基于苏格兰法院系统的苏格兰法律简介An Introduction to The Law of Scotland
苏格兰法律简介
An Introduction to The Law of Scotland.
苏格兰法院系统
THE SCOTTISH COURT SYSTEM
It is important to note that the United Kingdom has three major legal systems, one in England and Wales, one in Northern Ireland and one in Scotland.
Although they all share a Legislature in the Westminster parliament for the making of new laws, each of them has its own court structure and its own legal rules.
We will now consider the courts starting with the criminal courts followed by the civil courts
民事和刑事过失之间的区别
THE DISTINCTION BETWEEN CIVIL AND CRIMINAL WRONGS
可以说“法律程序”是“基本”的决定因素之一
It can be said that the ‘essential’ determining factor is one of 'Legal Procedure'
i.e.
If a legal wrong can be followed up by civil procedure it is a civil wrong and vice versa
If it can be pursued by both procedures it is both a civil and criminal wrong
We must therefore ask the question – what is the difference between civil and criminal procedure?
从本质上讲，主要有四个方面的差异：
Essentially there are four main differences:
1. The general essence of civil procedure is that it is initiated by the individual who has been wronged.
2. Distinctive terminology is used in both civil and criminal procedure
If the matter is civil and the matter reaches a court case, reference is made to the Pursuer and the Defender. If the pursuer is successful they are awarded a decree against the defendant giving civil remedy. The defender is said to have been found liable.
In contrast the criminal terminology refers to the Prosecutor or the Crown prosecuting an Accused. If the case is successful the accused is found guilty and convicted giving rise the various sanctions the court may have within its power. If the prosecution fails the accused is acquitted.
3. The police tend not to be involved in civil procedure
4. Civil proceedings go to courts with civil jurisdiction andwww.liuxuelw.com criminal proceedings go to courts with criminal jurisdiction
1. THE CRIMINAL COURTS OF SCOTLAND
Firstly let’s consider the role of the district court, currently the lowest level of criminal court within the Scottish courts hierarchy.
1. The District Court/Justice of The Peace Court.
The existing system of district courts was established via
The District Courts (Scotland) Act 1975.
This system arose as a consequence of local government reorganisation effected by The Local Government (Scotland) Act 1973 and replaced the former Burgh Police Courts and justice of the peace courts.
At present there are 30 district courts in Scotland.
District Courts are summary criminal courts administered by the local authority. Justice of the Peace Courts have been created by The Criminal Proceedings etc. (Reform) (Scotland) Act 2007. They are replacing District Courts on a phased basis and are administered by the Scottish Court Service. As each Sheriffdom undergoes the unification process, District Courts will be disestablished and Justice of the Peace Courts established in their place. In most cases the location of the court will remain unchanged.
We can say that the district court is at the bottom of the court hierarchy in Scotland in that it deals only with summary criminal matters.
The common types of offences this court deals with include breach of the peace, assault, vandalism, theft (but not housebreaking), speeding, TV licensing and electricity fraud and other miscellaneous road traffic offences.
· LEGAL PERSONNEL
The Justice of the Peace/District Court can be described as a 'lay court' in that it is a justice of the peace (who is generally a lay person or in other words not legally qualified) who sits. However the justice will normally sit alongside a legally qualified clerk.
The exception to this may be found within Glasgow where there is ‘stipendiary magistrates’ who are legally qualified and have the same summary criminal jurisdiction and powers of a sheriff.
Via section 7(5) CPSA 95
· SENTENCING POWERS
Each local authority area has a district court, and prosecutions are at the instance of the Procurator Fiscal.
Sentencing powers are derived via section 7(6)/ (7) of The Criminal Procedure (Scotland) Act 1995.
The district court may imprison for up to a maximum of 60 days and may impose a fine of up to level 4 (presently £2,500).
A stipendiary magistrate can imprison for up to 3 months and 6 months where there is a repeat offence involving dishonesty or violence.
