The High Court of Justiciary is the
supreme criminal court in
Scotland
Scotland (, ) is a Countries of the United Kingdom, country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a Anglo-Scottish border, border with England to the southeast ...
. The High Court is both a
trial court
A trial court or court of first instance is a court having original jurisdiction, in which trials take place. Appeals from the decisions of trial courts are usually made by higher courts with the power of appellate review (appellate courts). Mo ...
and a
court of appeal
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much o ...
. As a trial court, the High Court sits on circuit at
Parliament House or in the adjacent former Sheriff Court building in the
Old Town
In a city or town, the old town is its historic or original core. Although the city is usually larger in its present form, many cities have redesignated this part of the city to commemorate its origins after thorough renovations. There are ma ...
in
Edinburgh
Edinburgh ( ; gd, Dùn Èideann ) is the capital city of Scotland and one of its 32 council areas. Historically part of the county of Midlothian (interchangeably Edinburghshire before 1921), it is located in Lothian on the southern shore o ...
, or in dedicated buildings in
Glasgow
Glasgow ( ; sco, Glesca or ; gd, Glaschu ) is the most populous city in Scotland and the fourth-most populous city in the United Kingdom, as well as being the 27th largest city by population in Europe. In 2020, it had an estimated popul ...
and
Aberdeen
Aberdeen (; sco, Aiberdeen ; gd, Obar Dheathain ; la, Aberdonia) is a city in North East Scotland, and is the third most populous city in the country. Aberdeen is one of Scotland's 32 local government council areas (as Aberdeen City), a ...
. The High Court sometimes sits in various smaller towns in Scotland, where it uses the local
sheriff court building. As an appeal court, the High Court sits only in Edinburgh. On one occasion the High Court of Justiciary sat outside Scotland, at
Zeist
Zeist () is the capital and largest town of the municipality of Zeist. The town is located in the Utrecht province of the Netherlands, east of the city of Utrecht.
History
The town of "Seist" was first mentioned in a charter in the year ...
in the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Neth ...
during the
Pan Am Flight 103 bombing trial
The Pan Am Flight 103 bombing trial began on 3 May 2000, 11 years, 4 months and 13 days after the destruction of Pan Am Flight 103 on 21 December 1988. The 36-week bench trial took place at a specially convened Scottish Court in the Netherlands ...
, as the
Scottish Court in the Netherlands
The Scottish court in the Netherlands was a special sitting of the High Court of Justiciary set up under Scots law in a former United States Air Force base, Camp Zeist in Utrecht, in the Netherlands, for the trial of two Libyans charged with 270 ...
. At Zeist the High Court sat both as a trial court, and an appeal court for the initial appeal by
Abdelbaset al-Megrahi
Abdelbaset Ali Mohmed al-Megrahi ( ar, عبد الباسط محمد علي المقرحي, ; 1 April 1952 – 20 May 2012) was a Libyan who was head of security for Libyan Arab Airlines, director of the Centre for Strategic Studies in Tripoli, ...
.
The president of the High Court is the
Lord Justice General
Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
, who holds office ''
ex officio
An ''ex officio'' member is a member of a body (notably a board, committee, council) who is part of it by virtue of holding another office. The term '' ex officio'' is Latin, meaning literally 'from the office', and the sense intended is 'by righ ...
'' by virtue of being
Lord President of the Court of Session
The Lord President of the Court of Session and Lord Justice General is the most senior judge in Scotland, the head of the judiciary, and the presiding judge of the College of Justice, the Court of Session, and the High Court of Justiciary. The L ...
, and his depute is the
Lord Justice Clerk
The Lord Justice Clerk is the second most senior judge in Scotland, after the Lord President of the Court of Session.
Originally ''clericus justiciarie'' or Clerk to the Court of Justiciary, the counterpart in the criminal courts of the ...
. The remaining judges are the
''Lords Commissioners of Justiciary'', who hold office ''ex officio'' by virtue of being appointed as
Senators of the College of Justice
The senators of the College of Justice are judges of the College of Justice, a set of legal institutions involved in the administration of justice in Scotland. There are three types of senator: Lords of Session (judges of the Court of Session) ...
and judges of the
Court of Session
The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh ...
. As a court of first instance
trials are usually heard with a jury of 15 and a single Lord Commissioner of Justiciary; the jury can
convict
A convict is "a person found guilty of a crime and sentenced by a court" or "a person serving a sentence in prison". Convicts are often also known as "prisoners" or "inmates" or by the slang term "con", while a common label for former convic ...
on a majority verdict. In some cases, such as the trial of
Abdelbaset al-Megrahi
Abdelbaset Ali Mohmed al-Megrahi ( ar, عبد الباسط محمد علي المقرحي, ; 1 April 1952 – 20 May 2012) was a Libyan who was head of security for Libyan Arab Airlines, director of the Centre for Strategic Studies in Tripoli, ...
and
Lamin Khalifah Fhimah
Lamin Khalifah Fhimah ( ar, الأمين خليفة فحيمة, ''al-Amīn Khalīfah Faḥīmah''; born 4 April 1956) is a former station manager for Libyan Arab Airlines at Luqa Airport, Malta. On 31 January 2001, he was acquitted of 270 co ...
for the bombing of
Pan Am Flight 103
Pan Am Flight 103 was a regularly scheduled Pan Am transatlantic flight from Frankfurt to Detroit via a stopover in London and another in New York City. The transatlantic leg of the route was operated by ''Clipper Maid of the Seas'', a Boeing ...
, a trial can be heard by a
bench of judges alone; sitting without a jury. As an appeal court the hearings are always without a jury, with two judges sitting to hear an appeal against
sentence, and three judges sit to hear an appeal against
conviction
In law, a conviction is the verdict reached by a court of law finding a defendant guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of " not proven", which is co ...
. The High Court will hear appeals from the
sheriff courts of Scotland where the trial was under
solemn proceedings
Solemn proceedings is the term used in Scotland for serious criminal cases prosecuted on indictment before a judge and jury. These are distinct from summary proceedings before a sheriff or justice of the peace sitting without a jury.
See ...
; the High Court will also hear referrals on
points of law from the
Sheriff Appeal Court, and from
summary proceedings
A summary offence or petty offence is a violation of law, violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence).
