Scots Law

Discuss the difference between Common Law and the Statutory Acts made by the Powers that be, (PTB)

Scots Law

Postby somenick » Tue Jan 26, 2010 4:25 pm

The most troublesome gap in my knowledge comes from my question "How does Common Law apply in Scotland if we never got the Magna Carta?" Well, I am still not entirely sure, but the following has answered many of my questions, and there is more to read if you want to follow any of the links:

SCOTS LAWhttp://en.wikipedia.org/wiki/Scots_law
Scots law is a unique legal system which has roots in various different sources of law. Up until the mid-tenth century, the law in Scotland was almost certainly Celtic, but after that point, feudal and canon law gradually took over. On succeeding to the throne in 1124, King David I introduced elements of Anglo-Norman laws and legal institutions, such as sheriffs and justices. Scots law's first known text, Regiam Majestatem, was based heavily on Glanvill's English law treatise, although it also contains elements of civil law, feudal law, canon law, customary law and native Scots statutes.

Although there was some indirect Roman law inflence on Scots law, via the civil law and canon law used in the church courts, the direct influence of Roman law was slight up until around the mid-fifteenth century. After this time, Roman law was often adopted in argument in court, in an adapted form, where there was no native Scots rule to settle a dispute; and Roman law was in this way partially received into Scots law. Thus comparative law classifies Scots law as a mixed legal system.

Since the Acts of Union, in 1707, it has shared a legislature with the rest of the United Kingdom. Scotland retained a fundamentally different legal system from that of England and Wales, but the Union brought English influence on Scots law. In recent years, Scots law has also been affected by European law under the Treaty of Rome, the requirements of the European Convention on Human Rights (entered into by members of the Council of Europe) and the establishment of the Scottish Parliament which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998.

In Scots Law, there is the use of a 15 member jury in Scotland rather than the usual 12 members. The accused in a criminal trial does not have the right to elect a judge or jury trial. Judges and juries of criminal trials have the "third verdict" of "not proven" available to them. And the fact that Equity does not exist in Scots law.

***(my note: What the f**k? We cannot demand a Trial by Jury??? Equity does not exist in Scots Law?!?!)***

EQUITY - http://en.wikipedia.org/wiki/Equity_%28law%29
Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of law where their application would operate harshly. In civil legal systems, broad "general clause" allow judges to have similar leeway in applying the code. Equity is commonly said to "mitigate the rigor of common law", allowing courts to use their discretion and apply justice in accordance with natural law.

SCOTS COMMON LAWhttp://en.wikipedia.org/wiki/Scots_law#The_Common_Law
Common Law is developed through decisions of courts and similar tribunals. The Courts of Scotland are chiefly responsible for the development of the Common Law in Scotland. The principle of the Common Law is that higher court decisions bind the lower courts. The highest civil court in Scotland is the Supreme Court of the United Kingdom, which also hears devolution issues, and the highest criminal court is the High Court of Justiciary. Scottish judges will often use cases decided by Scottish courts, however, they are also able to take into consideration decisions made by foreign courts, although these decisions will only be persuasive not binding on the Court.

As, until 2009, the House of Lords acted as the highest court of appeal for civil actions both in Scotland and England and Wales this has led to, at times in history, a diffusion of English law into Scots law. This has resulted in the merging of Scottish and English Common Law on many issues, often resulting in strained interpretations of Scots law.

The Scots legal system is unique in having three possible verdicts for a criminal trial: "guilty", "not guilty" and "not proven". Both "not guilty" and "not proven" result in an acquittal with no possibility of retrial. The third verdict resulted from historical accident, in that there was a practice at one point of leaving the jury to determine factual issues one-by-one as "proven" or "not proven". It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. Now the jury decides this question after legal advice from the judge, but the "not proven" verdict lives on. The "not proven" verdict is often taken by juries and the media as meaning "we know they did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy.

