With the exception of the two most senior judges, the Lord President of the Court of Session and Lord Justice Clerk, all appointments to the Judiciary in Scotland are made by The Queen on the recommendation of the First Minister of Scotland. Before the First Minister makes his recommendations, he takes advice from the independent Judicial Appointments Board for Scotland which was set up in 2002. The Board's task is to assess applicants seeking appointment to the offices of Judge, Sheriff Principal and Sheriff (including part-time Sheriff) and provide a list of those considered suitable for appointment. The Lord President must be consulted by the First Minister before his recommendations are made to The Queen. The Judicial Appointments Board has its own Secretariat but once they submit their reports, the Scottish Executive Justice Department takes forward the process.
The Lord President and Lord Justice Clerk are appointed by The Queen on a recommendation by the UK Prime Minister. The Prime Minister may not recommend someone who has not been nominated by the First Minister of Scotland.
The office of part-time sheriff was created in 2000 under the provisions of the Bail, Judicial Appointments etc. ( Scotland) Act 2000 and replaced that of temporary sheriff. Part-time sheriffs are appointed for five years (and may thereafter be reappointed) or until they reach the age of 70. They may only be removed from office if so ordered by a tribunal which is set up for the purpose of investigating allegations of inability, neglect of duty or misbehaviour. Under the provisions of the Act only 60 part time sheriffs may hold appointment at any one time.
Part time sheriffs are most commonly used to provide cover for permanent sheriffs who may be away from business. Whilst some part time sheriffs are retired permanent sheriffs, the majority are either practising advocates or solicitors.
The sheriff court is a local court which deals with civil and criminal cases. To qualify for appointment as a sheriff a person must have been an advocate or solicitor for at least 10 years. The criteria for judicial appointments are set out by the Judicial Appointments Board for Scotland and recommendations are made on merit. Some post-holders will have given service as part-time sheriffs but that is not a requirement. As the jurisdiction of the sheriff is vast, he or she must have a grasp of every aspect of law as well as a mastery of rules of evidence.
For all sheriffs appointed since 1995 the compulsory retirement age is 70. Sheriffs may, if they wish, retire at any time after reaching the age of 60 but retirement between the ages of 60 and 65 would be on actuarially reduced terms.
The office of sheriff principal is unique within the judicial structure of the United Kingdom. Basically, Scotland is divided into six sheriffdoms with each one presided over by a full time sheriff principal. The work of a sheriff principal can be partly judicial and partly administrative. It includes functions such as:
Conventional judicial duties including an appellate function in civil cases;
Judicial and quasi judicial work arising under various statutes;
Administrative functions in relation to the courts within a sheriff principal’s sheriffdom;
Ceremonial functions within their sheriffdom.
Judicial duties involve the whole range of work of the Court of Session (civil) and the High Court of Justiciary (criminal). Each judge takes the courtesy title of “Lord” or “Lady” followed by their surname or a territorial title. When sitting in the Court of Session, judges are known as Senators of the College of Justice. The Court of Session is headed by the Lord President, the second in rank being the Lord Justice Clerk. The Court of Session is divided into the Outer House and the Inner House. The Inner House is in essence an appeal court though it has a small range of first instance business. Promotion to the Inner House is on merit on the joint recommendation of the Lord President and Lord Justice Clerk.
When sitting in the High Court of Justiciary the judges are known as Lords Commissioners of Justiciary. The High Court of Justiciary is headed by the Lord Justice General (who is the same person as the Lord President), second in rank is again the Lord Justice Clerk.
Compulsory retirement is at age 70. Full pension rights are allowed after 20 years of service.
There are certain basic skills and attributes which a judge must have including a high level of understanding of the law of Scotland and jurisprudence, an extensive experience of litigation and familiarity with the courts, integrity and honesty, common sense, commitment, conscientiousness and diligence. Again the criteria for judicial appointment adopted by the Judicial Appointments Board for Scotland applies equally to the office of Judge as it does to other judicial appointments.
