Scotland's Legal System

Although Scotland is England’s neighbor, and both countries are part of the United Kingdom, Scotland, to a large extent, has a separate judicial system and a separate law. This paper will first examine Scotland’s judicial system and then consider Scotland’s unique law that in the future may help serve as a model in the European Union.

Scotland’s Judicial System

The Scottish court that has been described both as the most generally useful and important civil court, and as the most practically important of Scottish courts is the Sheriff Court. Scotland is divided into six Sheriffdoms, each Sheriffdom having a Sheriff Principal who not only hears appeals in civil manners, but also is responsible for the conduct of the courts. The six Sheriffdoms have a total of 49 Sheriff Courts, and in each Sheriff Court most cases are heard by a judge called a “sheriff.”

During the reign of David I in the twelfth century, the king appointed sheriffs as judges and administrators; these sheriffs held Sheriff Courts to administer justice. For a time, the office of sheriff was hereditary, and a sheriff customarily appointed a “depute” to hold court. Hereditary Sheriffdoms later were abolished, but the “deputes” continued in office. These “deputes” had to be advocates of the Scottish bar, and because most of their time was spent in Edinburgh, they could appoint “sheriff substitutes” to act in their absence. These substitutes also had to be regular members of the bar and became full-time resident judges. The “deputes” now are referred to as “Sheriff Principal.”

The three main categories of work of the Sheriff courts are: civil, criminal, and commissary. Three different types of civil cases in Sheriff Courts are:

1. Ordinary actions dealing mainly with divorce, children, property disputes, and claims over Ð'Ј1,500;

2. Summary causes dealing mainly with rent arrears, delivery of goods, and debts between Ð'Ј750 and Ð'Ј1,500; and

3. Small claims dealing mainly with debts of less then Ð'Ј750.

Other civil matters dealt with by Sheriff Courts include adoption, bankruptcies, simplified divorces, and fatal accident inquiries.

In addition to wide civil jurisdiction, Sheriff Courts have wide criminal jurisdiction that extends to all but the most serious crimes committed in the Sheriffdom. Criminal cases can be brought under either solemn or summary procedure: solemn procedure is used in cases where a sentence may exceed three months in prison or a fine of more than Ð'Ј5,000; summary procedure is mainly used for less serious cases where sentences ordinarily are limited to three months or less. Cases involving solemn procedure are heard before a sheriff and a jury, but cases involving summary procedure are heard by a sheriff without a jury.

The commissary work of a sheriff court mainly concerns disposal of a deceased person’s estate. If the estate has a gross value not exceeding Ð'Ј17,000, it is a “small estate” and the staff of the local sheriff clerk’s office will assist a person seeking “confirmation” in completing an inventory form. Confirmation is the power granted by the court allowing an executor to gather and distribute the estate. On the other hand, if the value of the estate exceeds Ð'Ј17,000, a person seeking confirmation will be advised to see a solicitor.

Prior to 1975, there were other lower level courts in addition to the sheriff courts, including burgh (borough) police courts to deal with minor criminal offenses in municipalities, and justice-of-the-peace courts with minor civil and criminal jurisdiction. The District Courts (Scotland) Act 1975 combined burgh police and justice-of-the-peace courts into district courts. There are 30 district courts in Scotland dealing only with summary criminal matters. The district court is the lowest court in Scotland’s court hierarchy, and is a lay court where a Justice of the Peace, who is a lay person, sits with a legally qualified clerk.

Scotland’s supreme civil court is the Court of Session which sits as both a court of first instance and a court of appeal. The court consists of an Inner House and an Outer House. The Inner House primarily exercises appellate jurisdiction and is divided into two “chambers” or divisions. The two divisions are said to be of coordinate jurisdiction, and a litigant cannot select the one to which he would like to take his appeal. The divisions hear appeals from the Outer House, the Sheriff Court, and certain other bodies. The First and Second Divisions are composed of four judges each, although a quorum is three. The First Division is presided over by the Lord President, while the Second Division is presided over by the Lord Justice Clerk. The Outer House consists of 19 Lords Ordinary usually sitting alone, but sometimes sitting with a civil jury. They exercise broad original jurisdiction in civil matters. Scottish legal writers have complained that the final appellate tribunal for civil cases is not the Court of Session, but the House of Lords of the United Kingdom, and although it has been argued that there is no provision in the Treaty of Union of 1707 (which united England and Scotland) for making the House of Lords the final appellate court for Scottish civil cases, the fact that the House of Lords is the final tribunal is now well established.

The Court of Session sits in Parliament House in Edinburgh and presently consists of 32 judges who are called “Senators of the College of Justice” or “Lords of Council and Session”. The first in rank is the Lord President; the second in rank is the Lord Justice Clerk. The court’s origins can be traced to the early sixteenth century.

Scotland’s supreme criminal court is the High Court of Justiciary. Unlike in civil cases, no appeal lies to the House of Lords in criminal cases. The High Court of Justiciary is both a court of first instance and an appellate court. When acting as a trial court, it sits in cities and larger towns throughout Scotland, but when acting as an appellate court, it sits only in Parliament House in Edinburgh. The court is made up of the Lord Justice General, the Lord Justice Clerk, and 25 judges of the Court of Session who, when sitting in the High Court