The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or the former Sheriff Court building in Edinburgh, or in dedicated buildings in Glasgow and Aberdeen. 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 in the Netherlands during the Pan Am Flight 103 bombing trial, as the Scottish Court in the Netherlands. At Zeist the High Court sat both as a trial court, and an appeal court for the initial appeal by Abdelbaset al-Megrahi.
The president of the High Court is the Lord Justice General, who holds office ex officio by virtue of being Lord President of the Court of Session, and his depute is the Lord Justice Clerk. 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 and judges of the Court of Session. 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 on a majority verdict. In some cases, such as the trial of Abdelbaset al-Megrahi and Lamin Khalifah Fhimah for the bombing of Pan Am Flight 103, 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. The High Court will hear appeals from the sheriff courts of Scotland where the trial was under solemn proceedings; the High Court will also hear referrals on points of law from the Sheriff Appeal Court, and from summary proceedings in the sheriff courts and justice of the peace courts.
Cases can be remitted to the High Court by the sheriff courts after conviction for sentencing, where a sheriff believes that their sentencing powers are inadequate. The High Court can impose a life sentence but the sheriff has a limit of five years sentencing; both can issue an unlimited fine.
|High Court of Justiciary|
Royal Coat of Arms of the United Kingdom as used by the Courts in Scotland
|Composition method||Appointed by the Monarch on recommendation of the First Minister of Scotland or Scottish Ministers who receive a recommendation from the Judicial Appointments Board for Scotland|
|Appeals to||Limited appeals on points of law to Supreme Court of the United Kingdom|
|Judge term length||Mandatory retirement at age 75|
|Number of positions||35|
|Lord Justice General|
|Currently||Colin Sutherland, Lord Carloway|
|Since||18 December 2015|
|Lord Justice Clerk|
|Since||13 April 2016|
The origins derive from the Justiciar and College of Justice, as well as from the medieval royal courts and barony courts. The medieval Justiciar (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.
The King of Scots 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 in civil cases but not in criminal ones. In 1532 the College of Justice was founded, separating civil and criminal 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 advised the Justiciar and his deputes as they were generally noblemen and often not legally qualified. This clerk prepared all the indictments 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.
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) 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 Justice Clerk, 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.
Article XIX of the Treaty of Union that united Scotland and England into Great Britain preserved the High Court of Justiciary, though now the High Court was subject to the Parliament of Great Britain 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 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.
The High Court of Justiciary remained the final authority on all matters of criminal law after the Act of Union, though the Parliament of Great Britain appears to have had appellate jurisdiction through the judicial functions of the House of Lords 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.
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.
In 1834 the five Lords of Session who were appointed as Lords Commissioners of Justiciary were paid an additional allowance of £600 over their basic salary of £2,000.[note 1] A Select Committee of the House of Commons was appointed to investigate the remuneration and working conditions 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 £3,000.
The membership of the court remained unchanged until 1887 when all of the Senators of the College of Justice 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.
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 to hear civil appeals, but that the pre-union Parliament did not have any jurisdiction to hear criminal appeals.
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:
...every interlocutor and sentence pronounced by the High Court under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever...— Section 124, Criminal Procedure (Scotland) Act 1995
Scottish devolution and the establishment of the Scottish Parliament by the Scotland Act 1998 introduced the right to refer points of law to the Judicial Committee of the Privy Council. Such points of law related to human rights compatibility issues or related to devolution issues. Devolution issues are concerned with the legislative competence of the Scottish Parliament and the executive functions of the Scottish Government under the Scotland Act 1998.
From May 2000 until March 2002 the High Court of Justiciary sat as the Scottish Court in the Netherlands to try Abdelbaset al-Megrahi and Lamin Khalifah Fhimah for the bombing of Pan Am Flight 103. The Pan Am Flight 103 bombing trial required a treaty between the Government of the United Kingdom and Government of the Kingdom of the Netherlands which created extraterritoriality for the Scottish Court, with Camp Zeist in Utrecht (a disused United States Air Force base) made a subject of Scots law.
