Allocating crime for trial in Scotland

AuthorSir Gerald Gordon
PositionSometime Professor of Scots Law at the University of Edinburgh and Temporary Judge of the High Court of Justiciary
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
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.

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