Codifying criminal law (1): A critique of Scots Common Law

The Scottish Law Commission has recently published a draft criminal code. Both the code and its commentary are the work of a small group of law professors, of which the author is a member. A major argument in favour of codifying Scots criminal law is the unsatisfactory state of the common law, and the first Part of this article considers some of the deficiencies in the current law. The second Part compares the Scottish draft criminal code with that prepared for England and Wales, and considers the extent to which enactment of these two codes would result in fewer differences in the criminal laws north and south of the border.