| There are 2 types of criminal procedure
– solemn and summary. In solemn procedure in both
the High Court of Justiciary and the Sheriff Court, trial
is before a judge sitting with a jury of 15 laymen; and
the alleged offence is set out in a document called an
indictment. The judge decides questions of law and the
jury decide questions of fact and may reach a decision by
a simple majority. In summary procedure in Sheriff and
District Courts, the judge sits without a jury and
decides questions of both fact and law. The offence
charged is set out in a document called a summary
complaint. |
| The prosecution of crime in the Scottish
courts is a public function, and proceedings are taken at
the instance of the Lord Advocate or his local
representative (the Procurator Fiscal) in each Sheriff
Court District. In Scotland, the police do not prosecute
and only rarely may private individuals do so. The Civil
Service Department, of which the Lord Advocate is the
head and through which he discharges his responsibility
for criminal prosecution, is the Crown Office, which is
the administrative headquarters of the Procurator Fiscal
Service. |
| Prosecutions are conducted in the High Court
of Justiciary by the Lord Advocate, the Solicitor General
for Scotland, or by advocates Depute, also know as Crown
Counsel, of whom there are thirteen. In all other
criminal courts the prosecutor is the Procurator Fiscal
or, in busy areas, one of his deputes, all of whom are
legally qualified. |
| The police report gives details of alleged
crimes to the Procurator Fiscal who has discretion
whether or not to prosecute. He may receive instructions
from the Crown Council on behalf of Lord Advocate, who in
turn is answerable to Parliament. |
| |
| CRIMINAL COURTS |
| The supreme criminal court in Scotland is
the High Court of Justiciary which sits in Edinburgh,
Glasgow and other major towns and cities. It is a court
which hears only cases taken on indictment, presided over
by a judge sitting with a jury of 15, and has exclusive
jurisdiction in certain serious crimes including murder,
treason and rape. The High Court of Justiciary also sits
(in a court of at least 3 judges) as the Scottish
Court of Criminal Appeal, hearing appeals from the
High Court as court of first instance and from the
sheriff and district courts. There is no appeal from this
court to the House of Lords. |
| The 49 sheriff courts mainly deal with
offences committed within its local area or the sheriff
court district over which it has jurisdiction. These
courts are organised in 6 sheriffdoms and at the head of
the judiciary of each sheriffdom is the sheriff
principal. The 6 sheriffdoms are: Grampian, Highland and
Islands; Tayside, Central and Fife; Lothian and Borders;
Glasgow and Strathkelvin; North Strathclyde and South
Strathclyde, Dumfries and Galloway. There are 101
permanent sheriffs, most of whom are appointed to
particular courts. Six are "floating" sheriffs
who may take cases in any court in their sheriffdom. In
addition, there is a panel of sheriffs who may undertake
duties in any sheriffdom. |
| The sheriff has jurisdiction in both summary
and solemn criminal cases. In his summary court a sheriff
may impose prison sentences of up to 3 months or in some
cases 12 months or a fine not exceeding the
"prescribed sum", that is up to £5,000 for a
common law offence. Under solemn procedure, the sheriff
may impose unlimited financial penalties, and has an
additional power of remit to the High Court of Justiciary
if he thinks a heavier sentence should be imposed. The
sheriff also has available a range of non-custodial
disposals, principally community service and probation. |
| District courts, set up under the District
Courts (Scotland) Act 1975 are the administrative
responsibility of the local authority. The longest prison
sentence which can be imposed is generally 60 days and
the maximum fine of up to level 4 on the standard scale,
at present - £2500. |
| The bench of a district court will usually
be constituted by one or more lay justices of the peace.
Subject to the approval of the Secretary of State, a
local authority may also appoint a stipendiary
magistrate, who must be a professional lawyer of at least
5 years standing, and who has the same summary criminal
jurisdiction and powers as has a sheriff. At present,
only Glasgow has stipendiary magistrates sitting in the
district court. |
| Lay justices of the peace are drawn from 3
sources: justices appointed by the Secretary of State for
Scotland on behalf of the Queen; magistrates and police
judges who held office under the pre-1975 structure of
local government; and ex officio justices
nominated by district and islands councils, up to a
quarter of their number. An important provision of the
Act requires justices to undergo training appropriate to
their experience. |
| |
| CIVIL COURTS |
| The supreme civil court in Scotland is the
Court of Session, which sits in Edinburgh and may hear
cases transferred to it and appealed from sheriff courts.