However, the Scottish legal profession is largely opposed to this perception of the not-proven verdict. In a Scottish criminal trial, as in an English one, the burden of proof lies on the prosecution, and the guilt of the accused must be proven "beyond reasonable doubt." It is therefore the role of the prosecution to produce enough evidence, whether direct or circumstantial, which must be relevant, admissible and of enough weight to procure a prosecution. Where the prosecution fails in this role, the jury will feel doubt as to the guilt of the accused and cannot return a verdict of guilty. Therefore, the 15 jurors can declare a not-proven verdict, alerting the prosecution to the fact that its performance and/or evidence and/or witnesses were poor. There are now MSP's looking to have the possibility of a retrial if someone gets a not proven verdict.

The common law constitutes the basis of the legal systems of England, Wales, Northern Ireland and Ireland. Scotland is often said to use the civil law system but in fact it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages). Scots common law differs in that the use of precedents is subject to the courts' seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic (or 'mixed') legal systems operate in Quebec, Louisiana and South Africa.

NATURAL JUSTICEhttp://en.wikipedia.org/wiki/Natural_justice
Natural justice (which is binding upon both public and private entities, such as trade unions) includes the notion of procedural fairness and may incorporate the following guidelines:
1. A Right to Advanced Warning. Contractual obligations depriving individuals of their Rights cannot be imposed retrospectively.
2. A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges).
3. A person making a decision should declare any personal interest they may have in the proceedings.
4. A person who makes a decision should be unbiased and act in good faith. He or she therefore cannot be one of the parties in the case, or have an interest in the outcome. This is expressed in the Latin maxim, nemo iudex in causa sua: "no man is permitted to be judge in his own cause".
5. Proceedings should be conducted so they are fair to all the parties - expressed in the Latin maxim audi alteram partem: "let the other side be heard".
6. Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party.
7. A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations.
8. Justice should be seen to be done. If the community is satisfied that justice has been done, they will continue to place their faith in the courts.

CORPUS JURIS CIVILIShttp://en.wikipedia.org/wiki/Corpus_Juris_Civilis
The Corpus Juris (or Iuris) Civilis ("Body of Civil Law") is the modern name[1] for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor. This code compiled, in the Latin language, all of the existing imperial constitutiones (imperial pronouncements having the force of law), back to the time of Hadrian. It used both the Codex Theodosianus and the fourth-century collections embodied in the Codex Gregorianus and Codex Hermogenianus, which provided the model for division into books that were divided into titles. These codices had developed authoritative standing.

***(my note: We have seen "given the force of law" before; it has to be consented to)***

REGIAM MAGESTATEMhttp://en.wikipedia.org/wiki/Regiam_Majestatem
The Regiam Majestatem is the earliest surviving work giving a comprehensive digest of the Law of Scotland. The name of the document is derived from its first two words. It consists of four books, treating (1) civil actions and jurisdictions, (2) judgments and executions, (3) contracts, and (4) crimes.

Dating from the early fourteen century, it is largely based on the 1188 Tractatus de legibus et consuetudinibus regni Angliae (English: Treatise on the laws and customs of the Kingdom of England) of Ranulf de Glanvill, and incorporates features of thirteenth century canon law, the Summa in Titulos Decretalium of Goffredus of Trano, and the Scottish Celtic Laws of the Brets and Scots. The documentary basis of Scots law had been largely destroyed by the confiscations of Edward I of England in the thirteenth century and by two devastating English invasions led by Edward I and Edward III in the thirteenth and fourteenth centuries. When the Regiam Majestatem was discovered in the early fifteenth century after Scotland's legal provenance had been destroyed, it was immediately embraced as an authoritative source of law, surviving as such into the modern era.

NATIVE LAW (IN SCOTLAND)
http://en.wikipedia.org/wiki/Legal_institutions_of_Scotland_in_the_High_Middle_Ages#Native_Law
Pre-fourteenth century law amongst the native Scots is not always well attested. There does not survive a vast corpus of native law from Scotland particularly, certainly nothing like that which comes from early medieval Ireland. However, the latter gives some basis for reconstructing pre-fourteenth century Scottish law. King Robert Bruce cites common "customs", as well as language, as features which made the Scots and Irish one people. In the earliest extant Scottish legal manuscript, there is a document called Leges inter Brettos et Scottos. The document is in French, and is almost certainly a French translation of an earlier Gaelic document: http://en.wikipedia.org/wiki/Leges_inter_Brettos_et_Scottos

