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Friday 19 December 2014
 
 
 

Index of legal terms and offences libelled

Below is a list of Scots legal terms and offences libelled which you are likely to come across when using court records held at the National Archives of Scotland (NAS). The list is not comprehensive but is intended to include the most common terms. It is offered as a research aid and does not claim to be a legal encyclopaedia.

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Useful reference works

excerpt from High Court of Justiciary North Circuit minute book NAS ref. JC11/41 p81

 

Absolute discharge
In certain circumstances, when the court has found a person tried to be guilty, instead of sentencing, it may make an order discharging them absolutely. This is competent where the offender is convicted on indictment, or where he is charged before a court of summary jurisdiction with an offence which the court is satisfied he committed. In either case the court must be of the opinion, having regard to the circumstances, that it is inexpedient to inflict punishment.

Absconding from justice
e.g. failure to appear for trial.

Accused (see Pannel)
A person charged with the commission of a crime or offence.

Acts of Adjournal
Acts made by the High Court of Justiciary which contain rules for regulating court procedure.

Admonished (also: Admonition)
If a person is found guilty, and the offence is considered trifling, or there are special circumstances associated with the accused or the offence, the court may dismiss the person with an admonition.

Advocate Depute
Advocate appointed by the Lord Advocate to assist him and the Solicitor General in the discharge of their functions. Also known as Crown counsel.

Aggravated assault (examples of indictments):

  • Assault to injury/ to severe injury/ to injury of the person/ to permanent disfigurement/ to the effusion of blood/ to the danger of life/ by cutting and stabbing
  • Indecent assault (see Rape)
  • Assault with intent to ravish (see Rape)

Appellant (see Court of Criminal Appeal)
A person who appeals to a higher court against the decision of a lower (inferior) court.

Art and part
Acting in the capacity of an accessory or accomplice.

Assault (also: assault with attempt to rob; assault and robbery etc.)
Any act of violence or attack on the person, including an attack threatened.

Assize
List of potential jurors.

Assoilzied (Assoilzied simpliciter)
To free, or to be absolved of guilt.

Avizandum (Latin)
When a judge decides to take time to consider a case, reach a decision and write the judgement, the court is said 'to make avizandum'.

Bail
When a person charged with a crime applies to the court for liberation on bail. The prosecutor is entitled to be heard, and to seek a refusal of bail. The crimes of murder and treason are not bailable.

Bail bond forfeited
Failure of the accused to appear for trial and bail bond retained by court.

Banishment
Banishment, either from Scotland or from a county, was a sentencing option available to the courts until the early 19th century.

Base coin (also: Contravention of 2 Will. IV, c. 34; 24 & 25 Vict.)
Manufacturing, forging or using counterfeit coins or money.

Bestiality
Unnatural carnal connection or sexual intercourse with animals.

Bigamy
Knowingly entering into an unlawful marriage with a third party while the previous spouse is still alive (includes contravention of 17 & 18 Vict., c. 80, s. 60 (Registration Act))

Breach of the peace
Crime used to cover a wide range of socially disruptive or offensive behaviour. Typically, a public disturbance by an individual, or individuals, or conduct interfering with the peace of a neighbourhood.

Breach of trust and embezzlement (Breach of trust, fraud and embezzlement)
Felonious appropriation of what has been entrusted to the accused.

Burden of proof (see Proven and Not proven)
The onus, or burden, of proving the case against an accused. The prosecution (Crown) has to prove guilt beyond reasonable doubt.

Capital punishment
The death penalty, or death by hanging. Until 1834, there were almost fifty capital crimes in Scotland, but the numbers were reduced by statute. Eventually the death penalty was restricted to cases of murder, attempted murder and treason until its abolition in 1964.

Cattle-stealing (also: Horse-stealing and Sheep-stealing)
Theft of livestock.

Celebrating clandestine marriages
Conducting unlawful marriages.

Child murder, or concealment of pregnancy (Contravention of Concealment of Birth (Scotland) Act 1809; Con. 49 Geo. III, c. 14)
When a woman concealed her pregnancy during its course and did not seek help or assistance at the birth, and the child was found dead or missing. Concealment meant non-disclosure not merely active deception.

Clandestine injury (see Rape)
Sexual intercourse with a sleeping or unconscious woman

Committal
A person charged with a serious crime may be committed to remain in an institution pending trial on indictment.

Coining and uttering base coin (see Base coin)

Concealment of pregnancy (see Child murder).

Contempt of court
Disregard for the authority of the court, including commiting disorderly behaviour in court, improper conduct intended to influence the course of justice, or bringing the administration of justice into disrepute.