Legal effect was given to the treaty in the United Kingdom by the High Court of Justiciary Order 1998, an Order in Council. The order empowered the Lord Justice Clerk to appoint three Lords Commissioners of Justiciary to sit as bench trial as both trier of fact and for determining any points of law. The High Court had full authority to determine contempt of court 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.
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 by the Constitutional Reform Act 2005. Such a transfer was not without controversy, as commentators, including the Law Society of Scotland and the Advocate General for Scotland, 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:
The changes to the Supreme Court’s jurisdiction, first, in Scottish criminal cases as a result of the Scotland Act 2012 (‘the 2012 Act’) which ensured that the High Court of Justiciary retained the power ultimately to resolve cases once the Supreme Court has determined the legal question at issue— The Jurisdiction of the Supreme Court of the United Kingdom in Scottish Appeals
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, 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.
The High Court has jurisdiction over all crimes in Scotland unless restricted by statute. The High Court has exclusive jurisdiction over serious crimes such as treason, murder, and rape and, in practice, deals with armed robbery, drug trafficking, and sexual offences involving children (over which it shares jurisdiction with the sheriff court).
As a court of first instance the court sits regularly in various places in Scotland, with permanent seats in Edinburgh, Glasgow and Aberdeen. There are sittings when required in Dumbarton, Lanark, Livingston, Paisley and Stirling.
Trials in the High Court are usually jury trials, with a single Lord Commissioner of Justiciary presiding (although two or more judges may sit in important or difficult cases) with a jury of fifteen individuals; in Scotland this is known as solemn proceedings. Under the Scottish legal system, the jury can convict on a majority verdict of at least eight jurors, and need not return a unanimous verdict. The Scottish legal system also permits a verdict of 'not proven' as well as verdicts of 'guilty' or 'not guilty'. Juries may add a rider to their verdict as additional commentary on their verdict. The 'not proven' verdict may be given when a jury is not prepared to utter 'not guilty' or where the jury has lingering doubts; however if eight jurors cannot agree on an accused's guilt or on an alternative verdict, then the accused will be acquitted.
Cases in the High Court are prosecuted in the public interest by the Lord Advocate, who is usually represented in such cases by Advocates Depute. A private prosecution 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.:739 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 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, had removed the previous restrictions on bail that meant that murder and treason were not ordinarily bailable. However, a person could be bailed when accused of these of crimes on application of the Lord Advocate 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.
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 or an unlimited fine, and the High Court can impose a life sentence (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.
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 in either the High Court or sheriff courts, with the High Court sitting as the Appeal Court.:Sections 106 and 107
Appeals against convictions or sentence in summary procedure heard in sheriff courts and justice of the peace courts 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 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, 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 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.
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 to the Supreme Court of the United Kingdom relating to human rights compatibility issues or relating to devolution issues. Devolution issues are concerned with the legislative competence of the Scottish Parliament and the executive functions of the Scottish Government under the Scotland Act 1998. 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, which mandates the right to a fair trial, and the role of the Lord Advocate who is both the chief public prosecutor 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. 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 without granting that person access to a solicitor. This was one case, along with Fraser v HM Advocate, that led the Scottish Government to raise concerns with HM Government 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 renderring 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.
The Supreme Court of the United Kingdom was established by the Constitutional Reform Act 2005, and is the highest court in the United Kingdom 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, whose members were the Lords of Appeal in Ordinary (who exercised the judicial functions of the House of Lords.) However, the two bodies were legally and constitutionally separate.
In the most exceptional of circumstances, an appeal may be made to the European Court of Justice (ECJ) of the Court of Justice of the European Union (CJEU), subject to an application for permission from both the High Court of Justiciary and the United Kingdom Supreme Court (UKSC) being granted, or to the European Court of Human Rights (ECtHR), or both.
