Scots law

• The use of 15-member juries for criminal trials in Scotland (compared with 12-member juries in England and Wales) who always decide by simple majority.[14]
• The accused in a criminal trial does not have the right to elect between a judge or jury trial.^[14]
• Judges and juries of criminal trials have the "third verdict" of not proven available to them.^[15][16]
• The requirement for corroborating evidence means at least two independent sources of evidence are required in support of each crucial fact before an accused can be convicted.

In Scotland there are justice of the peace courts and sheriff courts, rather than magistrates' courts or Crown Court as in England and Wales, and the College of Justice. The Crown Office and Procurator Fiscal Service provides the independent public prosecution service for Scotland like the Crown Prosecution Service in England and Wales and the Public Prosecution Service in Northern Ireland.

History

Scots law can be traced to its early beginnings as a number of different custom systems among Scotland's early cultures to its modern role as one of the three legal jurisdictions of the United Kingdom. The various historic sources of Scots law, including

The nature of Scots law before the 12th century is largely speculative, but is likely to have been a mixture of different legal traditions representing the different cultures inhabiting the land at the time, including

From the reign of King James I to King James V the beginnings of a legal profession began to develop and the administration of criminal and civil justice was centralised.^[28] The Parliament of Scotland was normally called on an annual basis during this period and its membership was further defined.^[29] The evolution of the modern Court of Session also traces its history to the 15th and early 16th century with the establishment of a specialised group of councillors to the King evolving from the King's Council who dealt solely with the administration of justice. In 1528, it was established that the Lords of Council not appointed to this body were to be excluded from its audiences and it was also this body that four years later in 1532 became the College of Justice.^[30]

The 1688

The

Scots law has continued to change and develop in the 20th century, with the most significant change coming under devolution and the reformation of the Scottish Parliament.

Influential sources

An early Scottish legal compilation,

After this time, civilian ius commune was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and civil law was in this way partially received in subsidium into Scots law.

Since the

areas of legislative competence as detailed by the Scotland Act 1998.^[5][6]

Sources

Legislation

The

European law, although it is technically free to do so.^[38] The degree to which the Parliament has surrendered this sovereignty is a matter of controversy with arguments generally concerning what the relationship should be between the United Kingdom and the European Union.^[39][40] Acts of the United Kingdom Parliament also regularly delegate powers to Ministers of the Crown or other bodies to produce legislation in the form of statutory instruments

. This delegated legislation has legal effect in Scotland so far as the specific provisions of the statutory instrument are duly authorised by the powers of the Act, a question which can be subjected to judicial review.

The

European law, otherwise the Court of Session or High Court of Justiciary have the authority to strike down the legislation as ultra vires.^[41][42] There have been a number of high-profile examples of challenges to Scottish Parliament legislation on these grounds, including against the Protection of Wild Mammals (Scotland) Act 2002 where an interest group unsuccessfully claimed the ban on fox hunting violated their human rights.^[43] Legislation passed by the Scottish Parliament also requires royal assent which, like with the Parliament of the United Kingdom, is automatically granted.^[44]

Legislation passed by the pre-1707

King, and the Leases Act 1449, which is still relied on today in property law cases.^[45]

Legislation which forms part of the law of Scotland should not be confused with a civil code as it does not attempt to comprehensively detail the law. Legislation forms only one of a number of sources.

Common law

European law

respectively.

The common law of Scotland should not be confused with the

feudal concepts by the Scottish Kings to form a distinct common law.^[49][50][51]

The influence that English-trained judges have had on the common law of Scotland through rulings of the

House of Lords) has been at times considerable, especially in areas of law where conformity was required across the United Kingdom for pragmatic reasons. This has resulted in rulings with strained interpretations of the common law of Scotland, such as Smith v Bank of Scotland.^[52]

Academic writings

A number of works by academic authors, called institutional writers, have been identified as formal sources of law in Scotland since at least the 19th century. The exact list of authors and works, and whether it can be added to, is a matter of controversy.^[53] The generally accepted list^[54] of institutional works are:

• Sir Thomas Craig of Riccarton's^[55]
  Jus Feudale (1603);
• Sir James Dalrymple, Viscount of Stair's Institutions of the law of Scotland (1681);
• Andrew MacDouall, Lord Bankton's An Institute of the Laws of Scotland (1751–1753);
• John Erskine of Carnock's An Institute of the Law of Scotland (1773); and,
• George Joseph Bell's Commentaries on the Law of Scotland and on the Principles of Mercantile Jurisprudence (1804) and Principles of the Law of Scotland (1829).

