* The PDF documents downloadable from this web site require that you have Adobe Reader installed. Get it free at Adobe.com
'IMPROVING PRACTICE' - The 2002 Review of the Practices and Procedure of the High Court of Justiciary by the Honourable Lord Bonomy
CHAPTER 3 THE HIGH COURT OF JUSTICIARY
Introduction
3.1 In this Chapter I look at the place of the High Court of Justiciary in the criminal justice system.
Criminal Procedure
3.2 The principal statute governing criminal procedure is the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). In it are set out two forms of criminal procedure by which cases are dealt with at first instance - summary procedure and solemn procedure. Broadly speaking cases, in which the anticipated sentence is a period of custody of six months or less or a non-custodial sentence, are conducted under summary procedure9. All more serious cases are dealt with under solemn procedure. In summary procedure the decision maker is the presiding judge. In solemn procedure the judge presides over the trial, ensures that it is conducted fairly, deals with all questions of law and deals with administrative issues as they crop up, but the decision making body is the jury.
3.3 Criminal prosecutions are initiated by the Crown in the public interest10. The prosecution service, now known as Crown Office and Procurator Fiscal Service (COPFS), is headed by the Lord Advocate, assisted by the Solicitor General, both ministers in the Scottish Government11. They are based in Crown Office in Edinburgh. Under the direction of the Lord Advocate criminal cases are investigated and prosecutions conducted by procurators fiscal of various grades, based in offices located within or adjacent to their local courts12. Cases prosecuted under summary procedure run in the name of the local procurator fiscal13; those under solemn procedure in the name of the Lord Advocate14. All cases in which solemn procedure is envisaged are scrutinised by one of a team of advocate deputes, appointed by the Lord Advocate personally and known as Crown Counsel, who also conduct prosecutions in the High Court15. It is for the Crown to decide whether a case should be prosecuted and in which court. Depending upon the importance of the case, that decision may be made by the Lord Advocate, Crown Counsel or other members of COPFS16. In solemn cases the charges on which the accused is to be brought to trial are set out in a document known as "the indictment"17.
The Hierarchy of Criminal Courts
3.4 The District Court deals only with summary cases18. The Sheriff Court is the only court which deals with both summary and solemn cases19. The sheriff’s sentencing powers under solemn procedure are limited to a maximum custodial sentence of 3 years20. As a result, all serious cases which might merit a longer sentence are dealt with under solemn procedure in the High Court. Since the High Court has jurisdiction in all solemn cases, a less serious case raising a novel, complex or important issue may be heard there, should the Lord Advocate select it as the appropriate forum21. The court sits regularly at various locations throughout the country. Historically the court went on circuit to different parts of Scotland22. A judge sitting in the High Court outwith Edinburgh is still referred to as being "on circuit". A solicitor does not have the right to appear for an accused in the High Court. The right of audience in the High Court is confined to advocates (counsel) and solicitor advocates, who receive instructions from solicitors who are responsible for preparing the defence case23.
3.5 The High Court is also a Court of Criminal Appeal hearing all appeals from the High Court at first instance and from the Sheriff Court and District Court24. The administrative office for the High Court is known as "Justiciary Office".
The History of the Court
3.6 The High Court of Justiciary is one of two courts generally referred to as the Supreme Courts in Scotland. The other is the Court of Session, which has a wide ranging civil jurisdiction, but no criminal jurisdiction. All judges of the Supreme Courts - currently 32 in number - sit in both courts25. That has been the case since 188726. However, that was simply the final stage in the merging of the personnel of the Courts, which began in 1672 when five judges of the Court of Session were appointed deputes to the Justice General and Justice Clerk, the two senior judges of the Court27. In 1830 the office of Lord Justice General devolved upon, and remained united with, the office of Lord President of the Court of Session28. Slightly earlier, in 1808, the office of Lord Justice Clerk was introduced into the Court of Session and became the second most senior office in both Courts29. The High Court of Justiciary is essentially the same Court as was recognised in Article XIX of the Union with England Act 1707, which ratified the Treaty of Union and provided that the "Court of Justiciary" should "remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom and with the same Authority and Priviledges as before the Union subject nevertheless to such Regulations as shall be made by the Parliament of Great Britain and without prejudice to other Rights of Justiciary".
3.7 Until 1926 there were no appeal provisions. The High Court was a court of a single instance. However, the composition of the bench varied over time. Prior to 1868 the Court sat in quora of three or more30. Between then and 1926, when the right to appeal against conviction or sentence to a larger bench of the High Court sitting as the Court of Criminal Appeal was introduced31, the quorum was one32. There was, as indeed there is today, provision for larger benches to preside in trials of difficulty or importance, and for a single trial judge to call in an additional two judges to determine an important point in the course of a trial33.
3.8 The only qualification of the status of the High Court as the Supreme Criminal Court in Scotland came with devolution34. As a Minister in the Scottish Government the Lord Advocate, either personally or acting through those who prosecute on his authority, has no power to do anything which is incompatible with a right under the European Convention for the Protection of Human Rights35. The question whether an act is incompatible is a "devolution issue" to which the procedures of Schedule 6 of the Scotland Act 1998 apply. If an act of a prosecutor can be so categorised, then an appeal on that point lies from the High Court as the Court of Criminal Appeal to the Judicial Committee of the Privy Council as the final arbiter of devolution issues36.
In the vast majority of cases, however, the High Court is the Supreme Criminal Court in Scotland.
3.9 The status of the High Court as the court of first instance dealing with the most serious criminal cases has stood unqualified since prior to 1707. Although the most serious crime ever tried in a Scottish court — the bombing of Pan Am 103 — was heard without a jury and by a panel of three judges, the Court sat as the High Court at first instance37. Had they so chosen, the accused Al Megrahi and Fhimah could have been tried in Scotland before a jury in a court presided over by a single judge.