The Law Society of Scotland
http://www.lawscot.org.uk/
Scotland has its own legal system and its own laws.
Answers to most common Scottish consumer questions can be found in:
Your Rights and Responsibilities, A personal guide for Scottish
Consumers. Published by HMSO and the Scottish Consumer Council.
ISBN 0 11 495205 1, 4 pounds 95p
Telephone orders: 0171 873 9090
Also, "The Legal System of Scotland" also published by HMSO.
For information on legal tender, see [1.7].
There is also a newsgroup scot.legal
Solicitors on-line:
http://www.carltons-dundee.co.uk/
http://www.blaircad.co.uk/
http://www.georgesons.co.uk/
Articles by Angus MacCulloch mailto:msrlsam@fs1.ec.man.ac.uk
Scots law stems from two main sources, enacted law and common law.
Enacted law has the authority of a body with legislative powers.
Enacted law can come from many sources, some include Royal
proclamation or order, Acts of Parliament (either the old Scots
Parliament or the UK Parliament), the European Community Treaty or
European legislation, or local authority bye-laws. Common law
derives it authority from the courts and is based on Scots legal
tradition.
Both forms of law have equal authority and often operate in the same areas. Under the theory of the "supremacy of Parliament," as partially recognised in Scotland, enacted law will override common law, but common law cannot override an enacted law.
Common law develops through the judgements of the courts. To predict
how it will deal with a given situation one must examine the decisions
of the courts in similar cases. Common law initially derived from
the Roman law, as codified under the Emperor Justinian, and
canon law, the law of the church. One of the other sources of law
was the writings of eminent legal scholars such as Lord Stair,
Erskine and Bell, Hume, and Alison.
The Scottish courts separate into two streams, those which deal with criminal cases, and those that deal with civil cases. The criminal law regulates the relationship between the individual and the state. Civil law regulates relationships between individuals.
The criminal courts are, in ascending order of authority:
The District Court, the Sheriff Court, and the High Court of
Justiciary.
The civil courts are, in ascending order of authority:
The Sheriff Court, the Court of Session, and the House of Lords.
The doctrine of "precedent" means that the decision of a higher court
will be binding on a lower court. The High Court of Judiciary and
the House of Lords are not bound by their own decisions. The
decision of an English court is never binding upon a Scottish court.
The decisions of the House of Lords sitting as an English court will
be of a persuasive nature in a Scottish case.
There are also specialist courts which deal with particular areas,
such as industrial disputes, land matters, criminal charges against
children, and heraldry. The courts have a long history. The Sheriff
courts date back to the 12th century, the Court of Session was
established in 1532, and the High Court of Justiciary was established
in 1672.
Scottish judges will sit on both criminal and civil courts, although
some may be seen as specialising in particular areas. The judges are
appointed by the Crown from practising lawyers, both solicitors and
advocates.
The verdict of not proven is essentially one of acquittal. In all
respects the verdicts of not guilty and not proven have exactly the same
legal effects. In practice it is thought that a verdict of not proven
simply means that the judge or jury have reasonable doubt as to the
accused's guilt. It is interesting to note that the not proven verdict
is used in one third of acquittals by juries, and in one fifth of
acquittals in non-jury trials. Because of the higher number of non-jury
trials ninety per cent of all not proven verdicts are returned in such
cases. It is generally thought that the verdict gives juries, and judges,
an option between not guilty and guilty where they feel that the charges
have not been proved but they equally cannot say the accused is "not
guilty" because of its moral connotations.
Current challenge to the verdict stems from the dissatisfaction and
feelings of injustice suffered by the families of victims of crime.
Political influence has also been apparent, in 1993 George Robertson
tabled a Private Members Bill to abolish the verdict.
The legal profession has been divided over the issue most of this
century. A number of eminent judges have attacked the verdict.
One saying that it was theoretically and historically indefensible,
Lord Moncrieff in 1906. Others have supported it. In 1964 Lord Justice
General Clyde stated that "for upwards of 200 years a not proven verdict
has been available . . . and no convincing argument has been advanced to
justify its elimination from our law." One view from England helped to
explain the reason for the not proven verdict, Judge Gerald Sparrow
wrote, "I have often thought that the distinction typifies the
different spirit of Scottish and English law: the Scottish being the
more logical, the English more sporting." The original verdicts in
Scots law were "culpable" and "convict"; or "cleanse." Guilty and
not guilty were introduced by Cromwell during the Usurpation, when he
imposed English judges on Scotland. After the reformation the Scots
courts reverted to asking judges to find whether the facts in
the indictment were "proven" or "not proven." The "not guilty" verdict
was reintroduced in 1723 in the trial of Carnegie of Findhorn for the
murder of the Earl of Strathmore. In 1975 the Thomson Committee which
examined Scottish criminal procedure recommended that the three verdict
system be retained. In 1993 the Scottish Office said that "it was not
convinced that there was enough groundswell of dissatisfaction from
the public and, crucially, from the legal profession" to justify any
scrutiny of the not proven verdict. Most recently in 1994 the Government
in a White Paper, Firm but Fair, dealing, inter alia, with the verdict
made no proposals for any changes as in the absence of "a considerable
weight of informed opinion against the verdict" the three verdict
system should be retained.
It would appear that there is no immediate prospect that there will
be any change in the current three verdict system.
Furthermore certain types of trespass have been criminal since the Trespass (Scotland) Act 1865 was passed, an Act no-one has ever heard of. Section 3 makes it an offence for any person to lodge in any premises, or occupy or encamp on any land, being private property, without the consent of the owner or legal occupier. Admittedly this section envisages a degree of permanency which will not be present in every situation of trespass.
A bill based on the draft contained in this consultation document is being put before the Scottish Parliament in the 1999-2000 session.
To get a free copy of the document, the address is:
Scots Law Commission
140 Causewayside
Edinburgh
EH9 1PR
Comments by experienced practitioners in this field of law are sought, but reasoned contributions of any type will no doubt be welcomed. So all those who had particular views on change of the system, this is your opportunity to participate. The consultation period ends 31 Jan 1999.
Readers interested in Land reform may be interested in the book "Who Owns Scotland Now: Use and Abuse of Private Land", by Auslan Cramb, ISBN 1851589643. In stock in Thin's, price 9.99 UKP (paperback) 14.99 (cloth). Available via http://www.jthin.co.uk/