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The History of the Scottish Justice System

It's official, Scots Law is Flawed. The Scottish Justice system has recently attracted much criticism in the way it has dealt with a number of high profile cases. Indeed, Hans Köchler, the United Nations observer at the Lockerbie trial stated that Scotland had the reputation of a "banana republic" because of its handling of the case. The academic, who advises the European Commission on democracy and human rights, stated - "Scotland does not deserve to be granted independence until it addresses the failings within its judicial system". Just like the Forth Road Bridge, the Scottish Justice System requires some serious modernisation and repair before it ultimately collapses. The recent debacle involving one of the few bona fide Human Rights Lawyers in Scotland, Aamer Anwar, has again brought the whole system into disrepute and does the Justiciary no favours.

Scots law is a unique legal system with an ancient basis in Roman law. 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. Not exactly what you would call universally accepted justice! Just because it is different doesn't make it better!

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 and the establishment of the Scottish Parliament which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998.

Although there are many substantial differences between Scots law, English law and Northern Ireland law, much of the law is also similar, for example, Commercial law is similar throughout all jurisdictions in the United Kingdom, as is Employment Law. A feature of the different systems is that different terminology is often used for the same concepts, for example, arbiters are called arbitrators in England whilst an Advocate in Scotland is referred to as a Barrister elsewhere within the United Kingdom.

The greatest perceivable difference between the systems however is the way in which juries are formed and in the way they decide a verdict. Scottish juries consist of 15 members (the norm being 12 elsewhere) and have a third verdict of 'not proven' available to them. Many legal academics favour this system because it suits them; in reality it only serves to muddy the waters. Scots juries can also confirm verdicts on the basis of a simple majority, thus, 8 jurors can decide to convict irrespective of the other 7. Another difference between the systems is that the age of legal capacity under Scots Law is 16 whereas it is 18 elsewhere.

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 (including extradition), fiscal and economic policy, drugs law, and broadcasting, amongst others. The Scottish Parliament also retains limited tax raising powers. 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. Solicitors are the 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.

Advocates on the other hand are the equivalent of English Barristers and 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 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. It used to be the case that Advocates were completely immune from suit etc whilst 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.

While Solicitors and Advocates are distinct branches of the Scottish legal profession, there has been a blurring of this position in recent years leading to the designation of Solicitor-Advocate. 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.

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 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. 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 although this may not be altogether a change for the better under the present system.

Many Scots laws are simply part of the law of the land. For example, murder and theft are not defined in statute as offences, but come under Common Law. This has sources in custom, in legal writings and in previous court decisions. Unlike in English law, the use of such precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent. Scots criminal law relies far more heavily on Common Law than in England. Scots criminal law includes offences against the person in addition to offences against property such as theft and embezzlement, the latter not now extant within English Law.

The principles of natural justice and fairness have allegedly formed a source of Scots Law and are in theory supposed to be applied by the courts without distinction from the law. In practice however it is seen that the prosecuting authorities have their own agenda to fulfil and are able to manipulate the system in such a small region to their own benefit with apparent immunity or interference from outside influences.

Scots law continues to change and evolve albeit at a snails pace with the most significant change coming with the recent establishment of the Scottish Parliament. However, there is much to be done in order to create a justice system which is both comparable with that enjoyed by the rest of the United Kingdom and which is capable of securing those fundamental rights and freedoms enshrined within and guaranteed by the European Convention for the Protection of Human Rights.

It would indeed seem that her Majesty, in whose name prosecutions are undertaken throughout the UK and the Commonwealth, operates double standards when it comes to justice for her minority subjects in Scotland!

We all pay the same taxes to the same treasury so why should we be denied equality in justice just because it suits a few individuals to keep it that way!

Human Rights