Introduction to the Scottish Legal System

Introduction to the Scottish Legal System as a Mixed Legal System

Scotland, along with England, Wales and Northern Ireland, makes up the United Kingdom of Great Britain and Northern Ireland. While being a constituent part of the UK, and therefore not a state in her own right, Scotland is very much her own nation.

The Scotland Act 1998 reinstated the Scottish parliament after almost three hundred years of dissolution. This returned the power to govern themselves to the Scots, at least in areas of devolved competence. However, even before the reinstitution of the Scottish parliament, Scotland retained the characteristics of a nation: shared culture, heritage, identity, beliefs, language and traditions among the population. She has long had an education and legal system quite distinct from that of her neighbour England, reflecting the different and, to a certain degree, independent histories of the two nations.

The Scottish legal system is the remarkable creation of almost 1000 years of Scottish history. It shares a bed with neither of the two great western legal traditions. It is neither entirely civilian, nor is it purely a common law system. Rather it is mixed. It lies somewhere in the midst of the two, borrowing and adopting rules, principles and institutions from each, whilst at the same time adapting them to fit within the political, social and economic entity that is Scotland. It is perhaps this ability to look to such a wide range of sources that makes the Scottish legal system quite so remarkable.

Today the Scottish legal system, (particularly in the domain of private law), is need of new and unifying principles which will systematically expound the law of Scotland. While this search must widen its horizons beyond the scope of either the civilian or the common law tradition, their influence on the evolution of the Scottish legal system is undisputed.

The civilian legal tradition, common to most European countries with the notable exception of the UK, has its roots primarily in Roman law. Legal reasoning is carried out on the basis of first principles derived from Roman law, while the substantive law is a mixture of solutions from both Roman and Germanic sources.

The common law tradition, common to England, Wales, Northern Ireland and most of the Commonwealth, has its roots in English practice. This tradition was largely untouched by the principles of Roman law; rather it is a system of rules derived from the jurisprudence of judges in specific cases. Its origins are to be found in the kings’ of England’s courts of the twelfth and thirteenth centuries.

The development of the Scottish Legal System can be best understood in three main stages. First, the period from 1018-1606 which saw the emergence of the Scottish nation and a common law. Second, the period from 1707, (the union of parliaments), to the end of the nineteenth century, and, third, the modern day period.

 

Courts and Procedure

In Scotland the courts are divided between civil and criminal jurisdictions. Certain courts will have jurisdiction over Scotland in its entirety, while others will only have jurisdiction over certain districts. Courts will either be courts of first instance (original jurisdiction) or courts of appeal.

Civil Courts and Procedure

The (simplified) hierarchy of civil courts within Scotland is as follows :

 

- the Inner House

- the Outer House

 

Civil procedure in Scotland is adversarial in nature. The burden of proof, which is on the balance of probabilities, rests with the pursuer. The job of the judge is to decide whether the pursuer has proved his or her case.

Criminal Courts and Procedure

The (simplified) hierarchy of criminal courts within Scotland is as follows :

 

- the High Court of Justiciary (as a court of first instance)

 

Private criminal prosecution is possible but very rare; normally prosecution is by the Crown through the public prosecution service. Proceedings are largely adversarial and the burden of proof – beyond reasonable doubt – rests with the prosecution. There are two main forms of criminal procedure: solemn and summary. Procedure in the District Court is summary. Both are used in the Sheriff Court and in the High Court only solemn procedure is used. The main difference between trial by summary procedure and trial by solemn procedure is that in a solemn trial the verdict is decided by a jury of 15, whereas in a summary trial the decision is that of the judge alone.

 

The Sources of the Scottish Legal System

Sources of law are those things recognised by a legal system as embodying rules and principles which have force of law. In civilian legal systems, greatly influenced by Roman law, most law and general principles are found within Codes. Precedent, (i.e. case law which is binding in certain circumstances), is not recognised as a source of law. In common law systems, where law developed in the courts, most law and principles are found within decisions of the courts and there is a distinct absence of any major documents such as Codes. In mixed legal systems, (such as Scotland), influenced by both the Roman and common law, both legislation and precedent are important sources of law.