Canada
In Cana ...
in the sheriff courts and
justice of the peace court
A justice of the peace court is the least authoritative type of criminal court in Scotland. The court operates under summary procedure and deals primarily with less serious criminal offences.
History
The commission of the peace was origina ...
s. Cases can be remitted to the High Court by the
sheriff courts after
conviction
In law, a conviction is the verdict reached by a court of law finding a defendant guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of " not proven", which is co ...
for
sentencing, where a sheriff believes that their sentencing powers are inadequate. The High Court can impose a
life sentence
Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes fo ...
but the sheriff has a limit of five years sentencing; both can issue an unlimited
fine
Fine may refer to:
Characters
* Sylvia Fine (''The Nanny''), Fran's mother on ''The Nanny''
* Officer Fine, a character in ''Tales from the Crypt'', played by Vincent Spano
Legal terms
* Fine (penalty), money to be paid as punishment for an off ...
.
As of October 2022, the
Lord Justice General
Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
was
Lord Carloway
Colin John MacLean Sutherland, Lord Carloway (born 20 May 1954), is a Scottish advocate and judge who has served as the Lord President of the Court of Session and Lord Justice General since 2015. He was previously Lord Justice Clerk from 2012 t ...
, and the
Lord Justice Clerk
The Lord Justice Clerk is the second most senior judge in Scotland, after the Lord President of the Court of Session.
Originally ''clericus justiciarie'' or Clerk to the Court of Justiciary, the counterpart in the criminal courts of the ...
was
Lady Dorrian, and there were a total of 36 Lords Commissioners of Justiciary.
History
Justiciar
The origins derive from the
Justiciar
Justiciar is the English form of the medieval Latin term ''justiciarius'' or ''justitiarius'' ("man of justice", i.e. judge). During the Middle Ages in England, the Chief Justiciar (later known simply as the Justiciar) was roughly equivale ...
and
College of Justice
The College of Justice includes the Supreme Courts of Scotland, and its associated bodies.
The constituent bodies of the national supreme courts are the Court of Session, the High Court of Justiciary, the Office of the Accountant of Court, ...
, as well as from the medieval
royal court
A royal court, often called simply a court when the royal context is clear, is an extended royal household in a monarchy, including all those who regularly attend on a monarch, or another central figure. Hence, the word "court" may also be appl ...
s and
barony court Barony may refer to:
* Barony, the peerage, office of, or territory held by a baron
* Barony, the title and land held in fealty by a feudal baron
* Barony (county division), a type of administrative or geographical division in parts of the Britis ...
s. The medieval
Justiciar
Justiciar is the English form of the medieval Latin term ''justiciarius'' or ''justitiarius'' ("man of justice", i.e. judge). During the Middle Ages in England, the Chief Justiciar (later known simply as the Justiciar) was roughly equivale ...
(royal judge) took its name from the justices who originally travelled around Scotland hearing cases on circuit or 'ayre'. From 1524, the Justiciar or a depute was required to have a "permanent base" in Edinburgh.
[ Accessed on 2 May 2017]
The
King of Scots
The monarch of Scotland was the head of state of the Kingdom of Scotland. According to tradition, the first King of Scots was Kenneth I MacAlpin (), who founded the state in 843. Historically, the Kingdom of Scotland is thought to have grown ...
sometimes sat in judgment of cases in the early King's Court, and it appears that appeals could be taken from the King's Court to the
Parliament of Scotland
The Parliament of Scotland ( sco, Pairlament o Scotland; gd, Pàrlamaid na h-Alba) was the legislature of the Kingdom of Scotland from the 13th century until 1707. The parliament evolved during the early 13th century from the king's council o ...
in civil cases but not in criminal ones. In 1532 the
College of Justice
The College of Justice includes the Supreme Courts of Scotland, and its associated bodies.
The constituent bodies of the national supreme courts are the Court of Session, the High Court of Justiciary, the Office of the Accountant of Court, ...
was founded, separating
civil and
criminal
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
jurisdiction between two distinct courts. The King's Court was, however, normally the responsibility of the Justiciar. The Justiciar normally appointed several deputes to assist in the administration of justice, and to preside in his absence. A legally qualified
clerk
A clerk is a white-collar worker who conducts general office tasks, or a worker who performs similar sales-related tasks in a retail environment. The responsibilities of clerical workers commonly include record keeping, filing, staffing service ...
advised the Justiciar and his deputes as they were generally
noblemen
Nobility is a social class found in many societies that have an aristocracy. It is normally ranked immediately below royalty. Nobility has often been an estate of the realm with many exclusive functions and characteristics. The characteri ...
and often not
legally qualified. This clerk prepared all the
indictment
An indictment ( ) is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concept often use that of an ...
s and was keeper of the records. Eventually the influence of the clerk increased until the clerk gained both a vote in the court, and a seat on the
bench as the
Justice-Clerk.
Courts Act 1672
The High Court in its modern form was founded in 1672 by the Courts Act 1672,
when five of the ''
Lords of Session'' (judges of the
Court of Session
The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh ...
) were added as permanent judges of the ''Justice Court''. Previously the Lord Justice General had appointed deputes to preside in the court. From 1672 to 1887, the High Court consisted of the
Lord Justice General
Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
,
Lord Justice Clerk
The Lord Justice Clerk is the second most senior judge in Scotland, after the Lord President of the Court of Session.
Originally ''clericus justiciarie'' or Clerk to the Court of Justiciary, the counterpart in the criminal courts of the ...
, and five
Lords of Session.
The Court Act 1672 also gave statutory effect to the position of the Lord Justice Clerk, and the Lord Justice-General was made president of the Court, and the Justice-Clerk vice-president. During the period when the office of Lord Justice-General was held by noblemen the Lord Justice-Clerk was virtual head of the Justiciary Court.