The common types of offences this court deals with include breach of the peace, assault, vandalism, theft (but not housebreaking), speeding, TV licensing and electricity fraud and other miscellaneous road traffic offences
· APPEALS AGAINST SENTENCE
Appeal is against conviction and/or sentence under summary procedure to the High Court of Justiciary by way of
1. Stated case, which sets out the facts admitted or proved and raises a question of law only or
2. By 'Bill of Advocation' (at the instance of the prosecutor) or
3. By 'Bill of Suspension' (at the instance of the accused)
Courts of summary jurisdiction include the sheriff court and district court. If however a statute speaks of an offence being punishable “on summary conviction” or does not name the court, jurisdiction is conferred only on the sheriff court.
2. THE SHERIFF COURT
The Sheriff Court is generally regarded as the busiest court within the Scottish System, since it deals with both Criminal and Civil matters.
Since 1975 Scotland has been divided into six Sheriffdom’s. These are:
1. Grampian, Highlands And Islands
2. Tayside, Central And Fife
3. Lothian And Borders
4. Glasgow And Strathkelvin
5. South Strathclyde, Dumfries And Galloway
6. North Strathclyde
Each Sheriffdom (except Glasgow and Strathkelvin) is further divided into sheriff court districts varying in number from Sheriffdom to Sheriffdom.
At present there are 49 sheriff courts.
Each sheriff court district has at least one full-time sheriff appointed to it, but some districts because of the amount of litigation arising therein, may have more e.g. Aberdeen has six.
The sheriff’s jurisdiction is very wide and varied and mainly original i.e. not appellate.
Much of the business of the sheriff court takes the form of summary trials, but it also has solemn jurisdiction.
It is said to be the most important of the lower criminal courts.
The sheriff court has jurisdiction over all crime committed in the sheriff court district other than crown pleas i.e. those reserved for the High Court of Justiciary murder, rape, treason and serious drug offences.
Prosecution is by the procurator fiscal, the exercise of whose discretion to prosecute follows a report from the police and is subject to the supervision of the lord advocate and the crown office...
The pf’s choice of court and procedure to be followed (solemn with a jury or summary) depends on the seriousness of the case and the sentence he expects the court to pass.
· SENTENCING POWERS
There are limits on the sentencing powers of the sheriff which may lead the prosecutor to bring the case before the High Court of Justiciary
The maximum punishment is
Sheriff Summary (where the sheriff sits alone)
Criminal Procedure (Scotland) Act 1995 section 3
· up to 5,000 fine
· up to 3 months imprisonment ( 6 months if previous conviction)
Sheriff Solemn (where the sheriff sits with a jury of 15)
Criminal procedure (Scotland) act 1995 section 3
· unlimited fine
· up to 5 years imprisonment
Appeals
Appeals lie to the High Court of Justiciary sitting as a Court of Appeal
Solemn cases will be appealed to the Scottish Court of Criminal Appeal
Three or more Lords Commissioners of Justiciary (high court judges) hear appeals depending on the importance of the case
Please note there is currently no appeal to the House of Lords for criminal matters their jurisdiction extends only to civil cases.
3. THE HIGH COURT OF JUSTICIARY
Established in 1672 this court comprises the Lord President (Justice-General), The Lord Justice-Clerk and all other judges of the Court of Session (Lord Commissioners of Justiciary)
Its jurisdiction extends to the whole of Scotland, including its territorial waters and outside Scotland in relation to murder or culpable homicide by a Scottish subject
CPSA 95 S11 (2)
The High Court may deal with all nature of crimes but it has 'Exclusive Jurisdiction' over the most serious crimes e.g. rape, murder, treason and serious drug offences
Proceedings are conducted by the Lord Advocate or the Solicitor-General, (but generally on a day-to-day basis it will be Advocate-Depute.
Note:
It sits as both a court of first instance and as a court of appeal
· SENTENCING
As a trial court it sits with one judge (normally a Lord/Lady Ordinary) and a jury of 15. The number of jurors reflects the requirement that criminal matters must be judged 'Beyond Reasonable Doubt'.
Previously sittings only took place in Edinburgh. This was changed and now there is a permanent sitting in Glasgow with regional circuits as required i.e. if a serious crime takes place in Northern Scotland, unless it is exclusive to The Court of Session it may be the case that the Court is established within that area.
A sitting may be held in any town which is convenient given the circumstances of a particular case.
Procedure is defined as Solemn and will reflect the seriousness of the crime.
