The Criminal Courts

Structure and jurisdiction

The High Court

The supreme criminal court is the High Court of Justiciary. This consists of the Lord Justice General, the Lord Justice Clerk and other High Court Judges who are known as Lords Commissioners of Justiciary.

The High Court is based in Edinburgh but visits other towns "on circuit" as and when required. The busiest High Court is in Glasgow.

The High Court has jurisdiction in respect of crimes committed anywhere in Scotland, and only the High Court may deal with the most serious crimes, the "Pleas of the Crown" ie treason, murder and rape.

Trial in the High Court is on indictment, presided over by a single Judge sitting with a jury of 15. Only Advocates, Solicitor Advocates and the accused have a right of audience before the Court.

Prosecutions are conducted by Crown Counsel - either Advocates Depute or, occasionally, the Lord Advocate or Solicitor General.

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The Sheriff Court

Scotland is divided into 6 Sheriffdoms, which are further divided into Sheriff Court districts.

Each Sheriffdom has a full time Sheriff Principal and a number of Sheriffs who act as judges in the Sheriff Courts. The Sheriff is legally qualified and is appointed from the ranks of either the Scottish Bar or the solicitor profession in Scotland.

If the Sheriff sits with a jury (solemn proceedings) the maximum custodial sentence that can be imposed is three years. If the Sheriff is of the view that this sentence is inadequate the case can be remitted to the High Court for sentence (where the common law powers are unlimited), following upon conviction.

In summary proceedings, the maximum custodial sentence a Sheriff may impose in relation to a common law offence is three months (in some circumstances six months) imprisonment or a fine. Health and Safety offences are not common law offences but statutory and, as such, available sentences are laid down in the relevant legislation the (see Penalties).

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The District Court

This is the lowest level of criminal court, where the Judges are non-legally qualified Justices of the Peace, (In Glasgow alone, legally qualified Stipendiary Magistrates sit in the District Court, whose sentencing powers are similar to those of the Sheriff in summary cases). The maximum period of imprisonment that a JP may impose is 60 days.

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Judicial precedent

Judicial precedent refers to the set of rules specifying when a court must have regard to, or consider, the decision of another court, and the circumstances in which the decision of that other court is binding. In essence then, judicial precedent determines when courts have to apply a previous decision of another court, regardless of whether the judge or judges actually agree with that decision.

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English decisions

A particular feature of the way in which judicial precedent operates in Scotland, unlike precedent in civil cases, stems from the fact that Scottish criminal cases are not appealed to the House of Lords. This in turn determines the standing of English criminal decisions in Scotland.

The final court of appeal in criminal matters in Scotland is the High Court of Justiciary. As a result, Scottish criminal courts, of whatever level, are not bound by the decisions of any English court in criminal matters; this applies both to decisions of the House of Lords and the criminal division of the Court of Appeal. This rule applies even to English decisions on UK wide statutes imposing criminal liability. Therefore, English decisions on, for example, the Health and Safety at Work Act 1974 are not, as a matter of judicial precedent, binding in Scotland. That does not mean however that English decisions are of no importance or significance in Scotland: when an English court has issued a decision on a question of the interpretation of a statute, then, that decision will be treated with particular respect by the Scottish criminal courts. In practice an English court's interpretation of a provision of a UK wide statute, in an English appeal, will generally be accepted and followed by a Scottish criminal court. However, there is no rule of precedent mandating this, and there are examples where the Scottish High Court of Justiciary has followed an earlier Scottish authority, as opposed to following a decision of the House of Lords on the interpretation of a UK wide statute.

In criminal cases not involving UK wide statutes, a decision of the House of Lords is treated, at best in Scotland as "highly persuasive". 1

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High Court of Justiciary

The High Court of Justiciary, like the Court of Session, is a collegiate body, and the way in which judicial operates is reflective of this.