Treaty of Union
Article XIX of the
Treaty of Union
The Treaty of Union is the name usually now given to the treaty which led to the creation of the new state of Great Britain, stating that the Kingdom of England (which already included Wales) and the Kingdom of Scotland were to be "United i ...
that united Scotland and
England
England is a Countries of the United Kingdom, country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separa ...
into
Great Britain
Great Britain is an island in the North Atlantic Ocean off the northwest coast of continental Europe. With an area of , it is the largest of the British Isles, the largest European island and the ninth-largest island in the world. It is ...
preserved the High Court of Justiciary, though now the High Court was subject to the
Parliament of Great Britain
The Parliament of Great Britain was formed in May 1707 following the ratification of the Acts of Union by both the Parliament of England and the Parliament of Scotland. The Acts ratified the treaty of Union which created a new unified Kingdo ...
which could enact "...regulations for the better administration of Justice". Dominic Scullion, writing in the ''Aberdeen Student Law Review'' in 2010, identified that the
Union of England and Scotland saw an increase in references to
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, bee ...
and cases in the reports of the High Court. However, Scullion identified that it was only in the latter half of the 20th century that the judgments of the High Court were directly influenced by English decisions and
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great val ...
.
The High Court of Justiciary remained the final authority on all matters of
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal ...
after the Act of Union, though the
Parliament of Great Britain
The Parliament of Great Britain was formed in May 1707 following the ratification of the Acts of Union by both the Parliament of England and the Parliament of Scotland. The Acts ratified the treaty of Union which created a new unified Kingdo ...
appears to have had appellate jurisdiction through the
judicial functions of the House of Lords
Whilst the House of Lords of the United Kingdom is the upper chamber of Parliament and has government ministers, it for many centuries had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachments ...
this appeared to have little effect in practice.
In 1713 a case (''Magistrates of Elgin v. Ministers of Elgin'') was heard by the House of Lords which overturned a decision of the High Court. However, in 1781 the House of Lords resolved that there could be no appeal from the High Court, as no right of appeal had existed beyond the Court beyond the Treaty of Union.
19th Century
Unification of judiciary
In 1830 the Court of Session Act 1830 united the offices of Lord President of the Court of Session and Lord Justice General, with the person appointed as Lord President assuming the office of Lord Justice General ''
ex officio
An ''ex officio'' member is a member of a body (notably a board, committee, council) who is part of it by virtue of holding another office. The term '' ex officio'' is Latin, meaning literally 'from the office', and the sense intended is 'by righ ...
''.
In 1834 the five
Lords of Session who were appointed as Lords Commissioners of Justiciary were paid an additional allowance of over their basic salary of .
A
Select Committee of the
House of Commons
The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. ...
was appointed to investigate the
remuneration
Remuneration is the pay or other financial compensation provided in exchange for an employee's ''services performed'' (not to be confused with giving (away), or donating, or the act of providing to). A number of complementary benefits in additio ...
and
working conditions {{Short description, 1=Overview of and topical guide to working time and conditions
This is a list of topics on working time and conditions.
Legislation
* See :Employment law
Working time
* See :Working time
* Flextime
Working conditions
* Bi ...
of the Lords of Session and Lords Commissioners of Justiciary. The Select Committee recommended that all the Lords of Session should be made Lords Commissioners of Justiciary and that the additional allowance be abolished. At the same time the Committee recommended that the basic salary of a Senator be increased to .
The membership of the court remained unchanged until 1887 when all of the
Senators of the College of Justice
The senators of the College of Justice are judges of the College of Justice, a set of legal institutions involved in the administration of justice in Scotland. There are three types of senator: Lords of Session (judges of the Court of Session) ...
were made Lords Commissioners of Justiciary, by the Criminal Procedure (Scotland) Act 1887.
Writing in 1896, Charles Pearson attested that no appeal was competent from the High Court to the House of Lords.
Supremacy of High Court
The House of Lords made a final determination in the case of ''Mackintosh v. Lord Advocate (1876) 2 App. Cas. 41'' that it had no jurisdiction over criminal appeals, as it had inherited the power of the
Parliament of Scotland
The Parliament of Scotland ( sco, Pairlament o Scotland; gd, Pàrlamaid na h-Alba) was the legislature of the Kingdom of Scotland from the 13th century until 1707. The parliament evolved during the early 13th century from the king's council o ...
to hear civil appeals, but that the pre-union Parliament did not have any jurisdiction to hear criminal appeals.
20th Century
Criminal Procedure (Scotland) Act 1995
In 1913,
Edwin Keedy, writing in the ''
Journal of the American Institute of Criminal Law and Criminology'', would affirm that the High Court "is the Supreme Court for the trial of criminal causes".
The supremacy of the High Court was affirmed by Section 124 of the Criminal Procedure (Scotland) Act 1995, which stated:
Scottish devolution
Scottish devolution and the establishment of the
Scottish Parliament
The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Ho ...
by the
Scotland Act 1998
The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was on ...
introduced the right to refer
points of law to the
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 August ...
. Such points of law related to
human rights
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
compatibility issues or related to
devolution issues. Devolution issues are concerned with the legislative competence of the
Scottish Parliament
The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Ho ...
and the executive functions of the
Scottish Government under the
Scotland Act 1998
The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was on ...
.
21st Century
Scottish Court in the Netherlands
From May 2000 until March 2002 the High Court of Justiciary sat as the
Scottish Court in the Netherlands
The Scottish court in the Netherlands was a special sitting of the High Court of Justiciary set up under Scots law in a former United States Air Force base, Camp Zeist in Utrecht, in the Netherlands, for the trial of two Libyans charged with 270 ...
to try
Abdelbaset al-Megrahi
Abdelbaset Ali Mohmed al-Megrahi ( ar, عبد الباسط محمد علي المقرحي, ; 1 April 1952 – 20 May 2012) was a Libyan who was head of security for Libyan Arab Airlines, director of the Centre for Strategic Studies in Tripoli, ...
and
Lamin Khalifah Fhimah
Lamin Khalifah Fhimah ( ar, الأمين خليفة فحيمة, ''al-Amīn Khalīfah Faḥīmah''; born 4 April 1956) is a former station manager for Libyan Arab Airlines at Luqa Airport, Malta. On 31 January 2001, he was acquitted of 270 co ...
for the bombing of
Pan Am Flight 103
Pan Am Flight 103 was a regularly scheduled Pan Am transatlantic flight from Frankfurt to Detroit via a stopover in London and another in New York City. The transatlantic leg of the route was operated by ''Clipper Maid of the Seas'', a Boeing ...