Conspiracy
Where two or more persons agree to carry out a criminal purpose.

Court of Criminal Appeal
Established under The Criminal Appeal (Scotland) Act 1926. Consists of three judges to hear appeals for criminal cases falling under solemn procedure.

Culpable and reckless conduct (also: Culpable violation and neglect of duty)
Culpable and reckless acts which cause injury to others or which create a risk of injury.

Culpable homicide (voluntary/ involuntary)
Intentional/ reckless act with some diminishing factor/ death caused unintentionally by criminal act or culpable negligence

Deforcement (also: Obstructing etc.)
Resistance to messengers-at-arms, customs officers, police or other officers while employed in the execution of their legal duties.

Diet
A sitting, or meeting of the court for the purpose of taking steps in the proceedings in any prosecution.

Diet deserted
A sitting abandoned.

Diet deserted pro loco et tempore
A sitting abandoned for another time and place.

Embezzlement (see Breach of trust)

Extortion (also: Attempted extortion) –
Where goods are obtained by a threat of future violence or some other kind of threat

False accusation
Falsely accusing another of committing a crime.

Falsehood, fraud and wilful imposition (also: Fraud; Falsehood; Falsehood and Wilful imposition)
Fraud or falsehood by word of mouth, writing or conduct; fraud, uttered with the intent to cheat; and wilful imposition, with the intention that it has been carried into effect.

Firearms offences (examples)
Firing a loaded weapon with intent to cause injury or death

  • Discharging a loaded firearm/ gun, or fowling piece/ revolver/ pistol/ rifle
  • Assault by firing a loaded firearm/ gun/ revolver etc.
  • Contravention of 10 Geo. IV, c. 38, s. 2

Fire-raising (see Wilful fire-raising)

Fisheries offences (see Poaching)

Forgery (also: Uttering forged writings)
Forgery per se is not a crime. The crime is uttering, i.e. using as genuine a fabricated writing falsely intended to pass as genuine the writing of another person.

Fraud (see Falsehood etc.)

Fugitation
Sentence imposed upon an accused who fails to appear for trial at the appointed diet (declared 'outlaw and fugitive', or sentence of 'outlawry' imposed)

Furtum usus (Latin)
Clandestinely taking possession of and using

Habit and repute
A criminal by habit and repute; an habitual criminal

Hamesucken
Assault upon a person in the victim’s home

High Court (The High Court of Justiciary)
The supreme criminal court in Scotland. It consists of the Lord Justice-General (who is the head of the court and the same person as the Lord President of the Court of Session, the supreme civil court), the Lord Justice-Clerk, and the other judges of the Court of Session. When sitting in the Court of Justiciary, the judges are known as Lords Commissioners of Justiciary.

Housebreaking (also: Housebreaking with intent to rob)
Unauthorised affected entry of building which is secured.

Incest
Offences committed under the Incest Act, 1567. This could be construed as sexual intercourse with ascendants up to great-grandparents and descendants down to great-grandchildren, with brothers or sisters, nephews or nieces, aunts or uncles, and adoptive or former adoptive parents and children. The offence is committed where the relationships are of half blood as well as full blood.

Inferior court
A court of lesser jurisdiction. In Scotland these would be sheriff courts, justice of the peace courts, burgh courts and police courts.

Indictment
Served on the accused. It lays down the charges about the commission of a serious offence or charge.

Intran (Latin)
Enter. Occurs before noting a person or persons present in court eg 'Intran Thomas Baikie present prisoner in the Tolbooth of Inverness'.

Jurisdiction
A power to hear and decide. The High Court is a court of 'first instance' and has the power to hear and decide cases coming before it directly.

Lewd practices (also: Lewd, indecent and libidinous practices and behaviour)
Criminal actions used towards children under the age of puberty. Also an offence if committed against a girl between the age of 12 and 16 years.

Lord Advocate (see Advocate Depute)
The senior law officer of the Crown in Scotland responsible for the taking of criminal proceedings.

Malicious mischief (also: Malicious damage)
Destruction or injury to property without the direct intention of removing it from its rightful owner, including a deliberate or wicked intent to injure.

Mobbing and rioting
Forming part of a mob engaged in disorderly, criminal behaviour. The crime consists in combining to the alarm of the lieges (public) for an illegal purpose, or in order to carry out a legal purpose by illegal means, e.g. violence or intimidation. It is the common purpose which distinguishes it from Breach of the Peace.

Murder (also: Attempted murder)
Unlawful killing of another with intent to kill, or with wicked recklessness to life.

