# Criminal Court Procedure in Scotland **URL:** \ **Category:** Great Debates\ **Created:** [January 8, 2015, 7:18pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337 "2015-01-08T19:18:30Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [January 8, 2015, 9:52pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/21 "2015-01-08T21:52:03Z")
20 minutes and no reply… Does that mean I’ve “won”? ---
**Author:** ![Odesio](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/odesio/32/20003_2.png) [@Odesio](https://boards.straightdope.com/u/Odesio)\ **Post date:** [January 8, 2015, 10:08pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/22 "2015-01-08T22:08:52Z")
> [@Steophan](#): > > You are inventing an argument I never made to defeat, to make your argument look better. There’s a name for that tactic, but it escapes me at the moment… I know this isn’t the correct answer but the answer should totally be no true Scotsman. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [January 8, 2015, 10:10pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/23 "2015-01-08T22:10:51Z")
Your original take: The Highest Criminal Court in Britain used to be the House of Lords and is now the Supreme Court. Entirely true. No apparent mention of the High Court of the Judiciary being the Highest Court in Scotland. You might have considered that as the statements were designed to display your anglocentrism, Which your reply “entirely true” did as the Supreme Court is only the highest Criminal Court for England, Wales and Northern Ireland (and a few other jurisdictions. So, partially true, not entirely true. Wriggle, wriggle, wriggle now you have done your research and identified your error. In summary, your contention that “The Highest Criminal Court in Britain used to be the House of Lords and is now the Supreme Court.” is “Entirely true.” is wrong because it is only only partially true. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [January 8, 2015, 10:20pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/24 "2015-01-08T22:20:26Z")
There was no need to mention it. You claimed that the Supreme Court was not the highest court in the land, which is false. The existence of another, equal, court doesn’t change that fact. Any English person who knows what the Supreme Court is will be well aware that Scotland has its own judicial system. I mean, most people neither know nor care how the judicial system works in either country, but it’s hardly a secret that Scotland’s is different. Just because I refused to play along with your silly “gotcha” questions doesn’t mean I’m ignorant about Scotland. I assume you’re not going to attempt to cite that the Supreme Court is _not_ joint highest court in the UK? Or, for that matter, apologise for taking longer to reply than you expected me to? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 8, 2015, 11:13pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/25 "2015-01-08T23:13:07Z")
> [@Steophan](#): > > I assume you’re not going to attempt to cite that the Supreme Court is _not_ joint highest court in the UK? Or, for that matter, apologise for taking longer to reply than you expected me to? You might have to [wait awhile](http://boards.straightdope.com/sdmb/showthread.php?t=745735) for an answer. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [January 8, 2015, 11:29pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/26 "2015-01-08T23:29:59Z")
> [@John\_Mace](#): > > You might have to [wait awhile](http://boards.straightdope.com/sdmb/showthread.php?t=745735) for an answer. I suppose I can let her off for that, then. Rather a shame, and not the conclusion to the debate I’d hoped for. ---
**Author:** ![amanset](https://avatars.discourse-cdn.com/v4/letter/a/8dc957/32.png) [@amanset](https://boards.straightdope.com/u/amanset)\ **Post date:** [January 9, 2015, 2:42am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/27 "2015-01-09T02:42:16Z")
There is no point to another fucking thread of you spouting your ill-informed John J. Dunbar bullshit. Keep it in one fucking thread for fuck’s sake. I’ll save you the bother: Straw Man! Neo-Colonialism! Anglocentric! You are an embarrassment to the UK, Scottish Nationalism and the SDMB. The mods here should be ashamed that you continually create new threads to spout the exact same crap. And yes, whatever mod sees this, I know I have been here long enough to know better. In sixteen years on this forum I have achieved exactly four warnings. I will happily take another just to publicly tell Pjen to shut the fuck up and preferably fuck the fuck off. You are a cancer on this forum. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [January 9, 2015, 11:18am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/28 "2015-01-09T11:18:04Z")
