We have another book on criminal law? Yes and no. The new book with this title is an up-dated version of the two editions of the book written previously by Professor Alexander McCall Smith and David Sheldon, both of whom are advocates although only the latter now practices as such. Sheriff Cubie was, in his own words in the preface, “passed the unenviable task of producing the third edition”.

Quite who passed it on, why it was so onerous and why then he accepted it is not explained. The structure and much of the text of earlier editions has been retained. The author of the third edition expresses his great appreciation for the invaluable foundation which was laid by the earlier editions.

Part of the problems for the modern lawyer is explained by necessary implication in the remainder of the preface: in the 12 years since the last edition, the changes in Scots criminal law have been so remarkable that almost no area of the book has been unaffected by change. It is fairly safe to suggest that that is the position for all other areas of law. Perhaps the real difficulty that is faced by someone in the position of Sheriff Cubie is knowing what not to put in the new edition: a balance has to be found between the material available and the space allowed by a publisher to explain the law.

There is certainly plenty for consideration from the variety of Parliaments that produce law in apparently never ending quantities. At least in the general way that legislation has to go through a process; practitioners and others who take an interest in the criminal law are put on notice that new law is on its way, and therefore can make an assessment of when it is likely to come into force. Case law seems often to appear without much notice, and to require an urgent reordering of priorities. In all these circumstances Sheriff Cubie has done well to produce such a compact and helpful statement of the criminal law: students will learn from it and practitioners will find it a very helpful reminder of what they once knew, or ought to know.

If any point of the text might be suggested for more detailed treatment, it is the area of what constitutes criminal law and assessing where the limits should be or are to be found. Sheriff Cubie has of course adverted to the view of others that there has been too much of an increase in legislation (p 3). The vexed question of criminal law and morality is discussed (pp 20-21), but it might be wondered if such a minimal analysis is sufficient in the modern era.

It is a rather simplistic but nevertheless true assertion that not all bad behaviour is criminal behaviour: some people are nasty without being criminally nasty. The public at large seem to believe otherwise, and demand from "the authorities", whoever they might be, appropriate responses to bad behaviour. Moreover, many instances of bad behaviour are dealt with by means of the criminal law when there might well have been alternative modes of attacking the problem. The law of civil recovery of the profits of crime is a clear example of how matters might be dealt with in other ways.

At any rate, with the text as it is, Sheriff Cubie has brought life back into what was, and therefore now is, a very useful introduction to Scots criminal law.

Robert Shiels, The Journal Online, 2011