High Court of Justiciary

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Not to be confused with High Court of Justice.
High Court of Justiciary
Royal Coat of Arms of the United Kingdom (Government in Scotland).svg
Royal Court of Arms of the United Kingdom as used by the Courts in Scotland
Established 1672; 345 years ago (1672)
Country Scotland
Location Parliament House, Edinburgh
Justiciary Buildings, Glasgow
Sheriff Court Annex (Mercatgate), Aberdeen
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
Authorized by Courts Act 1672 an Act of the Parliament of Scotland
Decisions are appealed to Limited appeals to Supreme Court of the United Kingdom
Judge term length Compulsory retirement at age of 75
No. of positions 35, by Scottish Statutory Instrument
Website www.scotcourts.gov.uk
Lord Justice General
Currently Colin Sutherland, Lord Carloway
Since 18 December 2015
Lord Justice Clerk
Currently Lady Dorrian
Since 13 April 2016

The High Court of Justiciary is the supreme criminal court in Scotland.

The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, or in its own court buildings in Glasgow and Aberdeen. However it sometimes sits in various smaller towns in Scotland, when it borrows the local Sheriff Court building. As a court of appeal, it sits only in Edinburgh.

The High Court of Justiciary has also sat once outside Scotland, at Zeist in the Netherlands during the Pan Am Flight 103 bombing trial, as the Scottish Court in the Netherlands.

History[edit]

The High Court was founded in 1672 by the Courts Act 1672,[1] but its origins derive from the 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 deputy was required to have a "permanent base" in Edinburgh, and as such the College of Justice was established in Edinburgh in 1532.

Remit and jurisdiction[edit]

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.)[2]

First instance jurisdiction[edit]

Court entrance the High Court of Justiciary situated at the Saltmarket in Glasgow

As a court of first instance the court sits regularly throughout Scotland with permanent seats in Edinburgh, Glasgow and Aberdeen. There are sittings when required in Dumbarton, Lanark, Livingston, Paisley and Stirling.[3]

When sitting as a court of first instance, that is, when hearing a case for the first time rather than on appeal, a single Lord Commissioner of Justiciary usually presides (although two or more judges may sit in important or difficult cases) with a jury of fifteen individuals.[3] Under the Scottish legal system, the jury need not return a unanimous verdict; a majority verdict may also be used. 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; equally where 8 jurors cannot agree on an accused's guilt or an alternative verdict then the accused will be acquitted.[4]

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.[5]

Appellate jurisdiction[edit]

High Court of Justiciary in Edinburgh

Appeals may be made by right to the High Court of Justiciary sitting as the Court of Criminal Appeal from sheriff courts sitting in solemn procedure, or from the High Court at first instance. 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, appeals 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.[2][3]

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.[citation needed]

Sentencing from sheriff courts[edit]

A solemn proceedings case is sometimes remitted from a sheriff court to the High Court for sentencing where the sheriff deems their powers of sentencing to be inadequate for the crime committed. In solemn proceedings sheriff can impose a maximum sentence is 5 years imprisonment, or an unlimited fine. Whereas, the High Court can impose a life sentence (unless a lesser maximum sentence is prescribed by statute).[6][2]

Appeals from the High Court[edit]

The Supreme Court of the United Kingdom established by the Constitutional Reform Act 2005 is the highest court in the United Kingdom, and has the power to deal with compatibility issues or devolution issues. This is where a person believes their rights under the European Convention have been contravened, or where their is a question over the executive competence of the Scottish Government or the legislative competence of the Scottish Parliament.[2][7] In these circumstances it is possible for a person to appeal a point of law to the Supreme Court of the United Kingdom under either Schedule 6 of the Scotland Act 1998 or Section 288A of the Criminal Procedure (Scotland) Act 1995.[8][9] 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 also from the United Kingdom Supreme Court (UKSC) being granted, or to the European Court of Human Rights (ECtHR), or both.[citation needed]

Rights of audience[edit]

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.[10] Until 1990 only advocates had any right of audience before the High Court, when the Law Reform (Miscellaneous Provisions) (Scotland Act) 1990 allowed for solicitors to apply for enhanced rights and become solicitor-advocates.[11]

Judges and office holders[edit]

The court's president is the Lord Justice General, the second most senior judge is the Lord Justice Clerk, with a further 33 Senators of the College of Justice holding office as Lords Commissioners of Justiciary. The total numbers of judges is fixed by Section 1 of the Court of Session Act 1988, and subject to amendment by Order in Council.[12] [13] Judges are appointed for life, subject to dismissal if they are found unfit for office, and subject to a compulsory retirement age of 75.[14]

Temporary judges can also be appointed.