Yep, that’ll do it. Warning issued. On several fronts. I left these threads open in case some posters wanted to continue. But any more like this and I’ll close them. ---
**Author:** ![amanset](https://avatars.discourse-cdn.com/v4/letter/a/8dc957/32.png) [@amanset](https://boards.straightdope.com/u/amanset)\ **Post date:** [January 9, 2015, 12:33pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/29 "2015-01-09T12:33:21Z")
> [@Jonathan\_Chance](#): > > Yep, that’ll do it. Warning issued. On several fronts. > > I left these threads open in case some posters wanted to continue. But any more like this and I’ll close them. Understood and I have no complaints. ---
**Author:** ![Arch\_Trout](https://avatars.discourse-cdn.com/v4/letter/a/9f8e36/32.png) [@Arch\_Trout](https://boards.straightdope.com/u/Arch_Trout)\ **Post date:** [January 9, 2015, 3:26pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/30 "2015-01-09T15:26:39Z")
> [@Steophan](#): > > I genuinely have no idea what you are so upset about here. Is it simply that a TV programme discussing the whole of Britain gave entirely correct, but incomplete, information? It’s all semantics. The TV programme made a mistake by giving information that was not _entirely_ correct because it was incomplete. I imagine the mistake was made through ignorance of the researcher on how exactly Scotland fits in to the UK legal system as a whole. Some may say it shows the arrogance of the English and was done on purpose but I doubt it very much. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [February 13, 2015, 5:30pm UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/31 "2015-02-13T17:30:21Z")
> [@Pjen](#): > > Let us start by the final court of appeal in Scottish Criminal cases. Steophan erroneously holds that there is a criminal appeal process from the Scottish courts to the Supreme Court. > > I maintain that the Supreme Court is the final court of appeal for Scottish Civil and Administrative Law, but that the Supreme Court has no jurisdiction over Criminal trials- and that one cannot appeal to the Supreme Court on a matter of verdict or sentence from the Court system in Scotland. Nope. There is a specific right of appeal to the UKSC in Scottosh criminal cases. See Criminal Procedure (Scotland) Act 1995, sections 288AA(1) and 288ZA(2) ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 14, 2015, 8:03am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/32 "2015-02-14T08:03:30Z")
> [@AK84](#): > > Nope. There is a specific right of appeal to the UKSC in Scottosh criminal cases. > > See Criminal Procedure (Scotland) Act 1995, sections 288AA(1) and 288ZA(2) You need to read the OP carefully. The appeal to the Supreme court is not on the matter of the outcome of the trial, but on matters of administrative law alone and specifically the question of whether the legislation complies with UK treaty provisions. Should the Supreme Court rule against the administrative situation, then it is up to the Scottish Parliament to decide whether or not to change the law. Should the law then be changed, appeals can be made to the Scottish courts for previous verdicts and sentences to be reconsidered or overturned. The finding of the Supreme Court does not change the verdict or sentence, but determine what the administrative law should be to retain compliance with UK treaty obligations. The first time this was successfully tested, some convicted people complained that their rights under the ECHR were breached because of the Scottish rules of evidence that allowed theorise to question subjects for six hours without allowing access to a solicitor. The legal argument defending this was the Scottish law system which requires row completely separate strands of evidence to gain a conviction unlike most other systems which allow confession alone to be adequate for a conviction. The argument was that ‘fitting up’ could not occur in Scotland as it could elsewhere, as what was said in interview final court of appeal on criminal matters in the UK, but its findings can be challenged administratively to the ECHR, but that is an administrative appeal and not a criminal one. Should the higher court was not adequate to convict. The Supreme Court found that the system was not compliant with rights under the ECHR and gave a decision that Scotland should review its law on the matter. This did not vacate the verdicts made by the Scottish courts, but merely required a change in administrative law. Holyrood could have appealed to Europe but decided to accept the change and made the appropriate changes. Had Holyrood not made these changes, they would then have been in the position of the UK Government over Prisoners’ Votes- non-compliant with the Law, but with little ability of the Court concerned to enforce it decision. The parallel is exactly the same as with the Supreme Court to the ECHR. The Supreme Court is the final court of appeal for criminal matters but there is a further appeal on administrative matters to the ECHR. Should the higher court find against the lower court (Supreme Court- High Court of the Justiciary, ECHR-Supreme Court) that does not change the criminal verdict, merely finds on an administrative law issue that the system is non compliant with Treaty Obligations. The final court of appeal in England is the Supreme Court and in Scotland is the High Court of Justiciary. Administrative and civil law differ. