A special defence in Scots law may be raised in criminal proceedings upon notice by the accused ahead of the trial. If established, it results in an acquittal.[1] The only purpose of the special defence procedure is to give fair notice: it does not prejudice the plea of not guilty by an accused; the Crown still must prove the acts charged beyond a reasonable doubt.[2] [3]
In solemn proceedings (prosecutions on indictment of more serious criminal offences before a judge and jury of 15 persons)[4] notice of a special defence must be given at least 10 days before the trial date[5] and the jury is advised of the special defence immediately after the indictment has been read (or summarised) and each juror is given a copy of the accused's notice.[6] [7]
The types of special defence are: mental disorder (when the offence was committed or before the trial), incrimination (alleging someone else committed the crime), coercion, automatism, self-defence, consent (under some circumstances), or alibi.[8] [9]
For special defences in solemn business, see s 78 and s 89, Criminal Procedure (Scotland) Act 1995;
For special defences for a summary provision, see s 149B, Criminal Procedure (Scotland) Act 1995.