Some commentators^[54] would also consider the following works to be included:

• Sir George Mackenzie of Rosehaugh
  's The Institutions of the Law of Scotland (1684);
• John Erskine of Carnock's Principles of the Law of Scotland (1754); and,
• Henry Home, Lord Kames' Principles of Equity (1760)

The recognition of the authority of the institutional writers was gradual and developed with the significance in the 19th century of

University of Edinburgh Professor Sir Thomas Smith was, "the authority of an institutional writer is approximately equal to that of a decision by a Division of the Inner House of the Court of Session".^[56]

Custom

legal custom as, "that which, without any express enactment by the supreme power, derives force from its tacit consent; which consent is presumed from the inveterate or immemorial usage of the community."^[57] Legal custom in Scotland today largely plays a historical role, as it has been gradually eroded by statute and the development of the institutional writers' authority in the 19th century.^[58] Some examples do persist in Scotland, such as the influence of Udal law in Orkney and Shetland.^[59] However, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.^[60]

Legal institutions

Government of Scotland

Main article: Scottish Government

MSP
Cabinet Secretary for Justice and Home Affairs

since 2023

The Scottish Government, led by the First Minister, is responsible for formulating policy and implementing laws passed by the Scottish Parliament.^[61] The Scottish Parliament nominates one of its Members to be appointed as First Minister by the King.^[62] The First Minister is assisted by various Cabinet Secretaries with individual portfolios and remits, who are appointed by the First Minister with the approval of Parliament. Ministers are similarly appointed to assist Cabinet Secretaries in their work. The Scottish Law Officers, (the Lord Advocate^[63] and Solicitor General)^[62] can be appointed from outside the Parliament's membership, but are subject to its approval. The First Minister, the Cabinet Secretaries, Ministers and the Scottish Law Officers are the Members of the Scottish Government. They are collectively known as the "Scottish Ministers".

The

civil justice

.

Legislature

Main article: Scottish Parliament

devolved powers

to legislate for Scotland.

Many areas of Scots law are

Sewel convention it will not legislate on devolved matters without the agreement of the Scottish Parliament.^[35]

Courts of Scotland

Main article: Courts of Scotland

Scottish Courts and Tribunals Service

All Scottish courts, except for the Court of the Lord Lyon, are administered by the Scottish Courts and Tribunals Service. The Courts and Tribunals service is a non-ministerial government department with a corporate board chaired by the Lord President of the Court of Session (the head of the judiciary of Scotland.)^{[64]: Section 60}

Criminal courts

Justice of the peace courts

Less serious criminal offences which can be dealt with under

Justice of the Peace Courts. The maximum penalty which a normal Justice of the Peace can impose is 60 days imprisonment or a fine not exceeding £2,500.^[65]

Sheriff courts

Sheriff Courts act as district criminal courts, organised by sheriffdom, and deal with cases under both summary and solemn procedure. Cases can be heard either before a Summary Sheriff, a Sheriff, or a Sheriff and a jury. The maximum penalty which the Sheriff Court can impose, where heard just by a Sheriff or Summary Sheriff, is 12 months imprisonment or a fine not exceeding £10,000. A case before a Sheriff and jury can result in up to 5 years imprisonment or an unlimited fine.^[66]

Appeals against summary convictions and summary sentences are heard by the Sheriff Appeal Court, and decisions of the Sheriff Appeal Court can only be appealed with leave to the High Court of Justiciary and then only on questions of law.^{[67][68][69]: Sections 118–119}

High Court of Justiciary

More serious crimes, and appeals from solemn proceedings in the Sheriff Courts, are heard by the

Privy Council

from 2009.

