Criminal law –differences between Scotland and England
27 September 2013
This is our 5th article in looking at the legal differences between England and Scotland. Our previous articles explained the differences for property law, family law and inheritance law. This week’s article will look at criminal law and the main differences between England and Scotland. It will also provide some insight into the prosecutions conducted by Transport for London (TFL), the organisation in charge of London’s transport system, which includes the tube and bus.
Who can prosecute?
In England and Wales, the responsibility for regulatory requirements lies with the applicable regulator, e.g. the Health and Safety Executive or HMRC. The regulator deals with all stages of an enforcement action including investigation, issuing enforcement notices, deciding whether to prosecute the alleged offender in court and going through with prosecution. TFL is also a regulator and has the power to prosecute.
In Scotland, regulators investigate regulatory breaches and issue enforcement notices but do not have the power to prosecute. The regulator must submit a report to the Crown Office and Procurator Fiscal Service (COPFS), who decides whether or not to prosecute an offence.
In both England and Scotland, the suspect can be interviewed either on a voluntary or compulsory basis. In England, if the suspect fails to answer questions at the interview but then answers it at court, the court or jury may draw an adverse inference. For example, when the Defendant was at the police station, the police asked him where he was on the night of the burglary, and he responds “no comment”. Then at court, he says “I was at home all night watching TV”. The court or jury can form a bad impression about the defendant because he failed to mention this at the police interview. But in Scotland, an adverse inference cannot be drawn from the suspect’s failure to answer any question put to him. Therefore, “no comment” answers to the police have more power in Scotland as that cannot be used against him in the future.
Formal cautions and warnings
In England, a “caution” is similar to a warning and it can be used for minor crimes instead of prosecuting the suspect in court. A caution is not a criminal record and if a visa application form needs to be filled in, the individual can say he does not have a criminal record. A caution is usually given by the police after the police interview. In order for a caution to be given, the suspect must admit to the offence. For example, in order for theft to be proven, the suspect needs to admit to both (i) taking the goods and (ii) having a dishonest intention to permanently deprive the goods from the owner – a caution cannot be given if you admit to taking the goods but did not have the dishonest intention.
For people who have professional jobs or who wish to enter into a professional job, such as in accountancy, tax or law, then care has to be taken before accepting a caution. A female solicitor, born in 1979, went to TK Maxx to refund shoes and a jacket. She did not take the original goods back but instead put the TK Maxx labels onto some of her other goods. When she was detained by security staff, she apologised and said she is happy to pay any fine. The police subsequently offered her a caution for this theft and dishonesty offence to which she accepted. However, the Solicitors Regulation Authority (SRA) asked her to explain her actions. She then responded that she never had the intention to return the wrong items but that it was an honest mistake. She said she only accepted a caution to prevent herself going to court. The SRA were very concerned that she accepted a caution without admitting the offence (she effectively lied to the police) and therefore struck her off from the roll of solicitors. She can never work as a solicitor again.
In Scotland, the Scottish police also have something similar to a “caution” for minor offences. They can issue verbal warnings or formal written warnings, as well as issuing fixed penalty and penalty notices. It is only if they do not pay the penalty, then they will be prosecuted for the offence. The procurator fiscal can also offer a conditional work order of between 10 to 50 hours of unpaid work in the community. All of these are not a criminal record.
TFL and prosecutions
In our experience, many clients come to us following TFL’s decision to prosecute them following a fare dodge. A lot are prosecuted because they have used someone else’s card who has a student discount. The fare inspector catches them when they notice the photo on the Oyster card is not that person. Although TFL have the power to fine the individual themselves, our experience is TFL decide to proceed with full prosecution in the criminal courts. This seems very unfair compared with other crimes which are more serious, such as assaults where many are only given cautions by the police despite the victim suffering a physical injury, e.g. black eye, cuts, etc.
One example of a recent 2013 case we dealt with involved our female client being discovered by the train inspector to have used a man’s student Oyster card. She has a clean record and has never fare-dodged before. She was prosecuted by TFL but they did not provide reasons as to why they could not deal with it internally rather than taking it all the way to court. She worked in the financial industry in London and was on a HSMP visa. She was worried that she would be dismissed by her employer and / or not be able to extend her visa. At Court, we made the decision to plead guilty and I could see the Judge was about to give a fine as the sentence, which has a 5 year criminal record. We then told the Judge that a fine would impact this lady’s visa and she may have to leave the UK as a result. It is not proportionate that she should be removed from the UK and lose her job all because of a single fare dodge. The Judge accepted this and said it is not fair if she has to leave the UK because of this minor crime so he gave her a conditional discharge, which only has a 6 month criminal record. She continues to work in the same global financial firm.
It is my opinion that if this case had happened in Scotland, for example on the tram in Glasgow or the busses in Edinburgh, then the police would have only either issued a warning or a penalty; there would not have been a prosecution with a subsequent criminal trial.
In England and Wales, an offence can be proven from evidence from a single source. So for example, in a burglary case the suspect can be convicted of burglary if the house owner sees the man running off. However, in Scotland this is not enough to prove the offence as there needs to be at least 2 sources of evidence. So in the case Proctor v Tudhope (1985), in which a man was convicted of housebreaking with intent to steal; he was identified by the householder and it was held that the fact a police officer identified him as having run off when pointed out as the perpetrator of the crime was sufficient to satisfy the 2-evidence rule.
Even if the accused confesses to the crime, a second piece of evidence is required in Scotland but not in England. In Hutchson v Valentine (1990), 2 pieces of evidence was established as (i) the police found the stolen TV belonging to the hotel in the hotel car park and (ii) the accused said: “I cannot remember whereabouts’ in the hotel I got it. I was drunk. I dumped it”.
When one has been arrested for a crime, then before saying anything to the police (apart from giving your name and other ID details), it is important that legal advice is obtained. It could be the case that a no comment response is better and it is up to the prosecution to prove the offence. By giving a simple confession and apologising for the offence, there is a risk that a criminal conviction will ensue which may then affect your job prospects and any visa application. Professional organisations such as the legal and accountancy profession, takes dishonesty offences very seriously.