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Scots law

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Administration

Scots law is a unique legal system with an ancient basis in Roman law.[1] Grounded in uncodified civil law dating back to the Corpus Juris Civilis, it also features elements of common law with medieval sources. Thus Scotland has a pluralistic, or mixed legal system, of which South African law is comparable, and, to a lesser degree, the partly codified pluralistic systems of Louisiana and Quebec.

Since the Acts of Union, in 1707, it has shared a legislature with the rest of the United Kingdom. Scotland retained a fundamentally different legal system from that of England and Wales, but the Union brought English influence on Scots law. In recent years, Scots law has also been affected by European law under the Treaty of Rome, the requirements of the European Convention on Human Rights (entered into by members of the Council of Europe) and the establishment of the Scottish Parliament which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998.[2]

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)[3][4], the use of a 15 member jury in Scotland rather than the usual 12 members,[5] the fact that the accused in a criminal trial does not have the right to elect a judge or jury trial,[6] judges and juries of criminal trials have the "third verdict" of "not proven" available to them,[7] and the fact that Equity 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[8], very similar treatment under various taxation legislation and similar protections for employees and agents.[9]

Governance and administration

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

Minister for Justice

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

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

Advocates

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

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

Solicitors

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

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

Solicitor-Advocates

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

Courts

Part of a series on
Scots law
Administration
Civil courts
Criminal courts
Special courts
Criminal prosecution
Legal profession
Main article: Courts of Scotland

Origins and historical development

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

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

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

Continental influence

Some Scots common law is based on the 6th century system of Roman law which applied in the Eastern Roman empire around the time of Justinian. This occurred because, prior to the Reformation in 1560, much of the jurisdiction of private law came under the Church courts administering Canon law with an ultimate right of appeal to the Papal court at Rome. This was the basis of matrimonial law, and influenced branches such as the law of succession and contract law. For centuries Scotland was more in touch with mainland European countries than with neighbouring England, and many Scots lawyers had part of their legal education abroad, particularly in the Netherlands. As a result they were influenced by studying Roman law in continental universities.[10]

From the 12th century the assimilation of the Celtic church into the Roman Catholic Church brought Canon law and Church courts dealing with areas of civil law. This influence extended as Medieval Scots students of Civil or Canon Law mostly went abroad, to universities in Italy, France, Germany or the Netherlands. (The English universities, Oxford and Cambridge, were closed to Scots, or anyone who did not subscribe to the articles of the Church of England, until the mid 19th century.) The University of St. Andrews (1410) included the teaching of Civil and Canon Law in its purposes, though it appears that little or no such teaching took place. The University of Glasgow (1451) was active in law teaching in its early years, one scholar there being William Elphinstone, who then studied abroad and went on to found the University of Aberdeen (1495) which taught canon law until the mid 16th century. Studying on the European mainland continued to be the norm for Scottish law students until the 18th century.

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

United Kingdom

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

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

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

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

Sources of law

Legislation

The United Kingdom Parliament

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.

The Human Rights Act 1998

This 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.[11] The Scottish Parliament also cannot create legislation that contravenes the European Convention on Human Rights, if they did, the new law would be void.[12]

European Community Legislation

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.[13]

The New Scottish Parliament

The Scottish Parliament created by the Scotland Act 1998 has the power to legislate on specific devolved issues for Scotland.[14] The powers of the legislature are limited in that they can only legislate on devolved issues and must not contravene the Human Rights Act 1998 or the European Communities Act 1972.

Acts of the Scottish Parliament also regularly delegate powers to the Scottish Ministers and other bodies to produce statutory instruments. This legislation has legal effect in Scotland.

The Old Scottish Parliament

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.[15]

The Common Law

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 House of Lords and the highest criminal court is the High Court of Justiciary, unless there is a devolution issue raised in which case it is heard by the Judicial Committee of the Privy Council.

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 the House of Lords acts 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.[16][17]

The Institutional Writers

From the mid-17th century to the early 19th 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, James Dalrymple, 1st Viscount of Stair, Prof. John Erskine, Baron David Hume, Prof. George Joseph Bell, and many others.[18]

Custom

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.[19] 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.

Branches of Scots law

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

Private law

See also Law of obligations.

Contract

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).