Judicial independence is a key part of the legal system in Scotland. It requires that judges decide cases according to their own judgment without any outside influence. In particular, the interests of justice require that in their work, judges remain independent of, and not subject to the views or control of the Government.
The Senior Salaries Review Body is an independent body which makes recommendations to the Government about the salaries of a number of groups including the judiciary. The Scottish Executive Justice Department has responsibility for meeting the costs of judicial salaries and the accruing superannuation liability commitment for judicial pensions in Scotland and information is available about rates of pay and pensions arrangements.
It is open to members of the public to raise complaints about the conduct of a member of the judiciary. Any such complaint will be investigated by the Scottish Executive Justice Department who will provide complainants with a written response. However, the Department cannot deal with complaints about the decisions made by Judges and Sheriffs who are independent of the Executive. Complaints challenging the decisions made in individual cases may only be made by appealing to a higher Court.
A Justice of the Peace is a lay person who sits alone or in threes with a legally qualified clerk or legal assessor in the District Court. The District Court is at the bottom end of the court hierarchy in Scotland and deals only with summary criminal matters for example breach of peace, vandalism, speeding etc. In Glasgow only there is a stipendiary magistrate court where the stipendiary magistrate sits alone and is legally qualified. Here the magistrate has the same powers as a sheriff who is sitting without a jury
Justices of the Peace are appointed by Ministers on the advice of local non-statutory JP Advisory Committees (JPACs) to serve within a designated Commission Area (equivalent to a local authority area). Candidates are appointed either as full or signing justices. Full justices can undertake any act of a judicial nature, including sitting on the bench in the district court and signing warrants. Signing justices can undertake only a limited range of signing duties, such as witnessing the signature of documents.
Candidates should be personally suitable in terms of character, integrity and understanding and should be regarded as such by those among whom they live and work. They should have the necessary intelligence, common sense and experience to understand accused persons and witnesses, to weigh their evidence, to understand their problems; and to make appropriate decisions and sentences.
The Scottish Court Service is the agency whose principal task is to provide administrative, organisational and technical services required to support the judiciary in ensuring the courts run smoothly, while providing an efficient and courteous service to court users. The Service is an executive agency of the Scottish Executive Justice Department and its employees are civil servants who are not required to be legally qualified.
The Principal Clerk of Session and Justiciary is responsible for the administration, organisation and co-ordination of the work of the Court of Session, High Court of Justiciary and Court of Criminal Appeal. He is the head of the Scottish Court Service within the Supreme Courts and has overall responsibility for the staff of the Supreme Courts including the Accountant of Court’s Office and the Office of the Public Guardian.
The Deputy Principal Clerk of Justiciary reports to the Principal Clerk of Session and Justiciary. He has ultimate day to day responsibility for the administration of the Justiciary Office and for programming (in consultation with Crown Office) the business of the High Court.
The Deputy Principal Clerk of Session likewise reports to the Principal Clerk of Session and Justiciary. He has ultimate day to day responsibility for the administration of civil business in the Supreme Courts. As Keeper of the Rolls he is also responsible for the programming and allocation of court business to the Supreme Court judges.
The First and Second Division each have a Depute Clerk of Session assigned to them as does each Outer House Judge. The Depute Clerk acts as Clerk of Court and undertakes civil or criminal duties as allocated to the Judge. In the criminal court the clerk is designated as a Depute Clerk of Justiciary. The criminal court clerks can be required to follow the Judge as the court sits in locations throughout Scotland on circuit.
The administration of the Sheriff Courts is undertaken by the local Sheriff Clerk and his staff. The Sheriff Clerk is responsible for all the administrative work in relation to civil and criminal procedures and commissary matters pertaining to wills and appointment of executors to the estate of deceased persons.
Clerks of Court ensure that judges have the correct papers to enable them to preside over the cases before the court and provide any other administrative support the judges require. They may also be called upon to advise on court procedures by the sheriff and other court users. The clerk notes what happens in court, prepares the necessary court orders and ensures they are sent to the relevant parties.
While court staff can advise court users about court procedures they cannot give legal advice nor recommend what action litigants should take.
