Courts of Scotland

Entrance to the Parliament House, the home of the Supreme Courts of Scotland, in Parliament Square, Edinburgh.

The civil, criminal and heraldic courts of Scotland are responsible for the administration of justice. They are constituted and governed by Scots law. The Scottish Court Service, a non-ministerial department of the Scottish Government, is responsible for the administration of the country's court system.

The Court of Session is the supreme civil court and the High Court of Justiciary is the supreme criminal court. The specialist system of Children's Hearings handles the majority of cases involving allegations of criminal conduct involving persons under 16.

The Court of the Lord Lyon is the heraldic court and the Scottish Land Court deals with agricultural and crofting issues.

Defunct courts include the Court of Exchequer and the Admiralty Court.

Background

The United Kingdom does not have a single judicial system — England and Wales have one system, Scotland another, and Northern Ireland a third. The Military Court Service has jurisdiction over all members of the armed forces of the United Kingdom in relation to offences against military law. The Supreme Court of the United Kingdom operates across all three separate jurisdictions, hearing some civil - but not criminal - appeals in Scottish cases, and determining certain devolution and human rights issues.

Civil Courts

Supreme Court of the United Kingdom

The Supreme Court was created on 1 October 2009 by the Constitutional Reform Act 2005. It is the highest civil court of appeal for Scotland. It hears appeals from all the civil courts of the United Kingdom, and the criminal courts of England and Wales and of Northern Ireland.

Until the creation of the Supreme Court, ultimate appeal lay to the House of Lords, a chamber of the Parliament of the United Kingdom (though in modern practice only the Law Lords sitting in the Appellate Committee, rather than the whole House, heard appeals).

On 1 October 2009 the Supreme Court took over the judicial functions of the House of Lords and the work and the devolution jurisdiction originally vested in the Judicial Committee of the Privy Council.[1][2]

Cases involving "devolution issues" arising under the Scotland Act 1998, such as disputes regarding the validity of Acts of the Scottish Parliament or executive functions of the Scottish Government, are heard by the Supreme Court. The cases may reach the Court as follows:

Court of Session

Parliament Hall inside Parliament House, Edinburgh

The Court of Session is the supreme civil court. It is both a court of first instance and a court of appeal and sits exclusively in Parliament House in Edinburgh. The court of first instance is known as the Outer House, the court of appeal the Inner House.

Sheriff Court

The Sheriff Court is the other civil court; this sits locally. Although the Court of Session and Sheriff Courts have a largely co-extensive jurisdiction, with the choice of court being given in the first place to the pursuer (the claimant), the majority of difficult or high-value cases in Scotland are brought in the Court of Session.

Any final decision of a Sheriff may be appealed against. There is a right of appeal in civil cases to the Sheriff Principal, and in most cases onwards to the Court of Session.

Criminal Courts

High Court of Justiciary

The High Court of Justiciary is the supreme criminal court.

The High Court is both a court of first instance and also a court of appeal. As a court of first instance, the High Court sits mainly in the former Sheriff Court buildings in the Lawnmarket in Edinburgh, in dedicated premises at the Saltmarket in Glasgow, and also sits from time to time in various other places in Scotland. As a court of appeal, it sits only in Edinburgh.

Appeals may be made to the High Court of Justiciary sitting as the Court of Criminal Appeal from the lower courts in criminal cases. An appeal may also be made to the High Court if the High Court itself heard the case at first instance. Two judges sit to hear an appeal against sentence, and three judges sit to hear an appeal against conviction.

There is no further appeal from the High Court's decision on appeal, in contrast to the Court of Session, from which it is possible to appeal to the Supreme Court of the United Kingdom, the highest court. Appeals under the Human Rights Act 1998 and devolution appeals under the Scotland Act 1998 are heard by the UK Supreme Court (formerly the Judicial Committee of the Privy Council).

Sheriff Court

an example of a sheriff court in Kirkcaldy

The Sheriff Court is the main criminal court; this sits locally. The procedure followed may either be solemn, where the Sheriff sits with a jury of 15; or summary, where the Sheriff sits alone. From 10 December 2007, the maximum penalty that may be imposed in summary cases is 12 months' imprisonment or a £10,000 fine, in solemn cases 5 years' imprisonment or an unlimited fine.[3]

A higher sentence in solemn cases may be imposed upon reference to the High Court of Justiciary.