. The
Pan Am Flight 103 bombing trial
The Pan Am Flight 103 bombing trial began on 3 May 2000, 11 years, 4 months and 13 days after the destruction of Pan Am Flight 103 on 21 December 1988. The 36-week bench trial took place at a specially convened Scottish Court in the Netherlands ...
required a
treaty
A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal per ...
between the
Government of the United Kingdom
ga, Rialtas a Shoilse gd, Riaghaltas a Mhòrachd
, image = HM Government logo.svg
, image_size = 220px
, image2 = Royal Coat of Arms of the United Kingdom (HM Government).svg
, image_size2 = 180px
, caption = Royal Arms
, date_es ...
and
Government of the Kingdom of the Netherlands
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is ...
which created
extraterritoriality
In international law, extraterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations.
Historically, this primarily applied to individuals, as jurisdiction was usually cla ...
for the Scottish Court, with
Camp Zeist in
Utrecht
Utrecht ( , , ) is the fourth-largest city and a municipality of the Netherlands, capital and most populous city of the province of Utrecht. It is located in the eastern corner of the Randstad conurbation, in the very centre of mainland Ne ...
(a disused
United States Air Force base) made a subject of
Scots law
Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...
.
Legal effect was given to the treaty in the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and No ...
by the High Court of Justiciary Order 1998, an
Order in Council
An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council ('' ...
. The order empowered the Lord Justice Clerk to appoint three Lords Commissioners of Justiciary to sit as
bench trial
A bench trial is a trial by judge, as opposed to a trial by jury. The term applies most appropriately to any administrative hearing in relation to a summary offense to distinguish the type of trial. Many legal systems ( Roman, Islamic) use bench ...
as both
trier of fact
A trier of fact or finder of fact is a person or group who determines which facts are available in a legal proceeding (usually a trial) and how relevant they are to deciding its outcome. To determine a fact is to decide, from the evidence prese ...
and for determining any
points of law. The High Court had full authority to determine
contempt of court
Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the cour ...
relating to the proceedings.
Following the conviction, which was upheld on appeal of Abdelbaset al-Megrahi, the Scottish Court in the Netherlands ceased to sit. Subsequent appeals were heard in Scotland.
Supreme Court of the United Kingdom
The jurisdiction of the Judicial Committee of the Privy Council in human rights and devolution issues was transferred to the
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unit ...
by the
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 (c 4) is an Act of the Parliament of the United Kingdom, relevant to UK constitutional law. It provides for a Supreme Court of the United Kingdom to take over the previous appellate jurisdiction of the Law L ...
.
Such a transfer was not without controversy, as commentators, including the
Law Society of Scotland
The Law Society of Scotland is the professional governing body for Scottish solicitors. It promotes excellence among solicitors through the support and regulation of its members. It also promotes the interests of the public in relation to the ...
and the
Advocate General for Scotland
His Majesty's Advocate General for Scotland ( gd, Àrd-neach-tagraidh an Rìgh airson Alba) is one of the Law Officers of the Crown, whose duty it is to advise the Crown and His Majesty's Government on Scots law. The Office of the Advocate Genera ...
, noted that this notionally placed an
English court in a position of superiority to the High Court.
In May 2013, the Supreme Court's guidance on its jurisdiction over Scottish appeals stated that:
Section 35 of the
Scotland Act 2012 modified the procedure for referrals by removing the ability of the Supreme Court to determine the final judgment of the case; in essence a criminal case cannot be ''remitted'' to the Supreme Court. The Scotland Act 2012 requires that once the point of law has been decided upon by the Supreme Court, it is for the High Court to resolve the case. An issue can be referred to the Supreme Court either by the Lords Commissioners of Justiciary who are presiding, the
Lord Advocate
, body =
, insignia = Crest of the Kingdom of Scotland.svg
, insigniasize = 110px
, image = File:Official Portrait of Dorothy Bain QC.png
, incumbent = Dorothy Bain KC
, incumbentsince = 22 June 2021
, appointer = Monarch on the advic ...
, or the Advocate General for Scotland. Though where two or more Lords Commissioners are presiding they may determine the human rights issue without referral to the Supreme Court.
Remit and jurisdiction
First instance jurisdiction
The High Court has jurisdiction over all crimes in Scotland unless restricted by statute. The High Court has
exclusive jurisdiction
Exclusive jurisdiction exists in civil procedure if one court has the power to adjudicate a case to the exclusion of all other courts. The opposite situation is concurrent jurisdiction (or non-exclusive jurisdiction) in which more than one court ...
over serious crimes such as
treason
Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...
,
murder
Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person without justification or excuse, especially the ...
, and
rape
Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or a ...
and, in practice, deals with
armed robbery
Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the pers ...
,
drug trafficking
A drug is any chemical substance that causes a change in an organism's physiology or psychology when consumed. Drugs are typically distinguished from food and substances that provide nutritional support. Consumption of drugs can be via inha ...
, and
sexual offences involving children (over which it
shares jurisdiction with the
sheriff court).
As a
court of first instance
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acc ...
the court sits regularly in various places in Scotland, with permanent seats in Edinburgh, Glasgow and Aberdeen. There are sittings when required in
Dumbarton
Dumbarton (; also sco, Dumbairton; ) is a town in West Dunbartonshire, Scotland, on the north bank of the River Clyde where the River Leven, Dunbartonshire, River Leven flows into the Clyde estuary. In 2006, it had an estimated population of 1 ...
,
Lanark
Lanark (; gd, Lannraig ; sco, Lanrik) is a town in South Lanarkshire, Scotland, located 20 kilometres to the south-east of Hamilton. The town lies on the River Clyde, at its confluence with Mouse Water. In 2016, the town had a population of 9 ...
,
Livingston,
Paisley and
Stirling
Stirling (; sco, Stirlin; gd, Sruighlea ) is a city in central Scotland, northeast of Glasgow and north-west of Edinburgh. The market town, surrounded by rich farmland, grew up connecting the royal citadel, the medieval old town with ...
.
Trials in the High Court are usually
jury trial
A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.
Jury trials are used in a signific ...
s, with a single Lord Commissioner of Justiciary presiding (although two or more judges may sit in important or difficult cases) with a
jury
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment.