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.[3] There are 35,[15] in addition to a number of temporary judges; these temporary judges are typically sheriffs, or advocates in private practice. The judges sit also in the Court of Session, and are known there 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.[16][17]

Appointment[edit]

To be eligible for appointment as a Senator, or temporary judge, a person must have served at least 5 years as sheriff or sheriff principal, been an advocate for 5 years, 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.)[18][19] Appointments are made by the First Minister of Scotland on the recommendation of the Judicial Appointments Board for Scotland. The Judicial Appointments Board has a statutory authority for making recommendations under Sections 9 to 27 of the Judiciary and Courts (Scotland) Act 2008 (as amended by the Courts Reform (Scotland) Act 2014).[20] Appointments to the Inner House are made by the Lord President and Lord Justice Clerk, with the consent of the Scottish Ministers.[12]

Removal from office[edit]

The Lord President, Lord Justice Clerk and other Senators can be removed office after a tribunal has been convened to examine their fitness for office. The tribunal is convened on the request of the Lord President, or in other circumstances that the First Minister sees fit. However, the First Minister must consult the Lord President (for all other judges) and the Lord Justice Clerk (when the Lord President is under investigation.) Should the tribunal recommend their dismissal the Scottish Parliament can resolve that the First Minister make a recommendation to the Monarch. [21][22]

Lord Justice General[edit]

The Lord Justice General is the most senior judge of the High Court of Justiciary. The Lord Justice General will sit as a chairperson in the Court of Criminal Appeal.[3]

Lord Justice Clerk[edit]

Main article: Lord Justice Clerk

The Justice Clerk is the second most senior judge of the High Court, and deputises for the Lord Justice General when the Lord Justice General is absent, unable to fulfil his duties, or when there is a vacancy for Lord Justice General. The Lord Justice Clerk will sit as a chairperson in the Court of Criminal Appeal.[3]

Principal Clerk of Session and Justiciary[edit]

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.[23] The Principal Clerk is responsible for the administration of the Supreme Courts of Scotland and their associated staff. The current Principal Clerk is Graeme Marwick.[24]

Judges[edit]

Current judges of the High Court of Justiciary[25][26]
Name Judicical 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 Senator 2007
Duncan Adam Young Menzies The Rt Hon Lord Menzies Senator 2012
Anne Smith The Rt Hon Lady Smith Senator 2012
Philip Hope Brodie The Rt Hon Lord Brodie Senator 2012
Alastair P Campbell The Rt Hon Lord Bracadale Senator 2013
James Edward Drummond Young The Rt Hon Lord Drummond Young Senator 2013
Angus Glennie The Rt Hon Lord Glennie Senator 2016
Lynda Clark The Rt Hon the Lady Clark of Calton Senator 2013
Alan Turnbull The Rt Hon Lord Turnbull Senator 2016
Colin Malcolm Campbell The Rt Hon Lord Malcolm Senator 2014[27]
Colin Boyd The Rt Hon the Lord Boyd of Duncansby Senator 2012
Alexander F Wylie The Hon Lord Kinclaven Senator 2005
S Neil Brailsford The Hon Lord Brailsford Senator 2006
Roderick F Macdonald The Hon Lord Uist Senator 2006
Hugh Matthews The Hon Lord Matthews Senator 2006
Hugh Matthews The Hon Lord Matthews Senator 2006
Paul Cullen The Hon Lord Pentland Senator 2008
Stephen Errol Woolman The Hon Lord Woolman Senator 2008
Iain Alexander Scott Peebles, QC The Hon Lord Bannatyne Senator 2008
Valerie E Stacey The Hon Lady Stacey Senator 2009
Colin Jack Tyre CBE The Hon Lord Tyre Senator 2010
J Raymond Doherty The Hon Lord Doherty Senator 2010
David Burns The Hon Lord Burns Senator 2012
Margaret E Scott The Hon Lady Scott Senator 2012
Morag Wise The Hon Lady Wise Senator 2013
Iain Armstrong The Hon Lord Armstrong Senator 2013
Rita Rae The Hon Lady Rae Senator 2014
Sarah Wolffe QC The Hon Lady Wolffe Senator 2014
John Beckett QC The Hon Lord Beckett Senator 2016
Alistair Clark QC The Hon Lord Clark Senator 2016
Andrew Stewart QC The Hon Lord Ericht Senator 2016
Ailsa Carmichael QC The Hon Lady Carmichael Senator 2016
Frank Mulholland QC The Rt Hon Lord Mulholland Senator 2016

See also[edit]

References[edit]