Any crime or offence which is triable on 'Indictment' may be tried by the High Court of Justiciary sitting at any place in Scotland
CPSA 95 SEC 3(2)
Maximum penalties which the high court may impose include life imprisonment for certain common law crimes i.e. murder.
· APPEALS TO SENTENCING
UNDER SOLEMN PROCEDURE
3 or more judges’ sit and decisions are by majority CPSA SEC 103(2)
It is possible that a lesser quorum of 2 judges is competent to hear appeals against various sentences CPSA SEC 102(3)
Appeals are brought about by written ‘Bill of Advocation' which raises a point of law and stating all the grounds of appeal against
1. CONVICTION AND/OR SENTENCE
CPSA SEC 110(1)
2. MISCARRIAGE OF JUSTICE
CPSA SEC 106(3)
The court has very extensive powers to dispose of an appeal under CPSA SEC 118,
Including granting authority for a new prosecution
The Lord Advocate has a right of appeal against a disposal on a point of law or “where it appears to the lord advocate that the disposal was unduly lenient” CPSA 95 SEC 108(2) (A) AND (B)
There is also a power to allow the lord advocate to appeal against a decision not to dispose an automatic sentence in certain cases
CPSA 95 SEC 108A)
UNDER SUMMARY PROCEDURE
Appeals are heard from the Sheriff Court or District Court
For appeals against conviction, the court consists of 3 or more judges and decisions are by a majority
CPSA 95 SEC 173
A lesser quorum of 2 judges is competent to hear appeals against various sentences
CPSA 95 SEC 173(2)
APPEALS MAY RELATE TO
1. CONVICTION AND/OR SENTENCE
CPSA 95 SEC175
2. MISCARRIAGE OF JUSTICE
CPSA 95 SEC 175(5)
Appeal is by stated case via a bill of suspension
The court has extensive powers to dispose of an appeal with regard to either sentence or conviction
CPSA 95 SEC 183(1)
This includes the authorising of new prosecutions
CPSA 95 SEC 185 or
The prosecutor may appeal against sentence passed on conviction
CPSA 95 SEC 175(4)
A conviction or sentence may be set aside with the prosecutors consent or application
CPSA 95 SEC 188
LORD ADVOCATES REFERENCE
Reference may be made to the High Court sitting in its appellate capacity where a person tried on indictment is acquitted or convicted of a charge
The lord advocate may refer a point of law which has risen in relation to the judge’s charges to the jury in the high court for their opinion on the law
CPSA 95 SEC 123(1)
The Lord Advocate may on the consideration of any conviction of a person or the sentence passed whether or not an appeal has been made refer the whole case to the high court
CPSA 95 SEC 124(3)
THE CIVIL COURTS OF SCOTLAND
1. Sheriff Court - Civil
Types of cases heard by sheriff in civil capacity, may include Domestic/Family matters, Contractual Disputes etc. effectively issues which are 'Private' in nature
Note that jurisdiction is limited to the sheriff court district in which he/she sits.
i.e. For the parties involved the general rule is that the persons shall be sued in the courts where they are domiciled
Domicile is defined as the place with which they have the greatest connection.
However special rules may allow a person to be sued where the case relates to a contract performed in a particular place, where a delict occurred within a certain place, where the case relates to ownership or tenancy of immovable property, or where the parties have accepted the jurisdiction of a particular court by agreement or indeed by entering appearance to oppose the action.
The geographical limitations on the court’s powers are set out in The Sheriff Courts (Scotland) Act 1907 section 4
Grounds of jurisdiction of the Scottish courts are set out in The Civil Jurisdiction and Judgements Act 1982 which gives effect to the EEC Convention on Jurisdiction (except certain subject matter, which is governed bye the 1907 act sec 6 i.e. status, matrimonial property, custody of children, succession, bankruptcy, liquidation, social security, arbitration, revenue or administrative cases)
Competency to entertain the action/cause.
The sheriff court has sole jurisdiction if the case is under £1,500 and its power to hear cases is unlimited except
- Matters as legitimacy (but it can grant divorces).
- Actions of proving the tenor of lost documents.
- Petitions for the winding up of companies whose paid up capital exceeds £120,000 (Court of Session only).
- Actions relating to the right to bear arms.
- Appeals against ratable valuations (reserved to the Lands Valuation Appeal Court).
