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Business Law > The scottish Court System > Flashcards

The scottish Court System Flashcards

1
Q

What does Civil Law mean?

A

Rights and Duties of persons, concerns disputes between persons (contract, family…)

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2
Q

What does Criminal Law mean?

A

States enforcing law on persons, prosecution of crimes and offences, conducts harmful to society. This is about punishment to acceptable behaviour.

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3
Q

Illustrate the Scottish Civil legal structure

A

Top-Down:
-The Supreme Court
–Court of Session (Inner House / Appeals)
– Court of Session (Outer House / First Instance)
-Sheriffs Principal
(Appeals / Small Claims /Summary Causes)
–Sheriff Court (Ordinary Cause)
–Sheriff Court (Small Claims / Summary Cause)

Note normally no Jury in Civil courts

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4
Q

Tell about House of Lords

A

The Supreme Court used to be known as House of Lords (in England), and now is in Edinburgh

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5
Q

Small Claims Procedure (Sheriff Court) (3)

A

• Actions for payment of up £3000

  • Expenses £150 max (up to £1500 claim), 10% if claim exceeds £1500
  • you can represent yourself
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6
Q

Summary Cause Procedure (Sheriff Court) (4)

A
  • Actions between £3,000-£5,000
  • No written pleadings
  • Lawyer needed
  • Civil cases
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7
Q

Ordinary Cause Procedure (Sheriff court) (6)

A
  • Actions >£5,000
  • Any actions for up to £5000, must be first raised here rather than in Sheriff principal or court of session
  • Divorce, bankruptcy, succession, adoption
  • Appeals to sheriff principal / court of session
  • Written pleadings and lawyer needed
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8
Q

Tell About Sheriff Principals (4)

A
  • 6 Sheriff Principals overseeing 6 Sheriff Doms, divided into 39 districts, different areas within the country
  • Court of First Instance and Appeal
  • No Jury
  • Exclusive / final Jurisdiction in actions
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9
Q

What do you handle in Sheriff courts?

A

Actions of debt and damages, delict and family matters. Sheriff court unless sufficient seriousness to go to the Supreme courts at first Instance. Sheriff sits alone

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10
Q

Changes to current monetary Tresholds

A

Effective from 1st January 2008

  • The small Claims (Scotland) Amendment Order 2007
  • The sheriff Courts (Scotland) Act 1971 - (Private Jurisdiction and Summary Cause) Order 2007
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11
Q

Tell About Court of Session

A

Highest Civil court IN Scotland, (NOTE SUPREME COURT IN LAND) covers all Scotland. Concurrent jurisdiction unless prohibited by statute.
Exclusive Jurisdiction for certain actions:
- Actions of reduction (abandonment a procedure by which a party gives up civil proceedings or an appeal)
-Actions for providing tenor of lost documents
-Petitions to wind up
-A company where share capital is more than £120,000
-International child abduction cases
-Judicial Review

Deals with delict (civil wrongs), contract, commercial cases, judicial review, family law and intellectual property.
Some Judges will have specialisations, and there are particular arrangements for commercial cases.

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12
Q

Court of Session: Outer House (6)

A
  • Court of First instance
  • Lord Ordinary - sits alone
  • All civil claims unless excluded by statute
  • In Limited range of cases (e.g. industrial accidents, defamation) - Jury 12 sits
  • Appeals to Inner house
  • No penalty element (Compensation element)
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13
Q

Court of Session: Inner House (5)

A
  • Has 2 divisions of equal stature (value)
  • 1st division: Lord President & 3 Seniors of Lord of Session
  • 2nd division: Lord Justice-Clerk and 3 Lords of Session
  • Primary an Appeal Court (Point of law)
  • Court of first instance in special cases and revenue cases

(5 or more judges may hear more complex and significant cases)
Note: Appeals may go to the Supreme Court of the United Kingdom

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14
Q

Explain Lawyer

A

A person who is still pursuing law /LLB. This person is not eligible to stand in the court to put the stand of his/her clients.
Lawyer is a basic term that refers to any person who has a law degree. Advocates, solicitors etc. are considered to be specialists in different fields of law.