Sheriff Clerks are also engaged in the recovery of criminal fines and compensation and are responsible for the citation and management of jurors for serious criminal cases in the Sheriff and High Courts.
The Crown Office and Procurator Fiscal Service provides Scotland’s independent public prosecution and deaths investigation service. It is a Department of the Scottish Executive and is headed by the Lord Advocate assisted by the Solicitor General for Scotland. They are the Scottish Law Officers and members of the Scottish Executive. Both the Lord Advocate and Solicitor General are appointed by Her Majesty The Queen on the recommendation of the First Minister. The recommendation of the First Minister requires the agreement of the Scottish Parliament. The independence of the Lord Advocate is preserved in section 48 of the Scotland Act 1998.
The Lord Advocate and Solicitor General are assisted by Advocates Deputes and are known collectively as Crown Counsel. Advocates Deputes are usually experienced members of the Faculty of Advocates, appointed for a period of about three years. Advocate Deputes are, however, free to undertake civil private practice. Advocate Deputes make decisions principally about proceedings on indictment and Fatal Accident Inquiries, prosecute cases in the High Court, appear for the Crown in the Appeal Court and provide advice to Procurators Fiscal on issues of complexity or sensitivity.
The Crown Agent is the “permanent “head of Department. He is an experienced prosecutor appointed from the Procurator Fiscal Service. He is the solicitor to the Lord Advocate and advisor to him on policy and operational matters. The Crown Agent is responsible for the direction and management of the department.
The Deputy Crown Agent is the second in command at Crown Office. He is an experienced member of the permanent legal staff of the prosecution service.
The Procurator Fiscal Service consists mainly of solicitors with a few advocates who are employed full time as civil servants and located at the various Sheriff Courts throughout Scotland. They are responsible for investigating and instituting proceedings for criminal offences within their districts and for presenting the cases in court. They also prosecute in the District Courts. The procurator fiscal is an independent person prosecuting in the public interest – not one acting on behalf of the sheriff. In each sheriffdom there is a regional procurator fiscal with supervisory control over all the procurators fiscal in the sheriffdom.
The more serious crimes are reported to the Crown Office for the consideration and instructions of Crown Counsel. The Crown Office in Edinburgh is the Departmental headquarters.
The offices of Messengers-at-Arms and Sheriff Officers can be traced back several hundred years. A Messenger-at-Arms is an officer of the Court of Session. He can travel anywhere in Scotland and can serve documents and enforce court orders of the Court of Session.
A Sheriff Officer is an officer of the Sheriff court. He can only operate in the geographical area for which he holds a commission.
Messengers-at-Arms and Sheriff Officers are employed within private business partnerships with fees charged being regulated by government statute. The Society of Messengers-at-Arms and Sheriff Officers represents the interests of Scottish officers of court and acts as a channel of communication between officers of court, the legal professions etc. All members of the Society are required to abide by its Constitution and Code of Professional Ethics. The Society also provides training courses for its members.
An advocate (sometimes referred to as counsel) is a self-employed independent lawyer who has been admitted to the Faculty of Advocates and thus permitted to practise as an advocate before the Courts of Scotland. The Faculty of Advocates has been in existence since at least 1532. Admission to the Faculty is by election after the entrant has petitioned the court, paid certain fees and satisfied the Faculty Examiners as to his qualifications in both general scholarship and in law.
The Faculty is a democratic body led by its Dean. The Dean of Faculty is elected by the whole membership and is assisted by four other office bearers, the Vice-Dean, Treasurer, Clerk and Keeper of the Advocates Library, all of whom are elected by the practising membership. These office-bearers remain in practice as advocates and receive no remuneration. The office-bearers are assisted in their work by an elected Faculty Council and by a wide range of committees.
The Faculty is self-regulating and controls its own admissions and disciplines. Complaints against advocates must be in writing and submitted to the Dean of the Faculty. If a complainant is dissatisfied with the way the Faculty has handled a complaint he or she should write to the Scottish Legal Services Ombudsman within six months of the decision by the Faculty.