Powers to grant remedies
The remedies that the sheriff may grant include
Petitionary remedies i.e. for payment, delivery or implement of contract.
Declarators (except for nullity of marriage, and other status actions, but including divorce).
Actions for damages, possessory actions, suspensions and interdicts.
Court Procedure
(Note that no civil jury has been competent in the sheriff court since 1980)
1. Ordinary Actions
Actions of more than £1,500, and most of the actions involving a decision other than for a sum of money.
The action commences when the pursuer drafts an initial writ and serves it on the defender.
2. Summary Causes
Actions for payment of money, actions relating to heritable and moveable property etc.
The value must not exceed £1,500 however the court expenses are on a correspondingly lower scale and the more formal pleading requirements of an ordinary action are not required.
3. Small Claims
These were introduced in 1988 via The Small Claims (Scotland) Order 1988 and allow certain actions up to £750.00. (please refer to website for current financial levels)
The procedure is less formal, the pursuer can and is indeed encouraged to represent himself where possible and the costs are limited to £75.00.
No costs are awarded if the action is for less than £200.00.
Appeals
The availability of an appeal depends on the procedure under which the case has been held.
1. ordinary actions
An Appeal Lies a) via the sheriff principal and then to the inner house or
b) Directly to the inner house of the Court of Session
2. Summary Causes
An Appeal Lies a) from the sheriff to the sheriff principal on a point of law and
b) From the sheriff principal to the inner house of the Court of Session is the sheriff principal certifies the cause as suitable for such an appeal
3. Small Claims
There is no appeal on a point of fact, but only on point of law to the sheriff principal and no further.
2. Court of Session
Scotland’s 'Supreme' Civil Court, located in Edinburgh and with Jurisdiction over the Whole of Scotland.
The court is composed of maximum of (presently 34) judges who are known Senators of The College of Justice or Lords of Council and Session.
The court is divided into The 'Inner House' and The 'Outer House', the former being divided into the first and second division.
1. The Outer House
This court is generally defined as a court of 'First Instance – where an action can begin its life in this court.
Note that it has no appellate jurisdiction and is governed by The Court of Session Act 1988.
Personnel
The maximum number of judges is approximately 34 (Please note that this changes) with compulsory retirement at age 72.
The Outer House comprises a number of courts each presided over by a 'Junior' Lord of Session (also called a Senator of The College of Justice).
He/she is known as a Lord Ordinary.
These judges sit alone but in certain limited cases there may be a jury of 12 persons (note this difference in terms of criminal circumstances where a jury of 15 is the norm).
Prospective litigants can now have some say in which judge they wish to hear their case. (May be useful if the Lord/Lady is known to have specialist or expertise in that area)
Jurisdiction
Generally actions of more than £1,500, over the Whole of Scotland, including its sea unless excluded by statute, (much the same as the sheriff court).
It also exercises Judicial Review and the 'Nobile Officium' (this provides the court with an equitable power which provides a remedy where justice so requires and where otherwise none is available).
Appeals
These are to The Inner House of The Court of Session and are conducted by means of:
1. A 'Reclaiming motion'
This is an appeal against a decision of an 'Outer House Judge where he/she was sitting without a jury.
The reclaimer asks the Division of The Inner House to review the judgement of the lord ordinary
No witnesses are called and the reclaimer simply criticises the judgement while the respondent on the appeal supports the judgement.
At the end of the appeal the court will give its judgement usually in written form.
2. Motion for a New Trial
This is used to appeal a decision of the Lord Ordinary then they have sat with a jury of 12 persons.
Again no witnesses are called and evidence is read from the transcripts of the original trial.
2. Inner House
This is primarily a court of appeal.
Personnel
It has two divisions of equal authority the 1st and 2nd divisions.
The 1st comprises The Lord President and 3 other judges
The 2nd comprises The Lord Justice-Clerk and 3 other judges.
The quorum for each division is normally 3.
An extra division may be convened if the volume of business demands.
Decisions are either unanimous or by majority.
The presiding judge has no casting vote.
In special or complex cases a larger court may be convened by combining both divisions or having a “Full Bench” of 7 judges.
Jurisdiction
Both divisions have equal authority.
