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There are three courts which have the right to hear criminal cases in Scotland, namely:-

• The District Court;
• The Sheriff Court;
• The High Court of Justiciary.

The District Court is the lowest court in terms of the importance of cases which are tried before it. The District Court’s jurisdiction is very local insofar as it has responsibility for minor crimes which are committed within its Local Authority area, e.g. a breach of the peace.

There are two types of judges who sit in the District Court. The judge is either a Justice of the Peace or a Stipendiary Magistrate.

A Justice of the Peace is not legally qualified and is generally an upstanding member of the local community who, having gone through a training programme, is then given the role of dispensing justice in relation to minor offences.

In view of the fact that the Justice of the Peace is not legally qualified, he or she is given assistance in respect of points of law by a legally qualified clerk who will be present in court to advise the Justice of the Peace and who is very often a solicitor who works for the Local Authority. It is, however, the Justice of the Peace alone who makes the decision on the evidence presented to the court and hands down the verdict.

A Stipendiary Magistrate is legally qualified and will have been a practising solicitor or advocate for a period of at least five years.

Many Justices of the Peace are local councillors although that is not a required qualification to becoming a Justice of the Peace.

Justices of the Peace can impose relatively limited sentences which tend to reflect the minor nature of the offences which are tried before a Justice of the Peace in the District Court.

On the other hand, a Stipendiary Magistrate has greater sentencing powers and indeed the penalties which a Stipendiary Magistrate can impose are similar to a Sheriff hearing a criminal trial in the Sheriff Court in terms of summary procedure. In the context of criminal law, summary procedure means that the Sheriff sits without a jury.

The Sheriff Court is the next step up from the District Court. When reference is made to Sheriffs and/or Sheriff Courts in respect of criminal matters in Scotland, it should be remembered that these are the same Sheriffs and/or Sheriff Courts by whom and where civil actions are heard and proceed.

There are two forms of criminal procedure in the Sheriff Court, namely:-

• Summary procedure; and
• Solemn procedure.

In respect of less serious crimes, the matter will proceed according to summary procedure. This means that the Sheriff will sit alone and will decide upon issues of both fact and law.

For more serious offences, solemn procedure is adopted. This means that the case is heard by a Sheriff together with a jury which, in Scotland, comprises fifteen members of the general public.

In summary procedure, the document initiating the prosecution at the instance of the Procurator Fiscal in the Sheriff or District Court is referred to as a “Complaint”. The Complaint sets out the details of the offence charged.

In solemn matters the document setting out the details of the alleged crime and running in the name of the Lord Advocate is referred to as the “Indictment ”.

In a criminal matter proceeding according to solemn procedure, the Sheriff decides upon the legal issues whilst the facts of the case – presented to the court in terms of the evidence led – are determined by the jury.

At present, in solemn cases the Sheriff may impose an unlimited fine and a term of imprisonment up to a maximum of five years. In the event, however, that the Sheriff is of the view that the crime committed by the convicted person demands a harsher sentence than the Sheriff has the power to dispense, then the Sheriff can remit the case to the High Court of Justiciary for sentencing.

In both summary procedure and solemn procedure, appeals from the decision of a Sheriff are made to the High Court of Justiciary in Edinburgh.

In Scotland, the prosecution of crime from the District Court to the High Court of Justiciary – is the responsibility of the Lord Advocate who is the Crown’s Chief Law Officer in Scotland.

The Lord Advocate is in charge of the Crown Office which is a department of the Scottish Government.

At local level, the Lord Advocate’s representative is called the Procurator Fiscal.

A person on trial in Scotland is called the “accused” and it is for the prosecutor to establish that the accused is guilty of the crime “beyond a reasonable doubt”. This is a very strict burden of proof and has to be established by the evidence which is brought before the court whether it be in terms of witness statements or the use of expert and/or forensic evidence.

