Definitions

advocate depute

Scots law

Scots law is a unique legal system with an ancient basis in Roman law. Grounded in uncodified civil law dating back to the Corpus Juris Civilis, it also features elements of common law with medieval sources. Thus Scotland has a pluralistic, or 'mixed', legal system, of which South African law is comparable, and, to a lesser degree, the partly codified pluralistic systems of Louisiana and Quebec.

Since the Acts of Union, in 1707, it has shared a legislature with the rest of the United Kingdom. Scotland retained a fundamentally different legal system from that of England and Wales, but the Union brought English influence on Scots law. In recent years, Scots law has also been affected by European law under the Treaty of Rome, the requirements of the European Convention on Human Rights (entered into by members of the Council of Europe) and the establishment of the Scottish Parliament which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998.

Although there are many substantial differences between Scots law, English law and Northern Ireland law, much of the law is also similar, for example, Commercial law is similar throughout all jurisdictions in the United Kingdom, as is Employment Law. Different terminology is often used for the same concepts, for example, arbiters are called arbitrators in England. Another example would be the third verdict available to judges and juries (which consist of 15 members) in criminal cases: 'not proven'. The age of legal capacity under Scots law is 16, whereas under English law it is 18.

Legal system

Governance and administration

Many areas of Scots law are legislated for by the Scottish Parliament, whose authority devolved from the Parliament of the United Kingdom (Westminster). Areas of Scots law over which the Scottish Parliament has competency include health, education, criminal justice, local government, environment and civil justice amongst others. However, certain powers are reserved to Westminster such as defence, international relations, fiscal and economic policy, drugs law, and broadcasting, amongst others. The Scottish Parliament does retain limited tax raising powers.

Minister for Justice

The Scottish Government has executive responsibility for the Scottish legal system, which is headed by the Cabinet Secretary for Justice. The Minister for Justice has political responsibility for policing, law enforcement, the courts of Scotland, the Scottish Prison Service, fire services, civil emergencies and civil justice

Legal profession

The Scottish legal profession has two main branches, Advocates and Solicitors.

Advocates

Advocates, the equivalent of the English Barristers, belong to the Faculty of Advocates which distinguishes between junior counsel and senior counsel, the latter also known as Queen's Counsel. Advocates specialise in presenting cases before courts and tribunals, with near-exclusive (see solicitor-advocates below) rights of audience before the higher courts, and in giving legal opinions. They usually receive instructions indirectly from clients through solicitors, though in many circumstances they can be instructed directly by members of certain (professional) associations.

Furthermore, it used to be the case that Advocates were completely immune from suit etc while conducting court cases and pre-trial work, as they had to act 'fearlessly and independently'; the rehearing of actions was considered contrary to public interest; and Advocates are required to accept clients, they cannot pick and choose. However, the seven-judge English ruling of Arthur Hall v Simmons 2000 (House of Lords) declared that none of these reasons justified the immunity strongly enough to sustain it. This has been followed in Scotland in Wright v Paton Farrell obiter insofar as civil cases are concerned.

Solicitors

Solicitors, more numerous, are members of the Law Society of Scotland and deal directly with their clients in all sorts of legal affairs. In the majority of cases they present their client's case to the court, and while traditionally they did not have the right to appear before the higher courts, since 1992 they have been able to apply for extended rights, becoming solicitor-advocates - see below.

A solicitor also has the opportunity to become a notary public. These, like their continental equivalent, are members of a separate profession.

Solicitor-Advocates

While Solicitors and Advocates are distinct branches of the Scottish legal profession, there has been a blurring of this position in recent years. The Law Society of Scotland may, upon proof of sufficient knowledge through exams, practice, training etc, grant rights of audience before the higher courts to solicitors. This is due to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

Courts

Origins and historical development

By the late 11th century Celtic law applied over most of Scotland, with Old Norse law covering the areas under Viking control (resulting in Udal Law still in very limited force in Orkney and Shetland).

In following centuries as Norman influence grew and feudal relationships of government were introduced, Scoto-Norman law developed which was initially similar to Anglo-Norman law but over time differences increased (especially after 1328, with the end of the wars of Scottish Independence). Early in this process David I of Scotland established the office of Sheriff with civil and criminal jurisdictions as well as military and administrative functions. At the same time Burgh courts emerged dealing with civil and petty criminal matters, developing law on a continental model, and the Dean of Guild courts were developed to deal with building and public safety (which they continued to do into the mid 20th century).

From the end of the 13th century the Scottish parliament of the Three Estates developed Statute Laws.

