LL1000 Topic 6 Courts and Court Structure PDF

Legal Systems – LL1000 Scottish Court Structure Overview Civil Jurisdiction Criminal Jurisdiction Other Courts  Two types of Court Proceedings Civil court Criminal court HMA or PF v A...

Legal Systems – LL1000 Scottish Court Structure Overview Civil Jurisdiction Criminal Jurisdiction Other Courts  Two types of Court Proceedings Civil court Criminal court HMA or PF v Accused Pursuer v Defender an agent for the state is prosecuting an one or more individual(s) (or entity such alleged offender (sometimes called the an organisation ) is seeking a remedy “pannel”) in the public interest from another. Punishments include: Remedies include: ▪ Fine ▪ Damages (compensation); ▪ Imprisonment; ▪ Specific implement (an order to do ▪ Community Payback order; something); ▪ Forfeiture order; ▪ Interdict (an order preventing the doing ▪ Restriction of Liberty Order (RLOs – or continuation of some act); ‘tagging’) ▪ Declarator (statement of entitlement). The standard of proof is “beyond The standard of proof is “on the balance of reasonable doubt” following an probabilities” following an adversarial process adversarial process  ‘ Lord Gill’ Court Reforms: Background In 2007 Scottish Civil Courts Review headed by Lord President Gill was established to examine reform of the civil justice system in Scotland at the request of Scottish Government - The “Gill Review” of 2009 Sheriff Principal Taylor’s review of ‘Expenses and Funding of Civil Litigation in Scotland’ reported in 2013 Consultation on the Courts Reform (Sc) Bill took place and the Bill was introduced into the Scottish Parliament in February 2014, obtaining Royal Assent in 10 November 2014 The Courts Reform (Scotland) Act 2014 introduced the biggest overhaul of the Scottish court system in decades and was brought into effect over 2015 and 2016 The Civil Courts  Civil Court Structure  Civil Court Structure UK Supreme Court UKSC Court of Session Inner Sheriff Appeal House Court CSIH SAC (Civ) Sheriff Court All Scotland Court of Session First Sheriff Personal Outer House instance Injury CSOH Court(ASSPIC) First instance First Instance The Sheriff Court  Sheriff Court 6 Sheriffdoms in Scotland: - Lothian and Borders - South Strathclyde, Dumfries and Galloway - Glasgow and Strathkelvin - North Strathclyde - Tayside, Central and Fife - Grampian, Highlands and Islands Sheriffdoms are divided into Sheriff Court districts  Sheriff Court Sheriff Court is a both a civil and criminal court Each sheriffdom is headed by a Sheriff Principal Sheriff Principal charged with responsibility for organising efficient running of Sheriffdom (number of court sittings; days & times etc) Summary Sheriffs (Courts Reform (Scot) Act 2014, s4) Some work previously done by Sheriffs taken over by Summary Sheriffs The reforms allow Sheriffs to concentrate on more complex cases and areas of civil law covering contract law; succession; company law etc Allow for greater specialisation of Sheriffs  Competence & jurisdiction of Sheriff Court Chapter 4 of Courts Reform (Sc) Act 2014. ss38 - 45 S39 of Act increased privative jurisdiction of Sheriff Court up to £100,000 Actions for claims up to £100,000 must be raised in Sheriff Court unless exceptionally s92(2) applies: Sheriff may… remit proceedings to the Court of Session if the importance or difficulty of the proceedings makes it appropriate Effect is to remove substantial amount of business previously carried out in Court of Session and free up that Court  Sheriff Court New ‘Simple Procedure’ s72 Changes to civil procedure - Small claims and summary cause procedures abolished and replaced with ‘simple procedure’ For actions not exceeding £5,000 (but with some exceptions, eg personal injury actions where choice to bring either under simple procedure or in specialist PI court) Court to adopt more interventionist, problem-solving approach to assist parties in solving disputes quickly The sheriff empowered to identify issues in dispute, negotiate with the parties & help them to reach settlement - adopting an approach which is appropriate to the circumstances of each case Simple Procedure Act of Sederunt (Simple Procedure) 2016 2016/200 Sheriff Personal Injury Court  Sheriff Personal Injury Court Courts Reform (Sc) Act 2014, s41 allows for establishment of all-Scotland Sheriff Courts for specific types of proceedings Sheriff Personal Injury Court - first specialist court to be set up under Act Jurisdiction extending territorially throughout Scotland for PI actions: above £5000; Workplace PI actions above £1000 Workplace PI actions under £1000 but which have been remitted to all Scotland Sheriff Personal Injury Court by the sheriff Sections 63 – 71: Allow for civil jury trials of 12 jurors for personal injury cases - Jurors will also assess amount