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Te statutory body concerned with updating and
reforming the law of Scotland.
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
The Law Society of Scotland, http://www.lawscot.org.uk/
provides a search facility to find contact details of Solicitors firms, including their websites.
A site specifically for Scots to make their Will:-
Without a Solicitor and completely legally.
Only takes a few minutes and site is a member of Which? webtrader. You can also print it off and sign it - all online
See the site for more info.
Article by Angus MacCulloch mailto: firstname.lastname@example.org
Scotland has a completely separate legal system from that of England
and Wales. Although it does share some institutions, the legislature
and the House of Lords (sitting as a Court). This stems from
Scotland's independence before 1707 and is enshrined in the Act
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
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
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
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
Scots law is unusual in allowing three alternative verdicts in a
criminal trial. Although the "Not Proven" verdict is known, incorrectly,
as the third verdict, it has a 300 year history in Scotland. Even though
it has a long history it has been the subject of criticism since 1827
when Sir Walter Scott, novelist and Sheriff, described the not proven
verdict as "that bastard verdict, not proven."
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.
It is a perpetual myth that there are no trespass laws in Scotland. Even
before the recent Criminal Justice and Public Order Act 1994, trespass
has long been a delict (civil wrong) which is remediable by the remedies
of interdict and damages. However, The Land Reform (Scotland) Act 2003
amends the Trespass (Scotland) Act 1865 and establishes a statutory right
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.
The Feudal System of land holding was abolished in Scotland by the Abolition
of Feudal Tenure etc (Scotland) Act 2003, with effect from 28th November
2004. Prior to that date the rights to land were split between dominium utile
(right of use) belonging to a "vassal", and the dominimum directum belonging
to a "superior". The vassal was liable to give a "feu duty" to the superior:
originally this could have been military service, a quantity of grain or other
obligations; in the C18th these were all converted to payment of sums of
money. In 1975 legislation introduced rules for voluntary and compulsory
redemption which required feu duties to be redeemed by the payment of a
one-off lump sum.
Since the 2003 Act, superiorities have been eliminated, and all former vassals are now "owners". Provisions were also included to redeem all feu duties still in existence, and to transfer the right to enforce certain feudal title conditions from the superior to the owner of neighbouring land.
Following the final counties of Scotland becoming operational on the Land
Register of Scotland, Registers of Scotland are working on ARTL (Automated
Registration of Title to Land), and consideration is being given to the
closure of the Register of Sasines.
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.
List price 9.99 UKP (paperback) 14.99 (cloth).
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