Advocates can be instructed by a solicitor or a member of other professional bodies recognised for this purpose. They offer a special and independent service. In particular :
Solicitors can give advice on any aspect of law as long as they have the necessary knowledge. This requirement is part of their Code of Conduct. Solicitors deal with all manner of legal affairs including litigation, conveyancing and trust work. Solicitors have rights of audience in the European Court, the sheriff and district courts and all tribunals, inquiries and other hearings unless excluded by law. While many solicitors practise individually or in partnership, many are also employed by large businesses or public or local authorities.
Admission to the roll of solicitors kept by the registrar of solicitors is by petition following the taking of a law degree at university or the passing of professional examinations in lieu of this, then the obtaining of a Diploma in Legal Practice at a Scottish university and a period of practical training with a practising solicitor. A solicitor in practice must take out a practising certificate annually.
The professional organisation, to which all practising solicitors must be members, is the Law Society of Scotland, established in 1949. The Law Society of Scotland regulates solicitors under statute. The Society promotes both the interests of solicitors in Scotland and the interests of the public in relation to the profession. The Society deals with such matters as admission, professional education and training, standard setting and discipline of solicitors.
The employment of a solicitor is regulated by the general principles of the law of agency.
The profession is regulated by statute (the Solicitor ( Scotland) Act 1980). The Law Society Client Relations Office investigates complaints of professional misconduct and inadequate professional services. The Law Society may prosecute solicitors before the independent Scottish Solicitors’ Discipline Tribunal. If a complainant is dissatisfied with the Law Society’s handling of a complaint they may contact the Scottish Legal Services Ombudsman.
Solicitor-advocates are experienced solicitors who have undertaken specialist training in court pleading. Since 1990, they have had rights of audience equal to advocates in the High Court of Justiciary and the Court of Session. They are members of the Law Society of Scotland and regulated by that body.
The office of notary public is very ancient. Candidates must normally be a solicitor before being allowed to become a notary. Admission is by petition to the first Division of the Court of Session or by petition for admission as solicitor and notary public.
An independent conveyancing practitioner may exercise the functions of a notary public provided that the exercise of any such function by the practitioner is in connection with other conveyancing services being provided by the practitioner in the case.
Conveyancing and Executry Practitioners respectively provide advice on such matters as the transfer of property and the winding up and administration of a deceased's estate. They work for solicitors and local authorities or as independent practitioners who provide a service directly to the public. The Law Society of Scotland regulates practitioners.
Any person of full age and sound mind who is party to a case brought before a court or tribunal may appear and present his own case. An individual may not appear or speak for his spouse or parent or his employer or a firm of which he is a partner or a company of which he is a director or a club of which he is treasurer unless he is legally qualified, and in all such cases the party must be legally represented.
The EC Lawyers Services Directive enables lawyers qualified in other EU member states to provide, under certain conditions, occasional services in the United Kingdom which could otherwise be provided only by advocates, barristers or solicitors. The Services Directive has been amended by the Swiss and European Economic Area (EEA) agreements to confer similar rights on nationals of, and lawyers professionally qualified in, Switzerland, Iceland, Liechtenstein and Norway. The European Communities (Services of Lawyers) Order 1978 implemented the EC Directive.
The EC Lawyers Establishment Directive provides for lawyers qualified in an EU member state to practise on a permanent basis under their home State professional title in another European jurisdiction and to be able to integrate into the host state profession after 3 years of regular and effective practice. The Directive is amended by the Swiss and EEA agreements to include lawyers professionally qualified in Switzerland, Iceland, Liechtenstein and Norway. The European Communities (Lawyer’s Practice)( Scotland) Regulations 2000 implemented the EC Directive.The European Communities (Recognition of Professional Qualifications) Regulations 1991 when read in conjunction with those of The European Communities (Lawyer’s Practice)(Scotland) Regulations 2000, provide that a registered European lawyer may be exempted from the requirements of the 1991 Regulations, that is they may apply for an exemption from the requirement to pass an aptitude test. The Faculty of Advocates and Law Society of Scotland have specified the tests
Last update: 17-08-2004