Crown appeals

[Project now completed]


Team members
Alastair Smith, Project Manager
Chloë Kennedy, Legal Assistant

On 20 November 2007, the Scottish Ministers invited the Commission -

"To consider the law relating to:

  • Judicial rulings that can bring a solemn case to an end without the verdict of a jury, and rights of appeal against such;
  • The principle of double jeopardy, and whether there should be exceptions to it;
  • Admissibility of evidence of bad character or of previous convictions, and of similar fact evidence; and
  • The Moorov doctrine."

Where a trial judge sustains a submission of no case to answer (in terms of section 97 of the Criminal Procedure (Scotland) Act 1995), the judge must acquit the accused of the offence in respect of which the submission was made. Where this happens, the accused is acquitted before the defence has given evidence and without the jury being asked to return a verdict. At present, the prosecution has no right of appeal against the judge's ruling on a submission of no case to answer. Nor, in accordance with the principle sometimes referred to as double jeopardy, may the accused be tried again for the same offence.

Work on this reference has been divided into separate projects. We published our Discussion Paper on Crown Appeals (DP 137) in March 2008, followed by the Report on Crown Appeals (Scot Law Com No 212) in July 2008. The Report recommended the extension of section 97 of the Criminal Procedure (Scotland) Act 1995 to allow a submission to be made at the close of the prosecution case that, on the evidence led, no reasonable jury, properly directed, could convict; the replacement of the "common law submission" at the close of all of the evidence with a new statutory submission; and that the Crown be granted a right of appeal against a decision of the trial judge under either submission and against a ruling, made during the course of the trial, regarding the admissibility of prosecution evidence.

Our Report on Double Jeopardy (Scot Law Com No 218) was published in December 2009 (see the Double Jeopardy page for further details). Our Discussion Paper on Similar Fact Evidence and the Moorov Doctrine (DP 145) was published for consultation in December 2010 (see the Similar Fact Evidence project page for further details).

For further information, please contact

Page archive date: 21 January 2009