A quorum of the High Court is three judges, and a quorum of the court considers itself bound by a previous decision of the High Court sitting with an equal number of judges. As such, a decision of the High Court can only be overturned by, or not followed, by the High Court sitting with a larger number of judges. It remains unclear whether a decision of the Whole Court (comprising all judges) is bound by a previous decision of the Whole Court. However, to a greater extent the question is mainly academic: there are very few written decisions of the Whole Court, and the consensus view seems to be that it would now be extremely unlikely for a Whole Court to be convened. As decisions of a bench of judges are binding on a court of equal number, the practice is to convene a larger court to decide matters of particular importance or review an earlier decision.

So far as decisions of a single judge are concerned, these do not bind other judges sitting alone in the High Court of Justiciary. There is little authority on the position of sheriffs hearing criminal matters in the sheriff courts, mainly because there are few written decisions following criminal trials. It is generally accepted however that a High Court decision of three or more judges binds a sheriff. The decisions of a single trial judge sitting alone are not usually reported, however, the consensus view is that a sheriff is not bound by such decisions, although they should be treated with respect. Individual sheriffs are not bound by the decisions of other sheriffs, although these may be followed in practice.

Although not strictly a part of judicial precedent, the Lord Advocate has the power to refer an issue of law to the High Court. This power can only be exercised where an accused has been tried on indictment and acquitted. The view of the High Court on an issue referred to it does not affect the verdict; this procedure was introduced as a way to resolve legal issues, particularly where there are conflicting decisions.

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Court procedure

Summary procedure

The vast majority of crimes in Scotland are prosecuted summarily by the Procurator Fiscal. Summary proceedings are regulated by the Criminal Procedure ( Scotland) Act 1995 part IX and such prosecutions are competent in the District Court (the lowest level of court) and the Sheriff Court, where the case will be heard by a Sheriff without a jury.

In practice, HSW offences are not prosecuted in the District Court. Most of your cases will be prosecuted in the Sheriff Court by means of summary complaint - the document served on the accused to initiate proceedings.

The complaint is served on the accused by the Procurator Fiscal and the Fiscal advises the accused of the pleading diet date. Thereafter, the case proceeds as follows:

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Pleading Diet

The accused intimates whether he is pleading guilty or not guilty, or the case may be continued without any plea being recorded. If a guilty plea is tendered the case can be dealt with there and then in the absence of the accused. Alternatively, the Sheriff may wish further information from either the Crown or the Defence, or wish the accused to be present when sentencing. In these circumstances the case will be deferred to a later diet for sentence.

If a not guilty plea is tendered, dates are fixed for both intermediate and trial diets.

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Intermediate Diet

These diets are now mandatory 2 in all summary cases and will only be dispensed with in "exceptional circumstances" 3. The intermediate diet is normally fixed two weeks prior to the trial diet and its purpose is to ascertain whether the case is likely to proceed to trial on the assigned date. In particular, the court will enquire:

  • what the state of preparation of the case is (Crown and Defence);
  • whether the accused intends to adhere to his plea of not guilty; and
  • to what extent both sides have complied with the duties imposed on them to agree non contentious evidence.

It is open to the accused to plead guilty at this stage and sentence can be passed at such a diet. Alternatively, the trial diet may be adjourned, the case may be adjourned to another intermediate diet (often a week later), to ascertain whether both sides are prepared for trial by then, or the case may simply proceed to the trial diet.

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Trial Diet

Unlike in England there are no opening statements by the Crown or defence and the case is commenced by the prosecutor calling the first witness to start the trial. At the conclusion of the Crown case the defence may make a submission that there is no case to answer 4 ie that in law there is an insufficiency of evidence and the Crown has therefore failed to prove its case. The Sheriff will hear arguments and either uphold or reject the submission. If upheld, the accused is found not guilty. If rejected, the trial continues and the defence may call witnesses, including the accused on his own behalf, or they may choose not to do so, as is their right. Failure to give evidence by the accused cannot be the subject of criticism. Upon conclusion of the trial, the Sheriff will on occasion adjourn for a short while to consider his verdict which may be a finding of guilty, not guilty or not proven. The latter two are both verdicts of acquittal.

