H00356301 Commercial Law

INTRODUCTION

Almost three hundred years before Scotland’s devolution in 1999, the Scottish court system
already existed. With the establishment of the new Scottish parliament, responsibility for the
Scottish justice system was devolved to it (Shuttleworth and Paun, 2020). The Scottish Criminal
Court Structure is a hierarchical structure where cases will be heard at the different courts
according to the severity of the crime. As seen in figure 1 below, the four main criminal courts in
Scotland are The High Court of Justiciary (HC), the Sheriff Appeal Court (SHPP), Sheriff Court
(SHE), and the Justice of the Peace Court (JP). The UK Supreme Court (UKSC) is not a part of
the court system, however it can be involved in some cases (University of Glasgow, no date).

Figure 1: Scottish Criminal Court Structure

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PART A

JP

JP is Scotand’s lowest criminal court and only deals with summary cases such as breach of
peace, vandalism, and other minor offences. As the justice of the peace is a lay person with no
legal background, JP is often seen as the ‘lay court’. The justice decides on the verdict as well as
the sentence (Scottish Courts and Tribunals, 2017). The sentencing powers are limited, with fines
up to £2,500 or imprisonment up to 60 days (Judicial Office for Scotland, no date).

According to the 2005 White Paper, the justice is a layman because for most purposes criminal
justice is summary justice, so the involvement of the community was a different way of
delivering that justice. It also allowed the community to feel like they have a role in the criminal
justice system (White, 2012). However, in Glasgow there are stipendiary magistrates who are
legally qualified as the justice of the peace. This is because they deal with more serious cases
similar to sheriffs, such as drunk driving and assault. Therefore, they are also given the same
sentencing powers as sheriffs (Scottish Government, 2016).

An example of a case heard in JP is Raffaelli v. Heatly (1949). The accused was peering through
the window of a house and was found guilty of a breach of peace as he undoubtedly caused fear
in women on the street and the evidence was sufficient for the judge to draw an inference.

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SHE

The SHE court deals with both summary and solemn cases. They have jurisdiction over all
crimes in the sheriff districts except for “pleas of the crown” such as murder and rape that is only
reserved for the HC (HSE, no date). A solemn case will be heard by the sheriff and a jury of 15
while a summary case will only be heard by the sheriff. The sentencing power of the sheriff in a
solemn case is £10,000 or imprisonment for up to 12 months, in a summary case it is 5 years
imprisonment and unlimited fines (Judicial Office for Scotland, no date).

In solemn cases, the questions of law are decided by the sheriff while the questions of fact are
determined by the jury. In summary cases, the sheriff decides on both. A question of law must be
answered by an interpretation of the law and applying appropriate legal principles . A question of
fact must be answered by using facts and evidence (Wilson, 1963). In R v. Lamb (1967), the
question of fact is whether the defendant shot and killed Timothy O’Donaghue by accident. The
question of law is whether the actions of the defendant fit the legal definition of involuntary
manslaughter.

Solemn cases from SHE that get appealed will be heard at HC. In D.A. v. Her Majesty’s
Advocate (2007), the appellant was convicted at the sheriff court for lewd practices against his
stepdaughters. The case was appealed to HC for an error in the explanation of reasonable doubt
to the jury by the procurator fiscal. He stated that reasonable doubt would stop you from making
a decision, however it is actually something that would cause a juror to hesitate when making a
judgement. The standard requirement for prosecutors in criminal cases is that they prove the case
“beyond reasonable doubt”. The degree of belief in guilt for conviction must be 99%
(Mueller-Johnson, et al., 2017). But in civil cases, guilt for conviction just has to be proven on
“the balance of probabilities”, where the degree of belief in guilt is 51% (Davies, 2008).
However, as the sheriff had corrected the words of the procurator fiscal with the jury, the appeal
was refused.

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SHPP

SHPP hears appeals for summary cases from JP and SHE. In an appeal from JP, in Wishart v. R
(2020), the appellant was involved in a car accident and appealed his conviction to SHPP. There
was sufficient evidence that the CCTV footage that showed the accident held no objection by the
appellant in the original hearing and therefore the appeal was refused.

SHPP also hears summary appeals from SHE, in Henderson v. R (2019), Henderson was
convicted for failing to leave a sufficient gap between vehicles, which caused a pedestrian to be
pinned against the vehicle. However an appeal was filed because the sheriff was not entitled to
conclude that the appellant’s driving fell below the standard of the careful and competent driver
as a “sufficient gap” is subjective. Therefore, the appeal was accepted.