Civil courts

Sheriff courts

Sheriff Courts also act as district civil courts with exclusive jurisdiction over all cases worth not more than £100,000, unless they are particularly complicated or of significant importance.^[70][71][72] Personal injury actions may also be heard at the specialist all-Scotland Sheriff Personal Injury Court, which has the power to hear cases before a jury.^[73] Decisions of a Sheriff Court are appealed to the Sheriff Appeal Court. Further appeals are possible to the Inner House of the Court of Session, but only with the permission of either the Sheriff Appeal Court, or the Court of Session. Such appeals are granted if there is an important point of principle, or other compelling reason. Appeals may finally be taken to the Supreme Court of the United Kingdom, but only with the leave of either the Inner House or the Supreme Court itself, and it relates to a general point of public interest in the law.^[69]

^{: Sections 109–111, 113, 117}

Court of Session

Complicated or high-value cases can be heard at

first instance by the Outer House of the Court of Session, with the Court of Session having concurrent jurisdiction for all cases with a monetary value of more than £100,000.^[71]

Decisions of the Outer House are appealed to the Inner House of the Court of Session, and (where allowed by the Inner House, or in matters relative to Devolution) then to the Supreme Court of the United Kingdom.

Scottish courts may make

European law.^[74]

Specialist courts

There are also a number of specialist courts and tribunals that have been created to hear specific types of disputes. These include

Children's Hearings, the Lands Tribunal for Scotland, the Scottish Land Court and the Court of the Lord Lyon. The Employment Appeal Tribunal

is also an example of a cross-jurisdictional tribunal.

Judiciary of Scotland

Scotland has several classes of

Senators they constitute the College of Justice. The Senators are referred to as Lords of Council and Session when sitting in civil cases, and Lords Commissioners of Justiciary when sitting in criminal cases.^[75]

The sheriff courts are presided over by the Sheriffs Principal, Sheriffs, and Summary Sheriffs. They will preside over both civil and criminal cases.^[76][77][78]

The most junior judges are the

Justice of the Peace Courts.^[79]

Legal profession

The Scottish

solicitors.^[80]

Advocates, the equivalent of the English

courts and tribunals, with near-exclusive rights of audience, and in giving legal opinions. They usually receive instructions indirectly from clients through solicitors, though in many circumstances they can be instructed directly by members of certain professional associations.^{[citation needed}

]

Notaries public, unlike their continental equivalent, are not members of a separate profession; they must be solicitors, and most solicitors are also notaries.^{[citation needed}

]