Juries developed in England ...
of fifteen individuals; in Scotland this is known as
solemn proceedings
Solemn proceedings is the term used in Scotland for serious criminal cases prosecuted on indictment before a judge and jury. These are distinct from summary proceedings before a sheriff or justice of the peace sitting without a jury.
See ...
.
Under the
Scottish legal system, the jury can convict on a majority
verdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wale ...
of at least eight jurors, and need not return a unanimous verdict. The Scottish legal system also permits a verdict of '
not proven
Not proven (, ) is a verdict available to a court of law in Scotland. Under Scots law, a criminal trial may end in one of three verdicts, one of conviction ("guilty") and two of acquittal ("not proven" and "not guilty").The Scottish criminal jur ...
' as well as verdicts of 'guilty' or 'not guilty'. Juries may add
rider to their verdictas additional commentary on their verdict. The 'not proven' verdict is of the same consequence as 'not guilty', though there remains some confusion and disagreement over the meaning of either verdict. If eight jurors cannot agree on an accused's guilt or on an
alternative verdict, then the accused will be
acquitted
In common law jurisdictions, an acquittal certifies that the accused is free from the charge of an offense, as far as criminal law is concerned. The finality of an acquittal is dependent on the jurisdiction. In some countries, such as th ...
.
Cases in the High Court are prosecuted in the
public interest
The public interest is "the welfare or well-being of the general public" and society.
Overview
Economist Lok Sang Ho in his ''Public Policy and the Public Interest'' argues that the public interest must be assessed impartially and, therefore ...
by the
Lord Advocate
, body =
, insignia = Crest of the Kingdom of Scotland.svg
, insigniasize = 110px
, image = File:Official Portrait of Dorothy Bain QC.png
, incumbent = Dorothy Bain KC
, incumbentsince = 22 June 2021
, appointer = Monarch on the advic ...
, who is usually represented in such cases by
Advocates Depute
An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a barrister or a solicitor. However, ...
.
A
private prosecution A private prosecution is a criminal proceeding initiated by an individual private citizen or private organisation (such as a prosecution association) instead of by a public prosecutor who represents the state. Private prosecutions are allowed in ma ...
can be brought before the High Court, but this is very rare and difficult as it requires the concurrence of the Lord Advocate and for the High Court to issue a ''bill for criminal letters''.
When families of the victims of the
2014 Glasgow bin lorry crash applied for such a bill, their request was denied by the High Court in 2016 on the basis that there was insufficient evidence. The Lord Justice Clerk,
Lady Dorrian, along with
Lord Menzies and
Lord Drummond Young further concluded that the case did not present special circumstances to enable granting of the bill.
Bail
Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.
In some countrie ...
can be granted by the High Court to any
accused person and "bail is to be granted to an accused person except where there is good reason for refusing bail." The
Bail, Judicial Appointments etc. (Scotland) Act 2000, an
Act of the Scottish Parliament
An Act of the Scottish Parliament ( gd, Achd Pàrlamaid na h-Alba) is primary legislation made by the Scottish Parliament. The power to create Acts was conferred to the Parliament by section 28 of the Scotland Act 1998 following the successfu ...
, had removed the previous restrictions on bail that meant that
murder
Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person without justification or excuse, especially the ...
and
treason
Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...
were not ordinarily bailable.
However, a person could be bailed when accused of these of crimes on application of the
Lord Advocate
, body =
, insignia = Crest of the Kingdom of Scotland.svg
, insigniasize = 110px
, image = File:Official Portrait of Dorothy Bain QC.png
, incumbent = Dorothy Bain KC
, incumbentsince = 22 June 2021
, appointer = Monarch on the advic ...
or by a decision of the High Court itself.
The
Criminal Proceedings etc. (Reform) (Scotland) Act 2007 did reintroduce restrictions on the granting of bail by requiring exceptional circumstances to be shown when a person is accused of violent, sexual, or drugs offences, and they have a prior conviction for a similar offence.
In Scotland, the focus is normally for those who are opposed to bail to convince the courts that bail should not be granted,
with the
procurator fiscal given guidance to use the nature and gravity of an offence as grounds to oppose bail.
Sentencing on conviction by sheriff court
Following a conviction under solemn proceedings in a
sheriff court, Section 195 of the Criminal Procedure (Scotland) Act 1995 allows a sheriff to remit the case to the High Court for sentencing, should the sheriff believes their powers of sentencing to be inadequate for the crime committed.
A sheriff in solemn proceedings can impose a maximum sentence of up to 5 years
imprisonment
Imprisonment is the restraint of a person's liberty, for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. In the latter case it is "false imprisonment". Imprisonment does not necessari ...
or an unlimited
fine
Fine may refer to:
Characters
* Sylvia Fine (''The Nanny''), Fran's mother on ''The Nanny''
* Officer Fine, a character in ''Tales from the Crypt'', played by Vincent Spano
Legal terms
* Fine (penalty), money to be paid as punishment for an off ...
, and the High Court can impose a
life sentence
Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes fo ...
(unless a lesser maximum sentence is prescribed by statute) as well as an unlimited fine. Once a case is remitted, the High Court can treat the case as if it had been tried before a Lord Commissioner of Justiciary.
Appellate jurisdiction
Following the Criminal Appeal (Scotland) Act 1926 (
16 & 17 Geo. V), when the
Scottish High Court of Justiciary hears criminal appeals, it is known as the Court of Criminal Appeal. The
Criminal Appeal (Scotland) Act 1927 was passed the following year specifically to deal with the
Case of Oscar Slater.
The court consists of at least three
judges when hearing appeals against conviction and two when hearing appeals against sentence, although more judges may sit when the court is dealing with exceptionally difficult cases or those where important matters of law may be considered. This is known as a
full bench. Appeals by right are heard from the High Court of Justiciary (sitting at first instance) and
sheriff courts sitting in
solemn procedure
Solemn proceedings is the term used in Scotland for serious criminal cases prosecuted on indictment before a judge and jury. These are distinct from summary proceedings before a sheriff or justice of the peace sitting without a jury.
See ...