And unlike The Outer House the party has no right to choose which judges hear the case.
It normally sits as an 'Appellate Court dealing with the Judgements of Sheriffs, Sheriff-Principals or Lords Ordinary.
In a few limited circumstances it may be a court of first instance.
Procedure
Normally the inner house only hears legal argument.
They may give judgement there and then orally via an opinion delivered by the presiding judge with the others adding shorter opinions usually concurring.
If it is a difficult case then judges will make avizandum, prepare written opinions and then read them in court later.
One judge may give a dissenting opinion if he disagrees with the leading opinion.
Recent changes
The UK. Supreme Court
The UK Supreme Court has assumed the jurisdiction of the Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council.
It is an independent institution, presided over by twelve independently appointed judges, known as Justices of the Supreme Court. The court is housed in the refurbished Middlesex Guildhall on London's Parliament Square - opposite the Houses of Parliament and alongside Westminster Abbey and the Treasury - a fitting location for the apex of the justice system.
The Supreme Court was officially opened at the start of the legal year in October 2009.
The Supreme Court, as well as being the final court of appeal, plays an important role in the development of United Kingdom law.
As an appeal court, The Supreme Court cannot consider a case unless a relevant order has been made in a lower court.
The Supreme Court:
· is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland
· hears appeals on arguable points of law of general public importance
· concentrates on cases of the greatest public and constitutional importance
· maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world
The Supreme Court hears appeals from the following courts in each jurisdiction:
England and Wales
· The Court of Appeal, Civil Division
· The Court of Appeal, Criminal Division
· (in some limited cases) the High Court
Scotland
· The Court of Session
Northern Ireland
· The Court of Appeal in Northern Ireland
· (in some limited cases) the High Court
The Supreme Court
The creation of the new Supreme Court means that the most senior judges are now entirely separate from the Parliamentary process.
The Constitutional Reform Act 2005 made provision for the creation of a new Supreme Court for the United Kingdom.
There had, in recent years, been mounting calls for the creation of a new free-standing Supreme Court separating the highest appeal court from the second house of Parliament, and removing the Lords of Appeal in Ordinary from the legislature. On 12 June 2003 the Government announced its intention to do so.
Before the Supreme Court was created, the 12 most senior judges - the Lords of Appeal in Ordinary, or Law Lords as they were often called - sat in the House of Lords.
The House of Lords was the highest court in the land - the supreme court of appeal. It acted as the final court on points of law for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. Its decisions bound all courts below.
As members of the House of Lords, the judges not only heard cases, but were also able to become involved in debating and the subsequent enactment of Government legislation (although, in practice, they rarely did so).
The creation of a new Supreme Court means that the most senior judges are now entirely separate from the Parliamentary process.
It is important to be aware that the new Supreme Court is a United Kingdom body, legally separate from the England and Wales courts as it is also the Supreme Court of both Scotland and Northern Ireland. As such, it falls outside of the remit of the Lord Chief Justice of England and Wales in his role as head of the judiciary of England and Wales.
The new Supreme Court opened for business in October 2009, at the start of the legal year.
Lord Hope
Deputy President of The Supreme Court, The Right Hon the Lord Hope of Craighead, KT
Lord Hope of Craighead was appointed Lord of Appeal in Ordinary in 1996, and is one of two Scottish Justices of The Supreme Court. He practised at the Scottish Bar for 24 years.
He was educated at The Edinburgh Academy and Rugby School. After national service with the Seaforth Highlanders he studied at Cambridge University, where he read classics, and at the University of Edinburgh, where he read law. In 1965 he was admitted to the Faculty of Advocates. He became a Queens Counsel in 1978.
After serving as Advocate Depute since 1978, he was in 1986 elected Dean of the Faculty of Advocates. In addition he was Chairman of the Medical Appeal Tribunal and the Pensions Appeal Tribunal from 1985 to 1986. In 1989 he was appointed to the Bench direct from the Bar as Lord Justice General of Scotland and Lord President of the Court of Session. In 1992 he broke new ground by permitting an experiment in televising trials in Scottish courts for documentary purposes.
He has been Chancellor of the University of Strathclyde since 1998.
Oaths
"I will do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill will."