ROMAN LAWhttp://en.wikipedia.org/wiki/Roman_law
Today, Roman law is no longer applied in legal practice, even though the legal systems of some states like South Africa and San Marino are still based on the old Ius Commune. However, even where the legal practice is based on a code, many rules deriving from Roman law apply: No code completely broke with the Roman tradition. Rather, the provisions of Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students in civil law jurisdictions.
Magna Carta never applied in Scotland, and the writ of habeas corpus, standardised in England under the Habeas Corpus Act of 1679, has no meaning in Scotland.
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Re: Scots Law

Postby diasan » Tue Jan 26, 2010 10:11 pm

I need to re-read it, but the Treaty of Union 1706 is interesting. As I recall it in part essentially said that all rights enjoyed by the English are available to the Scots, and vica-versa. It was simply the legal systems (i.e. forms, bodies, proceedures) that remain distinct. Also any laws which contradicted were declared void.

If that position can be argued, it has interesting consequences for the law both North and South of the border.
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Re: Scots Law

Postby somenick » Thu Jan 28, 2010 9:34 pm

somenick wrote:Scots common law differs in that the use of precedents is subject to the courts' seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law.


I think this a fantastically condensed sentence that I have been studying and trying to figure out for the last thirty minutes!! So, do you interpret this as I do: In Scots Law, instead of looking for previous rulings that have set precedents, you should instead explore the question, "What principle justifies this law?"

Dictionary definitions for "principle" confuse things a bit:
1. A basic truth, law, or assumption: the principles of democracy.
2a. A rule or standard, especially of good behavior: a man of principle.
2b. The collectivity of moral or ethical standards or judgments: a decision based on principle rather than expediency.
3. A fixed or predetermined policy or mode of action.
Magna Carta never applied in Scotland, and the writ of habeas corpus, standardised in England under the Habeas Corpus Act of 1679, has no meaning in Scotland.
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Re: Scots Law

Postby huntingross » Thu Jan 28, 2010 10:01 pm

somenick.....that would seem to be the correct interpretation.
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Re: Scots Law

Postby somenick » Mon Feb 01, 2010 5:53 pm

All these Scottish Law posts are in an effort to establish what level of Common Law jurisdiction exists in the Courts of Scotland... it APPEARS that while Judges and Magistrates in Scotland have to make the same Oath as anywhere else in the UK, Policemen do not make the same Oath...

THE OATHS OF JUDGES, MAGISTRATES AND POLICEMEN (http://en.wikipedia.org/wiki/Oath_of_Allegiance_%28United_Kingdom%29#Judges_and_magistrates)
Judges and magistrates on being sworn in, are required by various statutes to take two oaths: the oath of allegiance and the judicial oath, (collectively; the judicial oath). Judges of Hindu, Jewish, Muslim and Sikh religions can omit the words "I swear by Almighty God" and replace it with an acceptable alternative.

Judges first 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. So help me God."
Judges second 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. So help me God."
Magistrates first Oath of Allegiance:
"I _____ swear that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second, in the office of Justice of the Peace and I will do right to all manner of people after the laws and usages of the Realm without fear or favour, affection or ill will."
Magistrates second Judicial Oath:
"I _____ do swear that I will well and faithfully serve in the office of _____ and that I will do right to all manner of people without fear or favour, affection or ill-will according to the laws and usages of this realm."

Police officers
England and Wales:
"I _____ of _____ do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law."
Scotland:
"I hereby do solemnly and sincerely and truly declare and affirm that I will faithfully discharge the duties of the office of constable."

Northern Ireland police do not swear an oath to the monarch:
"I _____ hereby do solemnly and sincerely and truly declare and affirm that I will faithfully discharge the duties of the office of constable, and that in so doing I will act with fairness, integrity, diligence and impartiality, uphold fundamental human rights and accord equal respect to all individuals and to their traditions and beliefs."