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 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 as Scottish Statutory Instruments, under powers granted by Section 305 of the Criminal Procedure (Scotland) Act 1995.:Section 305 Schedule 6 of the Scotland Act 1998 also grants that Acts of Adjournal can be used to regulate the procedure for referring a question of law relating to a devolution issue to either the High Court or the Supreme Court of the United Kingdom.:Schedule 6
Section 305 of the 1995 Act states:
(1) The High Court may by Act of Adjournal—
- (a) regulate the practice and procedure in relation to criminal procedure;
- (b) make such rules and regulations as may be necessary or expedient to carry out the purposes and accomplish the objects of any enactment (including an enactment in this Act) in so far as it relates to criminal procedure;
- (c) subject to subsection (5)[note 2] below, to fix and regulate the fees payable in connection with summary criminal proceedings; and
- (d) make provision for the application of sums paid under section 220 of this Act and for any matter incidental thereto.
(2) The High Court may by Act of Adjournal modify, amend or repeal any enactment (including an enactment in this Act) in so far as that enactment relates to matters with respect to which an Act of Adjournal may be made under subsection (1) above...— Section 305, Criminal Procedure (Scotland) Act 1995:Section 305
Thus the Lord Justice General, Lord Justice Clerk, and Lords Commissioners of Justiciary have the power to modify and amend primary legislation, 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 indictments 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.
Members of the Faculty of Advocates, known as advocates or counsel, and as of 1990 also some solicitors, known as solicitor-advocates, have practically exclusive right of audience 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.
The court's president is the Lord Justice General; the second most senior judge is the Lord Justice Clerk; and a further 35 Senators of the College of Justice 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 (the last order was made in 2016 and increased the number of judges to 35.) 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 and the Lord Justice Clerk holding the same rank and title: Lord Commissioner of Justiciary. There are 35, in addition to a number of temporary judges; these temporary judges can be sheriffs principal, sheriffs, or advocates in private practice. The judges sit also in the Court of Session, 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 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.
|Name||Judicial title||Office||Year appointed to High Court|
|Colin J MacLean Sutherland||The Rt Hon Lord Carloway||Lord Justice General||2008|
|Leeona J Dorrian||The Rt Hon Lady Dorrian||Lord Justice Clerk||2012|
|Ann Paton||The Rt Hon Lady Paton||Lord Commissioner of Justiciary||2007|
|Duncan Adam Young Menzies||The Rt Hon Lord Menzies||Lord Commissioner of Justiciary||2012|
|Anne Smith||The Rt Hon Lady Smith||Lord Commissioner of Justiciary||2012|
|Philip Hope Brodie||The Rt Hon Lord Brodie||Lord Commissioner of Justiciary||2012|
|Alastair P Campbell||The Rt Hon Lord Bracadale||Lord Commissioner of Justiciary||2013|
|James Edward Drummond Young||The Rt Hon Lord Drummond Young||Lord Commissioner of Justiciary||2013|
|Angus Glennie||The Rt Hon Lord Glennie||Lord Commissioner of Justiciary||2016|
|Lynda Clark||The Rt Hon the Lady Clark of Calton||Lord Commissioner of Justiciary||2013|
|Alan Turnbull||The Rt Hon Lord Turnbull||Lord Commissioner of Justiciary||2016|
|Colin Malcolm Campbell||The Rt Hon Lord Malcolm||Lord Commissioner of Justiciary||2014|
|Colin Boyd||The Rt Hon the Lord Boyd of Duncansby||Lord Commissioner of Justiciary||2012|
|Alexander F Wylie||The Hon Lord Kinclaven||Lord Commissioner of Justiciary||2005|
|S Neil Brailsford||The Hon Lord Brailsford||Lord Commissioner of Justiciary||2006|
|Roderick F Macdonald||The Hon Lord Uist||Lord Commissioner of Justiciary||2006|
|Hugh Matthews||The Hon Lord Matthews||Lord Commissioner of Justiciary||2006|
|Paul Cullen||The Hon Lord Pentland||Lord Commissioner of Justiciary||2008|
|Stephen Errol Woolman||The Hon Lord Woolman||Lord Commissioner of Justiciary||2008|
|Iain Alexander Scott Peebles, QC||The Hon Lord Bannatyne||Lord Commissioner of Justiciary||2008|
|Valerie E Stacey||The Hon Lady Stacey||Lord Commissioner of Justiciary||2009|
