Allocating crime for trial in Scotland

• Author: Sir Gerald Gordon
• Position: Sometime Professor of Scots Law at the University of Edinburgh and Temporary Judge of the High Court of Justiciary
• Pages: 21-31

ALLOCATING CRIME FOR TRIAL

IN SCOTLAND

SIR GERALD GORDON*

The principal features of Scots law in connection with

the allocation of cases among the different courts for trial are

simplicity, flexibility and the control exercised by the Crown.

This means, amongst other things, that there is not much that

one can say about the subject, and that much of what little

one can say is neither precise, definitive nor permanent in its

application. In order to explain the system it is necessary first

to say something about the structure of the courts and the

prosecution, and about the decision-making processes

involved.

There are four levels of courts. At the bottom is the

district court, which is the successor of the old burgh and

justice of the peace courts, then comes the sheriff summary

court, then the sheriff and jury court, and finally the High

Court. The first two courts deal only with summary cases, i.e.

cases decided by a single judge; the second deal with what

are called solemn cases, i.e. cases on indictment, and they are

tried in a court consisting of judge and jury, unless of course

the accused pleads guilty. What follows about the powers and

jurisdiction of the courts is subject to specific statutory

exceptions, but there are not many of these.

Many, if not most, offences are still prosecuted at

common law, the obvious exceptions being road traffic

offences and drugs offences. All common law cases except

murder and rape can be tried summarily or on indictment.1

21 Judicial Studies Institute Journal [3:1

1 Incest could formerly be prosecuted only in the High Court, but in terms

of s. 4 of the Criminal Law Consolidation (Scotland) Act, 1995 it can

now be prosecuted summarily if the Lord Advocate so directs in any

particular case. Incest includes intercourse with a stepchild and

intercourse by a person who is in the same household as, and in a position

* Sometime Professor of Scots Law at the University of Edinburgh and

Temporary Judge of the High Court of Justiciary.