; with appeals, with leave, on
questions of law In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference ...
are heard from the
Sheriff Appeal Court. Appeals against sentence or conviction in
summary proceedings
A summary offence or petty offence is a violation of law, violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence).
Canada
In Cana ...
before the sheriff courts or
justice of the peace court
A justice of the peace court is the least authoritative type of criminal court in Scotland. The court operates under summary procedure and deals primarily with less serious criminal offences.
History
The commission of the peace was origina ...
s are heard before the Sheriff Appeal Court. The High Court also hears appeals in cases referred to it by the
Scottish Criminal Cases Review Commission
The Scottish Criminal Cases Review Commission (SCCRC) is an executive non-departmental public body of the Scottish Government, established by the Criminal Procedure (Scotland) Act 1995 (as amended by the Crime and Punishment (Scotland) Act ...
.
Leave to appeal is granted by a Lord Commissioner of Justiciary in
chambers under sections 106 and 107 of the Criminal Procedure (Scotland) Act 1995 when a person is convicted in
solemn procedure
Solemn proceedings is the term used in Scotland for serious criminal cases prosecuted on indictment before a judge and jury. These are distinct from summary proceedings before a sheriff or justice of the peace sitting without a jury.
See ...
in either the High Court or
sheriff courts, with the High Court sitting as the Appeal Court.
Appeals against convictions or sentence in
summary procedure heard in sheriff courts and
justice of the peace courts
A justice of the peace court is the least authoritative type of criminal court in Scotland. The court operates under summary procedure and deals primarily with less serious criminal offences.
History
The commission of the peace was originall ...
are now heard by the
Sheriff Appeal Court. However, referrals on
points of law may be heard in the High Court from the Sheriff Appeal Court with the permission of the High Court. Two judges sit to hear an appeal against sentence, and three judges sit to hear an appeal against conviction. The High Court of Justiciary sits as an appeal court in Edinburgh.
The High Court, as a collegiate court, has the ability to convene a
bench of greater numbers of Lords Commissioners of Justiciary to overturn decisions and
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great val ...
established by previous appeals. Such a decision is made by the High Court on its own initiative. It is possible for the entire High Court to sit in determination of an appeal.
In exceptional circumstances, a person may petition the
Scottish Criminal Cases Review Commission
The Scottish Criminal Cases Review Commission (SCCRC) is an executive non-departmental public body of the Scottish Government, established by the Criminal Procedure (Scotland) Act 1995 (as amended by the Crime and Punishment (Scotland) Act ...
, who have the authority to refer an appeal back to the High Court of Justiciary, if the Commission determine that a miscarriage of justice has or might have occurred.
Under Section 35 of the Scotland Act 2012, the High Court as an Appeal Court will also hear referrals on
human rights
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
compatibility issues from the
Sheriff Appeal Court,
sheriff courts, and from cases being heard at first-instance by a single Lord Commissioner of Justiciary. The High Court can then make a determination on that issue, or it can refer the matter to the Supreme Court of the United Kingdom.
Appeals from the High Court
Devolution and human rights issues
The High Court of Justiciary has the final authority on matters of criminal law in Scotland, and thus no appeal beyond the High Court is possible on the grounds of sentence or conviction.
However, it is possible to refer a
point of law In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference ...
to the
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unit ...
relating to
human rights
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
compatibility issues or relating to
devolution issues. Devolution issues are concerned with the legislative competence of the
Scottish Parliament
The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Ho ...
and the executive functions of the
Scottish Government under the
Scotland Act 1998
The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was on ...
.
Such referrals are made to the Supreme Court of the United Kingdom under Schedule 6 of the Scotland Act 1998 or Section 288A of the
Criminal Procedure (Scotland) Act 1995.
For a referral to proceed permission must be granted by two or more Lords Commissioners of Justiciary, or by the Supreme Court itself.
The most frequent devolution issues raised related to
Article 6 of the European Convention on Human Rights Article 6 of the European Convention on Human Rights is a provision of the European Convention which protects the right to a fair trial. In criminal law cases and cases to determine civil rights it protects the right to a public hearing before an i ...
, which mandates the
right to a fair trial
A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, th ...
, and the role of the
Lord Advocate
, body =
, insignia = Crest of the Kingdom of Scotland.svg
, insigniasize = 110px
, image = File:Official Portrait of Dorothy Bain QC.png
, incumbent = Dorothy Bain KC
, incumbentsince = 22 June 2021
, appointer = Monarch on the advic ...
who is both the chief
public prosecutor
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal tri ...
and a member of the
Scottish Government. Under the Scotland Act 1998 the Lord Advocate could do nothing that was incompatible with the European Convention on Human Rights, and should his actions be deemed incomparable then they were
null and void
In law, void means of no legal effect. An action, document, or transaction which is void is of no legal effect whatsoever: an absolute nullity—the law treats it as if it had never existed or happened. The term void ''ab initio'', which means ...
.
This led to the case of ''
Cadder v HM Advocate'' where the Supreme Court of the United Kingdom ruled that
the police in Scotland could not question a
suspect
In law enforcement jargon, a suspect is a known person accused or suspected of committing a crime. Police and reporters in the United States often use the word suspect as a jargon when referring to the perpetrator of the offense (perp in dated U ...
without granting that person access to a
solicitor
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor an ...
. This was one case, along with ''
Fraser v HM Advocate'', that led the
Scottish Government to raise concerns with
HM Government
ga, Rialtas a Shoilse gd, Riaghaltas a Mhòrachd
, image = HM Government logo.svg
, image_size = 220px
, image2 = Royal Coat of Arms of the United Kingdom (HM Government).svg
, image_size2 = 180px
, caption = Royal Arms
, date_es ...
that it appeared that "virtually any objection, challenge, or point of law can be characterised as a devolution issue", thus undermining the High Court's final jurisdiction in criminal matters. The
Scotland Act 2012 modified provisions around devolution issues by no longer rendering null and void those actions of the Lord Advocate that were incompatible with the European Convention, but still allowing a right to appeal against those actions on grounds of incompatibility.
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom was established by the
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 (c 4) is an Act of the Parliament of the United Kingdom, relevant to UK constitutional law. It provides for a Supreme Court of the United Kingdom to take over the previous appellate jurisdiction of the Law L ...
