Courts of Scotland

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Scots law

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This article is part of the series:
Courts of Scotland

Scottish Court Service
College of Justice

Civil courts

Privy Council
House of Lords
Court of Session
Lord President
Sheriff Court
Sheriff

Criminal courts

High Court of Justiciary
Lord Justice-General
Sheriff Court
Sheriff Principal
Sheriff
District Court
Justice of the Peace

Special courts

Court of the Lord Lyon
Lord Lyon King of Arms
Children's Hearings

Criminal justice

Lord Advocate
Crown Office
Advocate Depute
Procurator Fiscal

Advocates and solicitors

Faculty of Advocates
Advocate
Law Society of Scotland
Solicitor-Advocate
Solicitor

The Courts of Scotland are the civil, criminal and heraldic courts responsible for the administration of justice in Scotland. They are constituted and governed by Scots law.

The United Kingdom does not have a single unified judicial system — England and Wales have one system, Scotland another, and Northern Ireland a third. There are exceptions to this rule, for example in immigration law, the Asylum and Immigration Tribunal's jurisdiction covers the whole of the United Kingdom, while in employment law there is a single system of Employment Tribunals for England, Wales and Scotland (but not Northern Ireland).

Contents

[edit] Civil Courts

[edit] House of Lords

The House of Lords is the highest civil court of appeal in both Scotland and also in England & Wales. In practice, only the Law Lords hear the appeals. It was abolished by the Supreme Court of Judicature Act 1873, but an election was held before the act came into force, and the new Parliament amended the act to preserve the House of Lords' judicial function.

[edit] Court of Session

The Court of Session is the supreme civil court in Scotland. 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 is known as the Inner House.

[edit] Sheriff Court

The Sheriff Court is the other Scottish 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. There is a right of appeal in civil cases to the Sheriff Principal, and in most cases onwards to the Court of Session.

[edit] Criminal Courts

[edit] High Court of Justiciary

The High Court of Justiciary is Scotland's 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 Parliament House in Edinburgh, but 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 House of Lords, the UK's highest court. However, appeals under the Human Rights Act 1998 and devolution appeals under the Scotland Act 1998 are heard by the Judicial Committee of the Privy Council. The members of the Judicial Committee also sit in the House of Lords as the Lords of Appeal in Ordinary.

[edit] Sheriff Court

The Sheriff Court is the main Scottish 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. The maximum penalty which may be imposed is 3 months' imprisonment or a £5,000 fine (in summary cases) or 5 years' imprisonment or an unlimited fine (in solemn cases).

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

[edit] 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.

[edit] Court Reform

The Scottish Executive has announced its intention to unify the management of the Sheriff and District courts in Scotland, but retaining lay Justices. The Criminal Proceedings etc. (Reform) Bill was introduced in the Scottish Parliament on 28 February 2006. If enacted, this Bill would replace District Courts by "Justice of the Peace Courts".

[edit] Special courts and tribunals

Scotland has several specialised courts and tribunals.

[edit] 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, 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.

[edit] Children's Hearings

The specialist system of Children's Hearings in Scotland 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.

[edit] Court of the Lord Lyon

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

[edit] Other courts

[edit] Relationship with the European Court of Justice

Contrary to popular belief, there is no right to appeal at any stage in UK court proceedings to the European Court of Justice (ECJ). Any court in the UK 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.

[edit] Relationship with the European Court of Human Rights

It is not possible to appeal the decision of any court in Scotland 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 in the Scotland 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 Scottish Parliament and Scottish Executive to decide what action (if any) to take after an adverse finding.

Furthermore, courts in Scotland 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.

[edit] See also

[edit] External links

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