See also

• List of Scottish legal cases

Notes

1. ^ Palmer, p. 201
2. ^ Tetley, Part I
3. ^ Thomson, pp.51-91
4. ^ ^{a b} Stair, General Legal Concepts (Reissue), para. 4 (Online) Retrieved 2011-11-29
5. ^ ^{a b} Sch. 5 Scotland Act 1998
6. ^ ^{a b c d} Devolved and reserved matters explained Archived 2012-07-17 at the Wayback Machine, Scottish Parliament, Retrieved 2011-10-22
7. ^ "MSPs pass Brexit bill to 'keep pace' with EU laws". BBC News. 23 December 2020. Retrieved 26 December 2020.
8. ^ Gretton & Steven, p. 318
9. ^ Davidson, p. 2
10. ^ Davidson, p. 56
11. ^ Age of Legal Capacity (Scotland) Act 1991 (c. 50), opsi.gov.uk
12. ^ "Under Scots Law (in contrast to the law in E&W), young people have full (or 'active') legal capacity at 16 years". Keele University. Archived from the original on 25 March 2007.
13. ^ Stair, vol. 22, para. 399: "Equity in Scots law. As will appear, the historical place of equity in the development of Scots law is no mere replication of the English position. No separate equity court appeared in Scotland. The Scottish commentators were given to searching for parallels to contemporary Scottish arrangements in the texts of Roman law. 'Equity' does not obviously exist as a distinct branch of law at the present day. Nevertheless, the status of equity as a source of law is nowadays much the same in Scotland as it is in England and Wales."
14. ^ ^{a b} Jones, p. 46
15. ^ Jones, p. 47
16. SSRN 1339222
    .
17. ^ Scottish Legal History: A Research Guide, Georgetown Law Library, Retrieved 2011-10-22
18. ^ Stair, vol. 22, para. 504 (Online) Retrieved 2011-10-26
19. ^ Reid, I. Introduction and Property, p. 15
20. ^ Reid, I. Introduction and Property, p. 16
21. ^ Stair, vol. 22, para. 505 (Online) Retrieved 2011-10-26
22. ^ Reid, I. Introduction and Property, p. 20
23. ^ ^{a b} Reid, I. Introduction and Property, p. 38
24. ^ Legislation - Records of the Parliaments of Scotland, 1399/1/13. Translation: "Item, it is ordained that each year the king shall hold a parliament so that his subjects are served by the law, which shall begin on the morning after All Hallows' day [2 November], for the next three years."
25. ^ Reid, I. Introduction and Property, p. 40
26. ^ Stair, vol. 22, para. 512 (Online) Retrieved 2011-10-26
27. ^ Reid, I. Introduction and Property, p. 46
28. ^ Reid, I. Introduction and Property, p. 52
29. ^ Reid, I. Introduction and Property, p. 54
30. ^ Stair, vol. 22, para. 515 (Online) Retrieved 2011-10-26
31. ^ See Act of Union 1707, Wikisource
32. ^ Profiles: UK Supreme Justices, BBC News, 30 September 2009
33. ^ Robinson, Fergus and Gordon, European Legal History, 3rd Edition, OUP, 2000 chapter 14
34. ^ Devolved government in the UK Archived 2011-11-03 at the Wayback Machine, Directgov, Retrieved 2011-10-22
35. ^ ^{a b} Bradley & Ewing, p. 22, p. 64
36. ^ Bradley & Ewing, p. 15
37. ^ Royal Assent, Parliament of the United Kingdom, Retrieved 2011-10-22
38. ^ Parliamentary Sovereignty, Parliament of the United Kingdom, Retrieved 2011-10-22
39. ^ Wagner, Adam. Does parliamentary sovereignty still reign supreme?, The Guardian, 27 January 2011
40. ^ EU: Is Britain still a sovereign state?, The Daily Telegraph, 17 September 2009
41. ^ Boyle, pp. 309, 311
42. ^ Legal order -Scotland, European Commission, Retrieved 2011-10-22
43. ^ Scott, Kirsty. Fox hunting group fails to overturn Scottish ban, The Guardian, 1 August 2002
44. ^ Royal Assent, The Open University, Retrieved 2011-10-22
45. ^ For an example see The Advice Centre for Mortgages Limited v Frances McNicoll [2006] CSOH 58
46. ^ Reasoning by Precedent, Introduction to the Scottish Legal System as a Mixed Legal System, ErasmusLaw, Retrieved 2011-10-22