|Colin Jack Tyre CBE||The Hon Lord Tyre||Lord Commissioner of Justiciary||2010|
|J Raymond Doherty||The Hon Lord Doherty||Lord Commissioner of Justiciary||2010|
|David Burns||The Hon Lord Burns||Lord Commissioner of Justiciary||2012|
|Margaret E Scott||The Hon Lady Scott||Lord Commissioner of Justiciary||2012|
|Morag Wise||The Hon Lady Wise||Lord Commissioner of Justiciary||2013|
|Iain Armstrong||The Hon Lord Armstrong||Lord Commissioner of Justiciary||2013|
|Rita Rae||The Hon Lady Rae||Lord Commissioner of Justiciary||2014|
|Sarah Wolffe QC||The Hon Lady Wolffe||Lord Commissioner of Justiciary||2014|
|John Beckett QC||The Hon Lord Beckett||Lord Commissioner of Justiciary||2016|
|Alistair Clark QC||The Hon Lord Clark||Lord Commissioner of Justiciary||2016|
|Andrew Stewart QC||The Hon Lord Ericht||Lord Commissioner of Justiciary||2016|
|Ailsa Carmichael QC||The Hon Lady Carmichael||Lord Commissioner of Justiciary||2016|
|Frank Mulholland QC||The Rt Hon Lord Mulholland||Lord Commissioner of Justiciary||2016|
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 or sheriff principal; or been an advocate for 5 years, or a solicitor with 5 years rights of audience before the Court of Session or High Court of Justiciary; or been a Writer to the Signet 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 on the recommendation of the Judicial Appointments Board for Scotland. 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:
Temporary judges will be used only where there are, for reasons of a temporary nature, an insufficient number of permanent judges to meet the demands of business and the Lord President has approved their use.— Lord Gill, Guidelines for the Use of Temporary Judges (2013)
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 or sheriff); as opposed to using temporary judges who were practising advocates 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.
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 can resolve that the First Minister make a recommendation to the Monarch.
The administration of the court is part of the Scottish Courts and Tribunals Service, and is led by the Principal Clerk of Session and Justiciary. The Principal Clerk is responsible for the administration of the Supreme Courts of Scotland and their associated staff. As of April 2017 the Principal Clerk was Graeme Marwick, who was also Director of the Scottish Courts and Tribunals Service.
Until the introduction of the Law Reform (Miscellaneous Provisions) (Scotland Act) 1990, only advocates were allowed to plead in the High Court and Court of Session, Scotland’s supreme criminal and civil courts. The Act extended rights of audience to suitably qualified solicitors and there are now about 250 registered solicitor advocates in Scotland competing for work with advocates.
The Lord President is the Head of the Scottish Judiciary.
Office of lord justice general to devolve on lord president.
The judicial offices within the Board's remit are— (a)the office of judge of the Court of Session, ... (c)the office of temporary judge (except in any case where the individual to be appointed to the office holds or has held one of the offices mentioned in subsection (2))...]
The Supreme Courts are made up of: the Court of Session, the High Court of Justiciary and the Accountant of Court's Office. The Principal Clerk of Session and Justiciary is responsible for the administration of these areas
An Act of Adjournal is secondary legislation made by the High Court of Justiciary, the supreme criminal court of Scotland, to regulate the proceedings of Scottish courts hearing criminal matters. Now primarily derived from the Criminal Procedure (Scotland) Act 1995, the original power to create Acts of Adjournal is derived from an Act of the Parliament of Scotland of 1672. Before promulgation, Acts of Adjournal are reviewed and may be commented upon by the Criminal Courts Rules Council.Following Scottish devolution and the establishment of the Scottish Parliament, Acts of Adjournal are made as Scottish Statutory Instruments. Before devolution, Acts were made as United Kingdom Statutory Instruments.Brennan v HM Advocate
Brennan v HM Advocate 1977 JC 38 was a Scots criminal appeal case decided in the High Court of Justiciary in its capacity as the Court of Criminal Appeal. The case set the precedent that voluntary intoxication, whether by drink or drugs, cannot be used to establish defences of automatism or insanity.
