The Scottish Court System

There are few legal systems that have a heritage as diverse as the Scottish system. The system is thousands of years old, formed carefully from many sources, which can be characterised as exclusive. As a symbol of nationhood the Scots Law System has been diligently protected since the time of David I. The union with England in 1707, didn't change the system, instead it continued to keep its distinctive character. With all the influence throughout the centuries, it has resulted in a system that combines a unique blend of doctrine and principle.

In most legal systems there are fundamentally two types of courts: the civil and criminal courts. It is in the civil courts that allow members of the public to litigate their differences amicably. In other words, after hearing both arguments the court will rule in favour of one of the parties and implements a remedy accordingly.

In contrast, the criminal courts act as a court where the government (in the form of the Prosecutor Fiscal) can take action against those who have broken the criminal law. If found guilty of a crime by the court the accused may be sentenced accordingly.

Firstly it is useful to point out an important aspect of jurisdiction. A court has no right to hear a case if it does not fall into its jurisdiction. There are two ways that jurisdiction must be held. Firstly the court must have jurisdiction over the type of case (I will go into detail on this issue later), and secondly the court must have jurisdiction over the parties to the action. The key rule for the Scottish system is that the court must "exercise jurisdiction over the defender as the doctrine actor seqitur forum rei applies.

In the criminal structure there are three courts. At the bottom of the hierarchy is the district court.

The existing systems of District Courts was established by the Ð''District Courts (Scotland) Act 1975,' and are the administrative responsibility of the local authority, although the decisions reached are independent of the council.

There are 30 District courts in Scotland. They only deal with summary criminal matters. Such as; breach of the peace, assault (unless it results in a broken bone, which cannot be heard in the District court but must go to the Sheriff Court), theft (but not theft by housebreaking), speeding. There are also many other offences dealt with in the District Court. [insert current example].

Since the District court operated under summary procedure is may not impose a fine in excess of Ð'Ј2,500 or sentence an offender to more than 60 days in prison. In practice most offences are dealt with a fine.

The bench of a District court will usually be constituted by one or more lay justices of the peace, who are not legally qualified, butt sits with a legally qualified clerk, who will advise the justices on procedure and other points of law when necessary. Under the District courts (Scotland) Act 1975' there is an important provision that requires justices to undergo training appropriate to their experience before they can sit on the bench.

With the passing of the Ð''Criminal Proceeding etc. (Reform)(Scotland) Bill on January 18th 2007, the district courts will become Justice of Peace courts and their administration transferred to the Scottish Courts Service. This will happen during the period of 2008-2012. The first to be abolished is the Lothian & Borders district court in March 2008. By allowing modern technology in justice of peace courts would result in increased efficiency. The unification is one aspect of all the Scottish Government's programme of summary justice reform to increase efficiency in tackling low-level crime that blights communities. Summary justice can account for over 90% of all prosecutions taking place in Scotland.

The sheriff court is the next step up in the criminal court hierarchy. Currently there are 49 sheriff courts which are organised into 6 sheriffdoms: 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 who are appointed to a particular court, with six Ð''floating' sheriffs who may take cases in any court in their sheriffdom. The head of judiciary in each sheriffdom is the Sheriff Principle. Sheriff Principles have certain administrative functions and have a statutory responsibility to ensure the speedy and efficient disposal of justice in their sheriffdoms. It is useful to note that in exercising their judicial functions, judges are not in any way subject to Ministerial Control.

The sheriff has jurisdiction in both summary and solemn cases. Examples include: theft, assault (resulting in a broken bone), possession of drugs, soliciting and appeals from the Children's Hearing. The maximum sentence for cases heard in summary (sheriff is alone) is a fine of Ð'Ј5,000 or 3 months in prison, unless it is a second offence which means the sheriff can sentence for 6 months in prison. Under solemn procedure (sheriff and a jury of 15), the sheriff may impose unlimited financial penalties or 5 years in prison. The sheriff also has the additional power of remit to the High Court of Justiciary if they feel a heavier sentence should be imposed. If the decision hasn't gone your way, you can appeal the sheriff's decision to the High Court of Justiciary. [Include current example]

The High Court of Justiciary was established by statute in 1672, and is the supreme criminal court for Scotland, and serves both as a court of first instance and as a court of appeal. The court is presided over by the Lord President, Scotland's most senior judge. Whilst the day-to-day work of the court is undertaken by the Lord Justice-Clerk.

When sitting as a court of first instance, the court only deals with the most heinous of crimes, such as murder, rape, armed robbery, drug trafficking, treason, terrorism and serious sexual offences, particularly those involving children. In these cases a single judge sits with a jury of 15, although in particularly complex or important cases, a bench of three judges may sit.

There is no general limitation on the sentencing power of judges in the High Court, although some sentences are imposed by statute, e.g. if found guilty of murder the sentence must be life imprisonment.

The High Court also sits as an appeal court, hearing cases from its own trials and also from the sheriff court and rarely the district court. All the appeals are now heard by a panel of three judges unless it is an important case where five or more judges may sit. The appeals are divided into two categories: summary appeals

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