Scottish Independence and Scotland's Future Scottish Innovation
Party (SIP) Justice
To look at how we might do
better with our Justice system we need to understand the background and
the issues and here I am providing this through articles and videos.
The Court System in
Criminal Justice is a power devolved to the Scottish Parliament.
However, Scotland has long had a unique court and criminal justice
system which is very different to that within the rest of the UK.
There are two types of criminal justice procedure in Scotland; Solemn
procedure and Summary procedure.
The choice of whether to prosecute a case under solemn or summary
procedure is made by the prosecution service, known as the Crown Office
and Procurator Fiscal Service (COPFS). This affects the sentences
available to the court on conviction. The vast majority of criminal
court cases are dealt with under summary procedure – 96% of criminal
court disposals during 2010-11 were in the summary courts.
Solemn procedure involves the most serious of criminal cases and may
ultimately lead to a trial either before a judge in the High Court or
before a sheriff in one of the sheriff courts. Trials under solemn
procedure are conducted with a jury.
Summary procedure is used for less serious offences (with the charges
set out in a complaint) and may ultimately lead to a trial before a
sheriff or, in justice of the peace courts. Trials under summary
procedure are conducted without a jury.
A jury in a Scottish criminal case is made up of 15 people, with a
simple majority (8 or more out of 15) sufficient to establish guilt.
Scottish courts can deliver one of three possible verdicts: guilty, not
guilty, and not proven. The not proven verdict is unique to Scotland and
has been controversial in the past. Essentially the not proven verdict
means that the jury believes the accused may have committed the crime
but does not have sufficient evidence to award a guilty verdict. On the
other hand, it is not sufficiently convinced that the accused is not
guilty. Note that there is not a verdict of innocence. An accused is
innocent until proven guilty.
The High Court of Justiciary
The High Court is Scotland's highest criminal court. Edinburgh, Glasgow
and Aberdeen have permanent High Court buildings. Throughout the rest of
the country the High court sits in the local Sheriff Court building. The
High Court deals with the most serious of crimes such as treason, murder
and rape, armed robbery, drug trafficking and sexual offences involving
There are a total of 49 sheriff courts throughout Scotland. Sheriff
Courts deal with crimes which are too serious for a district Court but
not serious enough for a High Court. If, however, on the basis of new
evidence being provided, a Sheriff can refer the case to the High Court.
Justice of the Peace Courts
Justice of the Peace Courts were created by the Criminal Proceedings etc
(Reform) (Scotland) Act 2007 and they replaced former District Courts
which were operated by local authorities. As the lowest level of
criminal court, Justice of the Peace Courts handle relatively minor
crimes such as cases of breach of the peace, minor assaults, minor road
traffic offences and petty theft.
Cases are dealt with by a bench of one or more lay justices, apart from
Glasgow's justice of the peace court where a legally qualified
Stipendiary Magistrate can sit. The maximum sentence that a Stipendiary
Magistrate may impose is 12 months imprisonment or a fine not exceeding
£10,000. Lay justices can impose custodial sentences of up to 60 days
and can impose fines of up to £2,500.
UK Supreme Court
As Scotland remains part of the UK, the UK's Supreme Court is the
highest court in the UK. The Supreme Court can become involved in
Scottish criminal cases. The Scottish Government is currently looking at
ways to stop the UK Supreme Court involving itself with the Scottish
criminal justice system.
Juvenile Justice in Scotland
Scotland has a unique Children's Hearing System which is quite different
from juvenile justice systems elsewhere in the UK and the world. In
Scotland, children (those under the age of 16) are only considered for
prosecution in court for serious offences such as murder, assault which
puts a life in danger or serious road traffic offences which can lead to
disqualification from driving.
Even in these cases, the Procurator Fiscal may well refer the case to
The Reporter who can decide to refer the child to a Hearing of the
Children's Panel. A child or young person may be placed before a hearing
is beyond the control of parents or carers
is at risk of moral danger
is or has been the victim of an offence, including physical injury or
is likely to suffer serious harm to health or development through lack
is misusing drugs, alcohol or solvents
has committed an offence
is not attending school regularly without a reasonable excuse
is subject to an antisocial behaviour order and the Sheriff requires the
case to be referred to a children's hearing.
