THE SCOTTISH CRIMINAL COURT STRUCTURE
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The Scottish Criminal Court Structure
Scotland’s legal system that is also known as the Scot’s law has long had a unique court and criminal justice system with its own jurisdiction and independence. Scotland’s law is seen as a mixed system since scot lawyers rather than using the English law, they prefer to take ideas from Roman Law and other continental legal systems. But due to its geographical proximity to England, the English law has greatly influenced Scotland to draw its law from the English common law tradition. According to the Auditor General for Scotland and the Accounts Commission, (p.3) ,the criminal justice system in Scotland is made up of a multifaceted set of legal processes based on fairness, independent decision making and respect for human rights. The complex procedures allow the two sides involved in a criminal case to oppose each other in court. The prosecuting attorney may choose whether to arraign a case under the Solemn procedure or Summary procedure. The solemn procedure involves the most serious of criminal cases that may lead to a trial in due course before a judge in the High Court or before a sheriff in one of the sheriff courts in the presence of a jury. While the Summary procedure is used for less serious offences which in the end may lead to a trial before a sheriff or, in justice of the peace courts without a jury (The Auditor General for Scotland and the Accounts Commission, p.3). Hence, in line with the permissible trials, the Scottish criminal court structure is made up of the high court, Sherriff court, Sherriff appeal court and Justice of the peace court.
The high court of justiciary is the supreme criminal court in Scotland that sits as a trial court when sitting at first instance. According to Arden (p.9) the most serious criminal cases like rape and murder are heard in front of a single judge and a fifteen-member jury. In the first instance, the high court sits in its permanent base in Edinburg but it also sits in the larger towns surrounding Scotland like Aberdeen and Glasgow. It also has periodic sittings in Stirling, Dumbarton, Painsley Lanark and Livingston. Sometimes it is an appeal court and only sits in the city of Edinburg. Cases in the high court are presided over by the Lord Justice Clerk and the Lord Justice General who usually sit in the courts of criminal appeal as chairpersons (Arden p.32). Other full-time judges (Lords Commissioners of Justiciary) who are also Senators of the College of Justice sit in the high court as well. When the high court sits as an appeal court, at least three judges hear appeals against conviction and two judges hear sentence appeals although more judges may sit when the court is dealing with cases that are extremely difficult or matters of law (Arden p.33). The Scottish Criminal Cases Review Commission also refers appeal cases to the high court. In the course of a case, a point of law may arise and the Lord Advocate may refer it to the High court for an opinion. From its directions, the high court is able to set out the law for similar cases in the future. In addition, advocate deputes who are advocates or solicitor-advocates appointed by the Lord Advocate, prosecute cases in the high court and bring all prosecutions in the interest of the public in the Lord’s Advocate’s name. In rare cases, they bring private prosecutions in court. The advocate or solicitor-advocate usually conducts the defense since they are members of the Faculty of Advocates and have a status and function that corresponds to a barrister in England. the Auditor General for Scotland and the Accounts Commission, (p.10) explains that before 1990, Advocates had an exclusive right of audience in the High Court but afterwards they share that right with solicitor-advocates who are members of the Law Society of Scotland. Solicitor advocates are quite experienced that they obtain an extension of their rights of audience in the lower courts. They usually undertake additional training in the procedure of the High Court and evidence.
