Scotland

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Background

The Acts of Union 1707 merged the Scottish and English Parliaments to create the Kingdom of Great Britain. Following this, Scotland experienced rapid industrialisation in the 18th and 19th centuries, particularly in Glasgow. After a failed referendum in 1979, a second one in 1997 resulted in the creation of the Scottish Parliament, to which a range of powers were devolved.

In 2014, a referendum on Scottish independence was held, and 55% voted to remain in the UK. The Scottish National Party, after Brexit, pushed for a second independence referendum which has not occurred. Nonetheless, the Scottish parliament has continued to advocate for greater autonomy within the UK.

The Acts of Union guaranteed the continuation of the separate Scottish legal system. Although Scottish Law in civil cases have been brought closer to English law, the criminal law systems are not similar. There are three key differences. Firstly, Scottish trials can deliver three verdicts: “guilty”, “not guilty” and “not proven”. Both the “not guilty” and “not proven” verdict have the same effect of acquittal. Secondly, juries in Scotland have 15 members, requiring a simple majority to convict, unlike 12-member juries in the rest of the UK. Thirdly, Scotland mandates corroboration, where two independent pieces of evidence are needed for a conviction.

Type of System

Scotland has a mixed legal system, combining elements of both civil and common law. Historically, the Scottish legal system was developed separately from the English common law and took roots from Roman based civil law. However, it has been heavily influenced by English law since the Acts of Union.

Rights of the accused

There are several sources of rights for defendants in Scotland. There are three main ones – the Criminal Procedure (Scotland) Act 1995, Human Rights Act 1998, and common law, which all operate to ensure the defendants’ rights are adequately protected. The Criminal Procedure (Scotland) Act 1995 was introduced as a consolidation act to govern most aspects of criminal procedure including ensuring that the defendant has a right to be informed of charges, to due process, to bail and to a fair trial. The second is the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into UK domestic law and applies across the United Kingdom, including Scotland. Article 3 provides the right not to be tortured or ill-treated, Article 5 ensures rights against unlawful detention, Article 6 prevents against self-incrimination, ensures right to present a defence, right to due process, right to language interpretation and Article 7 provides rights against Ex Post Facto prosecution. Thirdly, the common law is also an important source of rights in Scotland where the presumption of innocence and right to silence are especially operative. Further, capital punishment was abolished by the Murder (Abolition of Death Penalty) Act 1965 for most crimes apart from offences such as treason. It was completely abolished for all crimes with section 36 of the Crime and Disorder Act 1998.

Rights of counsel

Lawyer in Scotland have the right to access their clients in custody and this right is protected with sections 43 and 44 of the Criminal Justice (Scotland) Act 2016. Counsel also has the right to access all relevant information to the client’s case. This is governed by the Criminal Justice and Licensing (Scotland) Act 2010, which requires that defense be provided with all material evidence that may be used in court. The right to confidential communication with the client, a cornerstone for effective legal representation is also protected by legal privilege and operative in the Scottish legal system.

Legal aid situation in the country

Criminal legal aid in Scotland is administered by the Scottish Legal Aid Board (SLAB) under the Legal Aid (Scotland) Act 1986 which ensures that defendants who cannot afford legal representation can receive legal assistance in criminal cases. There is usually a means and merits test to access if the applicant is suitable to receive legal aid. The thresholds are listed on the SLAB website. There are four steps to the application process – initial consultation with a solicitor, application submission to SLAB, decisions and if successful, representation.

Scotland also has several pro bono organisations which provide aid such as LawWorks Scotland, the Free Legal Services Unit and Legal Services Agency.

Pre trial phase

When a report is made, the police will investigate. Under section 1 of the Criminal Justice (Scotland) Act 2016, a warrant is not required for arrest if the officer has reasonable grounds to believe that an offence has been committed and arrest is necessary. Following arrest, suspects are brought to a police station where they may be formally charged. There is a right to remain silent and right to legal representation under Article 6 of the ECHR. The police will then send a report to the Crown Office & Procurator Fiscal Service (COPFS), where the procurator fiscal will determine if there is enough evidence to proceed with charges. Where the accused is held in custody, a bail hearing will be held to decide whether they can be released pending trial or must remain in custody. Some factors which are taken into account are whether there is a flight risk and if there is a potential danger to the public. Before a case reaches trial, the accused will be asked to plead either guilty or not guilty to the charges faced. Where the accused pleads guilty, and this plea is accepted by the prosecution, a trial is not needed before sentencing. While prosecution is not obliged to accept the plea, they are unlikely to reject a guilty plea which applies to all charges.

Court Procedures

There are two types of procedures under which an individual can be tried, either solemnly or summarily. Solemn procedures involve more serious cases and are tried in either a Sheriff Court or the High Court of Justiciary. Summary procedures are conducted without a jury and are tried either in a Sheriff Court or a Justice of the Peace court.

The High Court of Justiciary deals with the most serious criminal cases and serves as the appellate court for criminal matters. The High Court is presided over by a judge for trials or panel of judges for appeals. The judges are all senior members of the judiciary with the official title Lords Commissioners of Justiciary. The High Court is the final court of appeal in all criminal cases in Scotland besides a limited right to appeal to the UK Supreme Court on issues of human rights or legislative competence. The High Court has unlimited sentencing powers and can impose life imprisonment or other lengthy custodial sentences.

The Sheriff court handles most of the criminal cases in Scotland and tries both solemn and summary cases. The Sheriff Court is presided over by a sheriff who is a legally qualified judge. Scotland is divided into several sheriffdoms, each with its own Sheriff Court. This makes them more accessible for local cases. The Sheriff court in solemn procedures can sentence imprisonment for up to 5 years but can remit the case to the High Court if they believe that a longer sentence is warranted.

The Justice of the Peace court is a unique part of Scotland’s criminal law system, where the court is presided over by a lay magistrate that is appointed from within the local community and trained in criminal law and procedure. It deals with less serious summary cases, including speeding, careless driving, minor assaults, and other breaches of the peace. The court can sentence imprisonment for up to 60 days and fines of up to £2,500

All three courts seek to ensure that the rights of the accused are upheld throughout the judicial process, including the right to a fair trial, presumption of innocence, right to be informed of charges against them and the right to a defence.

When the accused has a custodial sentence, they will be placed in the custody of the Scottish Prison Service (SPS). The Criminal Justice Social Work services work closely with the SPS to help people serving a prison sentence to maintain their contact when they re-join the community.

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