Continental influence

From the 12th century the assimilation of the Celtic church into the Roman Catholic Church brought Canon law and Church courts dealing with areas of civil law, introducing Roman law based on 6th century law from the Eastern Roman empire of Justinian. This influence extended as Medieval Scots students of Civil or Canon Law mostly went abroad, to universities in Italy, France, Germany or the Netherlands. (The English universities, Oxford and Cambridge, were closed to Scots.) The University of St. Andrews, founded in 1413, included the teaching of Civil and Canon Law in its purposes, though it appears that little or no such teaching took place. The University of Glasgow (1451) was active in law teaching in its early years, one scholar there being William Elphinstone, who then studied abroad and went on to found the University of Aberdeen (1495) which taught canon law until the mid 16th century. Studying on the European mainland continued to be the norm for Scottish law students until the 18th century.

In the early 16th century a costly war pushed James V of Scotland to do a deal with Pope Paul III for funds in the form of a tithe on the church in exchange for agreeing to found a College of Justice, in 1532. By 1560 the Reformation removed Papal authority and Canon Law jurisdiction was taken over by the Commissary Courts, whose jurisdiction, along with that of the Scottish Court of Exchequer was subsumed into that of the Court of Session in the 19th century.

United Kingdom

The 1707 Treaty of Union, confirmed in the Act of Union, preserved the Scottish legal system, with provisions that the Court of Session or College of Justice (and the Court of Justiciary) ... remain in all time coming within Scotland, and that Scots Law remain in the same force as before. The Parliament of Great Britain was now unrestricted in altering laws concerning public right, policy and civil government, but concerning private right, only alterations for the evident utility of the subjects within Scotland were permitted. The Scottish Enlightenment then reinvigorated Scots law as a university-taught discipline. The transfer of legislative power to the Westminster parliament and the introduction of appeal to the House of Lords brought further English influence and it is sometimes stated that this marked the introduction of common law into the system, but Scots common law incorporates different principles and makes use of legal writings which long predate the Union (see Legal institutions of Scotland in the High Middle Ages).

Appeal decisions by English lords raised concerns about this appeal to a foreign system, and in the late 19th century Acts allowed for the appointment of Scottish Lords of Appeal in Ordinary. At the same time, a series of cases made it clear that no appeal lay from the High Court of Justiciary to the House of Lords. Nowadays the House of Lords judicial committee usually has a minimum of two Scottish Judges to ensure that some Scottish experience is brought to bear on Scottish appeals.

The Scottish Highlands had been affected by Scots law but remained largely independent, with remnants of Celtic law still in force. Their involvement in Jacobitism led to a series of Acts attempting to crush the Scottish clan structure and bring them firmly within Scots law. The Heritable Jurisdictions Act of 1747 removed the virtually sovereign power the chiefs had over their clan, but probably affected other hereditary offices more, with the result that sheriffs-depute, who had actually done the work for the hereditary office holders, became crown appointees and took over the role.

Scots law has continued to change and develop, with the most significant change coming with the establishment of the Scottish Parliament as described below.

Sources of law

Common law

Many Scots laws are simply part of the law of the land. For example, murder and theft are not defined in statute as offences, but come under Common Law. This has sources in custom, in legal writings and in previous court decisions. Unlike in English law, the use of such precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent.

The principles of natural justice and fairness have always formed a source of Scots Law and are applied by the courts without distinction from the law. Thus Scots Law does not have the complex construct of "Equity" applicable in England.

Certain texts, which come mostly from the 17th century, 18th century and 19th century can be used as authority in the courts in the absence of statute or case law. Their authors include Craig, Jus Feudale (1655) for feudal law, Stair, The Institutions of the Law of Scotland (1681) for civil law and David Hume (nephew of the namesake philosopher David Hume) for criminal law. These works may be treated as authoritative sources of the law and are described as "institutional" works. Other authorities may enjoy a particular reputation as being reliable statements of what the law is, if not absolutely authoritative. An example is Sir Gerald Gordon's Criminal Law of Scotland, (edited by Michael Christie), 3rd edition, 2001.

Statute law

Laws can be set by both the Scottish and Westminster Parliaments, and also the European Union. Acts of the Parliaments can also provide for more detailed laws made by secondary legislation known as Statutory Instruments which are then passed through Parliament more quickly and simply than Acts.

The Scottish Parliament

Some statutes of the pre-1707 Estates of Parliament are still in force, and are written in the Scots language. In 1999 the devolved Scottish Parliament with legislative competence over any matter not reserved to the United Kingdom Parliament at Westminster was established. Winnie Ewing (a Scottish National Party MSP) presided over the opening, and famously declared 'The Scottish Parliament, adjourned on the 25th day of March in the year 1707, is hereby reconvened'.

The Westminster Parliament remains the "sovereign legislature" as defined by Constitutional lawyers, retaining all legislative power in relation to Scotland, but the new Scottish Parliament at Holyrood makes full use of the powers given by the devolution settlement to set laws affecting the domestic affairs of Scotland.