47. ^ ^{a b} The Criminal Courts, Healthy & Safety Executive, Retrieved 2011-10-22
48. ^ Final Appellate Jurisdiction in the Scottish Legal System, Scottish Government, Retrieved 2011-10-22
49. ^ ^{a b} Stair, vol. 22, para. 359 (Online) Retrieved 2011-10-26
50. ^ Barrow, p. 59
51. ^ Reid, I. Introduction and Property, p. 29
52. ^ Davidson, p. 253
53. ^ ^{a b} Stair, vol. 22, para. 538 (Online) Retrieved 2011-11-18
54. ^ ^{a b} Stair, vol. 22, para. 537 (Online) Retrieved 2011-11-18
55. ^ Stair, vol. 22, para. 535 (Online) Retrieved 2011-11-18
56. ^ Smith, p. 32
57. ^ Erskine I, 1, 43
58. ^ Stair, vol. 22, para. 531 (Online) Retrieved 2011-11-21
59. ^ Stair, vol. 22, para. 530 (Online) Retrieved 2011-11-21
60. ^ White, p. 170
61. ^ The Scottish Parliament and the Scottish Government - what is the difference?^{[permanent dead link]}, The Scottish Parliament, Retrieved 2011-11-21
62. ^ ^{a b} Answers to Frequently Asked Questions, The Scottish Parliament, Retrieved 2011-11-21
63. ^ The role and functions of the Lord Advocate^{[permanent dead link]}, Scottish Government, Retrieved 22-11-2011
64. ^ ^{a b c} Scottish Parliament. Judiciary and Courts (Scotland) Act 2008 as amended (see also enacted form), from legislation.gov.uk.
65. ^ Justice of the Peace Courts, Scottish Courts, Retrieved 2011-11-24
66. ^
    Citizens Advice Bureau
    , Retrieved 2011-11-24
67. ^ Agency, The Zen (30 October 2015). "An overview of the new Sheriff Appeal Court". www.bto.co.uk. BTO Solicitors LLP. Retrieved 3 April 2017.
68. ^ McCallum, Frazer (1 June 2016). "The Scottish Criminal Justice System:The Criminal Courts" (PDF). parliament.scot. Scottish Parliament Information Centre. Archived from the original (PDF) on 7 April 2017. Retrieved 6 April 2017.
69. ^ ^{a b} Scottish Parliament. Courts Reform (Scotland) Act 2014 as amended (see also enacted form), from legislation.gov.uk.
70. ^ Small claims actions, Shelter Scotland, Retrieved 2011-11-24
71. ^ ^{a b} Ordinary cause actions, Shelter Scotland, Retrieved 2011-11-24
72. ^ Stachura, Karen (25 June 2015). "Scottish Court Reform – What insurers need to know". www.bto.co.uk. BTO Solicitors LLP. Retrieved 9 April 2017.
73. ^ "Personal Injury Specialist Sheriffs Appointed | Media and Publications | Judiciary of Scotland". www.scotland-judiciary.org.uk. Judicial Office for Scotland. 22 September 2015. Archived from the original on 17 April 2017. Retrieved 9 April 2017.
74. ^ The Court of Justice of the European Union, Europa: Gateway to the European Union, Retrieved 2011-10-22
75. ^ "The Office of Senator of the College of Justice". www.judicialappointments.scot. Judicial Appointments Board for Scotland. March 2016. Archived from the original (DOC) on 30 December 2016. Retrieved 4 April 2017.
76. ^ Judicial Office for Scotland (March 2016). "The Office of Sheriff Principal". www.judicialappointments.scot. Judicial Appointments Board for Scotland. Archived from the original on 30 December 2016. Retrieved 4 April 2017.
77. ^ "Sheriffs - Judicial Office Holders - About the Judiciary - Judiciary of Scotland". www.scotland-judiciary.org.uk. Judicial Office for Scotland. 2017. Archived from the original on 17 August 2018. Retrieved 3 April 2017.
78. ^ "Summary Sheriffs - Judicial Office Holders - About the Judiciary - Judiciary of Scotland". www.scotland-judiciary.org.uk. Judicial Office for Scotland. 2017. Archived from the original on 3 April 2017. Retrieved 3 April 2017.
79. ^ "Justices of the Peace - Judicial Office Holders - About the Judiciary - Judiciary of Scotland". www.scotland-judiciary.org.uk. Judicial Office for Scotland. 2017. Archived from the original on 19 July 2013. Retrieved 3 April 2017.
80. ^ Palmer, p. 213