Brennan had been convicted of murdering his father during a state of intoxication. This was held not to qualify as automatism as the appelant had entered this state voluntarily. The Court-based this reasoning on a number of passages from the work of Baron Hume, one of the institutional writers.
It was also held insufficient to meet the requirements of the special defence of insanity. Lord Justice General Lord Emslie stated:
"In the law of Scotland a person who voluntarily and deliberately consumes known intoxicants, including drink or drugs, of whatever quantity, for their intoxicating effects, whether these effects are fully foreseen or not, cannot rely on the resulting intoxication as the foundation of a special defence of insanity at the time nor, indeed, can he plead diminished responsibility."The defendant's appeal against conviction for murder was refused.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, and the Auditor of the Court of Session. Its associated bodies are the Faculty of Advocates, the Society of Writers to Her Majesty's Signet and the Society of Solicitors in the Supreme Courts of Scotland.
The College is headed by the Lord President of the Court of Session, who also holds the title of Lord Justice General in relation to the High Court of Justiciary, and judges of the Court of Session and High Court are titled Senators of the College of Justice.Court of Session
The Court of Session (Scottish Gaelic: Cùirt an t-Seisein; Scots: Coort o 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 and is both a trial court and a court of appeal. Decisions of the court can be appealed to the Supreme Court of the United Kingdom, with the permission of either the Inner House or the Supreme Court. The Court of Session and the local sheriff courts of Scotland have concurrent jurisdiction for all cases with a monetary value in excess of £100,000; the pursuer is given first choice of court. However, the majority of complex, important, or high value cases are brought in the Court of Session. Cases can be remitted to the Court of Session from the sheriff courts, including the Sheriff Personal Injury Court, at the request of the presiding sheriff. Legal aid, administered by the Scottish Legal Aid Board, is available to persons with little disposable income for cases in the Court of Session.
The court is a unitary collegiate court, with all judges other than the Lord President of the Court of Session and the Lord Justice Clerk holding the same rank and title—Senator of the College of Justice and also Lord or Lady of Council and Session. The Lord President is chief justice of the court, and also head of the judiciary of Scotland; the Lord Justice Clerk is his deputy. There are 35 Senators, in addition to a number of temporary judges; these temporary judges are typically serving sheriffs and sheriffs principal, or advocates in private practice. The Senators sit also in the High Court of Justiciary, where the Lord President is called the Lord Justice General, and Senators are known as Lords Commissioners of Justiciary.
The court is divided into the Inner House of twelve Senators, which is primarily an appeal court, and the Outer House, which is primarily a court of first instance. The Inner House is further divided into two divisions of six senators: the first division is presided over by the Lord President, and the second division is presided over by the Lord Justice Clerk. Cases in the Inner House are normally heard before a bench of three Senators, through more complex or important cases are presided over by five senators. On very rare occasions the whole Inner House has presided over a case. Cases in the Outer House are heard by a single senator sitting as a Lord Ordinary, occasionally with a jury of twelve.
The court is administered by the Scottish Courts and Tribunals Service, and the most senior clerk of court is the Principal Clerk of Session and Justiciary; the Principal Clerk is responsible for all court staff, and is also responsible for the administration of the High Court of Justiciary.
The court was established in 1532 by an Act of the Parliament of Scotland, and was initially presided over by the Lord Chancellor of Scotland and had equal numbers of clergy and laity. The judges were all appointed from the King's Council.