District Court

District Courts were introduced in 1975 and sit in each local authority area under summary procedure only. Each court comprises one or more Justices of the Peace (lay magistrates) who sit alone or in threes with a qualified legal assessor as convener or clerk of court. They handle cases of breach of the peace, drunkenness, minor assaults, petty theft, and offences under the Civic Government (Scotland) Act 1982. The maximum penalty which may be imposed is 60 days' imprisonment or a £2,500 fine.

Justice of the Peace Courts

The Scottish Government merged the management of the Sheriff and Justice of the Peace Courts (formerly known as District courts), retaining lay Justices. The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 enabled the Scottish Ministers to replace District Courts by "Justice of the Peace Courts".[4] The process is concluded and all District Courts are now abolished and replaced with the new Justice of the Peace courts throughout Scotland, which have strengthened powers to allow more cases to be dealt with at this level.

Special courts and tribunals

Scotland has several specialised courts and tribunals.

Tribunals

Tribunals sit in judgement over a number of specialist areas, and frequently have appeals tribunals above them. For example, the Employment Tribunals (appeals to Employment Appeals Tribunal), VAT Tribunals, Lands Tribunal for Scotland, etc.

In many cases there is a statutory right of appeal from a tribunal to a particular court or specially constituted appellate tribunal, for example Employment Tribunal cases are appealed to the Employment Appeals Tribunal, which in turn allows appeals to the Court of Session. In the absence of a specific appeals court, the only remedy from a decision of a Tribunal is by judicial review in the Court of Session, which will often be more limited in scope than an appeal.

Children's Hearings

The specialist system of Children's Hearings handles the majority of cases involving allegations of criminal conduct involving persons under 16 in Scotland. These tribunals have wide ranging powers to issue supervision orders for the person referred to them by the Scottish Children's Reporter Administration. Serious crimes, at the direction of the Procurator Fiscal, are still dealt with in the usual criminal courts.

Court of the Lord Lyon

The Court of the Lord Lyon, the standing court of heraldry and genealogy, is responsible for civil and criminal enforcement of armorial bearings and the right to use certain titles. It is headed by the Lord Lyon, who is King of Arms and senior herald for Scotland.

Other courts

Relationship with the European Court of Justice

As in all other courts in the EU, there is no right to appeal at any stage to the European Court of Justice (ECJ). Any court may refer a particular point of law relating to European Union law to the ECJ for determination. However, once the ECJ has given its interpretation, the case is referred back to the court that referred it. This is symptomatic of the fact that although the European Union is increasingly federal, there is no federal court system, just laws that must be interpreted the same way across all member states.

The decision to refer a question to the ECJ can be made by the court of its own initiative, or at the request of any of the parties before it. Where a question of European law is in doubt and there is no appeal from the decision of a court, it is required to refer the question to the ECJ; otherwise any referral is entirely at the discretion of the court.

Relationship with the European Court of Human Rights

It is not possible to appeal the decision to the European Court of Human Rights (ECtHR). Although it is frequent to hear media references to an "appeal" being taken "to Europe", what actually takes place is rather different.

The ECtHR is an international court that hears complaints concerning breaches of the European Convention on Human Rights and Fundamental Freedoms. An unsatisfied litigant might complain to the ECtHR that Scots law has violated their rights and demand just satisfaction. A decision in the ECtHR will not change their rights under Scots law, and it is up to the various domestic legislative and executive bodies to decide what action (if any) to take after an adverse finding.

Furthermore, courts are not bound to follow a decision of the ECtHR, although they should "take into account" ECtHR jurisprudence when deciding a claim under the Scotland Act 1998. The Act requires Acts of the Scottish Parliament and actions of the Scottish Ministers to be compatible with the European Convention on Human Rights, and does so in a way which gives courts greater control than they have over UK Acts of Parliament as provided for by the Human Rights Act 1998.

See also

References

  1. ↑ "Part 3, Constitutional Reform Act 2005". Acts of the Parliament of the United Kingdom 4. 2005-03-24. p. 3. Retrieved 2009-09-02.
  2. ↑ Statutory Instrument 2009 No. 1604 The Constitutional Reform Act 2005 (Commencement No. 11) Order 2009 (Coming into force 2009-10-01)
  3. ↑ Part III of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007
  4. ↑ "The Scottish Ministers may by order establish courts of summary criminal jurisdiction to be known as justice of the peace courts." "Section 59 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6)". Office of Public Sector Information. Retrieved 2007-11-27.

External links