Scots law
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{{PoliticsScotland}}
'''Scots law''' is a unique [[Legal systems of the world|legal system]] with an ancient basis in [[Roman law]].<ref>"Tradition and Environment in a time of change", J. A. Lillie (1970). "The law of Scotland has many roots in and affinities with the law of the Romans, the 'Civil Law' ":{{cite web|title=History of the Faculty of Law.|url=http://www.law.ed.ac.uk/history/chpt4.aspx|publisher=The University of Edinburgh School of Law |accessdate=2007-10-22}}</ref> Grounded in [[Codification|uncodified]] [[Civil law (legal system)|civil law]] dating back to the ''[[Corpus Juris Civilis]]'', it also features elements of [[common law]] with [[Legal institutions of Scotland in the High Middle Ages|medieval]] sources. Thus [[Scotland]] has a [[legal pluralism|pluralistic]], or 'mixed', legal system, of which [[Law of South Africa|South African law]] is comparable, and, to a lesser degree, the partly [[Legal code|codified]] pluralistic systems of [[Louisiana law|Louisiana]] and [[Law of Quebec|Quebec]].
Since the [[Acts of Union, in 1707]], it has shared a [[United Kingdom Parliament|legislature]] with the rest of the [[United Kingdom]]. Scotland retained a fundamentally different legal system from that of [[England and Wales]], but the Union brought [[England|English]] influence on Scots law. In recent years, Scots law has also been affected by [[European law]] under the [[Treaty of Rome]], the requirements of the [[European Convention on Human Rights]] (entered into by members of the [[Council of Europe]]) and the establishment of the [[Scottish Parliament]] which may pass legislation within its [[Reserved matters (Westminster)#Scotland|areas of legislative competence]] as detailed by the [[Scotland Act 1998]].
Although there are many substantial differences between Scots law, [[English law]] and [[Northern Ireland law]], much of the [[law]] is also similar, for example, [[Commercial law]] is similar throughout all [[jurisdiction]]s in the [[United Kingdom]], as is [[Employment Law]]. Different terminology is often used for the same concepts, for example, ''[[Arbitration|arbiter]]s'' are called ''arbitrators'' in England. Another example would be the third verdict available to [[judge]]s and [[Scottish juries|juries]] (which consist of 15 members) in [[Criminal law|criminal]] cases: '[[not proven]]'. The [[age of legal capacity]] under Scots law is 16, whereas under English law it is 18.<ref>[http://www.opsi.gov.uk/acts/acts1991/Ukpga_19910050_en_2.htm#mdiv1 Age of Legal Capacity (Scotland) Act 1991 (c. 50)], opsi.gov.uk</ref><ref>[http://www.keele.ac.uk/depts/so/youthchron/CivilFamilyLaw/9197civfamlaw.htm "Under Scots Law (in contrast to the law in E&W), young people have full (or 'active') legal capacity at 16 years"], [[Keele University]]</ref>
==Legal system ==
===Governance and administration===
Many areas of Scots law are [[legislature|legislated]] for by the [[Scottish Parliament]], whose authority [[devolution|devolved]] from the [[Parliament of the United Kingdom]] (Westminster). Areas of Scots law over which the Scottish Parliament has competency include health, education, criminal justice, local government, environment and civil justice amongst others. However, certain powers are [[Reserved matters (Westminster)|reserved]] to Westminster such as [[Ministry of Defence (United Kingdom)|defence]], [[Foreign relations of the United Kingdom|international relations]], [[Economy of the United Kingdom|fiscal and economic policy]], [[Prohibition (drugs)|drugs law]], and [[Media of the United Kingdom|broadcasting]], amongst others. The Scottish Parliament does retain limited tax raising powers.
====Minister for Justice====
The [[Scottish Government]] has executive responsibility for the Scottish legal system, which is headed by the [[Cabinet Secretary for Justice]]. The Minister for Justice has political responsibility for [[Policing in the United Kingdom|policing]], law enforcement, the [[courts of Scotland]], the [[Scottish Prison Service]], [[fire service]]s, [[Emergency preparedness|civil emergencies]] and [[civil justice]]
===Legal profession ===
The Scottish [[legal profession]] has two main branches, [[Advocates]] and [[Solicitors]].