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [February 14, 2015, 8:21am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/33 "2015-02-14T08:21:07Z")
Look. I know that trying to reason with you on this issue is like trying to throw eggs against a wall , but appeal and especially appeals to the UKSC from wherever are on points of law. They are **not** on factual issues. An appeal is not a rehearing. Under law in criminal cases appeals are possible where either a compatibility or devolution issue is raised.These are not administrative law matters at all. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 14, 2015, 8:42am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/34 "2015-02-14T08:42:39Z")
> [@AK84](#): > > Look. I know that trying to reason with you on this issue is like trying to throw eggs against a wall , but appeal and especially appeals to the UKSC from wherever are on points of law. They are **not** on factual issues. An appeal is not a rehearing. Under law in criminal cases appeals are possible where either a compatibility or devolution issue is raised.These are not administrative law matters at all. Go read the legislation. The Supreme Court is not the final court of appeal for criminal matters under Scottish Law anymore than the ECHR is the final court of appeal for criminal matters in England. Both higher courts are acting as a court in administrative law, not criminal law. Any decision by the Supreme Court on Criminal Procedure in Scotland results only in an indication that the law needs to change and does not in itself vacate any criminal verdict or sentence. That is an administrative, not criminal matter. No- individual can appeal against their sentence or verdict to the Supreme Court, but can only seek to assert their rights under the ECHR. Should their rights be found to have been breached, this does not vacate the verdict or sentence, merely finding on an administrative matter that their rights have been breached. After the appeal to the Supreme Court they remain convicted and in prison (if still imprisoned) until Holyrood decides whether to change the administration of justice and then they can seek an appeal to the High Court of the Justiciary which is the final arbiter of the Criminal Law in Scotland. As a reductio ad absurdum, your argument would indicate that the ECHR is the final court of appeal for English Criminal matters. It has no such powers on criminal law, only on the administration of the law. The same argument applies to the relationship between the HCJ and the Supreme Court. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 14, 2015, 8:48am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/35 "2015-02-14T08:48:17Z")
> [@AK84](#): > > Look. I know that trying to reason with you on this issue is like trying to throw eggs against a wall , but appeal and especially appeals to the UKSC from wherever are on points of law. They are **not** on factual issues. An appeal is not a rehearing. Under law in criminal cases appeals are possible where either a compatibility or devolution issue is raised.These are not administrative law matters at all. Of course compatibility and devolution issues are, by definition, administrative, not criminal issues. How could they be ‘criminal’ when the Supreme court is ruling on administrative law and not on the criminality of the individual. The Supreme Court has no standing in the process of the criminal law in Scotland, merely able to rule on the ADMINISTRATION of justice- a very different matter. The Supreme court reverse the verdicts or sentences of lower criminal courts in England; it has no such powers in Scotland. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 14, 2015, 8:55am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/36 "2015-02-14T08:55:45Z")
Cite One [http://www.legislation.gov.uk/ukpga/2012/11/part/4/crossheading/miscellaneous/enacted?view=](http://www.legislation.gov.uk/ukpga/2012/11/part/4/crossheading/miscellaneous/enacted?view=) Please indicate where the right of the Supreme Court to vacate a finding of the High Court of Justiciary is legislated for… ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 14, 2015, 8:57am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/37 "2015-02-14T08:57:37Z")
