The declaratory power, in
Scots law
Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland l ...
, is an unusual power held by the
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Cou ...
, which enables it to declare behaviour to be criminal, even if that behaviour had not been previously defined as criminal activity.
This power has been used conservatively in the modern period, generally only in cases where an act is clearly comparable to an existing crime; it has, for example, been used to declare the selling of
glue-sniffing kits criminal. As the specific boundaries of many offences are left somewhat loosely defined, it can be difficult to distinguish the application of the declaratory power from cases where the court interprets existing legislation to cover new situations.
References
* White & Willock, ''The Scottish Legal System'', second edition. Butterworths, 1999.
Scots law
Scots law legal terminology
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