Legislation

Legislation is a formal source of law in that it is deliberately created in order to give force of law to rules and principles. While in civilian countries the bulk of the law can be presumed to be contained in legislation, this is not the case in Scotland. As a legal system which accepts precedent as a source of law, the role of legislation is to change or supplement existing law.

Precedent

The acceptance of binding precedent as a formal source of law is an essential characteristic of the common law, and one which is alien to most civilian legal systems. Thus, underlying principles of the legal system are found, not in legislation, but in judicial decisions. Precedent can change the law, but may be overruled by a superior (or sometimes equal) court, or changed by legislation.

Other Sources

Other, less important, sources of law in Scotland are prerogative legislation (carried out under the powers of the Crown), institutional writings and custom. There also exist quasi sources of law such as constitutional conventions and administrative guidelines.

 

Statutory Interpretation

It is the tradition within the UK to try and devise statutes (or Acts) which cover every foreseeable situation. Some statutes are perfectly clear and easily applicable. However, not every eventuality is predictable, nor is the English language one of mathematical precision, and, as such, many statutes require interpretation by the courts. Essentially what is required of the court is to give, to the provisions before it, a meaning which parliament intended, by reference to the words enacted within the context of the whole Act. The court is not being asked to legislate, simply to apply the law as parliament intended it to be. The question of interpretation is one of law, not of fact.

Two main approaches to the task of statutory interpretation have developed over the years – the literal and the liberal approach. Which one is used is at the discretion of the judge before whom the statute finds itself. The literal approach results in statutes being interpreted strictly, whereas the liberal approach has more in common with the purposive approach adopted by the European Court of Justice.

 

Reasoning by Precedent

Put very simply, a precedent is a decision by a court in a previous case. The decision by the court is one which sets out a principle of law which is capable of subsequent application and which must be followed in certain circumstances. The notion of precedent is inextricably linked with that of the common law, because a common law system is one in which the law is made and developed through a system of binding precedent.

The decisions of certain courts set forth rules of law which are authoritative in their own right, subject only to the higher authority of statute where a statute of relevance exists. For example, the law of murder in Scotland is mostly based on case law.

The doctrine whereby certain decisions of certain courts will bind future courts is known as the doctrine of stare decisis. It is worth noting that not every word of a court decision will be binding for the future; it is only the ratio decidendi, (i.e. the principle of law upon which the judge reached his or her decision), which is binding.

 

Legal Personnel

The legal profession

For various historical reasons, the legal profession in Scotland comprises two main and distinct branches of professionals – advocates and solicitors.

To date there are about 300 advocates in Scotland. The profession of advocate corresponds to that of barrister in the rest of the United Kingdom. Advocates have rights of audience before all courts within the Scottish legal system. The role of an advocate is to represent people in court and to give opinions, not necessarily within the context of litigation, on contentious and difficult areas of law.

The term ‘solicitor’ is a relatively modern one; previously lawyers were known as ‘writers’ or agents of law and these terms exist today. All solicitors have rights of audience before the European Court of Justice, the sheriff court, the district court, and all other inferior courts, tribunals, and inquiries provided that they are not expressly excluded by law. Certain solicitors, of at least five years continuous practice in the courts, who under take extra training and sit exams, may gain a right of audience in the higher courts. Such solicitors are sometimes known as ‘solicitor –advocates’.

The Judiciary

Unlike many countries within the civilian legal tradition, judges in Scotland are not career judges. Most judges will have had fairly long and eminent careers as advocates before they are appointed to the bench. It has recently become possible for solicitors also to become judges. There is no formal means of selection for judges, nor is there any way to scrutinise the manner in which they are selected. This is however under review.