Special defence

A special defence in Scots law may be raised in criminal proceedings upon notice by the accused ahead of the trial. If established, it results in an acquittal.[1] The only purpose of the special defence procedure is to give fair notice: it does not prejudice the plea of not guilty by an accused; the Crown still must prove the acts charged beyond a reasonable doubt.[2]:29[3]

Notice givenEdit

In solemn proceedings (prosecutions on indictment of more serious criminal offences before a judge and jury of 15 persons)[4] notice of a special defence must be given at least 10 days before the trial date[5] and the jury is advised of the special defence immediately after the indictment has been read (or summarised) and each juror is given a copy of the accused's notice.[6]:15[7]

Types of special defenceEdit

The types of special defence are: mental disorder (when the offence was committed or before the trial), incrimination (alleging someone else committed the crime), coercion, automatism, self-defence, consent (under some circumstances), or alibi.[8][9]

Notes and referencesEdit

  1. ^ Tony Callahan, "Case for the defence in Scotland", Evening Times (Glasgow, Scotland), 18 August 2001, p 8 via factiva accessed 24 September 2011.
  2. ^ I D Macphail, Criminal Evidence - 24 Nov 2010.pdf Scottish Criminal Evidence, Procedure and Practice (2010)
  3. ^ Lambie v H M Advocate 1973 JC 53 at 58
  4. ^ Judicial Office for Scotland, Glossary, Judiciary of Scotland (2011), accessed 24 September 2011.
  5. ^ Neil Gow QC, "Scotland's right of silence", (1988) 138 New Law Journal 781 (28 October 1988, Butterworth & Co (Publishers) Ltd) via Lexis Nexis accessed 14 October 2011.
  6. ^ "Jury Manual: Some notes for the guidance of the judiciary", Judicial Studies Committee for Scotland, January 2011.
  7. ^ s89, Criminal Procedure (Scotland) Act 1995.
  8. ^ Sarah Christie (2003). Introduction to Scots Criminal Law. Pearson Longman. p. 91. ISBN 978-0-582-43718-0.
  9. ^ "46, VII Section 78, Special defences, incrimination and notice of witnesses, etc.". Criminal Procedure (Scotland) Act 1995. 1995.

Further readingEdit