There is a right of appeal from the Court of Session to
the House of Lords. |
| A leading principle of the court is that
cases originating in it are both prepared for decision,
and are decided, by judges sitting singly whose decisions
are subject to review by several judges. The total number
of cases is 25, of whom 17, called Lords Ordinary, mainly
decide cases in the first instance. This branch of the
court is called the Outer House. The 8 other judges are
divided into 2 divisions of 4 judges each, forming the
Inner House. The First Division is presided over by the
Lord President of the Court of Session and the Second
Division by the Lord Justice-Clerk. The main business of
each division is to review the decisions of the Lords
Ordinary or inferior courts which have been appealed to
it. |
| In addition to its criminal jurisdiction,
the sheriff court deals with most civil litigation in
Scotland. Its jurisdiction is very wide. The value of the
subject matter with which the court can deal has, with
very few exceptions, no upper limit, and a wide range of
remedies can be granted. Actions can be entertained for,
among other things, debts, contract, reparation, rent
restriction, possessory actions and actions affecting the
use of property, actions affecting leases and tenancies,
and actions for custody of children. It deals with
actions for alimentary debt and other actions between
husband and wife, and it can vary Court of Session
decrees awarding custody, aliment or financial provision.
Since May 1984, the sheriff court has had concurrent
jurisdiction with the Court of Session in actions for
divorce. There is a right of appeal in some cases from
the sheriff to the sheriff principal and in other cases
from the sheriff to the Court of Session. |
| |
| COURTS OF SPECIAL JURISDICTION |
| Several other courts with particular
functions have jurisdiction in Scotland. These include
central courts associated with the Court of Session such
as the Registration of Voters Appeal Court or the
Lands Valuation Appeal Court; United Kingdom courts
of special jurisdiction, such as the Restrictive
Practices Court; the Scottish Land Court with
jurisdiction on agricultural tenancies, crofting
tenancies and kindred matters; the Court of the Lord
Lyon King of Arms, which has an historic jurisdiction
in disputes over the rights to bear coats-of-arm; and the
Church courts, technically civil courts of the realm but
with jurisdiction only over members of the Church of
Scotland, such as the General Assembly, synods,
presbyteries and kirk sessions. There are also licensing
boards of islands and district councils appointed by
these authorities, which grant licences for public houses
and certain other premises; and for bookmakers’
premises and the like. |
| |
| CHILDREN |
| The majority of cases which involve offences
by persons under 16 (children who appear to be in need of
care and protection), are dealt with by Children’s
Hearings. |
| |
| ORGANISATION AND ADMINISTRATION |
| The Court of Session by Act of Sederunt
regulates its own procedure and that in civil proceedings
in the sheriff courts, while the High Court of Justiciary
by Act of Adjournal regulates its own procedure and that
in criminal proceedings in the sheriff court and district
courts. The statutory Rules Council and the Sheriff Court
Rules Council, consisting of judges and legal
practitioner, advise the courts about amending the rules.
The Secretary of State for Scotland is responsible for
the central administration of the sheriff courts and, to
a lesser extent, the supreme courts. The Scottish Courts
Administration discharges these functions which include
the provision of accommodation and supply and management
of staff. Sheriffs principal have certain administrative
functions and have a statutory responsibility to ensure
the speedy and efficient disposal of justice in their
sheriffdoms. In exercising their judicial functions,
judges are not in any way subject to Ministerial control. |
| The Scottish Courts Administration also
discharges, on behalf of the Lord Advocate, his
responsibility for the general oversight of certain
branches of Scots Law connected with Scottish Courts.
These include; the jurisdiction and procedure of the
courts in civil proceedings; the law relating to the
enforcement of court orders in civil proceedings and law
of evidence; the law relating to arbitration and private
international law matters. The Department also advises
the Lord Advocate on his responsibilities in connection
with the law relating to arbitration, prescription and
the limitation of actions, the making of rules for
certain tribunals, such as the Lands Tribunal for
Scotland and in relation to certain administrative
matters connected with the Scottish Law Commission. The
Department is also responsible to the Secretary of State
for Scotland for the publication of the civil judicial
statistics for Scotland and also carried out on behalf of
the Secretary of State, central authority functions for
reciprocal enforcement of maintenance orders and in
connection with international child abduction cases. |
