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The Law Society of Scotland

Scottish Law Information

Statutory instruments of the Scottish Parliament

Scottish Law Commission

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

Solicitors on-line

The Law Society of Scotland,
provides a search facility to find contact details of Solicitors firms, including their websites.

Making a will
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.

Introduction to Scots Law

Article by Angus MacCulloch mailto:

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 of Union.

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 tradition.

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 Justiciary.

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 in 1672.

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 advocates.

The Not Proven Verdict

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 of access.

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.

Land Reform

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).

More info

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