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15
Q

Tell about the Supreme Court

A

Assumed the judicial function of the House of Lords, acts as an appeal court. Heard by 12 Justices, legally qualified members. Quorum is 3 but usually 5 or 7, decision by majority.

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16
Q

Quorum

A

The minimum number of members required for a group to officially conduct business and to cast votes

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17
Q

Scottish Criminal Courts

A 
Top-down:
-High Court of Justiciary
(appeal and trial)
-Sheriff court
-Justice of the Peace Court (highest, no appealing)
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18
Q

Civil Procedure

A
  1. Admitting facts need not be proven
    - No opening speeches, pursuer
    - –Calls witnesses and examines them, open questions to get more out of the witness
    - –Defence cross examines, yes or no questions
    - –Pursuer can re-examine
    - –Vice versa
  2. Decision
    - Closing speeches by both sides
    - Judges either gives opinion or wait
    - Decree grants or refuses remedy sought by pursuer
    - Motions heard re-expenses
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19
Q

What does decree mean

A

An official order that has the force of law

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20
Q

Civil appeals

A

Can only appeal on a point of law, cannot appeal only because didn’t like outcome.
Points of fact:
-Act, event, state of circumstance that is ascertained by senses, provided by evidence
Point of Law:
-Existence, content or applicability of a principle / rule of the legal system
-Proven by legal argument

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21
Q

Tell about Solemn Procedure

A

With Jury, Trial on Indictment

  • Judge + Jury of 15 in High court
  • Sheriff or Sheriff Principle + Jury of 15 in Sheriff Court
22
Q

Tell about Summary Procedure

A

Without jury, Trial or complaint,
Sheriff or Sheriff Principle in Sheriff Court
-Justice of Peace or Stipendiary Magistrate in Justice of Peace court

23
Q

Tell about Justice of Peace Court

A

Only summary Procedures - justice of peace don’t need to be a judge, legal training and on their way of becoming a judge or a sheriff, individuals who want to do civil service.
Deals with minor criminal proceedings - breach of peace, road offences.
Jurisdiction &Administration: District courts - local council;
-60 days imprisonment (could be 6 months)
-

24
Q

Tell about Stipendiary Magistrate

A
25
Q

Tell about Sheriffs court (2procedures)

A

Jurisdiction over all other crimes except Treason, Murder, Rape and Incest.

26
Q

Tell about High Court of Justiciary

A

Highest criminal court in Scottish Legal system, operates as either trial or appeal basis. THE SAME JUDGES FROM THE COURT OF SESSION sit here. Judges are called ‘Lord Commissioners of Justiciary. The Lord Justice - General Presides over the High court.

They go touring from Edinburgh, so public sees the justice being done.
Exclusive Jurisdiction over: Treason, Murder, Rape and Incest

27
Q

Tell about High Court of Justiciary Solemn Procedure(3)

A
  • Trials Heard by 1 judge (or 3) + Jury of 15 citizens
  • Sentencing power only limited if statute has a maximum sentence
  • Appeal is to the High Court of Justiciary
28
Q

Tell about High Justiciary as Criminal Court of appeal

A

Only in Edinburgh, Heard by 3+ Judges, could be 5 or 7 depending on case. Accused appeal against sentence or conviction or other order of court.

HCJ reviews any miscarriages of Justice, especially with old cases where new evidence has come to light.

29
Q

Tell about High Court of Justiciary as a Court of Appeal

A

Lord Advocate can appeal against sentence if too lenient, only on conviction if no jury involved.

They can:

1) Dismiss the appeal
2) Uphold the appeal ->quash the conviction or amend the verdict
3) Order a retrial

30
Q

Tell about tribunals

A

Less adversarial, more inquisitorial. Chairs usually experts in the field or legally qualified.

