LIKE any other criminal justice system, Scots law is much caricatured - sometimes justifiably - as being out of touch and out of date.
Nevertheless, as the prosecution and conviction of Stephen Kelly at the High Court in Glasgow shows, our law can sometimes be flexible and imaginative in adapting to changing times and social conditions.
Kelly was convicted of infecting his former lover with the HIV virus which can lead to full-blown Aids, apparently the first man in Britain to face such a charge.
There is no law in the statute books covering the kind of conduct of which a jury found Kelly guilty and the case against him depended on the tried and tested common law concept of culpable and reckless conduct.
Essentially, the jury decided he had sexual intercourse with his girlfriend while pretending he was not infected and knew he could transmit the virus by having sex. In this day and age, it would be difficult for anyone to argue he did not know he could pass on the HIV virus in this way.
James Drummond Young QC, the Crown prosecutor, provided an excellent summary of the essential ingredients for a charge of culpable and reckless conduct when he told the jury: ''Mr Kelly clearly knew what he was doing and that there was a serious risk of harm (to his girlfriend) but he did it anyway, not caring for the danger which came to pass.''
Nearly 20 years ago, two Glasgow shopkeepers were found guilty of wilfully, culpably and recklessly supplying glue-sniffing kits to children. Defence counsel accepted that this kind of activity was morally repugnant, but argued strenuously that it breached no existing Scots law.
Lord Avonside commented: ''The great strength of our common law in criminal matters is that it can be invoked to fulfil a need. It is not static.''
Old crimes can always be committed in different ways and it would be a surprise if our common law failed to cope with new kinds of criminal conduct, such as computer crime and the supply of drugs which lead to death.
It is probably better than relying on statutory law - such as the dangerous dogs act - which only creates work for lawyers and frequently leads to more problems than it solves.
The only cloud on the horizon may be the human rights act, which is already threatening breach of the peace, that hardy annual of our criminal law, and may be used to challenge charges such as culpable and reckless conduct as too vague.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereComments are closed on this article