984 S. L. T. 117 the crime of 'malicious mischief' was extended to include economic damage. By doing so, judges are playing a major role in law reform. Other ways are by redefining law to suit changes in society especially when gaps in the law are used by criminals to defend their actions.
As illustrated in the case of Charles Sweenie 'ibid' the crime of rape was redefined to be"without her consent"14 as decided in Re: Lord Advocate's Reference (No 1 of 2001) 2002 SLT 466. It would not have been easy to change the law had this crime been legislated. Though this flexibility is appreciated, there are arguments that the High Court, in making these changes to the law, is seen as usurping the powers of Parliament. These arguments have led to the support of codifying criminal law arguing that this would create greater certainty of the law.
A written criminal code is better for a democratic government as it provides a reference point for all criminal offences. Law will become more accessible; accurate as well as legitimate. 15 Even though efforts to codify the Scots criminal law started in the 17th C it wasn't until 1967 that there was support for its codification, leading to what is now the draft criminal code16. It is hoped that codification will improve the unsatisfactory state of common law. The code would replace the common law and reduce the reliance on institutional writers17. Crimes and defences would be clearly defined.
At present common law crimes such as murder, assault, theft and rape, are not clearly defined. Defences such as coercion and necessity are also broadly defined. Scots law has a long history and has taken years to develop and it is not surprising that those responsible for its development have always taken a conservative approach. This conservativeness is illustrated in the case of Drury v H. M Advocate 2001 SLT 1013, where Lord Roger declined to use the plea of provocation for murder claiming that this was a policy issue, and was best left for legislation18.
The conservative approach is unsuitable in a changing society. Rules made for society cannot remain static. The development and reform of Criminal Law therefore becomes inevitable. This process has been recognised by the EHCR as an integral part of the legal system as long as it is in line with Article 7 (1), ECHR. 'as above' . It has been left to the judges to develop Scots Criminal Law. Codification would provide an avenue where this process can be done in a systematic consistent fashion, ensuring crimes are defined and changes incorporated in an organised and predictable fashion.
In comparison to the English criminal code, the Scottish code does not involve a radical reform to the criminal law but instead involves amalgamation of several statutes; reduction of common law to statutory law; re-defining words. In contrast, the English code is largely a summary of the current law. Both contain differences but also similarities. Codification of Scots Criminal law is said to bring aspects of it closer to English Law, for instance the Scots Criminal code provides for the crime of rape to include men.
In conclusion, the arguments presented by Lord Cockburn; the principle of legality; and the implication of Article 7 (1), ECHR, suggest that the High Court is highly unlikely to exercise its declaratory power again. It is clear however that judges are able to exercise their discretion by extending criminal law to punish conducts of a criminal nature. Criminal law is evolving and thus needs to be developed. Scottish criminal law is in the process of reform as illustrated by case law, and the process of codification.
All these arguments point to the fact that even though the High Court has asserted that the declaratory power does exist, it is a principle that does not receive much support. The High court therefore is more prepared to extend established principles to provide answers, not provided by law rather than exercise this power. Whether the High Court will attempt to use this power again is unclear, but what is clear, is that the use of declaratory power is not a principle in line with modern democracy. To prepare this essay, I first made a plan by listing all the information I needed to help answer the question.
With that in mind, I embarked on searching for the relevant information. I started by reading the case of Bernard Greenhuff (1838) 2 swin 236 as provided under WebCT. I reviewed my lecture notes, and accessed various cases from Web CT, internet, text books, and Westlaw to help illustrate my arguments. I also looked at several hard copy text books from the short loan section of the library, and articles from the law library to gather information that would form part of my essay. I finally visited the internet to access the draft criminal code, made notes and started to draft my essay.