Welcome to Wiki for Scots LawEdit
We hope to resolve some of the Access to Justice issues in Scotland by allowing regular people to post information about disputes and allowing them to work toward a satisfactory resolution. The aim is to allow professionals from all organizations to post answers through moderation by the Scottish legal community. If necessary, the community can resolve most legal issues without costly litigation.
Do you have a legal problem, issue, dispute and are unclear of the legal ramifications? Post information about your situation on-line and the legal community of Scotland will respond with as much information as possible from all sides of the dispute. Then based on the responses, work with these experts to seek representation or to resolve your dispute. Please note this is not an alternative legal advice. This is an open source site that can be contributed to by anyone. Please, if you have a dispute or legal issue, and are unclear about your rights, please contact a solicitor.
Scots law is a unique legal system which has roots in various different sources of law. Up until the mid-tenth century, the law in Scotland was almost certainly Celtic, but after that point, feudal and canon law gradually took over. On succeeding to the throne in 1124, King David I introduced elements of Anglo-Norman laws and legal institutions, such as sheriffs and justices. Scots law's first known text, Regiam Majestatem, was based heavily on Glanvill's English law treatise, although it also contains elements of civil law, feudal law, canon law, customary law and native Scots statutes. Although there was some indirect Roman law inflence on Scots law, via the civil law and canon law used in the church courts, the direct influence of Roman law was slight up until around the mid-fifteenth century. After this time, Roman law was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and Roman law was in this way partially received into Scots law. Thus comparative law classifies Scots law as a mixed legal system, a group that also contains South African law and the legal systems of Louisiana, Quebec and Puerto Rico. 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 byEuropean 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 theScotland Act 1998. There are substantial differences between Scots Law, English law and Northern Ireland law in areas such as property law, criminal law, trusts law,inheritance law, evidence law and family law while there are greater similarities in areas of national interest such as commercial law and taxation law. Some of the more important practical differences between the jurisdictions include the age of legal capacity (16 years old in Scotland, 18 years old in England), the use of a 15 member jury in Scotland rather than the usual 12 members, the fact that the accused in a criminal trial does not have the right to elect a judge or jury trial, judges and juries of criminal trials have the "third verdict" of "not proven" available to them, and the fact thatEquity does not exist in Scots law. Some of the more important practical similarities between the jurisdictions include the similar protections for consumers under the Sale of Goods Act 1979, very similar treatment under various taxation legislation and similar protections for employees and agents.
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 reservedto Westminster such as defence, international relations, fiscal and economic policy, drugs law, and broadcasting, amongst others. The Scottish Parliament has been granted limited tax raising powers.
The Scottish Government has executive responsibility for the Scottish legal system, with functions exercised by the Cabinet Secretary for Justice. The Cabinet Secretary for Justice has political responsibility for policing, law enforcement, the courts of Scotland, the Scottish Prison Service, fire services, civil emergencies and civil justice.
Advocates, the equivalent of the English Barristers, belong to the Faculty of Advocates which distinguishes between junior counsel and senior counsel, the upper echelon of the latter being designated 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.
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.
Main article: Courts of Scotland*Criminal Courts (by increasing authority)
- Civil Courts (by increasing authority)
- There are also a number of specialist courts and tribunals who determine legal disputes and applications, appeal from which ultimately lies to the Sheriff court (and therefore arguably of inferior authority relative to the Sheriff Court):
- For other such courts and tribunals, appeal lies to the Court of Session:
- Further there are a number of cross-border tribunals appeal from which lies ultimately to the Court of Session where the proceedings originate within Scotland:
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 acontinental 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).
The United Kingdom Parliament has the power to legislate on any issue for Scotland. The Human Rights Act 1998, the Scotland Act 1998 and the European Communities Act 1972 have special status in the United Kingdom, and therefore the law of Scotland.