If the prosecutor is unable to convince the Judge in summary procedure, or the jury in solemn procedure, that the prosecution’s case has been proven beyond a reasonable doubt then the accused must be acquitted.

In Scotland, there are three possible verdicts, namely:-

• Guilty;

• Not guilty; and
• Not proven.

The latter verdict is unique to Scotland and is an alternative to a not guilty verdict.

While the continued use of the not proven verdict has been criticised, the possibility of a not proven verdict remains and seems to be accepted as a way of allowing a judge and/or jury to state that they are not wholly satisfied about the innocence of the accused.

The High Court of Justiciary in Scotland was established in 1672 and is the supreme criminal court in Scotland. The High Court of Justiciary has its permanent base in Edinburgh but the Court also sits throughout other towns and cities in Scotland. This practice is known as “going on circuit”.

Unlike its civil counterpart, namely the Court of Session, there is no right of appeal from the High Court of Justiciary to the Supreme Court. Having said that, however, as a result of the Scotland Act 1998, the Judicial Committee of the Privy Council can hear appeals from the High Court of Justiciary where the case involves human rights and/or devolution issues.

The High Court of Justiciary consists of the Lord President of the Court of Session, the Lord Justice Clerk and all the other judges of the Court of Session. In Scottish criminal law, however, the Lord President is referred to as the Lord Justice General and the Lords Ordinary from the Court of Session are called Lords Commissioners of Justiciary.

The High Court of Justiciary deals with the most serious types of crime and the procedure is always solemn, i.e. a Lord Commissioner of Justiciary will sit with a jury of fifteen members of the general public. In certain criminal cases, however, where the subject matter is thought to be particularly complex or raise fundamental issues of law, then a bench of three or five Lords Commissioners of Justiciary may be convened to hear the case.

The High Court of Justiciary has unlimited powers of imprisonment and/or fines although some sentences may be imposed by statute.

The High Court of Justiciary also sits as an appeal court hearing cases from the Sheriff Court and also hearing cases appealed from those trials which are heard at first instance before a Lord Commissioner of Justiciary.

All appeals in the High Court of Justiciary are held in Edinburgh and are heard by a panel of three judges although again in a particularly important matter a bench of five or more judges may be convened.

A wide ranging review of the Scottish court system has been undertaken and altered by The Courts Reform (Scotland) Act.

The main changes are as follows:

A wide ranging review of the Scottish court system has been undertaken and altered by The Courts Reform (Scotland) Act.

The main changes are as follows:

Raising the exclusive limit of the Sheriff Court

A major change in the reforms involves moving some litigation cases to the Sheriff Court, with only the most complex and important cases should be heard in the Court of Session. It was initially proposed that the Sheriff Court would deal with cases up to £150,000 in value. However, an amendment at Stage 2 saw the threshold lowered to £100,000.

Increased specialisation

There are proposals for increased sheriff specialisation, both by individual Sheriffs and specialist courts. An example is the proposed specialist personal injury court with Scotland-wide jurisdiction.

A new judicial tier of “Summary Sheriff”

The ‘Summary Sheriff’ will hear both civil and criminal cases, freeing up Sheriffs to concentrate on more serious or complex cases. The Summary Sheriffs will hear cases with a value of £5,000 or less.

A new Sheriff Appeal Court

The new Sheriff Appeal Court, with national jurisdiction, will hear civil appeals from Sheriffs and Summary Sheriffs and all summary procedure criminal appeals. Members of the Sheriff Appeal Court will comprise existing Sheriffs Principal and a number of experienced Sheriffs, and its decisions will be binding on lower courts.

Costs

The cost and funding of civil litigation in Scotland has also been under review, with Sheriff Principal Taylor reporting on this issue in September 2013. The Scottish Government Response to that review was issued in June 2014. Implementation of the recommendations on costs and funding will be taken forward on an incremental basis, to allow co-ordination with implementation of Courts Reform (Scotland) Act.
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