High Court of Justiciary - Introduction
The High Court of Justiciary is Scotland's supreme criminal court. It has jurisdiction over the whole of Scotland and over all crimes, unless its jurisdiction is excluded by statute. When sitting as a trial court (i.e., as a court of 'first instance') it sits in cities and larger towns throughout Scotland. Both Edinburgh and Glasgow have permanent High Court buildings. Throughout the rest of the country the High court sits in the local Sheriff Court building. When exercising its appellate jurisdiction it sits only in Edinburgh. The only further appeal possible is to the Privy Council of the House of Lords, as provided for by Schedule 6 of the Scotland Act 1998.
The High Court is presided over by the Lord Justice General and the Lord Justice Clerk. They usually sit as chairpersons in the courts of criminal appeal. The other full time judges, who are also Senators of the College of Justice, are known as Lords Commissioners of Justiciary when sitting in the High Court. Additionally, retired judges, and also temporary judges, who are usually senior Advocates or Sheriffs, are sometimes employed to assist in ensuring that the court can accommodate all the business with which it may have to deal.
In practice the High Court, when sitting as a court of first instance, deals with the most serious crimes such as murder, rape, culpable homicide, armed robbery, drug trafficking and serious sexual offences, particularly those involving children. Cases are presided over by a single Judge and tried by a jury of fifteen men and women.
As from April 2005, all cases that are to be dealt with in the High Court will commence in that court by means of a preliminary hearing. At this hearing, the judge will require to be satisfied that the case is in a sufficient state of preparation to enable him or her to appoint the case to a trial diet. This new procedure is designed to cut down the number of cases having to be adjourned at the trial diet due to their not being in a position to proceed, with the resulting inconvenience and stress that may be caused to witnesses, jurors and all other parties involved. Further information on this far -reaching reform programme for the High Court can be obtained from a separate web site at: http://www.scotcourts.gov.uk/bonomy/
When sitting as an appellate court, the court consists of at least three Judges when hearing appeals against conviction and two when hearing sentence appeals, although more judges may sit when the court is dealing with exceptionally difficult cases or those where important matters of law may be considered. Appeals are heard from the High Court, the Sheriff Courts and the District Courts. The High Court also hears appeals in cases referred to it by the Scottish Criminal Cases Review Commission.
The Lord Advocate may refer a point of law which arises in the course of a case to the High Court for an opinion. This allows the High Court to give directions which set out the law for future similar cases.
Cases in the High Court are prosecuted by advocates or solicitor-advocates ("advocate deputes") who are appointed by the Lord Advocate, in whose name all prosecutions are brought in the public interest. It is possible, although extremely rare, for a private prosecution to be brought. The defence will usually be conducted by an advocate or solicitor-advocate. Advocates are members of the Faculty of Advocates and have a status and function corresponding to that of a barrister in England. Advocates once had an exclusive right of audience in the High Court but, since 1990, they share that right with solicitor-advocates. Solicitor-advocates are members of the Law Society of Scotland. They are experienced solicitors who obtain an extension of their rights of audience in the lower courts by undergoing additional training in evidence and in the procedure of the High Court. In addition, a practitioner from another member state of the European Union may appear for a client in the circumstances prescribed by the European Communities (Services of Lawyers) Order 1978. An accused may conduct his own defence in certain types of cases.
The most significant decisions of the High Court are reported in the following periodicals: (1) 'Justiciary Cases' (cited (i.e., referred to) as e.g. Her Majesty's Advocate v X, 1999 J.C. at page 100), (2) The Scots Law Times (cited as 1999 S.L.T.100) and (3) Scottish Criminal Case Reports (cited as 1999 S.C.C.R.100). Decisions made since the winter term of 1998 are available on the Opinions page of this site.