The powers of the Scottish Parliament are set out in the Scotland Act 1998.

The United Kingdom Parliament

The Westminster Parliament serving the whole of the United Kingdom has set Statute law for Scotland since 1707, and continues to deal with reserved matters. Acts of the United Kingdom Parliament can apply to the whole of the UK including Scotland, to Scotland alone or not to Scotland at all. The Scotland Act 1998 does not affect the power of the Westminster Parliament to legislate as regards Scotland, but during its passage the Sewel Convention was established, which effectively requires the consent of the Scottish Parliament to Westminster legislation on devolved matters. Until 2007 both Parliaments were controlled by the same party (Labour), and it remains to be seen whether this convention will continue under the Scottish National Party minority government.

European law

European Union Regulations and many parts of the Treaty of Rome are directly applicable as law. EU directives passed by the Council of Ministers require member states to legislate to implement them.

Scottish courts are required to interpret legislation in a way compatible with the European Convention on Human Rights (an instrument of the Council of Europe not of the European Union). If the Scottish Parliament legislates contrary to the Convention the law can be struck down by the courts. Courts may make a declaration that an Act of the Westminster Parliament is incompatible with the Convention.

Branches of Scots law

The principal division in Scots Law is that between public law involving the state in some manifestation, and private law where only private persons are involved. Public law covers constitutional law, administrative law and criminal law and procedure. Private law covers those defined under The Law of Persons, including children, adults, partnerships (where the partnership is a separate "juristic person" from the individuals in it, which is not the case in English law) and limited companies.

Private law

See also Law of obligations.

Contract

Contract is created by bilateral agreement and is distinguished from unilateral promise, the latter being recognised as a distinct and enforceable species of obligation in Scots Law. The English requirement for consideration does not apply in Scotland, so it is possible to have a gratuitous contract, i.e. a contract where only one of the parties comes under any duties to the other (e.g. a contract to perform services for no consideration).

Note however that not all declarations made by a person to another person will amount to a promise that is enforceable under Scots law. In particular, a declaration of intention, a testamentary provision and an offer will not be a promise.

At common law, a promise had to be proved by writ or oath. However, after the introduction of the Requirements of Writing (Scotland) Act 1995, a promise need only be evidenced in writing for:

• the creation, transfer, variation or extinction of an interest in land (s 1(2) (a)(i) of Requirements of Writing (Scotland) Act 1995); and

• a gratuitous unilateral obligation except an obligation undertaken in the course of business (s 1(2) (a)(ii) of Requirements of Writing (Scotland) Act 1995.) [Note that this section has caused great debate amongst academics as to the meanings of "unilateral" and "gratuitous". Some believe that the inclusion of the two terms in this section points to a desire of the drafters that they be given different meanings. This would allow some promises to be unilateral but not gratuitous. This argument was particularly discussed by both Martin Hogg (Edinburgh University) and Joe Thomson (Glasgow University) in articles for the Scots Law Times (News) in 1998 and 1997 respectively. See also "Contract Law in Scotland", by MacQueen and Thomson (3rd edition, 2007), and "Obligations" by Martin Hogg (2nd edition, 2006).

Delict

Delict deals with the righting of legal wrongs in civil law, on the principle of liability for loss caused by failure in the duty of care, whether deliberate or accidental. While it broadly covers the same ground as the English law of Tort, the Scots law is different in many respects and concentrates more on general principle and less on specific wrongs. While some terms such as assault, defamation are used in both systems, their technical meanings differ.

"Delict" as a word derives from the Latin "delictum" and as a branch of Scots Law revolves around the fundamental concept "Damnum Injuria Datum" - literally loss wrongfully caused. Where A has suffered wrongful loss at the hands of B (generally where B was negligent) B is under a legal obligation to make reparation. There are many many various delicts which can be committed, ranging from assault to procurement of breach of contract.

The landmark decision on establishing negligence, for Scotland and for the rest of the United Kingdom, is the Scottish case of Donoghue v. Stevenson ([1932] AC 562) which, while strictly a Scottish case, quickly established itself as the leading authority in the field of negligence in English Law also.

Mrs Donoghue had been enjoying an ice cream with ginger beer her friend had bought her in Mr Minchella's café in Paisley, when she emptied the opaque ginger beer bottle out and the decomposing remains of a snail emerged. Interestingly owing to quirks of the case it was never established that the drink was ginger beer in the literal sense. It is common in Paisley and surrounding areas to use the term 'ginger' to describe a variety of carbonated drinks. The case however proceeds on the assumption that ginger beer was served in opaque bottles preventing discovery of the snail, had it actually been a clear bottle the case may have gone differently. Her distress and subsequent illness was such that she was determined to bring an action for damages — but the poor woman had no contract with the café proprietor as her friend had paid, so she sued the manufacturer for his negligence. The case of the snail in the bottle was taken to the House of Lords who found that the manufacturer does indeed have a duty of care, subject to restrictions. This decision had influence in many countries and established the "neighbourhood principle" in Scots Law.