· Oath of allegiance
· Judicial oath
· Affirmation - Allegiance
· Affirmation - Judicial
· Other acceptable forms of the oaths above
When judges are sworn in they take two oaths/affirmations. The first is the oath of allegiance and the second the judicial oath; these are collectively referred to as the judicial oath.
Oath of allegiance
“I, _________ , do swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law.”
Judicial oath
“I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will."
Affirmation - Allegiance
"I, ____________, do solemnly sincerely and truly declare and affirm that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second Her Heirs and Successors according to Law."
Affirmation - Judicial
"I, ____________, do solemnly sincerely and truly declare and affirm that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ____________ , and I will do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will.
Other acceptable forms of the oaths above
Hindu
Members of the Hindu faith will omit the words “I swear by Almighty God” and substitute the words “I swear by Gita”.
Jew
Members of the Jewish faith use the oaths above although some may wish to affirm.
Muslim
Members of the Muslim faith will omit the words “ I swear by Almighty God” and substitute the words “I swear by Allah”.
Sikh
Members of the Sikh faith will omit the words “I swear by Almighty God” and substitute the words “I swear by Guru Nanak”.
Sources of Scots Law
The modern law of Scotland emanates from a variety of sources, some of them of more historical than modern importance, others comtempary and pragmatic. Scots Law however, retains its own very individual flavour and has helped to maintain the distinction of being Scottish.
The main sources of Scots Law may be itemised as follows:
1. Equity
2. Custom
3. Authoritative writings
4. Judicial Precedent
5. Legislation
It is important to note the distinction between Statute Law and Common Law. Put simply Statute Law is Legislation and all other law is Common Law.
1. Equity
Equity as used in Scots Law is really little more than 'The Principle of Fairness'. It is not so much a source of law (like England) but rather a 'Process' to mitigate, soften or expand the operation of ordinary law in order to ensure that justice is seen to be done.
In one form or another it is regularly seen in our Courts on any occasion where there is a discretionary remedy.
Equity in Scots Law
The term equity in Scots Law as previously stated has quite a different meaning.
Scots lawyers use the term in three senses:
1. Fairness, Rightness and that which is Just
2. Scots Law has a number of civil remedies which it has the power to give to parties and these remedies are very much based on equitable considerations
· The remedy of 'Specific Implement' – This where a person is ordered by the court to perform a legal obligation.
· The remedy of 'Interdict' – used where someone is ordered to refrain or desist from interfering with your legal rights.
3. Nobile Officium of the Court of Session - this power can only be exercised by the Court of Session. It is an extraordinary judicial power of that court to provide a remedy where justice requires it and where no remedy is otherwise available at common law or under statute. For example:
· To vary trust provisions
· To cure defects arising from the execution of deeds
· Where circumstances arise which a statute has not allowed for.
Points about the use of the Nobile Officium as per Lord Clyde in the case of Maitland (Ptr) 1961 SC 244
1. It cannot be used as a cloak for incompetence on the part of the applicants representatives
2. The Nobile Officium cannot be used to give a remedy other than to parties intended the statute
3. The power cannot be used if its effect would be to override or amend the express provision of a statute
Note
Being a discretionary power it cannot be demanded as a right by the party who is seeking its use. The exercise of the power is purely within the power of the Court of Session.
The High Court of Justiciary has an analogous power of the Nobile Officium.
2. Custom
Custom is a word that can be used in many different contexts in Scots Law.
It has been used to describe a former trade practice which has become statutory or absorbed into case law
Or
To show how the parties in agreeing the terms of a contract choose to incorporate a well recognised and understood principle of their trade.
But in a 'special sense' custom can be a source of law, in that a court will be bound by the terms and condition of a particular practice which has been around for so long that everyone believed it was the law anyway.
How is this achieved?
1. It has to pass the tests of being definite and certain as well as being fair and reasonable.
2. It must not be inconsistent with major sources of law, namely legislation and judicial precedent. (but note that it may operate as an exception to them in particular circumstances)
3. Institutional Writers
In the days before modern communications and technology and indeed before any regularised system of law reporting, certain famous and influential jurists of their day took the trouble to record law as they understood it and saw it developing in the courts.
These works are still referred to today partly as a source of grassroots feeling for the fundamental principles upon which modern Scots Law is based and partly to fill any gaps in judicial precedent.
