Everything about Courts Of Scotland totally explained
The
civil,
criminal and
heraldic Courts of Scotland are responsible for the administration of
justice. They are constituted and governed by
Scots law.
The
United Kingdom doesn't have a single unified judicial system—
England and Wales have one system, Scotland another, and
Northern Ireland a third. There are exceptions to this rule, for example in immigration law, the
Asylum and Immigration Tribunal's jurisdiction covers the whole of the United Kingdom; while in employment law there's a single system of
Employment Tribunals for England, Wales and Scotland (but not Northern Ireland).
Civil Courts
House of Lords
The
House of Lords is the highest civil court of appeal in Scotland. In practice, only the
Law Lords hear the appeals. It was abolished by the
Supreme Court of Judicature Act 1873, but an election was held before the act came into force, and the new Parliament amended the act to preserve the House of Lords' judicial function.
Court of Session
The
Court of Session is the supreme civil court. It is both a
court of first instance and a court of
appeal and sits exclusively in
Parliament House in
Edinburgh. The court of first instance is known as the
Outer House, the court of appeal the
Inner House.
Sheriff Court
The
Sheriff Court is the other civil court; this sits locally. Although the Court of Session and Sheriff Courts have a largely co-extensive jurisdiction, with the choice of court being given in the first place to the
pursuer (the
claimant), the majority of difficult or high-value cases in Scotland are brought in the Court of Session.
Any final decision of a Sheriff may be appealed against. There is a
right of appeal in civil cases to the
Sheriff Principal, and in most cases onwards to the Court of Session.
Criminal Courts
High Court of Justiciary
The
High Court of Justiciary is the supreme criminal court.
The High Court is both a court of first instance and also a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House in Edinburgh, and also sits from time to time in various other places in Scotland. As a court of appeal, it sits only in Edinburgh.
Appeals may be made to the High Court of Justiciary sitting as the Court of Criminal Appeal from the lower courts in criminal cases. An appeal may also be made to the High Court if the High Court itself heard the case at first instance. Two judges sit to hear an appeal against sentence, and three judges sit to hear an appeal against conviction.
There is no further appeal from the High Court's decision on appeal, in contrast to the Court of Session, from which it's possible to appeal to the House of Lords, the highest court. Appeals under the
Human Rights Act 1998 and devolution appeals under the
Scotland Act 1998 are heard by the
Judicial Committee of the Privy Council. The members of the Judicial Committee also sit in the House of Lords as the Lords of Appeal in Ordinary.
Sheriff Court
The Sheriff Court is the main criminal court; this sits locally. The procedure followed may either be
solemn, where the Sheriff sits with a
jury of 15; or
summary, where the Sheriff sits alone. From
10 December 2007, the maximum penalty that may be imposed in summary cases is 12 months' imprisonment or a £10,000 fine, in solemn cases 5 years' imprisonment or an unlimited fine .
A higher sentence in solemn cases may be imposed upon reference to the High Court of Justiciary.
District Court
District Courts were introduced in 1975 and sit in each local authority area under summary procedure only. Each court comprises one or more
Justices of the Peace (lay magistrates) who sit alone or in threes with a qualified legal assessor as convener or clerk of court. They handle cases of breach of the peace, drunkenness, minor assaults, petty theft, and offences under the
Civic Government (Scotland) Act 1982. The maximum penalty which may be imposed is 60 days' imprisonment or a £2,500 fine.
Court Reform
The
Scottish Government had announced its intention to unify the management of the Sheriff and District courts, but retaining lay Justices. The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 enables the
Scottish Ministers to replace District Courts by "Justice of the Peace Courts".
Special courts and tribunals
Scotland has several specialised courts and tribunals.
Tribunals
Tribunals sit in judgement over a number of specialist areas, and frequently have appeals tribunals above them. For example, the
Employment Tribunals (appeals to Employment Appeals Tribunal),
VAT Tribunals,
Lands Tribunal for Scotland, etc.
In many cases there's a statutory right of appeal from a tribunal to a particular court or specially constituted appellate tribunal, for example Employment Tribunal cases are appealed to the
Employment Appeals Tribunal, which in turn allows appeals to the Court of Session. In the absence of a specific appeals court, the only remedy from a decision of a Tribunal is by
judicial review in the Court of Session, which will often be more limited in scope than an appeal.
Children's Hearings
The specialist system of
Children's Hearings handles the majority of cases involving allegations of criminal conduct involving persons under 16 in Scotland. These tribunals have wide ranging powers to issue supervision orders for the person referred to them by the
Scottish Children's Reporter Administration. Serious crimes, at the direction of the
Procurator Fiscal, are still dealt with in the usual criminal courts.
Court of the Lord Lyon
The
Court of the Lord Lyon, the standing court of heraldry and genealogy, is responsible for civil and criminal enforcement of
armorial bearings and the right to use certain titles. It is headed by the
Lord Lyon, who is King of Arms and senior herald for Scotland.
Other courts
Court-martial
Land
Relationship with the European Court of Justice
There is no right to appeal at any stage to the European Court of Justice (ECJ). Any court may refer a particular point of law relating to European Union law to the ECJ for determination. However, once the ECJ has given its interpretation, the case is referred back to the court that referred it. This is symptomatic of the fact that although the European Union is increasingly federal, there's no federal court system, just laws that must be interpreted the same way across all member states.
The decision to refer a question to the ECJ can be made by the court of its own initiative, or at the request of any of the parties before it. Where a question of European law is in doubt and there's no appeal from the decision of a court, it's required to refer the question to the ECJ; otherwise any referral is entirely at the discretion of the court.
Relationship with the European Court of Human Rights
It isn't possible to appeal the decision to the European Court of Human Rights (ECtHR) Although it's frequent to hear media references to an "appeal" being taken "to Europe", what actually takes place is rather different.
The ECtHR is an international court that hears complaints concerning breaches of the European Convention on Human Rights and Fundamental Freedoms. An unsatisfied litigant might complain to the ECtHR that Scots law has violated their rights and demand just satisfaction. A decision in the ECtHR won't change their rights under Scots law, and it's up to the various domestic legislative and executive bodies to decide what action (if any) to take after an adverse finding.
Furthermore, courts are not bound to follow a decision of the ECtHR, although they should "take into account" ECtHR jurisprudence when deciding a claim under the Scotland Act 1998. The Act requires Acts of the Scottish Parliament and actions of the Scottish Ministers to be compatible with the European Convention on Human Rights, and does so in a way which gives courts greater control than they've over UK Acts of Parliament as provided for by the Human Rights Act 1998.
Further Information
Get more info on 'Courts Of Scotland'.
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