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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]
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]
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]
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Scots criminal law relies far more heavily on common law than in England and Wales. Scottish criminal law includes offences against the person of murder, culpable homicide, rape and assault, offences against property such as theft and malicious mischief, and public order offences including mobbing and breach of the peace. Scottish criminal law can also be found in the statutes of the UK Parliament with some areas of criminal law, such as misuse of drugs and traffic offences appearing identical on both sides of the Border. Scottish criminal law can also be found in the statute books of the Scottish Parliament such as the Sexual Offences (Scotland) Act 2009 and Prostitution (Scotland) Act 2007 which only apply to Scotland. In fact, the Scots requirement of corroboration in criminal matters changes the practical prosecution of crimes derived from the same enactment. Corroboration is not required in England or in civil cases in Scotland. Scots law is one of the few legal systems that require corroboration.
The importance of corroboration is unique to Scots criminal law. A long-standing feature of Scots law, the requirement for corroborating evidence means at least two independent sources of evidence are required in support of each crucial fact before an accused can be convicted of a crime. This means, for example, that an admission of guilt by the accused is insufficient evidence to convict in Scotland, because that evidence needs to be corroborated by another source.
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