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HC

The HC is Scotland’s supreme criminal court. It is both a court of first instance and an appeal
court. The HC has exclusive jurisdiction over cases such as murder, rape, and serious drug
offenses (Black and Bisacre, 2015). The maximum penalty in the HC is life imprisonment and
unlimited fines (Judicial Office for Scotland, no date).

The trial court will consist of one judge and a jury of 15 which are chosen from the local
community. A jury is utilized so that the criminal justice system serves the public interest instead
of the interests of unjust leaders. (Lawteacher.net, 2019). The jury is a representation of society
as they are randomly chosen regardless of their background. A miscarriage of justice, otherwise
known as a wrongful conviction, is described as ‘a failure to achieve justice’ (Lawteacher.net,
2021). Selecting the jury from such a wide spectrum of people could lead to juror bias when
deciding on a verdict as they might have their own preconceived beliefs that affects their
decisions (Curley, 2018). This is especially true in rape cases where it is difficult to prove that
the act happened without consent, so it is up to the jury and their beliefs to decide if rape in fact
did happen.

In a case at HC, AR v. Stephen Daniel Coxen (2018), Coxen was charged with raping the
complainer at her flat while she was drunk. After a trial, the jury found the case against him not
proven, which meant he could walk free.

If the defendant would like to appeal, it would be appealed and heard again at the HC by an
appeal judge. Verdicts and sentences can be appealed, but a guilty verdict by the jury can only be
appealed if it is about a point of law (Scottish Sentencing Council, no date). In the case Adam
Lundy v. Her Majesty's Advocate (2018), Lundy was convicted of murder. But due to claims of
the jury being misled by the Advocate Depute, the conviction was quashed.

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UKSC

The UKSC is the highest court in the UK and Scotland’s final court of appeal for civil cases(The
Supreme Court, 2012). The Scotland Act 1998 retained that Scotland has institutional autonomy
with its own system of law (UK Legislation, 2011). Which is why Scottish criminal cases cannot
be heard or appealed at UKSC. The UKSC only hears Scottish criminal cases in which
devolution or compatibility issues arise (UK Supreme Court, 2012). Devolution issues emerge
where it is unclear whether a provision of the act of the Scottish parliament pertains to a reserved
matter. When a public authority or act of the Scottish parliament is regarded as incompatible with
the European Convention of Human Rights (ECHR) or EU law, compatibility difficulties arise
(Shuttleworth and Paun, 2020).

In Fraser v. Her Majesty’s Advocate (2011), Fraser was convicted for the murder of his wife
Arlene. In a retrial, a witness admitted that Fraser had planned the murder of Arlene. Fraser was
found guilty and sentenced to life. However, Fraser’s defence team discovered that evidence was
not made available in the original trial. Fraser was subjected to an unfair trial in violation of
Article 6 of the ECHR, which resulted in compatibility issues due to the Crown’s negligence in
disclosing evidence to the defence. Fraser appealed and had his conviction quashed by the
UKSC.

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Conclusion

Scotland has a unique criminal court structure, therefore an understanding of the system is very
important. There might also be changes to Scotland’s legal system in the future, whether it be
through referendums or Brexit.

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PART B

The court hierarchy is why criminal offences are heard at different levels in court. It upholds the
doctrine of precedent, with rulings in higher courts binding on lower courts (lawgovpol, 2014).
Furthermore, court hierarchies allow for appeals. If a person is unhappy with their verdict or
sentencing, they can appeal to a higher court. Next, every court has their own specialisation. For
example, a murder case will be heard at HC as the court has already developed experience in
those cases and are familiar with the procedures and legislations. Lastly, judges in the different
levels of court have different expertise. Judges in the HC will generally have more experience in
handling cases of that seriousness (Oldfather, 2012).

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Conclusion

The function of the court hierarchy is to allow a smoother operation of the legal process, for both
the legal professionals as well as the public. With a speedier process, it will allow for more cases
to be heard and for justice to be served rightfully.

(1630 words)

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References
Adam Lundy v. Her Majesty’s Advocate (2018) HCJAC 46.

AR v Stephen Daniel Coxen (2018) SC EDIN 53.

Black, G. and Bisacre, J. R. (2015) Business law in Scotland. Edinburgh: W. Green.

Curley, L. J. (2018) How juror bias can be tackled to ensure fairer trials, The Conversation.
Available at:
https://theconversation.com/how-juror-bias-can-be-tackled-to-ensure-fairer-trials-100476
(Accessed: 21 October 2021).

D.A. v. Her Majesty’s Advocate (2007) ScotHC HCJAC_08.

Davies, S. (2008) Practical Law UK Signon, signon.thomsonreuters.com. Available at:

https://uk.practicallaw.thomsonreuters.com/2-500-6576?transitionType=Default&contextData=(s
c.Default)&firstPage=true (Accessed: 21 October 2021).

