Scots law

Scots law (or Scottish law) is the law of Scotland. It is a unique system with ancient roots and has a basis in Roman law, combining features of both uncodified Civil law dating back to the Corpus Juris Civilis and common law with medieval sources. Thus Scotland has a pluralistic legal system, comparable to that of Quebec, Louisiana and South Africa. Since 1707 it shares a legislature with the rest of the United Kingdom. Scotland and England and Wales each retained fundamentally different legal systems, but the Union brought further English influence on Scots law. In recent years Scots law has also been affected by European law under the Treaty of Rome, and laws can now be passed by the Scottish Parliament within its areas of legislative competence.

Branches of Scots law

The principal division in Scots Law is that between public law involving the state in some manifestation, and private law where only private persons are involved. Public law covers constitutional law, administrative law and criminal law and procedure. Private law covers those defined under The Law of Persons, including children, adults, partnerships (where the partnership is a separate "legal person" from the individuals in it, which is not the case in English law) and limited companies.

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Private law

See also Law of obligations.

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Contract

Contracts can be formulated by unilateral promise or bilateral agreement. The English requirement for consideration does not apply in Scotland, so it is possible to have a gratuitous contract where all the obligations are on one side.

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Delict

Delict deals with the righting of legal wrongs in civil law, on the principle of liability for loss caused by failure in the duty of care, whether deliberate or accidental. While it broadly covers the same ground as the English law of Tort, the Scots law is different in many respects and concentrates more on general principle and less on specific wrongs. While some terms such as assault, defamation are used in both systems, their technical meanings differ.

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"Delict" as a word derives from the Roman "delicta" and as a branch of Scots Law revolves around the fundamental concept "Damnum Injuria Datum" - literally loss wrongfully caused. Where A has suffered wrongful loss at the hands of B (generally where B was negligent) B is under a legal obligation to make reparation. There are many many various delicts which can be committed, ranging from (usually) exciting assault to (usually) tedious procurement of breach of contract.

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The landmark decision on establishing negligence, for Scotland and for the rest of the United Kingdom, is the Scottish case of Donoghue v. Stevenson (1932) which ended up being decided in the context of both English law and Scots law.

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Mrs Donoghue had been enjoying an ice cream with ginger beer her friend had bought her in Mr Minchella's caf? in Paisley, when she emptied the opaque ginger beer bottle out and the decomposing remains of a snail emerged. Her distress and subsequent illness was such that she was determined to bring an action for damages — but the poor woman had no contract with the caf? proprietor as her friend had paid, so she sued the manufacturer for his negligence. The case of the snail in the pop bottle was taken to the House of Lords who found that the manufacturer does indeed have a duty of care, subject to restrictions. This decision had influence in many countries and established the "neighbourhood principle" in Scots Law.

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Property law

Scots Law of Property distinguishes between Heritable Property, such as land and buildings, and Moveables which includes physically moveable objects where title normally passed only on delivery, as well as moveable rights which includes intellectual property such as patents, trade marks and copyrights. It is worth noting that agreement on an offer for property purchase is legally binding, resulting in a system of conveyancing where buyers get their survey done before making a bid to the seller's solicitor, and after a closing date for bids the seller's acceptance is binding on both parties, preventing gazumping.

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Feudal law

The feudal system lingered on in Scots law on land ownership, so that a landowner as a vassal still had obligations to a feudal superior including payment of feu duty. This enabled developers to impose perpetual conditions dictating how buildings had to be constructed and maintained, but added complications and became abused to demand payments from vassals who wanted to make minor changes. In 1974 legislation began a process of redeeming feuduties so that most of these payments were ended, but it was only with the attention of the Scottish Parliament that a series of acts were passed to end the disadvantages while keeping the benefits of the system, the first in 2000, for The Abolition of Feudal Tenure on November 28 2004.

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Udal law

It is worth noting that Feudal law has never existed in the Islands of Orkney and Shetland, which rather use a system called Udal Law, owing to their historic ties to Norway.

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Intellectual Property Law

Intellectual Property (IP) in Scotland is governed mostly by statute, however it was a Scottish case Wills v Zetnews (1997 FSR 604) that first applied the existing copyright law to the internet by catagorising the net as a cable programme. This definition has now been superseded by European directives but the principle still stands.

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Public law

Criminal law

Scots criminal law relies more heavily on the common law than England. Scots criminal law includes offences against the person of murder, culpable homicide, rape and assault, offences against property such as theft and malicious mischief, and public order offences such as mobbing and breach of the peace. Many areas of criminal law, such as misue of drugs and traffice offences, are identical to both sides of the border.

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Crown Office and Procurator Fiscal Service

The Crown Office and Procurator Fiscal Service provides independent public prosecution of criminal offences in Scotland (as the more recent Crown Prosecution Service does in England and Wales) and has extensive responsibilities in the investigation and prosecution of crime.

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"Not proven" verdict

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 he did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy.

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In February 1999, United States Senator Arlen Specter voted against the impeachment of Bill Clinton, citing the concept of the "not proven" as a basis for his decision. Another recent example is seen in the case of Sean Flynn, 21, who stood trial at the High Court in Perth accused of murdering his mother, Louise Tiffney. Responding to the "not proven" verdict delivered on 16 March 2005, some of Flynn's relatives expressed their dissatisfaction, including Flynn's aunt, June Tiffney, who stated the verdict was "not justice" for her sister.

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However, the Scottish legal profession is largely opposed to this perception of the not-proven verdict. In a Scottish criminal trial, 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.

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Notable criminal cases

Brennan v HMA 1977 JC 38

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Cawthorne v HMA 1968 JC 32

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Crawford v HMA 1950 JC 67

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HMA v Ross 1991 JC 210

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Jamieson v HMA 1994 SLT 537

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Khaliq v HMA 1984 JC 23

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Smart v HMA 1975 JC 30

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Sutherland v HMA 1994 SLT 634

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