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Solemn procedure

In the most serious of cases, the Crown may decide to proceed by solemn procedure which always involves trial by jury. Solemn proceedings are regulated by the Criminal Procedure ( Scotland) Act 1995 part VII. This is a decision for the Crown alone - the accused cannot elect for jury trial.

The High Court is reserved for the most serious cases such as murder and rape, and there the prosecutors are Advocates-Depute appointed by the Crown. This is not generally a forum for Health and Safety cases, although in exceptional circumstances eg high profile multiple deaths cases it may be considered appropriate.

Alternatively, and more usually, solemn proceedings are raised in the Sheriff court by means of a petition. The petition is the document outlining the likely charge or charges against the accused and craving the necessary warrants from the court, including warrants to arrest the accused, cite witnesses for precognition (interview) and warrants to search.

After the petition has been served the Procurator Fiscal will proceed to precognosce the case. This will involve interviewing all the important witnesses, examining productions and liaising very closely with the reporting Inspector. Often further work / investigation will require to be carried out in such cases. The information amassed at this precognition stage will enable the Fiscal to reach a decision as to whether or not proceedings should be taken against a person or a company. He will form an opinion and report to Crown Office for consideration by Crown Counsel. Crown Counsel will then either

  1. order the accused to be indicted for trial,
  2. order no proceedings or
  3. order the Fiscal to proceed summarily, if the case is not considered sufficiently serious to justify solemn proceedings. Occasionally in cases involving fatalities Crown Counsel may order that there are to be no proceedings but that the Fiscal is to proceed by way of Fatal Accident Inquiry.

The Crown must comply with strict time limits in solemn proceedings. In particular, to prevent delay in trials section 65(1) of the 1995 Act provides that an accused cannot be tried on indictment for any offence unless the trial is commenced within a period of 12 months of the first appearance of that accused on petition in respect of that offence. If the trial does not commence within that period, the accused must be discharged forthwith and "thereafter he shall be forever free from all question or process for that offence".

The indictment must be served on the accused not less than 29 clear days before the trial diet, and in Sheriff court cases, there must be at least 15 clear days between the service of the indictment and the first diet 5. The indictment as well as detailing the charges against the accused also contains a list of the Crown witnesses and a list of the documentary and other real evidence

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First Diet

Mandatory first diets were introduced by the 1995 Act 6 in an attempt to reduce inconvenience to jurors and witnesses as well as wasted court time. They perform much the same function as the intermediate diet in summary cases and all uncontroversial evidence should be agreed at this stage.

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Trial Diet

Although the Sheriff will be sitting with a jury, the trial procedure will be very similar to that of a summary case. However, in some complex cases the judge or sheriff may make opening remarks to the jury explaining not only the procedure to be followed but also explaining key legal concepts, for example the reverse burden of proof. In the Transco prosecution the criminal appeal court took the view that there would be no objection in principle to a judge making detailed opening remarks on the particularly difficult elements of a case.

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  1. 1. Stair Memorial Encyclopaedia – Sources of Law (Formal) – 2 Judicial Precedent - paragraph 304. Back to reference of footnote 1
  2. 2. Criminal Justice ( Scotland) Act 1995, section 14. Back to reference of footnote 2
  3. 3. Criminal Procedure ( Scotland) Act 1995, section 148(5). Back to reference of footnote 3
  4. 4. Criminal Procedure ( Scotland) Act 1995, section 160. Back to reference of footnote 4
  5. 5. Criminal Procedure ( Scotland) Act 1995, section 66(6). Back to reference of footnote 5
  6. 6. Criminal Procedure ( Scotland) Act 1995, section 71. Back to reference of footnote 6

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Updated 2023-11-20