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

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

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

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

Delict

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

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

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

Mrs Donoghue had been enjoying an ice cream with ginger beer her friend had bought her in Mr Minchella's café in Paisley, when she emptied the opaque ginger beer bottle out and the decomposing remains of a snail emerged. Interestingly owing to quirks of the case it was never established that the drink was ginger beer in the literal sense. It is common in Paisley and surrounding areas to use the term 'ginger' to describe a variety of carbonated drinks. The case however proceeds on the assumption that ginger beer was served in opaque bottles preventing discovery of the snail, had it actually been a clear bottle the case may have gone differently. Her distress and subsequent illness was such that she was determined to bring an action for damages — but the poor woman had no contract with the café proprietor as her friend had paid, so she sued the manufacturer for his negligence. The case of the snail in the bottle was taken to the House of Lords who found that the manufacturer does indeed have a duty of care, subject to restrictions. This decision had influence in many countries and established the "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"[20] and it has never been proven, before a court, that the snail had entered the bottle at all.

Property law

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.

Hitherto this meant that purchasers were advised to survey the property and have finance in place prior to offering. That practice resulted in wasted time and expense where the purchase did not proceed. Since around 2005 practice has changed to offering subject to survey not unlike the English system.

Feudal law

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

Udal law

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

Intellectual property law

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

Public law

Criminal law

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.

Crown Office and Procurator Fiscal Service

The Crown Office and Procurator Fiscal Service provides independent public prosecution of criminal offences in Scotland (as the more recent Crown Prosecution Service does in England and Wales) and has extensive responsibilities in the investigation and prosecution of crime. The Crown Office is headed by the Lord Advocate, in whose name all prosecutions are carried out, and employs Advocates Depute (for the High Court of Justiciary) and Procurators Fiscal (for the Sheriff Courts) as public prosecutors.

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

"Not proven" verdict
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.

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

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

Notable criminal cases

Scots administrative law

Main article: Scots administrative law

Scots civil procedure

Main article: Scots civil procedure

Scots family law

Main article: Scots family law

References

  1. ^ "Tradition and Environment in a time of change", J. A. Lillie (1970). "The law of Scotland has many roots in and affinities with the law of the Romans, the 'Civil Law' ":"History of the Faculty of Law". The University of Edinburgh School of Law. Retrieved 2007-10-22.
  2. ^ Sch. 5 Scotland Act 1998
  3. ^ Age of Legal Capacity (Scotland) Act 1991 (c. 50), opsi.gov.uk
  4. ^ "Under Scots Law (in contrast to the law in E&W), young people have full (or 'active') legal capacity at 16 years", Keele University
  5. ^ p. 46 Jones, T.H. and Christie, M.G.A. Criminal Law. W. Green & Son Ltd., 2008.
  6. ^ p. 46 Jones, T.H. and Christie, M.G.A. Criminal Law. W. Green & Son Ltd., 2008.
  7. ^ p. 47 Jones, T.H. and Christie, M.G.A. Criminal Law. W. Green & Son Ltd., 2008.
  8. ^ p. 2 Davidson, Fraser and MacGregor, Laura. Commercial Law in Scotland. W. Green & Sons, 2008.
  9. ^ p. 56 Davidson, Fraser and MacGregor, Laura. Commercial Law in Scotland. W. Green & Sons, 2008.
  10. ^ Stone, Gregory B.; Speaight, Anthony (2000). Architect's legal handbook: the law for architects. London: Architectural Press. ISBN 0-7506-4375-7.{{cite book}}: CS1 maint: multiple names: authors list (link)
  11. ^ s. 3 Human Rights Act 1998
  12. ^ ss. 29(1) and 29(2)(d) Scotland Act 1998
  13. ^ ss. 29(1) and 29(2)(d) Scotland Act 1998
  14. ^ s. 30(1) and Sch. 5 Scotland Act 1998
  15. ^ Office of Public Sector Information copies of Old Scottish Parliament Acts in force OPSI website
  16. ^ E.g. Smith v Bank of Scotland 1997 S.L.T. 1061.
  17. ^ p. 253 Davidson, Fraser; MacGregor, Laura. Commercial Law in Scotland. W. Green & Son, 2008.
  18. ^ p. 167 White, Robin. The Scottish Legal System. Tottel Publishing, 2007.
  19. ^ p. 170 White, Robin. The Scottish Legal System. Tottel Publishing, 2007.
  20. ^ [1], Law Basics: 100 Cases that every Scots Law Student Needs Know written by past and present staff at the University of Strathclyde Law School, apparently out of print.

See also

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