E.g. Employment tribunals, employment appeal tribunals (e.g. Union rep. in), information tribunal, immigration tribunal, child support etc.

3 members, they listen to the arguments and try to decide on the outcome. THIS SPEEDS UP THE JUSTICE

31
Q

Legal Professions: Tell about Solicitor

A 
7years becoming a lawyer
-Possessed a law degree (LLB)
-Diploma in Legal Practice
-2Y traineeship
-Annual Practising certificate
Law Society of Scotland is governing body, no right of audience in Court of Session or House of Lords

A member of the legal profession qualified to deal with:
-conveyancing,
-the drawing up of wills
-other legal matters
can also instruct barristers and represent clients in some courts.

CANNOT CROSS THE BAR
-Solicitor leads the trial

32
Q

Legal Profession: Advocate

A

Called to the bar, Qualifications (right for audience in Scottish Courts; instructed by a solicitor on behalf of the advocate’s client)

  • LLB degree
  • Other examination and training (‘devilling’ special training in litigation

Queens counsel (13y of experience: ‘talking the silk’, First Minister on recommendation by the Lord Justice-General)

Advocate Deputes (Employed by Crown Office/Procurator Fiscal Office to prosecute cases in High court)

-A person who puts a case on someone else’s behalf, a professional pleader in a court of Justice. Expert in legal research.

33
Q

Legal Profession: Solicitor-Advocate

A

Hybrid between solicitor and advocate, specific training, was supposed to cut costs but not popular.
-Qualified Solicitor
->5 years experience
-Certain level of court appearances
-Pass exams
-Panel of solicitors recommendation to Law Society
Same rights to audience as advocate, can be instructed direct by client

34
Q

Legal Profession: Qualified Conveyancer

A

To become a licensed conveyancer in England and Wales, you must pass the Council for Licensed Conveyancers (CLC) qualification, which is usually taken while working. … completing 1200 hours of practical training, working under the supervision of a qualified employer such as a solicitor or fully-qualified conveyancer.

35
Q

Member of Judiciary: Justice of Peace

A

Less serious criminal matters are heard in Justice of the Peace Courts at first instance. The JP
courts are located in the same cities as the Sheriff Courts, but there are additional JP courts in other
locations throughout Scotland.
-Lay magistrate
-Appointed from within local community and trained in criminal law and procedure.
-Sit alone or on a treble bench
-Less serious crimes,

A justice of the peace court is the least authoritative type of
criminal court in Scotland. The court operates under summary procedure and deals
primarily with less serious criminal offences.

36
Q

Member of Judiciary: Stipendiary Magistrate

A

Stipendiary magistrate is a paid full-time qualified lawyer, appointed by the Crown on
the recommendation of the Lord Chancellor. Stipendiary magistrates in London are
known as Metropolitan Stipendiary magistrates. Both types of magistrates must retire at
the age of seventy and both may be removed from office by the Lord Chancellor for
incompetence

37
Q

Member of Judiciary: Sheriffs

A

Sheriffs deal with the majority of civil and criminal court cases in Scotland

38
Q

Member of Judiciary: Sheriff Principal

A

In Scotland a sheriff principal (pl. sheriffs principal) is a judge in charge of a
sheriffdom with judicial, quasi-judicial, and administrative responsibilities. … All of
the sheriffs principal are Appeal Sheriffs and ex officio members of the Sheriff Appeal
Court.

39
Q

Member of Judiciary: Judges of the College of Justice

A

The High Court of Justiciary is the supreme criminal court in Scotland. … The
remaining judges are the Lords Commissioners of Jusiticiary, who hold office ex officio
by virtue of being appointed as Senators of the College of Justice and judges of the
Court of Session

40
Q

Member of Judiciary: Lord Precident and Lord Justice-General

A

Judges sit in a number of courts and make decisions in both civil and criminal cases. They
ensure cases and verdicts are within the limits of the law and hand down judgments and
sentences. The Lord President has authority over any court established under Scots law,
except for the Supreme Court of the United Kingdom and the Court of the Lord Lyon.
The Lord President is the senior judge in Scotland and the head of the judiciary. As presiding
judge of Scotland’s supreme civil and criminal courts, he acts as both Lord President of the
Court of Session and the Lord Justice General of the High Court of Justiciary.
The Lord President of the Court of Session and Lord Justice General is the most
senior judge in Scotland, the head of the judiciary, and the presiding judge of the College of
Justice, the Court of Session, and the High Court of Justiciary.