, and is the highest court in the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and No ...
for
civil cases and those matters relating to human rights and devolution. Prior to the establishment of the Supreme Court of the United Kingdom devolution issues were decided by the
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 August ...
, whose members were the
Lords of Appeal in Ordinary
Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House of ...
(who exercised the
judicial functions of the House of Lords
Whilst the House of Lords of the United Kingdom is the upper chamber of Parliament and has government ministers, it for many centuries had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachments ...
.) However, the two bodies were legally and constitutionally separate.
European courts
In the most exceptional of circumstances, an appeal may be made to the
European Court of Justice
The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Unio ...
(ECJ) of the
Court of Justice of the European Union
The Court of Justice of the European Union (CJEU) (french: Cour de justice de l'Union européenne or "''CJUE''"; Latin: Curia) is the judicial branch of the European Union (EU). Seated in the Kirchberg quarter of Luxembourg City, Luxembo ...
(CJEU), subject to an application for permission from both the High Court of Justiciary and the
United Kingdom Supreme Court
The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
(UKSC) being granted, or to the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
(ECtHR), or both.
Acts of Adjournal
The High Court of Justiciary as a Court, or the Lord Justice General, Lord Justice Clerk and Lords Commissioners of Justiciary as a body, have the power to regulate
criminal procedure
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
in the criminal courts in Scotland: regulations can be made for the High Court, sheriff courts (summary and solemn procedures), and the justice of the peace courts. Such regulations are promulgated by
Acts of Adjournal, which take the form of
subordinate legislation
Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative democr ...
as
Scottish Statutory Instrument
A Scottish statutory instrument ( gd, Ionnsramaid Reachdail na h-Alba; SSI) is subordinate legislation made by the Scottish Ministers or a regulatory authority in exercise of powers delegated by an Act of the Scottish Parliament. SSIs are the ...
s, under powers granted by Section 305 of the Criminal Procedure (Scotland) Act 1995.
Schedule 6 of the
Scotland Act 1998
The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was on ...
also grants that Acts of Adjournal can be used to regulate the procedure for referring a
question of law In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference ...
relating to a
devolution issue to either the High Court or the
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unit ...
.
Section 305 of the 1995 Act states:
Thus the Lord Justice General, Lord Justice Clerk, and Lords Commissioners of Justiciary have the power to modify and amend
primary legislation
Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative dem ...
, where that primary legislation deals with a matter of criminal procedure. The Criminal Courts Rules Council on 8 February 2016 considered Section 288BA of the Criminal Procedure (Scotland) Act 1995 (which prescribes rules for
dockets and
indictment
An indictment ( ) is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concept often use that of an ...
s for
sexual offences) and asked the Lord President's Private Office to consider if this could be modified by Act of Adjournal.
A draft Act of Adjournal was also prepared in 2011 to amend the 1995 Act as the Rules Council was awaiting primary legislation, and the Rules Council agreed to proceed with the Act of Adjournal.
The Act of Adjournal amended the 1995 Act by adding Sections 75C and 137ZB to enable the court to discharge, vary and change the diet (sittings) of a case.
Rights of audience
Members of the
Faculty of Advocates
The Faculty of Advocates is an independent body of lawyers who have been admitted to practise as advocates before the courts of Scotland, especially the Court of Session and the High Court of Justiciary. The Faculty of Advocates is a consti ...
, known as
advocate
An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a barrister or a solicitor. However, ...
s or
counsel
A counsel or a counsellor at law is a person who gives advice and deals with various issues, particularly in legal matters. It is a title often used interchangeably with the title of '' lawyer''.
The word ''counsel'' can also mean advice give ...
, and as of 1990 also some
solicitors
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and ...
, known as
solicitor-advocates, have practically exclusive
right of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client.
In English law, there is a fundamental distinction between barristers, who have rights of audience in ...
rights of audience in the court.
Until 1990 only advocates had any right of audience before the High Court, but the Law Reform (Miscellaneous Provisions) (Scotland Act) 1990 allowed solicitors to apply for enhanced rights and become solicitor-advocates.
Judges and office holders
President and judges
The court's
president
President most commonly refers to:
* President (corporate title)
*President (education), a leader of a college or university
* President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese f ...
is the
Lord Justice General
Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
; the second most senior judge is the
Lord Justice Clerk
The Lord Justice Clerk is the second most senior judge in Scotland, after the Lord President of the Court of Session.
Originally ''clericus justiciarie'' or Clerk to the Court of Justiciary, the counterpart in the criminal courts of the ...
; and a further 35
Senators of the College of Justice
The senators of the College of Justice are judges of the College of Justice, a set of legal institutions involved in the administration of justice in Scotland. There are three types of senator: Lords of Session (judges of the Court of Session) ...
hold office as Lords Commissioners of Justiciary. The total numbers of judges is fixed by Section 1 of the Court of Session Act 1988, subject to amendment by
Order in Council
An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council ('' ...
(the last order was made in 2022 and increased the number of judges to 36.)
Judges are appointed for life, subject to dismissal if they are found unfit for office, and subject to a compulsory retirement age of 75.
The court is a unitary collegiate court, with all judges other than the
Lord Justice General
Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
and the
Lord Justice Clerk
The Lord Justice Clerk is the second most senior judge in Scotland, after the Lord President of the Court of Session.
Originally ''clericus justiciarie'' or Clerk to the Court of Justiciary, the counterpart in the criminal courts of the ...
holding the same rank and title:
Lord Commissioner of Justiciary
The senators of the College of Justice are judges of the College of Justice, a set of legal institutions involved in the administration of justice in Scotland. There are three types of senator: Lords of Session (judges of the Court of Session); ...
.
There are 36, in addition to a number of temporary judges; these temporary judges can be
sheriffs principal,
sheriffs
A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transla ...
, or
advocate
An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a barrister or a solicitor. However, ...
s in private practice. The judges sit also in the
Court of Session
The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh ...
, where they are known as ''Lords of Council and Session''; in the Court of Session the Lord Justice General is called the
Lord President of the Court of Session
The Lord President of the Court of Session and Lord Justice General is the most senior judge in Scotland, the head of the judiciary, and the presiding judge of the College of Justice, the Court of Session, and the High Court of Justiciary. The L ...