Property law

Scots Law of Property distinguishes between Heritable property, such as land and buildings, and Moveables, which include including physically moveable objects, title to which normally passes only on delivery; and moveable rights including intellectual property such as patents, trade marks and copyrights. It is worth noting that agreement on an offer for property purchase is a legally binding contract, resulting in a system of conveyancing where buyers get their survey done before making a bid to the seller's solicitor, and after a closing date for bids the seller's acceptance is binding on both parties, preventing gazumping. In recent times sales of house by way of offering to sell to the first party to make an unconditional offer of a fixed price has eroded the traditional offers over system.

Feudal law

The feudal system lingered on in Scots law on land ownership, so that a landowner as a vassal still had obligations to a feudal superior including payment of feu duty. This enabled developers to impose perpetual conditions dictating how buildings had to be constructed and maintained, but added complications and became abused to demand payments from vassals who wanted to make minor changes. In 1974 legislation began a process of redeeming feu duties so that most of these payments were ended, but it was only with the attention of the Scottish Parliament that a series of acts were passed to end the disadvantages while keeping the benefits of the system, the first in 2000, the Abolition of Feudal Tenure etc. (Scotland) Act 2000, coming into force on November 28 2004.

Udal law

The Northern Isles used a system called Udal Law, owing to their former status as territory of Norway. However, following legal reforms in November 2004, the significance of udal law in those islands is greatly reduced.

Intellectual property law

Intellectual property (IP) in Scotland is governed mostly by statute, however it was a Scottish case Wills v Zetnews (1997 FSR 604) that first applied the existing copyright law to the internet by categorising the net as a cable programme. This definition has now been superseded by European directives but the principle still stands.

Public law

Criminal law

Scots criminal law relies far more heavily on Common Law than in England. Scots criminal law includes offences against the person of murder, culpable homicide, rape and assault, offences against property such as theft and malicious mischief, and public order offences such as mobbing and breach of the peace. Some areas of criminal law, such as misuse of drugs and traffic offences appear identical on both sides of the Border. In fact, the Scots requirement of corroboration in criminal matters changes the practical prosecution of crimes derived from the same enactment.
Crown Office and Procurator Fiscal Service
The Crown Office and Procurator Fiscal Service provides independent public prosecution of criminal offences in Scotland (as the more recent Crown Prosecution Service does in England and Wales) and has extensive responsibilities in the investigation and prosecution of crime. The Crown Office is headed by the Lord Advocate, in whose name all prosecutions are carried out, and employs Advocates Depute (for the High Court of Justiciary) and Procurators Fiscal (for the Sheriff Courts) as public prosecutors.

Private prosecutions are very rare in Scotland. These require "Criminal Letters" from the High Court of the Justiciary. Criminal Letters are unlikely to be granted without the agreement of the Lord Advocate.

"Not proven" verdict

The Scots legal system is unique in having three possible verdicts for a criminal trial: "guilty", "not guilty" and "not proven". Both "not guilty" and "not proven" result in an acquittal with no possibility of retrial. The third verdict resulted from historical accident, in that there was a practice at one point of leaving the jury to determine factual issues one-by-one as "proven" or "not proven". It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. Now the jury decides this question after legal advice from the judge, but the "not proven" verdict lives on. The "not proven" verdict is often taken by juries and the media as meaning "we know they did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy.

In February 1999, United States Senator Arlen Specter voted against conviction in the impeachment trial of Bill Clinton, citing the concept of the "not proven" as a basis for his decision. Another recent example is seen in the case of Sean Flynn, who stood trial at the High Court in Perth accused of murdering his mother, Louise Tiffney Responding to the "not proven" verdict delivered on 16 March 2005, some of Flynn's relatives expressed their dissatisfaction, including Flynn's aunt, June Tiffney, who stated the verdict was "not justice" for her sister.

However, the Scottish legal profession is largely opposed to this perception of the not-proven verdict. In a Scottish criminal trial, the burden of proof lies on the prosecution, and the guilt of the accused must be proven "beyond reasonable doubt." It is therefore the role of the prosecution to produce enough evidence, whether direct or circumstantial, which must be relevant, admissible and of enough weight to procure a prosecution. Where the prosecution fails in this role, the jury will feel doubt as to the guilt of the accused and cannot return a verdict of guilty. Therefore, the 15 jurors can declare a not-proven verdict, alerting the prosecution to the fact that its performance and/or evidence and/or witnesses were poor.

Notable criminal cases

References

See also

External links

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