References

• Barrow, Geofrey. Kingship and Unity: Scotland 1000–1306. Edinburgh University Press, 1989.
  ISBN 978-0-7486-0104-2
• Boyle, Alan; Himsworth, Chris;
  ISBN 978-1-84113-044-6
• Bradley, Anthony Wilfred; Ewing, Keith D. Constitutional and Administrative Law. Pearson Education, 2007.
  ISBN 978-1-4058-1207-8
• Davidson, Fraser; MacGregor, Laura. Commercial Law in Scotland. W. Green & Son, 2008.
  ISBN 978-0-414-01610-1
• John Erskine, An Institute of the Law of Scotland. 1773 (8th edn. 1871).
• ISBN 978-1-84592-153-8
• Jones, Timothy; Christie, Michael. Criminal Law. W. Green & Son, 2008.
  ISBN 978-0-414-01683-5
• Palmer, Veron. Mixed jurisdictions worldwide: the third legal family. Cambridge University Press, 2001.
  ISBN 978-0-521-78154-1
• Reid, Kenneth; Zimmerman, Reinhard. A History of Private Law in Scotland: I. Introduction and Property. Oxford University Press, 2000.
  ISBN 0-19-829941-9
• Reid, Kenneth; Zimmerman, Reinhard. A History of Private Law in Scotland: II. Obligations. Oxford University Press, 2000.
  ISBN 0-19-829941-9
• Smith, Thomas. A Short Commentary on the Law of Scotland. Green & Son Ltd, 1962.
• The Laws of Scotland: Stair Memorial Encyclopaedia, Lexis Library.
• Tetley, William Q.C. Mixed Jurisdictions: common law vs. civil law (codified and uncodified). 4 Uniform L. rev. (N.S.), 1999.
• Thomson, Stephen, 'Mixed Jurisdiction and the Scottish Legal Tradition: Reconsidering the Concept of Mixture', Journal of Civil Law Studies, vol. 7, no. 1 (2014): 51-91
• White, Robin; Willock, Ian. The Scottish Legal System, 4th edn. Haywards Heath, West Sussex: Tottel Publishing, 2007 (6th edn. 2019).
  ISBN 978-0-406-00571-7

Further reading

• Christina Ashton. Understanding Scots law: an introduction to Scots law, procedure and legal skills, 2nd edn. Edinburgh: Thomson/W. Green, 2012.
• Sean Crossan. Introductory Scots law: Theory and practice, 3rd edn. London: Hodder Education Group, 2016.
• Gerard Keegan. Scottish legal system essentials, 4th edn. Edinburgh: Edinburgh UP, 2021.
• Hector L. MacQueen & Ronald D. Mackay, eds. The law of Scotland, 14th edn. 2 vols. Orig. by W. M. Gloag & R. Candish Henderson. Edinburgh: W. Green, 2017.
• Enid A. Marshall. General principles of Scots law, 7th edn. Edinburgh: W. Green/Sweet & Maxwell, 1999.
• Dale McFadzean, ed. An introduction to law and legal obligations, 2nd edn. Edinburgh: Edinburgh UP, 2012.
• Dale McFadzean. Scots law for students: an introduction. Dundee: Dundee UP, 2007.
• David M. Walker. The Scottish legal system: an introduction to the study of Scots law, 8th edn. Edinburgh: W. Green/Sweet & Maxwell, 2001.

branches

• Craig Anderson. Property: A guide to Scots law. Edinburgh: W. Green, 2016.
• Gillian Black. Business law in Scotland. Edinburgh: W. Green, 2008.
• Iain G MacNeill, ed. Scots commercial law. Edinburgh: Avizandum Publishing, 2020.
• Sam Middlemiss & Margaret Downie. Employment law in Scotland. London: Bloomsbury Professional, 2020.
• Brian Pillans. Delict: law and policy. Edinburgh: W. Green, 2014.
• Elspeth Christie Reid. The law of delict in Scotland. Edinburgh: Edinburgh UP, 2022.

External links

• "Scottish Court Service".
• "Law Society of Scotland".
• "Faculty of Advocates: Scottish Bar".
• "Scottish Law Commission".
• "Crown Office and Procurator Fiscal Service".

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