Analysis of the Criminal Court System in Scotland Based on Two Cases

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Criminal Court System in Scotland:

According to Gillian (2011, p.46) criminal law is concerned with the determination of guilt and punishment for conduct that is outlawed by the state. Criminal law is a part of public law and provides a body of rules and regulations that deals with crime and is thus, different from civil law. Gillian (2011, p.47) stated that criminal prosecutions in Scotland are almost exclusively brought on behalf of the state by the crown office and Procurator Fiscal Service either in the name of the Lord Advocate or local Procurator Fiscal. Scotland has a well-defined criminal court structure consisting of Justice of The Peace Courts, Sheriff courts and The High Court of Justiciary.

Justice of The Peace Court:

The lowest level of criminal courts in Scotland is the Justice of The Peace Court which deals only with summary cases or minor crimes (Gillian, 2011). A justice of the peace is a lay magistrate, appointed from within the local community and trained in criminal law and procedure (About JP courts, 2012). Justice of the peace courts generally consist of a justice siting alone or in a bench of three (About JP courts, 2012). There are currently 49 JP courts across Scotland.

Sheriff Court:

The sheriff court is the busiest of the criminal courts and houses both solemn and summary cases. Since summary cases consist of minor offences the sheriff will sit alone, and decide the points of law and questions of fact. The sentencing power of the sheriff for summary cases extends to imposing fines of up to 10000 pounds or a term of imprisonment of 12 months. Solemn cases consist of serious offences. In such cases the sheriff will sit with a jury of 15 people who are selected from the community. The sheriff presides over the court and acts as a judge of the law whereas the jury alone decides the questions of fact. The sentencing power of the sheriff in such cases is imposing a custodial sentence of up to 5 years imprisonment or a fine for any amount (Gillian,2011).


The case of Procurator Fiscal, Peterhead Against Lyn Elrick [2017] ScotSC 31 involved a charge of vandalism. The joint minute had agreed that the accused had damaged the windscreen of a vehicle by repeatedly striking it with an unknown object. It was also agreed that, at one time, the vehicle had belonged jointly to the accused and her former partner but that, at the relevant time, it belonged to a third party who purchased that vehicle.

On 3 May 2017 the accused presented evidence in her defence. The accused described how she and her partner jointly purchased the vehicle in July 2016. She also described that she drove the vehicle which was insured for that purpose. The couple had split up and the last time she saw her former partner drive the vehicle was about 3 weeks before she damaged it. She was unaware of the fact that vehicle was sold and believed that the vehicle was still jointly owned by her and her partner on the date when she had damaged it. The accused advised that she had damaged the vehicle because her former partner had left her with a significant amount of debt and had refused to contribute towards it. She later claimed hat she regretted damaging the vehicle and that she would not have done it if she had known that the vehicle was sold. The accused later agreed with a suggestion that she had damaged the car so that her former partner could not drive it.

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Mr McAlister, who was a representative of the crown, submitted that the accused had deliberately damaged the vehicle as a way of getting back at her former partner. The question of importance was whether the accused had a justifiable excuse for damaging the vehicle. Mr McAlister also claimed that the motivation behind the actions of the accused was to get back at her former partner and that there was no reasonable excuse to justify her actions.

Mr Ormiston who, represented the defence, urged the sheriff to accept that the accused was genuinely mistaken in her belief of being the joint owner of the vehicle. Mr Ormiston renewed his submission that a genuinely held belief by the accused provided a reasonable excuse for her actions. This was because, had her belief proved to be correct, she would have damaged her own property. Without reference to authority, Mr Ormiston submitted that an owner of property, whether a joint owner or an outright owner, had the right to damage his/her property. He said that this was an incident of the law of property and that there was no criminal liability.

Though Mr Ormiston’s arguments were tempting the sheriff was unable to agree with his submissions. The sheriff believed that it was not a case of a joint owner damaging his/her own property without the consent of the other owner. This was acknowledged by Mr Ormiston when he confirmed that the other joint owner could claim a civil remedy in damages. The sheriff did not see any reason as to why the application of the criminal law should have been precluded due to the availability of a civil remedy. Due to the foregoing reasons the sheriff declared the accused guilty of the charge of vandalism.

High Court of Justiciary:

The High Court of Justiciary is Scotland's supreme criminal court. It has jurisdiction over the whole of Scotland and over all crimes, unless expressly excluded by statute (Gillian, 2011, pg. 49). As a trial court the High court of Justiciary tries the most serious crimes. In normal cases trials are conducted by a single judge with a jury of 15. In difficult cases there may be more than one judge. According to Gillian (2011) the High court of Justiciary is the highest court of criminal appeal in Scotland. The appeal court is located in Edinburgh. The appeal court consists of at least three judges when hearing appeals against conviction and two when hearing sentence appeals (About the High Court,2019). More judges may sit when the court is dealing with exceptionally difficult cases or those where important matters of law may be considered (About the High Court,2019).


In the case of Thomas John Mcbrearty v. Her Majesty's Advocate [1998] the appellant is Alan Ian Sebastian St. John Bosco Burns who pled guilty at the High Court to a charge of homicide by assaulting Ian Alexander Stewart and punching him on the neck which resulted in his death. The appeal is against the sentencing of two years imprisonment in response to the aforementioned charge. In his report the sentencing judge narrates the version of the facts which led him to sentence the appellant.

The appellant and the deceased were both regulars at a public house in Aberdeen. Sometime before 16 June 1996 they had an argument which was witnessed by the appellant’s wife. On Sunday 16 June the deceased and his friends went to the same pub in Aberdeen. The deceased then came across the appellant who demanded an apology from the deceased for using bad language in from of his(appellant) wife. The deceased refused and responded with even harsher language; this prompted the appellant to assault the deceased. The fight resulted in the deceased getting struck at a point where the base of the skull meets the neck.

The impact made him faint and he was later pronounced dead. Several eye witnesses claimed that little force was used in giving the blow. In mitigation it was said that the deceased had been very drunk. The sentencing judge was supplied with a number of testimonials in favour of the appellant's character. Some were from people who knew him and some from people who he drank with. The sentencing judge was shown a letter from Nessco in which they indicated that the appellant had been offered a promoted post as a supervisor and that this post was being kept open for him. The judge also received a favourable Social Enquiry Report. The judge took all these factors into account in selecting the two-year sentence.

Given that the blow was delivered with only a little force and was not deliberately aimed at the deceased's neck, and given that if it had landed elsewhere the event might well have been so minor that the police would not have been called, the court of appeal felt that a custodial sentence was too extreme. In response the court of appeal decided that a custodial sentence will not be necessary.

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