The Children's Panel
The Children's panel is a group of people from the community who
volunteer their services. They are carefully selected and highly
trained. They must demonstrate that they have the best interests of
young people at heart. Across Scotland there are around 2,500 children's
Every Scottish local authority has a children's panel, and panel members
sit on hearings on a rota basis. A children's hearing has three panel
members, of which there must be a mix of men and women. The hearing is
not like a court case. There are no gowns or intimidating rituals. The
task of the hearing is not to punish but to decide what the best
interests of the young person are. The hearing must decide whether the
child/young person should be taken into care or what role other
agencies, such as social work should have in the young person's life.
Polmont is Scotland's national holding facility for Young Offenders aged
between 16 - 21 years of age. The prison functions as a national
resource, accommodating sentenced prisoners from all over the country.
The contracted numbers are 760, with a maximum space for 830, making
Polmont arguably the biggest Young Offenders Institution in Britain.
Sentences range from 6 months to Life. The average sentence length is
between 2 - 4 years.
In recent years Polmont has received a fair degree of negative
publicity. In a television programme broadcast in 2006, Polmont was
described (by the then Governor) as "the most violent prison in
Scotland". Overcrowding has been a serious problem. Overcrowding means
that offenders are kept in their cells for long periods with resultant
increases in tensions. Overcrowding also reduces the possibilities of
staff to address the needs of Young Offenders and change their offending
Scottish Criminal Justice
System Part 1
Scottish Criminal Justice
System Part 2
Scottish Criminal Justice
System Part 3
Scottish Criminal Justice
System Part 4
UK Supreme Court The
Highest Court in the Land
The History of Scottish
Scots law is the legal system of Scotland.
It is a hybrid or mixed legal system, containing civil law and common
law elements, that traces its roots to a number of different historical
sources. Together with English law and Northern Ireland law, it is one
of the three legal systems of the United Kingdom. It shares some
elements with the two other systems, but it also has its own unique
sources, institutions and nomen juris.
Early Scots law before the 12th century consisted of the different legal
traditions of the various cultural groups that inhabited the country at
the time, the Gaels in most of the country, with the Britons and
Anglo-Saxons in some districts south of the Forth and with the Norse in
the islands and north of the River Oykel. The introduction of feudalism
from the 12th century and the expansion of the Kingdom of Scotland
established the modern roots of Scots law, which was gradually
influenced by other, especially Anglo-Norman and continental legal
traditions. Although there was some indirect Roman law influence on
Scots law the direct influence of Roman law was slight up until around
the 15th century. After this time, Roman law was often adopted in
argument in court, in an adapted form, where there was no native Scots
rule to settle a dispute; and Roman law was in this way partially
received into Scots law.
Logical to keep not
proven verdict, says Scots law expert
A Scots law expert has said the not proven verdict is the "logical" one
to keep in criminal cases and there is an argument for dropping not
Douglas Thomson, of the Law Society's Criminal Law Committee, was
responding to the Scottish government's plans to study how juries make
There are currently three verdicts - guilty, not guilty and not proven.
Mr Thomson said if the Crown failed to prove a case the logical verdict
was not proven, rather than not guilty.
Earlier this year, Holyrood's justice committee concluded Scotland's not
proven verdict was on "borrowed time" and may not serve any useful
Mr Thomson acknowledged that there "was not unanimity about the value of
the three verdict system".
He told the BBC's Good Morning Scotland programme that within the
profession, there is a "fairly solid body of support" that what a jury
is being asked to do is decide whether the public prosecutor has proved
the case beyond reasonable doubt.
'Appropriate verdict of acquittal'
He added: "Therefore, the logical verdict if the Crown fails to
discharge the requirement to prove the case is a verdict of not proven."
But, he said, the difficulty with dropping the not guilty verdict is
that it is the "appropriate verdict of acquittal" recognised across the
rest of the English-speaking world.
What is the not proven verdict?