As of May 2017, the Lord President was Lord Carloway, who was appointed on 19 December 2015, and the Lord Justice Clerk was Lady Dorrian, who was appointed on 13 April 2016.Courts of Scotland
The courts of Scotland are responsible for administration of justice in Scotland, under statutory, common law and equitable provisions within Scots law. The courts are presided over by the judiciary of Scotland, who are the various judicial office holders responsible for issuing judgments, ensuring fair trials, and deciding on sentencing. The Court of Session is the supreme civil court of Scotland, subject to appeals to the Supreme Court of the United Kingdom, and the High Court of Justiciary is the supreme criminal court, which is only subject to the authority of the Supreme Court of the United Kingdom on devolution issues and human rights compatibility issues.
The judiciary of Scotland, except the Lord Lyon King of Arms, are united under the leadership and authority of the Lord President and Lord Justice General, who is the president of the Court of Session and High Court of Justiciary. The Court of Session has the authority, under the Courts Reform (Scotland) Act 2014, to regulate civil procedure through passing subordinate legislation knows as Acts of Sederunt, and the High Court of Justiciary has the authority to regulate criminal procedure through passing Acts of Adjournal. Both Acts of Sederunt and Acts of Adjournal have the capacity to amend primary legislation where it deals with civil or criminal procedure respectively.
The majority of criminal and civil justice in Scotland is handled by the local sheriff courts, which are arranged into six sheriffdoms led by a sheriff principal. The sheriff courts have exclusive jurisdiction over all civil cases with a monetary value up to £100,000, and are able to try criminal cases both on complaint for summary offences, and with a jury for indictable offences. Treason, murder, and rape are in the exclusive jurisdiction of the High Court of Justiciary, and whilst the High Court and sheriff courts have concurrent jurisdiction over armed robbery, drug trafficking, and sexual offences involving children virtually all these cases are heard by the High Court.
Administration for the courts is provided by the Scottish Courts and Tribunals Service, a non-ministerial department of the Scottish Government. The Scottish Courts and Tribunal Service is operationally independent of the Scottish Ministers, and is governed by a corporate board chaired by the Lord President, and with a majority of judicial members.
There are various specialist courts and tribunals with specialist jurisdictions, which are subject to the ultimate jurisdiction of either the Court of Session or High Court of Justiciary, including . Children under the age of 16 who face allegations of criminal conduct are dealt with through the Children's Hearings, which are quasi-judicial in nature. Disputes involving agricultural tenancies and crofting are dealt with by the Scottish Land Court, and disputes about private rights in titles for land ownership and land valuation are dealt with by the Lands Tribunal for Scotland. Heraldry is regulated in Scotland both by the civil and criminal law, with prosecutions taken before the Court of the Lord Lyon.
Defunct and historical courts include the Admiralty Court, Court of Exchequer, district courts, and the High Court of Constabulary.Iain Peebles, Lord Bannatyne
Iain Alexander Scott Peebles, Lord Bannatyne is a Senator of the College of Justice, a judge of the High Court of Justiciary and Court of Session in Scotland.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 Lord Clerk Register, the status of the office increased over time and the Justice-Clerk came to claim a seat on the Bench by practice and custom. This was recognised by the Privy Council of Scotland in 1663 and the Lord Justice Clerk became the effective head of the reformed High Court of Justiciary in 1672 when the court was reconstituted. The Lord Justice Clerk now rarely presides at criminal trials in the High Court, with most of his or her time being spent dealing with civil and criminal appeals.
The Lord Justice Clerk has the title in both the Court of Session and the High Court of Justiciary and, as President of the Second Division of the Inner House, is in charge of the Second Division of Judges of the Inner House of the Court of Session. The office is one of the Great Officers of State of Scotland.
The current Lord Justice Clerk is Leeona Dorrian, Lady Dorrian, who was appointed to the position on 13 April 2016.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 Lord President holds the title of Lord Justice General of Scotland and the head of the High Court of Justiciary ex officio, as the two offices were combined in 1836. The Lord President has authority over any court established under Scots law, except for the Supreme Court of the United Kingdom and the Court of the Lord Lyon.
