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 given

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 defence

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 references

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 reading

• Criminal Procedure (Scotland) Act 1995 (UK)

  For special defences in solemn business, see s 78 and s 89, Criminal Procedure (Scotland) Act 1995;

  For special defences for a summary provision, see s 149B, Criminal Procedure (Scotland) Act 1995.