41
Q

Member of Judiciary: Lord Justice-Clerk

A

May deputise for the lord Precident

42
Q

Law officers: Lord advocate

A

Her Majesty’s Advocate, known as the Lord Advocate, is the
chief legal officer of the Scottish Government and the Crown in Scotland for
both civil and criminal matters that fall within the devolved powers of
the Scottish Parliament. … representing the public interest in a range of
statutory and common law civil functions

43
Q

Law officers: Solicitor General

A

Solicitor General for Scotland. Her Majesty’s Solicitor General for Scotland
is one of the Law Officers of the Crown, and the deputy of the Lord Advocate,
whose duty is to advise the Scottish Government on Scots Law

44
Q

Law officer: Procurator Fiscal

A

Procurator fiscal. A procurator fiscal (pl. … For the majority of crimes
in Scotland, the procurators fiscal present cases for the prosecution in the
sheriff, district and justice of the peace courts, and the case for the
defence is presented either by the accused, a solicitor, or an advocate

45
Q

Law Officer: Advocate general

A

The Advocate General for Scotland is one of the Law Officers of the Crown,
who advise the government on Scots law. … Under section 33 of
the Scotland Act, the Advocate General has the power to
refer Scottish Parliament Bills to the Supreme Court for decisions on their
legislative competence.

46
Q

Public Prosecution

A

Police investigates crimes and gather evidence, Crown office and Procurator Fiscal Services Chooses going to the trial or not.

  • Independent public prosecution service
  • Department of the Scottish Executive
  • Headed up the Lord Advocate and the Solicitor General for Scotland
  • They are legal advisers to the executive and sit in the Scottish Parliament
47
Q

Law officers: Lord Advocate

A

He or she is the chief public prosecutor for Scotland and all prosecutions on
indictment are conducted by the Crown Office and Procurator Fiscal Service,
nominally in the Lord Advocate’s name. The officeholder is one of the Great
Officers of State of Scotland. The current Lord Advocate is The Rt Hon

48
Q

Law Officers: Solicitor General for Scotland

A

Solicitor General for Scotland. Her Majesty’s Solicitor General for
Scotland is one of the Law Officers of the Crown, and the deputy of the Lord
Advocate, whose duty is to advise the Scottish Government on Scots Law

49
Q

Law Officers: Advocate Deputes / Crown counsel

A

Decides whether to prosecute people accused of serious crimes, based on a report prepared by the police. Decided if prosecution is in public interest and there is sufficient evidence.

He is the senior of the two Law Officers, along with the Solicitor General
for Scotland. … The Lord Advocate is a Minister of the Scottish Government
and acts as principal legal adviser, but decisions by him about criminal
prosecutions and the investigation of deaths are taken independently of any
other person.

50
Q

Law Officers: Advocate general

A

The Advocate General for Scotland is one of the Law Officers of the Crown,
who advise the government on Scots law. … Under section 33 of the Scotland
Act, the Advocate General has the power to refer Scottish Parliament Bills to
the Supreme Court for decisions on their legislative competence.

51
Q

Ombudsmen

A

An ombudsman is a person who has been appointed to look into complaints about companies and organisations. Using an ombudsman is a way of trying to resolve a complaint without going to the court.

Has powers of investigation, neither court nor tribunal.

E.g. -Parliamentary Ombudsman

  • Information Commissioner
  • Financial Ombudsman Service
  • Scottish Legal Complaints Commission
52
Q

Explain the differences between Civil and Criminal Law

A

Explain

Business Law (13 decks)

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