Scotland, unlike most of the world's legal systems, has three possible
verdicts in criminal cases - guilty, not guilty and not proven
The legal implications of a not proven verdict are the same as with a
not guilty verdict: the accused is acquitted and is innocent in the eyes
of the law
Not proven is seen by some as offering additional protection to the
But critics argue that it is confusing for juries and the public, can
stigmatise an accused person and fail to provide closure for victims
Scottish juries were historically able to return only proven or not
A third verdict of not guilty was introduced in the 1700s and became
more commonly used than not proven
However, the option of returning a verdict of not proven was never
In more recent years, the general perception has been that a "not
proven" verdict suggests a sheriff or jury believes the accused is
guilty, but does not have sufficient evidence to convict
On Tuesday, the Scottish government set out its plans for the next year
in its programme for government.
One item was on justice reform. It said it wanted to commission
"independent jury research to consider the dynamics of decision-making
by juries, including the current jury majority and three verdict system,
helping to inform future proposals for the reform of the criminal
Mr Thomson supported the government's plan to commission research, but
said there were questions about how research should be carried out.
He added: "We have to recognise that Scotland has a unique system within
the English-speaking, common law world.
"We are the only country that has 15 jurors, three verdicts and where a
simple majority of eight out of 15 is sufficient for a guilty verdict.
"We don't know if juries are reaching verdicts for the proper reasons,
because there are impediments at the present time to carrying out jury
He said: "There are requirements under the Contempt of Court Act which
preclude jurors from being individually asked questions about how they
reached their deliberations.
"There are perhaps very good reasons why individual jurors can't be
questioned about how they reached a verdict in a jury room. It has been
considered in the recent past that there may be methods by which
academics and researchers can carry out research and avoid breaching the
terms of the Contempt of Court legislation by asking jurors questions
like: Did they understand the directions they were given by the judge?,
Did they understand the verdict system?, Did they understand what beyond
a reasonable doubt meant?"
"Most lawyers understand how jurors reach a verdict in most cases... but
there is always a concern, potentially, that jurors might not have fully
understood everything they've been told.
"Unlike England, for example, there is no requirement to introduce the
case to the jury - it's only at the end of the case that jurors are
given direction on the law.
"There is some suggestion that there would be a benefit in judges giving
more detailed directions both at the start and as the case continues as
to how the procedure operates."
Sunday Post Investigates: Scotland’s £10
million court ‘charade’
Written by Andrew Picken, 23/10/2016
THOUSANDS of witnesses are being called to trials in Scotland’s courts
each year which have no chance of going ahead – wasting £10 million of
An investigation by The Sunday Post today lays bare how witnesses who
bravely offer to give evidence against criminals have their time utterly
wasted by delays and postponements to cases.
And we can reveal entire shifts of frontline police officers can be
cited to appear at cases they know stand virtually no chance of
proceeding – in a waste of police time too.
Legal insiders claim court bosses are calling trials to ensure they “hit
targets” even though they know they will be adjourned because there’s
not enough time for them to be heard.
Our probe – the first in a new series of Sunday Post investigations –
There’s been a 65% increase in the number of cases adjourned due to
“lack of court time” over the last five years.
Witnesses claim they are being left to hang
around for days at a time with limited access to food or water.
Independent estimates reveal almost half of
summary cases did not proceed as planned in Scotland’s sheriff courts
Scottish Courts and Tribunals Service (SCTS) last night dismissed claims
that trials are scheduled to hit targets and said there was “clear
evidence that our court programming and scheduling of trials is
But one sheriff, speaking to the Post on guarantee of anonymity, said:
“It is a joke."
“Every day I know there is not a hope in hell that all of these trials
will be going ahead, as do the court staff and lawyers, but the
ridiculous charade has to be acted out for the sake of meeting target
Figures obtained by the Post show the number of High Court, Sheriff
Court and Justice of the Peace Court trials adjourned due to a lack of
court time has jumped from 2,608 in 2011/12 to 4,302 in 2015/16 – a 65%
This compares to a 27.7% increase in the number of trials over the same
Legal insiders say that even with a conservative estimate of three
witnesses per trial this is nearly 13,000 witnesses turning up to court
A report from Audit Scotland published last year revealed how the
sheriff court system was coming under increasing pressure with more
cases going to trial and taking longer to conclude.