It is important to note that even these authoritative writings do not prevail against any subsequent statute or precedent. See for example S V HMA 1989 SLT469 which overruled the opinion of Baron Hume that a man could not rape his own wife.
Points
1. Institutional writings are a source of Scots Law. They do provide authoritative statements of our legal rights and duties. They are a source of the law because the courts have accorded them that status.
2. A court will not reject the opinion of an institutional writer out of hand but will always give the statement careful consideration.
3. In considering an institutional statement the court will appreciate some of these statements will were made hundreds of years ago when the legal and social conditions were different from those of our modern times.
These changes may dilute the strength of an institutional statement. Furthermore, the court will also consider whether the statement has been judicially approved or criticized in later cases.
Note, that if the statement has been consistently approved by the courts it will carry great authority.
4. The respect in which the Institutional Writers are held by the courts can be deduced from certain statements made by judges and senior academics.
5. An institutional statement cannot in the way of a rule but down by the House of Lords, or a full bench of the Court of Session, or the Inner House of The Court of Session.
No criteria have been laid down as to when a writer becomes institutional. It does seem however, that in order to enjoy this elevated status the writer must be dead.
For example there is a select band of Scottish jurists who between the 17th and 19th centuries wrote accepted works on Scots Law.
1. There are Three Scots Jurists who in civil matters have the status of Institutional Writer
· Viscount Stair – born in Ayrshire as James Dalrymple in 1619. He is rightly described as the father of Scots Law.
His most important work was The Institution of The Law of Scotland which was published h in 1681.
The purpose of the institution was to provide a statement of what Scots Law was at the time. To this end he brought together various sources of Scots Law, Common Law, Acts of Parliament, Canon Law, Judicial Decisions and Customary Law and tried to organise these sources into a consistent and coherent whole.
Very rarely did he refer to English Law on any matter as to him English Law had undue precedence and narrow legal system.
· John Erskine of Carnock – born in 1695, the year Stair died. He was Professor of Scots Law at Edinburgh University. His first work Institute of The Law of Scotland was published 5 years after his death. Erskine’s’ work was an accurate statement of the law as it stood in the middle of the 18th Century and as such is of high authority indeed.
· George Bell – following a successful career at the bar, Bell took the Chair of Law at Edinburgh University in 1822. His main area of practice was Mercantile Law and he has produced two institutional works. The first was Commentaries on The Law of Scotland (1800) and secondly Principles of The Law of Scotland (1829).
2. criminal matters
· Baron David Hume (Crimes, 1797), Sir Archibald Alison (Criminal Law, 1832) and MacDonald were the important writers in that field.
Note
Not all the writings of a given institutional writer enjoy institutional status. An example of this can be seen with Erskine. While at Edinburgh University he wrote a work titled The Principle of Scots Law intended as a text book for law students. However, the courts have not accorded this work institutional status.
4. Judicial Precedent
The second most important source of law after Legislation is referred to as 'Judicial Precedent' or more commonly 'Case Law'.
The underlying principle is that court of law, when faced with a decision which has previously been made by another court of higher status, will normally be 'bound' by it. In formal Latin the principle is known as Stare Decisis or “standing by decisions”.
A previous decision which must be followed by the present court is said to be “binding” whereas one which is free to follow or is merely “persuasive”.
In order to be binding the decision must come from a senior court of higher status in the hierarchy of courts.
At the top of the hierarchy comes the European Court of Justice whose decisions bind all the courts and tribunals of the UK (although it reserves the right to depart from its own decisions).
The highest court in the UK, the House of Lord, will only hand down binding precedents for Scotland insofar as they relate to the interpretation of UK statutes or cases which come on appeal from the highest civil court in Scotland i.e. the Court of Session.
Since 1966 the House of Lords does not regard itself as bound by its own decisions. Please note a House of Lords decision on English Law is not binding on any Scottish court.
Scottish Procedure
The Court of Session is divided into the more senior Inner House (mainly an appeal court) and the Outer House (a court of first instance). A decision of an Inner House division is binding on the Outer House and Sheriff Courts.
The Inner House is normally bound by its own decisions although a bench of seven or more judges may sit to overrule a divisional decision. Outer and Sheriff Court decisions are never binding precedents but are considered “persuasive”.