Sherriff courts and the Sherriff Appeal court consist of thirty-nine sheriff courts spread across the country including the Sheriff Appeal Court in Edinburgh. The country is divided into six Sheriffdoms that are further divided into Sheriff Court districts. The sheriffdoms include; Glasgow and Strathkelvin, Grampian, Highland and Islands, Lothian and Borders, North Strathclyde, South Strathclyde, Dumfries and Galloway, Tayside, Central and Fife (Arden,p.29). Each Sheriffdom has a full time Sheriff Principal who secures the efficient disposal of the Sheriffdom’s court business. Some sheriffs also act as judges in the Sheriff Courts. The Sherriff is legally qualified through appointment by the Scottish Bar or Scotland’s solicitor profession. The Sherriff courts deal with criminal and civil business and in relation to criminal cases, they are trial courts that deal with solemn and summary cases. Sheriffs including Sheriff’s principal preside over solemn cases while sheriffs and Summary Sheriffs preside over summary cases. The local procurator fiscal or one of the procurator fiscals deputes conduct prosecutions in sheriff courts that can try any crime not reserved to the High Court, including the ones that can be tried in justice of the peace courts (The Auditor General for Scotland and the Accounts Commission, p.8). In a sheriff court sitting as a court of summary jurisdiction, it is limited to a custodial sentence of twelve months and a fine of £10,000. In cases where a statute has been contravened, the general limits may be subject to a higher or lower maximum as the statute provides. When sitting as a court of solemn jurisdiction, the sheriff court may execute a five-year maximum custodial sentence and can impose an unlimited fine. The case can be remitted to the High Court for sentencing if the sheriff considers that he or she has insufficient sentencing powers. Through reforms, made by the Courts Reform (Scotland) Act 2014, the Sheriff Appeal Court was created to deal with criminal appeals and civil appeals (Arden, p.20). As a court of criminal appeal, the Sheriff Appeal Court hears pleas in summary cases from the sheriff and justice of the peace courts as well as extend its jurisdiction decisions of sheriffs under solemn procedure in relation to bail appeals only. With the permission of the High Court, on a point of law only, a decision of the Sheriff Appeal Court may be appealed to the High Court. Two or three appeal sheriffs preside over the Sheriff Appeal court depending on the type of appeal. Only one appeal sheriff presides over bail appeals (Arden, p.33). In addition, all sheriffs principal are also appeal sheriffs and sheriffs of at least five years may be appointed as appeal sheriffs but they retain their role as sheriffs.
The Criminal Proceedings Act 2007 led to the gradual creation of the Justice of the peace courts that replaced the former district courts that were managed by local authorities on the basis of sheriffdom. As courts of summary criminal jurisdiction only, a bench of one or more lay justices deal with cases (Arden p.28). Although, Summary sheriffs may also sit in justice of the peace courts while having the same sentencing powers as a lay justice. It is in these courts that the local procurator fiscal or one of the deputes to the local procurator fiscal conduct prosecution. Less serious criminal matters are heard in Justice of the Peace Courts at first instance with jurisdiction over several cases dealt with by sheriff courts excluding theft by housebreaking or robbery. Justice of the peace courts have the most limited sentencing powers since they are the lowest level of criminal court. They can impose custodial sentences of up to 60 days and fines of up to £2,500 unless a lower or higher statutory maximum is specified for a specific offence(Arden, p.33). The Justice of the Peace courts are in the same cities as the Sheriff Courts although other locations throughout Scotland have additional JP courts.
Finally, the UK Supreme Court is the highest court in the United Kingdom. Initially, the House of Lords was the highest Civil appeal court in the UK until 2005 whereby the constitutional reform act created the Supreme Court for the United Kingdom. Walker (p.21) affirms that it took over the functions of the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council in October 2009. Whereas it is the final court of appeal for civil cases from Scotland, the High Court in Edinburgh is the final court of appeal for Scottish criminal cases (Walker, p.32). The Supreme Court as a court of appeal can still become involved in Scottish criminal cases in relation to devolution and compatibility. Since the supreme court is the final court, it only considers cases that come directly from the court of sessions. It consists of 12 judges (Justices) appointed by the queen although the two most senior out of the twelve Justices are appointed by the President and Deputy president of the Justices (Walker p.27). An advocate or solicitor can appeal cases made within the supreme court by individuals. However, few cases from Scotland make it to the UK supreme court for example the recent UK’s exit from the European Union.
Reference List
Arden, J. n.d. The Judicial System of England and Wales. Judicial Office. Available from https://www.judiciary.uk/wp-content/uploads/2016/05/international-visitors-guide-10a.pdf Accessed on 26 October 2020
The Auditor General for Scotland and the Accounts Commission 2011. An overview of Scotland’s criminal justice system. Audit Scotland. Available from https://www.audit-scotland.gov.uk/docs/central/2011/nr_110906_justice_overview.pdf Accessed on 26 October 2020
Walker, N. 2010. Final Appellate Jurisdiction in The Scottish Legal System. Edinburg University. Available from https://www.nls.uk/scotgov/2010/9780755982134.pdf Accessed on 26 October 2020