Between 2010/11 and 2014/15, the average length of time that a case took
to complete increased from 19 weeks to 22 weeks.
Over the same period 10 sheriff courts have been closed and the overall
budget of the Crown Office and Procurator Fiscal Service (COPFS) has
been reduced by the Scottish Government.
Court bosses have legal limits on how long it takes for a case to be
heard but the SCTS also has its own 26-week performance target or cases
to be dealt with.
Last year 35% of cases breached this limit and Audit Scotland estimated
“almost half of summary cases did not proceed as planned in sheriff
courts in 2014/15”.
The watchdog added: “We estimate the cost of cases repeating stages
unnecessarily, could have been as much as £10 million in 2014/15.”
Meanwhile, the watchdog released the findings of focus groups it had
held on the issue with witnesses. Some complained they had been left
waiting for days to give evidence, while two thirds had experience of
waiting at least two hours, and around a third at least four hours.
Some said their witness waiting room had limited or no access to water
or other refreshments, and no access to food.
A lack of ventilation or windows was also raised. And in addition, some
also said the stress and nerves they felt over giving evidence was
exacerbated by the time they had to wait and the conditions they had to
The SCTS points out that the majority of adjournments are at a sheriff’s
But sheriffs have told The Sunday Post the reality of this is they often
have little choice but to adjourn cases as it is already obvious trials
are not going to happen because, for example, the one already running is
going to take the rest of the day.
In addition, the unwritten protocol is for prosecutors or defence
solicitors to invite a sheriff to use his or her own initiative to
adjourn a trial as neither side want to be seen as asking for an
A SCTS spokesman said: “In recent years the reporting and detection of
crimes, particularly domestic abuse and sexual offences, has increased,
reflecting proactive policing and prosecution and greater victim
confidence to report crimes.
“These cases have not only increased in volume but are more complex
cases often requiring more court time, with cases proceeding to trial
increasing by almost 30%.”
The number of cases adjourned due to a lack of court time represented 5%
of all trials called last year.
The SCTS spokesman said this ratio of adjournments to trials has only
varied by around 1% over the last five years.
The spokesman said: “Court programming is very complex by its nature and
we need to constantly predict and readjust based on the numbers of cases
that are likely to proceed to evidence based trials.
“Any suggestion that trials are scheduled to ‘hit targets’ is complete
“Had this been the case the percentage of cases adjourned would have
“The fact that it has remained within a 1% variance is clear evidence
that our court programming and scheduling of trials is effective.”
Experts have warned delays in the courts are
spiralling out of control and now victims’ charities want new technology
to help ease the burden.
Victim Support Scotland has told a Holyrood probe into the justice
system many victims and witnesses experience stress, anxiety and lose
Its submission to the justice committee says: “This stress, anxiety and
inconvenience caused to victims and witnesses, who will have mentally
prepared themselves to give evidence, is avoidable.
“We believe that consideration should be given to the use of technology
to cite and countermand witnesses.”
The Scottish Borders Rape Crisis Centre has echoed this view.
It believes technology could be used more, particularly in terms of
videoing police statements and playing those to court, so victims do not
need to attend.
Independent estimates reveal almost half of summary cases did not
proceed as planned in Scotland’s sheriff courts last year and there’s
been a 65% increase in the number of cases adjourned due to “lack of
court time” over the last five years.
An Audit Scotland probe found witnesses claim they are being left to
hang around for days at a time with limited access to food or water.
The Sheriffs’ Association revealed some courts are experiencing
“significant” delays and called for increased funding.
In his submission to the inquiry on the Crown Office, Ayrshire GP Dr
Robbie Cummings, who is also a forensic medical examiner, said on one
occasion he had to cancel the appointments of 40 patients only to find
he was not needed in court.
He said: “When we are short staffed, I cannot leave the surgery without
causing so many problems that the risk to the health of my patients
overrides any other consideration and I would have to accept the
consequences of failing to appear.”
The Scottish Court and Tribunal Service told the inquiry it was working
to tackle the problem and was transforming into a modern service.
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