Diminished responsibility and the Scottish criminal law tradition

Buchan, Daniel (2022) Diminished responsibility and the Scottish criminal law tradition. LL.M(R) thesis, University of Glasgow.

Abstract

This thesis examines the history and development of diminished responsibility in Scots criminal law and asks what the doctrine’s evolution within the practice of the High Court might reveal about the Scottish criminal law tradition more broadly. For important historical and political reasons, the concept of “tradition” has long been central to the way in which Scots law and the Scottish legal system is described. This tradition, however, has habitually been framed in idealised, nationalistic and ultimately misleading terms. The criminal law, commonly regarded as an especially “Scottish” part of the legal system, sits in the foreground of this picture. The present thesis aims to engage with the Scottish criminal law tradition in a more rational, dispassionate and verifiable sense, by focusing more narrowly on the character of the legal rules themselves. To this end, it adopts the doctrine of diminished responsibility – long heralded as a distinctly Scottish creation – as a case study. The thesis begins by locating the position occupied by diminished responsibility within the broader landscape of Scots criminal law, before introducing the concept of “the Scottish legal tradition” and outlining one popular account of its character. Attention then turns to the nature of the criminal law. The foundational Scottish literature is examined, and four key themes extracted: the significance of the High Court’s power to declare conduct newly criminal; the emphasis placed on practicality; the purported humanity of the Scottish criminal justice system; and the posited link between criminal law and community values. Each of these themes, it is suggested, provides us with a clue as to the nature of the law itself. Four possible characteristics are deduced: flexibility; pragmatism; leniency; and non-technicality. Finally, the development of diminished responsibility in the Scottish courts is analysed, and the applicability of these four characteristics assessed. It is concluded that the doctrine’s development tells us much about the nature of the broader Scottish tradition.

• Item Type: Thesis (LL.M(R))
• Qualification Level: Masters
• Colleges/Schools: College of Social Sciences > School of Law
• Supervisor's Name: Chalmers, Prof. James
• Date of Award: 2022
• Depositing User: Theses Team
• Unique ID: glathesis:2022-82862
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 12 May 2022 08:30
• Last Modified: 12 May 2022 08:32
• Thesis DOI: 10.5525/gla.thesis.82862
• URI: https://theses.gla.ac.uk/id/eprint/82862