  1. ^ "Courts Act 1672 (as enacted)". Records of the Parliaments of Scotland. University of St Andrews. 1672. Retrieved 4 April 2017. 
  2. ^ a b c d McCallum, Frazer (1 June 2016). "The Scottish Criminal Justice System:The Criminal Courts" (PDF). parliament.scot. Scottish Parliament Information Centre. Retrieved 6 April 2017. 
  3. ^ a b c d e f "About the High Court". Scottish Courts and Tribunals Service. Retrieved 6 April 2017. 
  4. ^ "Jury Manual [2016]" (PDF). judiciary-scotland.org.uk. Judicial Institute for Scotland. 21 January 2016. Retrieved 6 April 2017. 
  5. ^ "Who we are". www.crownoffice.gov.uk. Crown Office and Procurator Fiscal Service. Retrieved 6 April 2017. 
  6. ^ "Sheriffs - Judicial Office Holders - About the Judiciary - Judiciary of Scotland". www.scotland-judiciary.org.uk. Judicial Office for Scotland. 2017. Retrieved 3 April 2017. 
  7. ^ "Devolution Jurisdiction | Practice direction 10 - The Supreme Court". www.supremecourt.uk. Supreme Court of the United Kingdom. Retrieved 6 April 2017. 
  8. ^ UK Parliament. Scotland Act 1998 as amended (see also enacted form), from legislation.gov.uk.
  9. ^ UK Parliament. Constitutional Reform Act 2005 as amended (see also enacted form), from legislation.gov.uk.
  10. ^ "About the High Court". www.scotcourts.gov.uk. Scottish Courts and Tribunals Service. Retrieved 6 April 2017. 
  11. ^ "IBA - Rights of audience in Scotland". ibanet.org. International Bar Association. 6 April 2009. Retrieved 6 April 2017. 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. 
  12. ^ a b "Part 1 | Court of Session Act 1988". www.legislation.gov.uk. The National Archives. 29 July 1988. Retrieved 6 April 2017. 
  13. ^ Scottish Statutory Instrument 2016 No. 423 The Maximum Number of Judges (Scotland) Order 2016 (Coming into force 15 December 2016)
  14. ^ "Section 26 of Judicial Pensions and Retirement Act 1993". www.legislation.gov.uk. 29 March 1993. Retrieved 2 April 2017. 
  15. ^ "Judges' Divisions February 2013" (PDF). Judiciary of Scotland. February 2013. Retrieved 2013-02-16. 
  16. ^ "Section 2, Paragraph 1, Judiciary and Courts (Scotland) Act 2008", Acts of the Scottish Parliament, 2008 (6), p. 2(1), retrieved 2009-08-29, The Lord President is the Head of the Scottish Judiciary. 
  17. ^ "Section 18, Court of Session Act 1830", Acts of the Parliament of the United Kingdom, 69, p. 18, 1830-07-23, Office of lord justice general to devolve on lord president. 
  18. ^ "Senators of the College of Justice - Judicial Office Holders - About the Judiciary - Judiciary of Scotland". www.scotland-judiciary.org.uk. Judicial Office for Scotland. 2017. Retrieved 2 April 2017. 
  19. ^ "Eligibility for Judicial Appointment | Judicial Appointments Board for Scotland". www.judicialappointments.scot. Judicial Appointments Board for Scotland. 2016. Retrieved 4 April 2017. 
  20. ^ "Sections 9 to 18, Judiciary and Courts (Scotland) Act 2008". www.legislation.gov.uk. The National Archives. 29 October 2008. Retrieved 1 April 2017. 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))...] 
  21. ^ "Chapter 5 of Judiciary and Courts (Scotland) Act 2008". www.legislation.gov.uk. The National Archives. 29 October 2008. Retrieved 3 April 2017. 
  22. ^ "Judicial independence" (PDF). judiciary-scotland.org.uk. Judicial Office for Scotland. Retrieved 3 April 2017. 
  23. ^ "Scottish Court Service An Introduction" (PDF). Scottish Court Service. Archived from the original (PDF) on 21 July 2011. Retrieved 26 May 2012. 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 
  24. ^ "Director and Principal Clerk of Session and Justiciary". www.scotcourts.gov.uk. Scottish Courts and Tribunals Service. Retrieved 4 April 2017. 
  25. ^ "Senators of the College of Justice - Judicial Office Holders - About the Judiciary - Judiciary of Scotland". www.scotland-judiciary.org.uk. Judicial Office for Scotland. Retrieved 6 April 2017. 
  26. ^ "List of Senators | Judicial Office for Scotland" (PDF). www.scotland-judiciary.org.uk. Judicial Office for Scotland. 2017. Retrieved 6 April 2017. 
  27. ^ "The Right Hon Lord Malcolm (Colin Malcolm Campbell) - Judicial Office Holders - About the Judiciary - Judiciary of Scotland". www.scotland-judiciary.org.uk. Judicial Office for Scotland. Retrieved 6 April 2017. 

External links[edit]