Fraser v Her Majesty’s Advocate (2011) UKSC 24.

Henderson v The Procurator Fiscal, Aberdeen (2019) ScotSAC Crim 18.

HSE (no date) HSE - Enforcement Guide (Scotland) - The Criminal Courts, www.hse.gov.uk.
Available at:
https://www.hse.gov.uk/enforce/enforcementguidesc/criminal.htm#_The_Sheriff_Court
(Accessed: 19 October 2021).

Judicial Office for Scotland (no date) The Judiciary in Scotland. Available at:
https://www.judiciary.scot/docs/librariesprovider3/judiciarydocuments/information-sheets/the-ju
diciary-in-scotland---general.pdf?sfvrsn=c639cfe7_4 (Accessed: 17 October 2021).

lawgovpol (2014) Advantages of court hierarchies, lawgovpol.com. Available at:

https://lawgovpol.com/advantages-court-hierarchies/ (Accessed: 22 October 2021).

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Lawteacher.net (2019) The Jury System, Lawteacher.net. Available at:

https://www.lawteacher.net/free-law-essays/criminal-law/the-jury-system.php (Accessed: 21
October 2021).

Lawteacher.net (2021) Miscarriage of Justice Case: Sally Clark, www.lawteacher.net. Available

at:
https://www.lawteacher.net/free-law-essays/criminal-law/miscarriage-of-justice-case-sally-clark.
php (Accessed: 21 October 2021).

Mueller-Johnson, K., Dhami, M. K. and Lundrigan, S. (2017) “Effects of judicial instructions

and juror characteristics on interpretations of beyond reasonable doubt,” Psychology, Crime &
Law, 24(2), pp. 117–133. doi: 10.1080/1068316x.2017.1394461.

Oldfather, C. (2012) Judging, Expertise, and the Rule of Law Judging, Expertise, and the Rule of
Law. Available at: https://core.ac.uk/download/pdf/233179345.pdf (Accessed: 22 October 2021).

R v Lamb (1967) 2 QB 981.

Raffaelli v Heatly (1949) ScotHC HCJ_1.

Scottish Courts and Tribunals (2017) Be a Lay Judge in the Summary Criminal Justice of the
Peace Courts, www.scotcourts.gov.uk. Available at:
https://www.scotcourts.gov.uk/about-the-scottish-court-service/scs-news/2017/01/27/be-a-lay-ju
dge-in-the-summary-criminal-justice-of-the-peace-courts (Accessed: 17 October 2021).

Scottish Government (2016) CRIMINAL PROCEEDINGS IN SCOTLAND 2014-15,

www.gov.scot. Available at:
https://www.gov.scot/publications/criminal-proceedings-scotland-2014-15/pages/7/ (Accessed:
18 October 2021).

Scottish Sentencing Council (no date) Scottish Sentencing Council Sentences sentences and
appeals. Available at:
https://www.scottishsentencingcouncil.org.uk/about-sentencing/sentences-and-appeals/
(Accessed: 22 October 2021).

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Shuttleworth, K. and Paun, A. (2020) StackPath, www.instituteforgovernment.org.uk. Available

at: https://www.instituteforgovernment.org.uk/explainers/criminal-justice-devolution (Accessed:
17 October 2021).

The Supreme Court (2012) Role of The Supreme Court - The Supreme Court, Supremecourt.uk.
Available at: https://www.supremecourt.uk/about/role-of-the-supreme-court.html (Accessed: 22
October 2021).

UK Legislation (2011) Scotland Act 1998, Legislation.gov.uk. Available at:

https://www.legislation.gov.uk/ukpga/1998/46/contents (Accessed: 22 October 2021).

UK Supreme Court (2012) Scottish Criminal Cases and the UK Supreme Court. Available at:
https://www.supremecourt.uk/docs/scottish_criminal_cases.pdf.

University of Glasglow (no date) Scottish Criminal Justice System. Available at:
http://www.sccjr.ac.uk/wp-content/uploads/2016/07/SCCJR-Scottish-criminal-justice-system.pdf
(Accessed: 29 September 2021).

White, R. (2012) University of Dundee Lay Criminal Courts in Scotland. Available at:
https://discovery.dundee.ac.uk/ws/portalfiles/portal/1609827/elr.2012.pdf (Accessed: 17 October
2021).

Wilson, W. A. (1963) “A Note on Fact and Law,” The Modern Law Review, 26(6), pp. 609–624.
doi: 10.1111/j.1468-2230.1963.tb02231.x.

Wishart v. R (2021) SAC (Crim) 1.

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