Acts of the United Kingdom Parliament also regularly delegate powers to Ministers of the Crown or other bodies to produce legislation known as statutory instruments. This legislation has legal effect in Scotland so far as the specific statutory instrument is meant to.
his Act of the United Kingdom Parliament incorporated most of the European Convention on Human Rights into domestic UK law. This has had the effect that the Scottish Courts now have an obligation to interpret the common law and statutes in such a way that, where possible, the law of Scotland is compatible with the European Convention on Human Rights.The Scottish Parliament also cannot create legislation that contravenes the European Convention on Human Rights; if they did, the new law would be void.
Various legislative and judicial acts of the European Union have either direct or indirect legal effect in Scotland. The Scottish Parliament's legislation cannot contravene European Community law.
Some Acts of the Old Scottish Parliament, known as the Estates of Parliament, are still in force in Scotland, such as the Royal Mines Act 1424 or the Leases Act 1449. These Acts are written in Scots, but still remain in use today by the legal profession, especially the Leases Act 1449.
Common law is developed through decisions of courts and similar tribunals. The Courts of Scotland are chiefly responsible for the development of the Common Law in Scotland. The principle of the Common Law is that higher court decisions bind the lower courts. The highest civil court in Scotland is the Supreme Court of the United Kingdom, which also hears devolution issues, and the highest criminal court is the High Court of Justiciary.
Scottish judges will often use cases decided by Scottish courts, however, they are also able to take into consideration decisions made by foreign courts, although these decisions will only be persuasive not binding on the Court.
As, until 2009, the House of Lords acted as the highest court of appeal for civil actions both in Scotland and England and Wales this has led to, at times in history, a diffusion of English law into Scots law. This has resulted in the merging of Scottish and English Common Law on many issues, often resulting in strained interpretations of Scots law.
From the 16th century to the mid-18th century various writers in Scotland attempted the codification or explanation of Scots Law on various topics and issues, mirroring the Corpus Iuris Civilis. These works can be used as sources of law before Scottish courts, although other sources will have primacy over them. The list of the Institutional Writers and their works is contested, although it certainly includes Stair's work, "Institutions of the Law of Scotland". Other potential writers include Sir Thomas Craig, Sir George Mackenzie, Prof. John Erskine, Baron David Hume, Prof. George Joseph Bell, and many others.
Customary practices of communities may be considered an authoritative source of law in Scotland, although it is rarely, if ever, used today. The most recent case in which it was used was decided in 1890. Custom law was recognized by the Institutional Writers who pointed to the use of Udal Law in some parts of Scotland as an example of its exercise.
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 coversconstitutional 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.
Contract: Main article: Scots contract law
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)., a promise need only be evidenced in writing for:
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, atestamentary provision and an offer will not be a promise.
- 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 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, but also by deliberate acts or where strict liability applies) B is under a legal obligation to makereparation. The fundamental concept in the Scots law of delict is that the pursuer should be put, as far as possible, into the position he would have been in had the delict not been committed; unlike English law, there is never a penal element to 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 S.C. (HL) 31 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 caféproprietor 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 "neighbour principle" in Scots Law. After the question of if there were grounds for action was answered "the action was settled before any proof was held" and it has never been proven, before a court, that the snail had entered the bottle at all.
Main article: Scots 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 written acceptance of a written offer for property purchase is a legally binding contract.
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 fromvassals 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 was 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.
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
[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 theinternet by categorising the internet as a cable programme. This definition has now been superseded by European directives, but the principle still stands.
Main article: Scots 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.
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 Englandand 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.
Main article: Not proven 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.
Misconception of the Scots "not proven" concept has occasionally inspired legal decision or commentary in other countries. 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, as in an English one, 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.
There are now MSP's looking to have the possibility of a retrial if someone gets a not proven verdict.
- Brennan v HM Advocate 1977 JC 38 – authority against automatism in cases of voluntary intoxication
- Cawthorne v HM Advocate 1968 JC 32
- Crawford v HM Advocate 1950 JC 67
- Drury v HM Advocate 2001 SCCR 538 – provided modern definition of murder
- Jamieson v HM Advocate 1994 SLT 537
- Khaliq v HM Advocate 1984 JC 23
- Ross v HM Advocate 1991 JC 210 – first authoritative recognition of non-insane automatism
- Smart v HM Advocate 1975 JC 30
- Sutherland v HM Advocate 1994 SLT 634