Not proven (see Burden of proof)
The Crown has failed to prove the case against the accused beyond reasonable doubt. It is the equivalent of a ‘not guilty’ verdict. Both verdicts are acquittals, and have the effect that the accused cannot be tried again for the same offence.

Obstructing and deforcing officers (see Deforcement)

Opening lockfast place (see Theft)
Breaking into a locked premises/house/safe.

Pannel (see Accused)
Person brought to trial; the accused.

Perjury
Judicial affirmation of falsehood while under oath.

Plagium (Latin)
Theft of an infant.

Poaching (also: Night-poaching; Con. Night Poaching Act, 1828 & 1844; Con. Game (Scotland) Act, 1832)
The unlawful taking of game or rabbits by night.

Precedent
An example, the judgement of a court or a proposition of law, which may or must be followed.

Precognition
A precognition is a preliminary examination of a person who may be required to give evidence in a criminal trial or civil proof.

Procurator fiscal
The public prosecutor in inferior courts.

Proven (see Burden of proof)
The Crown has proven the case against an accused beyond reasonable doubt. It is the equivalent of a 'guilty'verdict.

Prison breaking
Escaping from lawful confinement.

Rape (also: Attempted rape; Assault with intent to ravish; Clandestine injury; Indecent assault)
Sexual intercourse with a woman by means of the forcible overcoming of her will. Offences such as the carnal knowledge of a woman while asleep, or connection with a women rendered insensible by drink, may be indicted as 'clandestine injury' or 'indecent assault'.

Reset
Feloniously receiving or retaining goods, obtained by theft, robbery etc., knowing that they have been dishonestly appropriated.

Road traffic offences (examples)

  • Contravention of the Motor Car Act, 1903
  • Contravention of the Road Traffic Act, 1930

Robbery
Felonious appropriation of property by means of personal violence. The property does not require to be upon the owner at the time.

Sedition
Attempting to disturb the tranquillity of the State for the purpose of producing public trouble or commotion.

Ship-breaking
Unauthorised affected entry of a ship or vessel.

Sine die (Latin)
Without fixed day.

Sodomy
Male homosexual intercourse, construed as act of gross indecency.

Stouthrief
Theft accompanied with violence.

Solemn procedure
Procedure in the criminal courts in which a person is charged on indictment, and the trial is heard before a judge and a jury of 15 persons.

Statutory Offences (examples)

  • Contravention of Concealment of Birth (Scotland) Act 1809
    Taking unlawful steps to conceal birth

  • Contravention of Explosive Substances Act 1883
    Unauthorised usage of explosive substances

  • Contravention of Road Traffic Act, 1930
    Driving offences

  • Contravention of 1 Vict., c. 36 (Post Office Act)
    Offences against the Royal Mail or stealing letters

  • Contravention of Prevention of Corruption Act, 1906
    Offences relating to dishonesty

Subornation of perjury
Inducing another to commit perjury.

Summary procedure
Procedure in the criminal courts in which a trial is heard before a judge sitting alone. Courts of summary jurisdiction deal with less serious offences.

Theft
Dishonest appropriation of property without the owner’s consent, with intent to deprive them of its use, either temporarily or permanently:

  • Theft by opening lockfast places
  • Theft by housebreaking
  • Attempted theft
  • Theft of a motor vehicle

Threats
The making of oral or written threats.

Trial
The hearing of a case in criminal proceedings.

Uttering (see Forgery)

Verdict
The judgement given, after proceedings in a criminal court have reached final conclusion.

Witness
A person who, on oath or solemn affirmation, gives evidence in an action.

Wilful fire-raising (also: Fire-raising; Culpable and reckless fire-raising)
Deliberate or reckless burning of another’s property. The gravity depends upon whether the act was done recklessly or wilfully.


Useful reference works

J. A. Beaton, 'Scots law terms and expressions' (Edinburgh) 1982

Clive, Watt and McKain, 'Scots law for journalists' (Edinburgh) 1988

Gloag and Henderson, 'Introduction to the law of Scotland' (9th edition), (Edinburgh) 1987

Her Majesty’s Stationery Office, 'The legal system of Scotland' (Edinburgh) 1975

Law Society of Scotland, Glossary of Scottish and European Union legal terms and Latin phrases (2nd edition) (Edinburgh) 2003

Stephen R O'Rourke, 'Glossary of legal terms' (4th edition) (Edinburgh) 2004

Albert V. Sheehan, 'Criminal procedure: Scottish criminal law and practice series' (Edinburgh) 1990

George Watson, ‘Bell’s Dictionary and Digest of the Law of Scotland’ (seventh edition) (Edinburgh) 1890

 

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Crown copyright 2006

 

   
 
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