I know Wikipedia is a weak reference, but: Appeals may be made to the High Court of Justiciary sitting as the Court of Criminal Appeal from the lower courts in criminal cases. An appeal may also be made to the High Court if the High Court itself heard the case at first instance. Two judges sit to hear an appeal against sentence, and three judges sit to hear an appeal against conviction. There is no further appeal from the High Court’s decision on appeal. Appellants who still wish to pursue their appeal may petition the Scottish Criminal Cases Review Commission, who have the authority to refer an appeal back to the High Court if they determine that a miscarriage of justice has occurred. > **[High Court of Justiciary](https://en.wikipedia.org/wiki/High_Court_of_Justiciary)** > > The High Court of Justiciary (Scottish Gaelic: Àrd-chùirt a' Cheartais) is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Court building in the Old Town in Edinburgh, or in dedicated buildings in Glasgow and Aberdeen. The High Court sometimes sits in various smaller towns in Scotland, where it uses the local sheriff court building. As an ap... ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 14, 2015, 9:00am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/38 "2015-02-14T09:00:31Z")
[https://www.scotcourts.gov.uk/the-courts/gazetteer/high-court/about-the-high-court](https://www.scotcourts.gov.uk/the-courts/gazetteer/high-court/about-the-high-court) The High Court of Justiciary is Scotland’s supreme criminal court. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 14, 2015, 9:16am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/39 "2015-02-14T09:16:13Z")
“In Scottish criminal cases, the High Court of Justiciary sitting as an appeal court is the final court of appeal. Its decisions are not subject to review by the Supreme Court, which reflects Scotland’s distinctive tradition of criminal law and procedure. However, there is one limited exception to this rule: the Supreme Court may consider ‘devolution issues’ arising in Scottish criminal cases. Some devolution issues arising in criminal cases have now become ‘compatibility issues’ under the 2012 Act. However, it remains the case that the Supreme Court may not review the decisions of the High Court simply on matters of Scots criminal law.” “There is now a specific statutory right of appeal to the Supreme Court in Scottish criminal cases where a ‘compatibility issue’ arises. A compatibility issue is either (1) a question whether a public authority has acted or proposes to act in a way that is incompatible with any Convention right or EU law or (2) a question whether an ASP or a provision of an ASP is incompatible with any of the Convention rights or EU law. In relation to (1), the Lord Advocate is a public authority, and therefore his acts in the course of criminal prosecutions may be subject to the right of appeal. A court, too, is a public authority32. So a complaint that it has acted in the course of criminal proceedings in a way that is incompatible with the Convention rights or EU law could also come before the Supreme Court as a compatibility issue.” [https://www.supremecourt.uk/.../jurisdiction-of-the-supreme-court-in-sco](https://www.supremecourt.uk/.../jurisdiction-of-the-supreme-court-in-sco)… [Redirect Notice](https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCEQFjAA&url=https%3A%2F%2Fwww.supremecourt.uk%2Fdocs%2Fjurisdiction-of-the-supreme-court-in-scottish-appeals.pdf&ei=HxDfVLLrFs_g7Qa5gYHADw&usg=AFQjCNHF67C0g-IJDzJMryzBaK3SIxPwhA&sig2=bSOISDlGPYuyeHQujU0i-Q) ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [February 14, 2015, 11:35am UTC](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337/40 "2015-02-14T11:35:49Z")
Discussing this elsewhere it has been suggested that the key difference is best described thusly: Criminal appeals from England an Wales to the Supreme Court result in an order to acquit to the lower court, overturning the verdict. Thus it is a finding within the system of criminal law. No further legislation is required. Criminal appeals from Scotland result in a statement of incompatibility which does not order the HCJ to acquit, but leaves the Scottish Government to amend the administration of justice in Scotland to comply with the decision. Thus it is a finding within the system of administrative law. Further legislation IS required. [Previous page](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337.md?page=1) [Next page](https://boards.straightdope.com/t/criminal-court-procedure-in-scotland/709337.md?page=3)