of damages to be awarded Note that other specialist, all-Scotland Sheriff Courts could be set up in the future specialising in for example, family law cases Sheriff Appeal Court  Sheriff Appeal Court Courts Reform (Sc) Act 2014, s46 establishes Sheriff Appeal Court Judges called: Appeal Sheriffs S47 of Act: Sheriff Appeal Court hears civil and criminal appeals Binding nature of decisions of Sheriff Appeal Court: s48 confers precedent such that Sheriff Appeal Court decisions are binding: - ❑in proceedings before a Sheriff anywhere in Scotland ❑In proceedings before Justice of Peace court ❑In proceedings before Sheriff Court of Appeal unless greater number of Appeal Sheriffs than at the time of the decision ❑All Sheriffs Principal at time Act introduced automatically became Appeal Sheriffs, s49 Civil & Criminal Court Structure with appeal routes Civil system Criminal system UK Supreme Court High Court of Justiciary Court of Session (Criminal) (Civil) Appeals Trials Outer House Inner House Solemn Solemn Sheriff Appeal Court Summary Criminal cases & civil appeals S heriff Court Criminal Jurisdiction Civil Jurisdiction Solemn Summary First Sheriff Instance Principal (appeals to (only appeals from tribunals/ Sh App Ct) statutory appeals Justice of the Peace / District Court Minor crimes  Civil Appeals From Sheriff Court to Sheriff Appeal Court Appeals to Sheriff Appeal Court do not require permission Previously - Decisions of a Sheriff Principal were binding on Sheriffs in their own Sheriffdom only - NOW – All Sheriffdoms bound by Sheriff Appeal Ct From Sheriff Appeal Court to Court of Session (Inner House) A party can appeal against decision of Sheriff Appeal Court: - only with permission of Sheriff Appeal Court; or - if Sh App Court refused, with permission of Court of Session; and - Sheriff Appeal Court or Court Of Session considers that appeal raises important point of principle or practice or some other compelling reason (s113) The Court of Session  Court of Session Sits only in Edinburgh – does not move! Jurisdiction over whole of Scotland Divided into Two Houses Outer House (a court of First Instance or original jurisdiction – single judge - “Lord Ordinary” - sitting) and Inner House (appellate – sits as a bench – at least 3 judges)  Court of Session: Outer House Before 2014 Act: pursuer could opt for either Sheriff Court OR the Court of Session if value of claim exceeded £5,000 Following Courts Reform (Sc) Act 2014, all cases up to £100,000 must be heard in Sheriff Court so much business has been removed from Court of Session Usual for a cases in Outer House are by judge alone (Lord Ordinary); can be civil trials involving a jury of 12 in certain cases eg personal injury resulting in death, defamation Outer House of the Court of Session is a Court of First instance Cases can be appealed from the Outer House to the Inner House of the Court of Session  Court of Session: Inner House Inner House for Appeal Cases only – Appellate Court ONLY The Inner House of the Court of Session has two Divisions of equal authority, headed by the Lord President and the Lord Justice Clerk Appeals to it are normally heard by a bench of three judges Importance cases: the two Divisions may sit together as a court of seven judges The Court of Session (Inner House only) has an inherent power to find an equitable remedy for a party: “Nobile officium” Vince (2019) – Nobile Officium used in Brexit case (to prevent a No Deal Brexit by Boris Johnson) !Appeal from the Court of Session is to the Supreme Court! UK Supreme Court  UK Supreme Court The highest civil court applying Scots law is the UK Supreme Court Created by the Constitutional Reform Act 2005, the Supreme Court commenced work 1 October 2009 Previously the House of Lords! – latter abolished by 2005 Act Convention in House of Lords was to have two Scottish judges Currently Lord Hodge and Lord Reed – President and Vice President It has an important role as regards Scotland in devolution and compatibility issues, particularly in relation to devolved v reserved powers (next week)  BREAKOUT Questions and Answers about Civil Courts in Scotland? 