Scottish Law

I

Introduction

Scottish Law, law that applies within Scotland (including offshore installations and the islet of Rockall). Historically, Scottish law is based on Roman law with Norman influences. Nowadays, Scotland has a mixed legal system, given the influence of English law since the Union in 1707. Institutional writers, such as Lord Stair, Institutions of the Law of Scotland (1693), still carry great weight in the absence of modern authority. In 1999 a new Scottish Parliament was established. The Scottish Parliament has full legislative powers except in matters reserved to the UK Parliament, such as taxation and company law. The UK Parliament can pass laws for Scotland in non-reserved matters but by convention does so only with the consent of the Scottish Parliament.

II

Courts and Tribunals

A

Superior Courts

The supreme civil court in Scotland is the Court of Session, which sits only in Edinburgh. It is divided into the Outer House and the Inner House, the latter dealing mainly with appeals from the Outer House and sheriff courts. The supreme criminal court is the High Court of Justiciary, which may sit in any suitable court building in Scotland. An appeal against conviction or sentence, or both, lies to the Court of Criminal Appeal, which sits only in Edinburgh.

In 2006 there were 34 judges, but the number varies from time to time. All have both a civil and a criminal function. In civil cases they are known as Senators of the College of Justice; in criminal cases as Lords Commissioners of Justiciary.

The Inner House and the Court of Criminal Appeal normally comprise three judges, though a larger number may sit in important cases or to review a previous appeal court decision. The more experienced judges generally sit in appeals, although all judges are eligible.

A further appeal lies to the House of Lords in civil matters unless excluded by statute, but there is no appeal in criminal cases.

B

Sheriff Court

The next tier is the sheriff court, which has a wide-ranging civil and criminal jurisdiction. There is no limit to the amount that may be claimed in an action for payment or damages. A small number of actions—for example, judicial review or nullity of marriage—cannot be brought in the sheriff court. In criminal cases a sheriff may sit alone or with a jury of 15; in a jury trial the maximum sentence is five years’ imprisonment.

C

Choice of Court

Generally, a civil action may be brought either in the Court of Session or a sheriff court. A small number of actions—for example, actions of judicial review or of reduction of deeds—must be brought in the Court of Session. Actions below £1,500 in value have to be brought in the sheriff court.

A few offences, such as murder, must be tried at the High Court. Some statutory crimes, for example night poaching and betting with young persons, can be dealt with only summarily, that is, by a sheriff sitting alone. Apart from these, the Lord Advocate or the fiscal decide whether the offence is serious enough to warrant a jury trial and if so in which court it is to be tried.