The current Lord President of the Court of Session is Lord Carloway, who was appointed to the position on 18 December 2015. They are paid according to Salary Group 1.1 of the Judicial Salaries Scale, which in 2016 was £222,862.Not proven
Not proven is a verdict available to a court 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").Between the Restoration in the late 17th century and the early 18th century, jurors in Scotland were expected only to find whether individual factual allegations were proven or not proven, rather than to rule on an accused's guilt. In 1728, the jury in a murder trial asserted "its ancient right" to declare a defendant "not guilty". Over time, the "not guilty" verdict regained wide acceptance and use amongst Scots juries, with the encouragement of defence lawyers. It eventually displaced "not proven" as the primary verdict of acquittal. Nowadays, juries can return a verdict of either "not guilty" or "not proven", with the same legal effect of acquittal.Out of the country, the "not proven" verdict may be referred to as the Scottish verdict, and in Scotland itself it may be referred to colloquially as the bastard verdict, which was a term coined by Sir Walter Scott, who was sheriff in the court of Selkirk.Orkney child abuse scandal
The Orkney child abuse scandal began on 27 February 1991 when social workers and police removed some children from their homes on the island of South Ronaldsay, in Orkney, Scotland, because of allegations of child abuse. The children denied that any abuse had occurred, and medical examinations did not reveal any evidence of abuse.PS Orion (1847)
Orion was a G & J Burns paddle steamer, built by Caird & Co in 1847, which struck a submerged rock and sank off Portpatrick Lighthouse, Wigtownshire, Scotland, on 18 June 1850 on her way from Liverpool to Glasgow, with the loss of 41 of the 200 passengers on board. The eminent surgeon John Burns was one of the passengers killed in the accident. Some of the survivors were rescued by the Isle of Man vessel Fenella, others by boats from Portpatrick.Her captain was found guilty of the "culpable bereavement of the lives of the passengers" and was imprisoned for 18 months. Her second mate was transported.The incident was described in the 1851 book The wreck of the Orion, a Tribute of Gratitude by Reverend Joseph Clarke, who was one of the survivors.Principal Clerk of Session and Justiciary
"Clerk of Session" redirects here; not to be confused with Session Clerk, see Moderators and clerks in the Church of Scotland.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 to allow Her Majesty's Signet to be used.
Gillian Prentice was the first woman to hold the post. The current Principal Clerk is Graeme Marwick.The modern office unites the originally separate offices of Principal Clerk of Session (of the Court of Session) and Principal Clerk of Justiciary (of the High Court of Justiciary).
The Crown Agent takes directions from the Principal Clerk of Justiciary when arranging sittings of the High Court of Justiciary.Risk Management Authority (Scotland)
The Risk Management Authority is an executive non-departmental public body of the Scottish Government with responsibility for assessing and managing the risks posed by certain serious violent and sexual offenders in Scotland. The Authority was established in 2005 by the Criminal Justice (Scotland) Act 2003.
The Authority is required to assess the risk posed by serious offenders at sentencing when the High Court of Justiciary will issue a Risk Assessment Order, and will provide a Risk Assessment Report to the High Court. The judge may then issue an Order for Lifelong Restriction, at which point the authority will have to draw up a Risk Management Plan for the offender.
The Authority is based in Paisley.Ross v HM Advocate
HM Advocate v Ross was a 1991 Scots criminal law case decided by the High Court of Justiciary. The defendant had been charged with violently attacking others in a public house, but was allowed to go free on the premise that he was in a state of non-self-induced automatism. Others in the bar had slipped LSD and other drugs into his beer without him knowing, and there was only a small amount of alcohol he had been drinking so he was not responsible for his intoxication which led to the violent actions.
This case set a key precedent in Scots law for automatism, namely that since this case, if someone has been under the effect of drugs that they themselves did not voluntarily know they were taking or were under the influence of and commit a violent act, it may be a defence for them in court if they can prove or give evidence that their intoxication was not self-induced.
Later cases suggested that the Scottish precedent established in Ross would be followed in England as well.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 called Camp Zeist in Utrecht, in the Netherlands, for the trial of two Libyans charged with 270 counts of murder in connection with the bombing of Pan Am Flight 103 over Lockerbie, Scotland, on 21 December 1988. A school on the former base was converted into a judicial court for the trial.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 1997).