Judicial Precedent does not apply so strictly in criminal cases and not even the High Court of Judiciary regards itself as bound by its own decisions. However, a High Court judge or Sheriff will have regard to previous High Court decisions and will at least treat them as persuasive.
A bench of five or more judges may occasionally sit to consider a particularly important appeal on a point of law on which there apparently conflicting decisions. But again remember the House of Lords plays no part in Scottish Criminal Law matters.
One other important factor to be satisfied before a previous case will be binding is that it must have dealt (as its main point) with exactly the same principle of law with which the present court if faced.
This is sometimes referred to as being “On all Fours” with the previous case.
The point of law on which a case hinges is referred to as the ratio decidendi (the reason of the decision) or more commonly the ratio. Only a ratio can become a later precedent of the binding variety.
Please note that frequently a judgement will also contain other comments and opinions on points not considered essential to the decision. These are known as 'Obiter Dicta' (incidental pronouncements). Whilst they are not binding the Orbiter of a senior court is normally treated as persuasive in future cases.
Advantages of Judicial Precedent
The main advantages of a system of judicial precedent are that by referring to court decisions lawyers can build up a picture of the law on a particular topic. Furthermore, there is consistency between cases and the law may develop in a swift but orderly fashion in order to meet new situations without the need for Parliamentary intervention.
Disadvantages of Judicial Precedents
Among the disadvantages of precedent are that it can be too rigid and that some distinctions can be artificial. Furthermore, the searching for an appropriate precedent can be something of a lottery depending primarily on the case having been reported in the first place which is by no means guaranteed. Although computer based case reports are increasingly reducing “the chance element of searching”.
5. Legislation
Legislation is the primary source of law and is the result of the expression of will of a parliamentary or rule-making body.
The amount of legislation affecting Scotland has increased dramatically over the last 50 years or so. Modern life is a complex affair, requiring legislation to regulate and facilitate activities in society.
In the aftermath of the Industrial Revolution of the 1850’s successive governments found it necessary to enact laws in areas such as employment, housing, health and social s services, education and the environment.
UK Legislation
Legislation enacted by the UK parliament is known as a statute. This represents the will of the highest law-making power in the UK – the Queen in Parliament.
The UK has what is known as parliamentary democracy. In constitutional terms this means that, except in prescribed areas where it has conceded power (for example those issues governed by European Union legislation and those devolved to the new Scottish Parliament) the UK Parliament is the supreme legislative body in the UK
Note that theoretically it is legally empowered to pass any legislation is sees fit.
Unlike legislative bodies in other countries for example the USA, the UK Parliament is not bound to bow to any higher authority such as a written constitution (Note however the UK Parliament is under an obligation to consider the terms of the Human Rights Act 1998)
Statutes applicable to Scotland
与立法机构在其他国家例如美国，英国议会没有绑定到任何更高的权威，如成文宪法（但是请注意，英国议会正在考虑1998年人权法“的条款的义务低头）
法规适用于苏格兰
After The Act of Union 1707 that brought about the union of the old Scottish and English Parliaments, Scotland was entitled to retain its own separate laws and legal system.
Acts of the old Scottish Parliament may still apply in Scotland today For example the Articles of Regulation remains relevant to the practice of arbitration in Scotland. However many acts of the Old Scottish Parliament have fallen into disuse (desuetude). This occurs when an Act has fallen out of use or has become totally inappropriate given changing social standards and ways of life in modern society.
Please note that not all UK Parliamentary legislation is automatically applicable to Scotland. Since the Union of the Parliaments in 1707, however all legislation of the UK Parliament has applied to Scotland as well as England unless it has been expressly stated that it does not apply to Scotland.
Some acts of the UK Parliament apply only to Scotland. This is denoted by the word ‘Scotland’ appearing in brackets toward the end of the title of the Act E.g. The Land Registration (Scotland) Act 1979.
Note that the scope for Scotland only acts of the UK Parliament has been greatly reduced www.ukthesis.org by the advent for the newly devolved Scottish Parliament, which post 1998 has the exclusive right to legislate for Scotland in a number of areas (i.e. those not reserved to the UK Parliament)