JUSTICE OF THE PEACE IN SCOTLAND (http://en.wikipedia.org/wiki/Justice_of_the_peace)
Within the Scottish legal system Justices of the Peace are lay magistrates who currently sit in the Scottish District Courts. These courts were introduced in 1975 as replacement for burgh police courts. They handle many cases of breach of the peace, drunkenness, minor assaults, petty theft, and offences under the Civic Government (Scotland) Act 1982. In Glasgow, the volume of business requires the employment of three solicitors as "stipendiary magistrates" who sit in place of the lay justices. The stipendiary magistrates' court has the same sentencing power as the summary sheriff court. However, in 2006, the Scottish Government announced its intention to unify the management of the sheriff and district courts in Scotland, but retaining lay justices, as part of its initiative to create a unified judiciary under the Lord President.

STIPENDIARY MAGISTRATES (http://en.wikipedia.org/wiki/Magistrate)
Magistrates are unpaid volunteers appointed to their local court and are provided with advice, especially on sentencing, by a legally qualified Clerk to the Justices. The second group, professional magistrates, are nowadays known as District Judges (Magistrates' Court), although hitherto they were known as Stipendiary Magistrates (which is to say, magistrates who received a stipend or payment). Unlike lay magistrates, District Judges (Magistrates' Court) sit alone and have the authority to sit in any magistrates' court.

DISTRICT COURTS OF SCOTLAND (http://en.wikipedia.org/wiki/District_Courts_of_Scotland)
A District Court is the least authoritative type of criminal court in Scotland. The court operates under summary procedure and deals primarily with minor criminal offences. In Scotland, the lowest level of law-court, the District Court, is presided over by a Justice of the Peace. The District Courts were replaced with Justice of the Peace Courts beginning in Lothian and Borders Sheriffdom in December 2007.

A SUMMARY JUDGEMENT (http://en.wikipedia.org/wiki/Summary_offence#United_Kingdom) does not require an INDICTMENT (http://en.wikipedia.org/wiki/Indictment)
Magna Carta never applied in Scotland, and the writ of habeas corpus, standardised in England under the Habeas Corpus Act of 1679, has no meaning in Scotland.
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Re: Scots Law

Postby somenick » Mon Feb 01, 2010 6:45 pm

I was just asked a good question in connection with the above post:
"And what are the duties of the office of constable... To uphold the common law?"
http://www.scotland.gov.uk/library/documents/police.htm


THE CHIEF CONSTABLE
The chief constable alone is responsible for police operations. While police authorities appoint the chief constables (subject to the approval of the Secretary of State), neither police authorities nor the Secretary of State have power to direct chief constables on enforcement of the law or on the deployment of police officers. The chief constable has a duty to comply with instructions from the Lord Advocate, the sheriff principal or the appropriate prosecutor in relation to offences and prosecutions. Efficient and effective use of the resources placed at his disposal by the police authority is a matter for the chief constable. The chief constable is required to submit to the police authority an annual report on the policing of the force area. This is copied to the Secretary of State and to the sheriff principal.

POLICE DUTIES
The Police (Scotland) Act 1967 (as subsequently amended) lays down the general functions and jurisdiction of police constables, but as society changes, so does the emphasis in police work alter to reflect current needs and attitudes. However the main functions of the service can still be summarised in the words of the Report of the 1962 Royal Commission:
1. to maintain law and order and protect persons and property; to prevent crime;
2. to detect criminals and, in the course of interrogating suspected persons, play a part in the early stages of the judicial process, acting under judicial restraint;
3. to control road traffic and advise local authorities on traffic questions.
4. to carry out certain duties on behalf of Government departments - for example, to conduct enquiries on applicants for British nationality;
5. by long tradition, to befriend anyone who needs their help, and to cope with any minor or major emergency which may arise.

In carrying out their work. police constables work as members of a disciplined force under the direction of the chief constable, although each is expected to act on his or her own initiative and is alone accountable at law for the exercise of his authority. They do much of their work alone and without supervision and they must make decisions based on a sound knowledge of the law. Constables are therefore unique among subordinates in the nature and degree of responsibility they are required to exercise.


...my answer to the question:
I DON'T KNOW! That's what I am trying to find out...


