North of the Wall – A Beginner’s Guide to Scots Law

1 June 2015 by David Scott

With our new team of Scots law researchers in place, the time has come for the briefest of introductions to the Scottish legal system. David Scott is our tour guide.

The Court system

The Scottish court system is divided into five tiers:

Justices of the Peace Court (also known as JP courts)

• Sheriff Courts
• The Court of Session (divided into the Inner and Outer House)
• The High Court of Justiciary
• The UK Supreme Court

The Court of Session – Photo credit: BBC

Criminal cases will begin in either the Sheriff or JP Courts. The latter deal only with minor crimes such as speeding or breaches of the peace. JP courts are presided over by a lay magistrate. Sheriff Courts hear the majority of criminal cases in Scotland at first instance. Criminal appeals go before the High Court of Justiciary, which sits permanently in Glasgow and Edinburgh and also goes on circuit. The High Court also acts as the court of first instance in the most serious criminal cases such as murder and rape. Any appeals on ‘compatibility issues’ (that is, compatibility with the ECHR) will go to the UK Supreme Court.

Civil cases will begin in either the Sheriff Court or the Outer House of the Court of Session. Appeals (known as ‘reclaiming motions’) are to the Inner House, which can also exceptionally hear civil cases at first instance. Appeals from the Inner House again go before the UK Supreme Court. Unlike in England and Wales, Scottish appeals do not require leave to appeal to the Supreme Court – instead, two members of the Scottish Bar need only certify that the case raises a point of law of general public importance.

Additionally, there are nine Scotland-specific tribunals to consider. Appeals from these or from any other UK-wide tribunals sitting in Scotland go before the Inner House of the Court of Session:

• The Mental Health Tribunal for Scotland
• The Home Owner Housing Panel
• The Private Rented Housing Panel
• The Additional Support Needs Tribunals for Scotland
• The Council Tax Reduction Review Panel
• The Pensions Appeals Tribunal
• The Lands Tribunal for Scotland
• The Scottish Charity Appeals Panel
• The Tax Tribunals for Scotland

Human rights issues can crop up in any of these courts and tribunals, and the European Court of Human Rights must therefore sometimes give consideration to distinct aspects of the Scots law system. In Pullar v United Kingdom, for example, the Court was required to assess the Scots jury system which, in contrast to that found in England and Wales, provides for fifteen jurors, and can make decisions on the basis of a simple majority.

Legal terminology

It’s not only the accent that’s different—there’s a variety of jargon found solely north of the border. Given below are some definitions of the most common terms.

Absolvitor – A judgment pronounced in favour of the defender (defendant).

Admonition – Where an offender is found guilty, but receives only verbal discipline before release. Comparable to a finding of absolute discharge.

Avizandum – When the judge takes time to consider his or her decision.

Declarator – Legal action seeking to have a particular right (to property, for example) judicially declared.

Delict – Tort.

Interdict – Injunction.

Lord Advocate’s reference – A mechanism whereby the Lord Advocate – the chief legal officer of the Scottish Government – can refer a point of law to the High Court for determination. The reference will usually concern a contentious point raised during separate solemn proceedings, but the outcome of the reference has no effect on that particular case—it would thus not qualify as an ‘effective remedy’ for the purposes of Article 13 of the European Convention. Such references have been important to the development of, for example, the law concerning rape (Lord Advocate’s Reference (No.1 of 2001), which removed the requirement for a threat or use of force in constituting the actus reus of the offence), and assault (Lord Advocate’s Reference (No.2 of 1992), which abolished the defence of claiming actions were intended as a “joke”).

Pursuer – Claimant.

Not proven – The famed third verdict in a criminal trial. It can be delivered where the jury concludes that the prosecution has not proved its case beyond reasonable doubt.

The Human Rights Act and devolution

The Scotland Act 1998, which provides the foundations for devolved government, explicitly bars action in breach of Convention rights. This is, in fact, a far stronger protection than that granted under section 6 of the Human Rights Act. Section 29(2)(d) of the Scotland Act renders any Act of the Scottish Parliament without legal effect if it is incompatible with Convention rights. Similarly, s57(2) prohibits members of the Scottish Executive from acting contrary to the Convention.

In the wake of the Conservative majority, some sources have been quick to claim the entrenchment of the Human Rights Act within the Scotland Act protects it from Westminster repeal. The reality is unfortunately not so simple, as eloquently explained by Aileen McHarg here. While the Scotland Act would still provide for human rights challenges against devolved public authorities, claims against UK authorities would only be actionable in so far as permitted by whatever might replace the Act. However, with the largely pro-HRA SNP squaring off against the Conservative government, the so-called Sewel Convention (preventing Westminster action on devolved matters without the agreement of the devolved legislature) may become all the more important in any constitutional wrangling over the issue.