• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

use of declaratory power in light of the arguments forwarded by Lord Cockburn

Extracts from this document...


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. ...read more.


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 r****g 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 r**e 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 r**e was redefined to be"without her consent"14 as decided in Re: Lord Advocate's Reference (No 1 of 2001) ...read more.


W. Gane and C.N. Stoddart, 'supra' No crime without Law p 14 9 Ronald Dworkin, Taking Rights Seriously, (1977), Bristol Typesetting Co, 10 As Lord Reid stated in Shaw v D.P.P [1062] A.C. 220 at 275 as cited in Christie, G. A Michael, Criminal Law'supra' 11 Sir Gerald D.H Gordon, edited by Michael G A Christie, Criminal Law (W Green, 2000) pp 18-24 12 C. H. W. Gane and C.N. Stoddart, A Case Book on Criminal Law, ( 3rd Ed. W. Green, Sweet and Maxwell, 2001) p 6 13 W Fraser (1847) Ark 280, pretending to be husband 14 Scots Criminal Law, (1997) Ibid, p 1-5, see also the case of Charles Sweenie 15 (www.scotlaw.com.gov.uk/downloads/cp_criminal_code_SLC Draft Criminal Code , p 12 16 J.C. Smith, Smith and Hogan, Criminal Law, Cases and Materials (Butterworths, Lexis Nexis 8th Ed, 2002)p 2 17 Alison and Macdonald, Sheriff Gordon, and most importantly Baron Hume whose book has been largely quoted as a source of authority as applied in the case of Brennan v H M Advocate 1977 SLT 151 18 Pamela Ferguson, Codifying criminal law 1, A critic of Scots Common Law, An article by one of the co-authors of the Draft Criminal Code 19 Pamela Ferguson, Codifying Criminal Law (2), The Scots and English drafts compared, (Sweet and Maxwell, 2004) ?? ?? ?? ?? An Essay on Criminal Law Assignment 1, (1994 words) 1 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Criminal law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Criminal law essays

  1. Marked by a teacher

    Critically consider all arguments concerning spousal compellability and conclude whether or not it ...

    4 star(s)

    Subsequent case authority and academic commentators highlight debatable areas, making the justification of the current law on spousal compellability questionable. Pearce56 brought forth great criticism because cohabitees could not benefit from non-compellability, despite living identically to married couples. Statistically marriage is on the decrease, and more are choosing to cohabit, thus making the current law outdated and unjustified.

  2. Discuss the Strengths and the Weaknesses of conservative Criticisms of Liberal Democracy.

    Powell looked very much into the economic side of The New Right. He wanted to decrease the levels of post war spending and therefore increase what the pubic had left to spend on them. In the years that Margaret Thatcher was Prime Minister, she very much adopted the radical change

  1. criminal Essay

    In terms of the rule of law, the common law authority contravenes it. All laws should be open, prospective and clear, meaning that people should be able to determine the law in order to abide by it56. However, the current law is so inconsistent and devoid of principle that it

  2. The media's perspective on crime and the resultant fear of crime.

    The special statuses of judges in courts have responsibility for disposing of the transgressors of the society's legal code; this inevitably gives them authority. (Hall, 1981: 354) In this regard, the law and the criminal justice bureaucracies are the legitimate representation of the society, it is very difficult for alternative

  1. Law of Rape

    the introduction of any part of the body of a person into the female genitalia or a**s of another, f******o and c*********s. In the case of a**l or v*****l penetration by a part of the body or an object, there is an exception where penetration is carried out for proper

  2. The aim of this project is to explore and analyse the role of the ...

    without calling the female victims and male victims below the age of 15 years to the police station for the purpose of any interrogation as laid down in Section 160(1) of the CrPC. The government should provide sufficient funds to the police and courts for payment of traveling allowance, pocket

  1. Physical Resistance in Rape

    In discussing this verdict, the Court of Criminal Appeal pointed out: "It was open to the jury to believe that the complainant offered some resistance and eventually submitted, without consenting in the sense of acting of her own free will.

  2. At common law, the prosecution were generally prohibited from mentioning the accused's bad character ...

    The defence may also have reason to bring up the prior conviction, for example in pleas of autrefois convict. The Seven Gateways Bad character evidence is inadmissible unless it can be brought within one of the seven gateways of section 101 (1)

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work