I have been assured that: "The only difference is that in England, Wales and Northern Ireland it's called an 'attestation' and in Scotland it's called a 'Declaration' what it binds them to is Common Law throughout the United Kingdom"

"I hereby do solemnly and sincerely and truly declare and affirm that I will faithfully discharge the duties of the office of constable" is the Oath - I am going to write to the Scottish Police to find out exactly what the "duties of the office of constable" are, and how they relate to Common Law.
Magna Carta never applied in Scotland, and the writ of habeas corpus, standardised in England under the Habeas Corpus Act of 1679, has no meaning in Scotland.
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Re: Scots Law

Postby somenick » Tue Feb 02, 2010 3:22 pm

Here is a letter I have drafted to Strathclyde Police... what do you think? Is it clear enough?

Dear Sirs,
I am currently studying law and working on a project on Common Law and its application in the UK today. I have reached an unanswered question in relation to the application of Common Law in Scotland, which I am hoping you can help me clarify.

You will be aware that Judges throughout the UK have to swear the same Oaths:
Judges 1st 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. So help me God."
Judges 2nd 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. So help me God."

That Magistrates throughout the UK have to swear the same Oaths:
Magistrates 1st Oath of Allegiance "I _____ swear that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second, in the office of Justice of the Peace and I will do right to all manner of people after the laws and usages of the Realm without fear or favour, affection or ill will."
Magistrates 2nd Judicial Oath "I _____ do swear that I will well and faithfully serve in the office of _____ and that I will do right to all manner of people without fear or favour, affection or ill-will according to the laws and usages of this realm."

But while Police Officers in England and Wales carry the following Oath:
"I _____ of _____ do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law."

Police Officers in Scotland have a different Oath: "I hereby do solemnly and sincerely and truly declare and affirm that I will faithfully discharge the duties of the office of constable."

So to be more specific, I kindly request any clarification you can give me on what exactly the "duties of the office of constable" are, and how they relate to our Common Law.

According to a document published online by The Scottish Office, The Police (Scotland) Act 1967 (as subsequently amended) summarises Police Duties thus:
1. To maintain law and order and protect persons and property; to prevent crime;
2. To detect criminals and, in the course of interrogating suspected persons, play a part in the early stages of the judicial process, acting under judicial restraint;
3. To control road traffic and advise local authorities on traffic questions.
4. To carry out certain duties on behalf of Government departments - for example, to conduct enquiries on applicants for British nationality;
5. By long tradition, to befriend anyone who needs their help, and to cope with any minor or major emergency which may arise.

Amongst other documents, I have also read the Coronation Oath Act 1567 (c.8) – but nowhere can I find a clear-cut answer the question I have highlighted above in bold.

I hope you can bring some clarification to my studies,
Sincerely and with best wishes,
Magna Carta never applied in Scotland, and the writ of habeas corpus, standardised in England under the Habeas Corpus Act of 1679, has no meaning in Scotland.
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Re: Scots Law

Postby somenick » Sun Feb 07, 2010 3:28 am

Ok... I was going to write that letter to the Police, but then I found out that my local MP is Secretary of State for Scotland, and I have had good communications with his assistant in the past. As a result of this, I tweaked it a fair bit but in essence sent her the same query in an email. She replied really quickly with a short note to say that she is really interested in Common Law too and will look into it and get back to me as soon as she can. Which is really cool because I didn't know if she would be into it or not!
Magna Carta never applied in Scotland, and the writ of habeas corpus, standardised in England under the Habeas Corpus Act of 1679, has no meaning in Scotland.
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Re: Scots Law

Postby somenick » Sat Mar 13, 2010 4:34 pm

I sent an email to his assistant ages ago. She has still not been able to come back with answers to my questions. She has even gone to some Scottish Lawyers... but so far... nothing!!
Magna Carta never applied in Scotland, and the writ of habeas corpus, standardised in England under the Habeas Corpus Act of 1679, has no meaning in Scotland.
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Re: Scots Law

Postby huntingross » Sun Mar 14, 2010 9:58 am

Hi somenick

I think the nature and understanding of common law in Scotland is sketchy amongst the "profession" as you have demonstrated by your questions and slim responses from "them".

Personally I believe it exists by virtue of the fact that the land was inhabited long before "they" dreamed up the current mess.

However, with my secession at the end of 2009, I truly believe the answer is in sovereignty, and I am devoting my time to this now....once I got my head around the fundamental issue the everything else falls away.

The only law in any encounter with "them" is the law you decree.

The cops won't get this.....but it should be driven home when in their court rooms.
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