.
Lord Justice General
The Lord Justice General is the most senior judge of the High Court of Justiciary. The Lord Justice General will sit as chairperson in the
Court of Criminal Appeal.
Lord Justice Clerk
The Justice Clerk is the second most senior judge of the High Court, and deputises for the Lord Justice General when the latter is absent, or is unable to fulfil his duties, or when there is a vacancy for Lord Justice General. The Lord Justice Clerk will sit as chairperson in the
Court of Criminal Appeal.
Lords Commissioners of Justiciary
Appointment
To be eligible for appointment as a Lord Commissioner of Justiciary, or temporary judge, a person must have served at least 5 years as
sheriff
A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transl ...
or
sheriff principal
In Scotland a sheriff principal (''pl''. sheriffs principal) is a judge in charge of a sheriffdom with judicial, quasi-judicial, and administrative responsibilities. Sheriffs principal have been part of the judiciary of Scotland since the 11th c ...
; or been an
advocate
An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a barrister or a solicitor. However, ...
for 5 years, or a
solicitor
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor an ...
with 5 years rights of audience before the Court of Session or High Court of Justiciary; or been a
Writer to the Signet
The Society of Writers to His Majesty's Signet is a private society of Scottish solicitors, dating back to 1594 and part of the College of Justice. Writers to the Signet originally had special privileges in relation to the drawing up of document ...
for 10 years (having passed the exam in civil law at least 2 years before application.)
Appointments are made by the
First Minister of Scotland
The first minister of Scotland ( sco, heid meinister o Scotland; gd, prìomh mhinistear na h-Alba ) is the head of the Scottish Government and keeper of the Great Seal of Scotland. The first minister chairs ...
on the recommendation of the
Judicial Appointments Board for Scotland
The Judicial Appointments Board for Scotland is an advisory non-departmental public body of the Scottish Government responsible for making recommendations on appointments to certain offices of the judiciary of Scotland. It was established in J ...
. The Judicial Appointments Board has statutory authority to make recommendations under Sections 9 to 27 of the Judiciary and Courts (Scotland) Act 2008 (as amended by the Courts Reform (Scotland) Act 2014).
Appointments to the Inner House are made by the Lord President and Lord Justice Clerk, with the consent of the Scottish Ministers.
Temporary judges can also be appointed by the
Scottish Ministers provided that person would also be eligible for appointment as permanent judge of the High Court. Originally the power was granted by Section 35 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, but the enactment was repealed and replaced by Section 123 of the Courts Reform (Scotland) Act 2014. Such temporary judges are appointed for a period of 5 years.
Section 123 of Courts Reform (Scotland) Act 2014 allows the Lord Justice General to appoint former senators, and
former Justices of the Supreme Court of the United Kingdom, to the High Court provided they are under 75 years of age. The tenure of such appointments is determined by the Lord Justice General.
Lord Gill, Lord Justice General from 2012–2015, issued guidance in 2013 on the use temporary judges which stipulated that:
Further stating that the preference would be to allocate business to temporary judges who were already, had previously been, a ''judicial office holder'' (namely,
sheriff principal
In Scotland a sheriff principal (''pl''. sheriffs principal) is a judge in charge of a sheriffdom with judicial, quasi-judicial, and administrative responsibilities. Sheriffs principal have been part of the judiciary of Scotland since the 11th c ...
or
sheriff
A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transl ...
); as opposed to using temporary judges who were practising
advocates
An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a barrister or a solicitor. However, ...
or
solicitor-advocates. Lord Gill's guidance allows for such judges to be allocated to any first instance business of the High Court, but requires the approval of the Lord Justice General for their deployment in the Appeal Court.
Removal from office
The Lord Justice General, Lord Justice Clerk and the Lords Commissioners of Justiciary can only be removed office after a tribunal has been convened to examine their fitness for office. The tribunal is convened at the request of the Lord Justice General (in his capacity as Lord President) or in other circumstances if the First Minister sees fit. However, the First Minister must consult the Lord Justice General (or the Lord Justice Clerk, if the Lord Justice General is under investigation). Should the tribunal recommend their dismissal the
Scottish Parliament
The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Ho ...
can resolve that the First Minister make a recommendation to
the Monarch.
Principal Clerk of Session and Justiciary
The administration of the court is part of the
Scottish Courts and Tribunals Service
, type =
, seal =
, logo = 250px
, logo_caption =
, formed =
, jurisdiction = Scotland
, headquarters = Saughton House, Broomhouse Drive, Edinburgh EH11 3XD
, employees = 1,374
, budget = £129.3 million (2015-2016)
, chief1_name = Lord ...
, and is led by the
Principal Clerk of Session and Justiciary
The Principal Clerk of Session and Justiciary is the clerk of court responsible for the administration of the Supreme Courts of Scotland and their associated staff. The Keeper of the Signet grants a commission to the Principal Clerk of Session ...
.
The Principal Clerk is responsible for the administration of the
Supreme Courts of Scotland
The College of Justice includes the Supreme Courts of Scotland, and its associated bodies.
The constituent bodies of the national supreme courts are the Court of Session, the High Court of Justiciary, the Office of the Accountant of Court, an ...
and their associated staff. the Principal Clerk was Graeme Marwick, who was also Director of the Scottish Courts and Tribunals Service.
See also
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William Roughead
William Roughead (pronounced ''Ruff-head'') (1870–1952) was a well-known Scottish lawyer and amateur criminologist, as well as an editor and essayist on "matters criminous". He was an important early practitioner of the modern "true crime" ...
, between 1889 and 1949 attended every murder trial of significance held in the Court.
*
List of leading Scottish legal cases
*
Lord Advocate's Reference A Lord Advocate's Reference is a procedure by which the Lord Advocate can refer a point of law that has arisen during the course of solemn proceedings to the High Court of Justiciary sitting as the Court of Criminal Appeal, for a determination. ...
Notes
References
External links
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{{Authority control
1672 establishments in Scotland
Category A listed buildings in Edinburgh
Scotland
Scotland (, ) is a Countries of the United Kingdom, country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a Anglo-Scottish border, border with England to the southeast ...
Courts and tribunals established in 1672