The Commission has the statutory power to refer cases dealt with on indictment (ie solemn procedure cases) to the High Court of Justiciary. This was extended to include summary cases by Statutory Instrument on 31 March 1999, immediately before the Commission took up its role in April 1999.
Though funded by the Scottish Government, investigations are carried out independently of Scottish Ministers, with the Commission being accountable to the Scottish Parliament on matters of finance and administration.Scottish Sentencing Council
The Scottish Sentencing Council is an advisory non-departmental public body in Scotland that produces sentencing guidelines for use in the High Court of Justiciary, sheriff courts and justice of the peace courts. Judges, sheriffs, and justices of the peace must use the guidelines to inform the sentence they pronounce against a convict, and they must give reasons for not following the guidelines.
The Scottish Sentencing Council was established by the Scottish Ministers on 19 October 2015 under powers granted by the Criminal Justice and Licensing (Scotland) Act 2010. All sentencing guidelines are submitted to the High Court of Justiciary for approval, and the High Court may approve, amend, or reject the guidelines produced by the Council.Sheriff court
A sheriff court (Scottish Gaelic: cùirt an t-siorraim) is the principal local civil and criminal court in Scotland, with exclusive jurisdiction over all civil cases with a monetary value up to £100,000, and with the jurisdiction to hear any criminal case except treason, murder, and rape which are in the exclusive jurisdiction of the High Court of Justiciary. Though the sheriff courts have concurrent jurisdiction with the High Court over armed robbery, drug trafficking, and sexual offences involving children, the vast majority of these cases are heard by the High Court. Each court serves a sheriff court district within one of the six sheriffdoms of Scotland. Each sheriff court is presided over by a sheriff, who is a legally qualified judge, and part of the judiciary of Scotland.
Sheriff courts hear civil cases as a bench trial without a jury, and make determinations and judgments alone. However, the specialist all-Scotland Sheriff Personal Injury Court (based in Edinburgh) has the ability to hear cases at proof with a jury of twelve. Sheriff courts hear criminal trials on complaint as a bench trial for summary offences, and as a trial with a jury of fifteen for indictable offences. Where a person is convicted following a case heard on complaint they can be sentenced to a maximum of twelve months imprisonment and/or a £10,000 fine, and in solemn cases 5 years imprisonment or an unlimited fine.
Judgments of the sheriff courts in criminal offences handled through summary procedures, and civil cases handled through small claims and summary process, can be appealed to the Sheriff Appeal Court. Criminal offences heard on indictment through solemn procedure are appealed to the High Court of Justiciary. Other civil actions are appealed to the Inner House of the Court of Session.
Sheriff courts deal with a myriad of legal procedures which include:
Solemn and summary criminal cases
Large and small estates upon a death
Civil actions under ordinary and simple procedures
Bankruptcy actionsTrial by jury in Scotland
Trial by jury in Scotland is used in the courts of Scotland in solemn procedure for trial on indictment before a judge and jury for serious criminal cases, and in certain civil cases (mainly personal injury claims)
Criminal procedure in Scotland is generally regulated by the Criminal Procedure (Scotland) Act 1995 (as amended) and various Acts of Adjournal passed by the High Court of Justiciary. Juries in these cases consist of 15 people, if jurors drop out e.g. because of illness the trial can continue with a minimum of 12 jurors. In criminal trials conviction is on the basis of a majority verdict, with eight jurors required to decide that the accused is guilty; should fewer than eight jurors declare a guilty verdict then the accused is acquitted, so a hung jury is an impossibility in Scottish criminal law. In the past some people were executed on majority verdicts in Scotland, such as Susan Newell, who had one juror dissenting. The jury has a choice of three verdicts: guilty (a conviction), not guilty (acquittal) and not proven (also acquittal).
In civil trials there is a jury of 12 people, and a hung jury is possible.
The pool of potential jurors is chosen purely at random, and Scottish courts have set themselves against any form of jury vetting.
High Court of Justiciary
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