11 November 24 2024  LL1000 - Legal Systems Criminal Courts and other Courts of relevance to Scots Law The Criminal Courts The High Court of Justiciary in Aberdeen Criminal Court Structure  Scottish Criminal Court Hierarchy UK Supreme Court ! UK Supreme Court is not a criminal appeal court - Devolution/Compatibility issues are referred there ! High Court of Only in Justiciary Sitting as an Sheriff Appeal limited Appeal Court Court circs Sheriff JP court Sheriff and Summary Jury High Court solemn of Justiciary The Scottish Court System Although civil and criminal processes are distinct, the same judges may adjudicate in the two types of court at some level Sheriffs have both civil and criminal jurisdiction Senior judges: Senators of the College of Justice (Court of Session judges) become Lords Commissioners of Justiciary when hearing criminal matters in the High Court Justice of Peace Court Justice of the Peace Court Created by Criminal Proceedings (Reform) (Scotland) Act 2007 JPs - Lay justices Deals with minor crimes such as breaches of the peace and other statutory crimes, road traffic etc. JPs not legally qualified - assisted by legal assessor who is a solicitor Appeals Appeals go to Sheriff Appeal Court: s118 Courts Reform (Sc) Act 2014 vernment Sheriff Court Sheriff Court ▪ The Procurator Fiscal (Crown prosecutor) decides which mode of trial is employed: Summary or Solemn ▪ Summary procedure (no jury) ▪ For less serious crimes (BOP; Assaults; thefts etc) ▪ Summary offences now dealt with by new Summary Sheriffs who sit alone ▪ Appeals ▪ For summary offences go to Sheriff Appeal Court: s118 Courts Reform (Sc) Act 2014 Sheriff Court ▪ Solemn procedure (trial by jury) ▪ For more serious crimes (robbery, serious assaults etc.) ▪ Trials are with Sheriff and a jury of 15 ▪ Sentencing powers of Sheriff: up to 5 years imprisonment or an unlimited fine or both ▪ Can remit case to High Court if these powers are inadequate ▪ Appeals ▪ Go to High Court of Justiciary as court of criminal appeal Criminal Courts Scotland Sheriff Appeal Court Sheriff Appeal Court Appeals to Sheriff Appeal Court Sheriff Appeal Court hears appeal cases from: Justice of Peace Court Sheriff Court (Summary offences only) The Branches of Government High Court of Justiciary  High Court of Justiciary Headed by Lord Justice General (same person as the Lord President in civil cases) and Lord Justice Clerk (second most senior) HCJ has TWO DIVISIONS Sits in Edinburgh as an Appeal Court As a first instance trial court goes “on circuit” – MOVES around Scotland. Permanent homes on circuit in Glasgow and Aberdeen Tries the most serious crimes – must hear treason, murder and rape cases and other serious cases (Official Secrets, incest) Has an inherent power (“declaratory power”) to declare conduct contrary to the criminal law. See Khaliq v HMA 1984 SLT 137 (glue-sniffing “kits”)  High Court of Justiciary (Appeals) High Court as an Appellate Court (Court of Criminal Appeal) usually sits with three judges (can be more) Hears appeals from High Court (First Instance) Solemn proceedings in Sheriff Court Appeals from Sheriff Court of Appeal An appeal may be against conviction or against sentence !No further appeal beyond High Court (as appellate Court)! (1707) (Compatibility issues - referred to UK Supreme Court – next week) The Branches of Government Other Courts  Specialist Courts There are a number of other Lord Lyon King of Arms – dealing Scottish Land Court – focusing on courts that are found within the with Heraldry crofting and small landholding. Scottish legal system. The Church of Scotland is still Some Courts of special entitled to run its own courts for jurisdiction have been effectively certain matters (eg church subsumed within the Court of discipline). For these purposes Session – eg the Court of the Kirk Session and the General Exchequer (dealing with Revenue Assembly function as courts. issues) English Courts  European Court of Human Rights The ECtHR is the court created by the European Convention on Human Rights 1950 It deals with human rights issues ONLY It can hear cases from UK nationals in Strasbourg it requires that applicants have “exhausted local remedies” (ie tried to get a remedy in the domestic courts)  European Court of Justice The CJEU is the court of the European Union, based in Luxembourg Its own jurisdiction and is not directly part of the Scottish legal system It generally deals with EU free movement law - of persons, goods, services, and capital It can give judgments that have effect within the United Kingdom and all EU Member Stat  International Courts The International Court of Justice (ICJ) is a United Nations body, distinct from the Scottish legal system, based in The Hague. Its jurisdiction relates to inter-state disputes – e.g. Ukraine v Russia (2022…) The International Criminal Court (ICC) is a permanent, treaty based, international criminal court established to bring to justice perpetrators of the most serious crimes of concern to the international community (eg war crimes). It is an independent international organisation, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands. Court Structure: Conclusion The 2014 Act made a number of important changes Summary Sheriffs Sheriff Appeal court Simple procedure Personal injury court Sh Ct jurisdiction over actions worth up to £100,000 Several Courts serve both Civil and Criminal purposes Routes of appeal are important to know The role of the UK Supreme Court is significant