====Advocates====
Advocates, the equivalent of the English [[Barrister]]s, belong to the [[Faculty of Advocates]] which distinguishes between [[junior counsel]] and [[senior counsel]], the latter also known as [[Queen's Counsel]]. Advocates specialise in presenting cases before [[Scottish courts|courts]] and [[tribunal]]s, with near-exclusive (see [[solicitor-advocates]] below) rights of audience before the higher courts, and in giving legal opinions. They usually receive instructions indirectly from clients through solicitors, though in many circumstances they can be instructed directly by members of certain (professional) associations.
Furthermore, it used to be the case that Advocates were completely immune from suit etc while conducting court cases and pre-trial work, as they had to act 'fearlessly and independently'; the rehearing of actions was considered contrary to [[public interest]]; and Advocates are ''required'' to accept clients, they cannot pick and choose. However, the seven-judge English ruling of [[Arthur Hall v Simmons]] 2000 (House of Lords) declared that none of these reasons justified the immunity strongly enough to sustain it. This has been followed in Scotland in [[Wright v Paton Farrell]] ''obiter'' insofar as civil cases are concerned.
====Solicitors====
[[Solicitors]], more numerous, are members of the [[Law Society of Scotland]] and deal directly with their clients in all sorts of legal affairs. In the majority of cases they present their client's case to the court, and while traditionally they did not have the right to appear before the higher courts, since 1992 they have been able to apply for extended rights, becoming ''solicitor-advocates'' - see below.
A solicitor also has the opportunity to become a [[Notary public#Scotland|notary public]]. These, like [[civil law notary|their continental equivalent]], are members of a separate profession.
====Solicitor-Advocates====
While Solicitors and Advocates are distinct branches of the Scottish legal profession, there has been a blurring of this position in recent years. The Law Society of Scotland may, upon proof of sufficient knowledge through exams, practice, training etc, grant rights of audience before the higher courts to solicitors. This is due to the [[Law Reform (Miscellaneous Provisions) (Scotland) Act 1990]].
===Courts===
{{Scots law}}
{{main|Courts of Scotland}}
*Criminal Courts (by increasing authority)
**[[District Courts of Scotland|District Court]]
**[[Sheriff Court]]
**[[High Court of Justiciary]]
**[[High Court of Justiciary]] sitting as a Court of Criminal Appeal
**[[Judicial Committee of the Privy Council]] in Devolution Issues
*Civil Courts (by increasing authority)
**[[Sheriff Court]]
**[[Court of Session]]
***[[Outer House]]
***[[Inner House]]
**[[Judicial functions of the House of Lords|House of Lords]]/[[Judicial Committee of the Privy Council]]** in Devolution Issues
*There are also a number of specialist courts and tribunals who determine legal disputes and applications, appeal from which ultimately lies to the Sheriff court (and therefore arguably of inferior authority relative to the Sheriff Court):
**[[Children's Hearings]]
**[[Office of the Public Guardian]]
*For other such courts and tribunals, appeal lies to the Court of Session:
**[[land]]:
***[[Scottish Land Court]] - agricultural tenancies and crofting rights
***[[Lands Tribunal for Scotland]] - title and land obligations
**[[heraldry]] and [[genealogy]]:
***[[Court of the Lord Lyon]]
*Further there are a number of cross-border tribunals appeal from which lies ultimately to the Court of Session where the proceedings originate within Scotland:
**[[VAT and Duties Tribunal]]
**[[Asylum and Immigration Tribunal]]
**[[Pensions Appeal Tribunals for Scotland]]
**[[Office of the Social Security Commissioners]]
**[[Employment Tribunal]]
===Origins and historical development===
By the late 11th century [[Celtic law]] applied over most of Scotland, with [[Old Norse law]] covering the areas under [[Viking]] control (resulting in [[Udal Law]] still in very limited force in [[Orkney]] and [[Shetland]]).
In following centuries as [[Normans|Norman]] influence grew and [[feudal]] relationships of [[government]] were introduced, [[Scoto-Norman]] law developed which was initially similar to [[Anglo-Norman]] law but over time differences increased (especially after 1328, with the end of the [[wars of Scottish Independence]]). Early in this process [[David I of Scotland]] established the office of [[Sheriff]] with civil and criminal [[jurisdiction]]s as well as military and administrative functions. At the same time [[Burgh courts]] emerged dealing with civil and petty criminal matters, developing law on a [[Continental Europe|continental]] model, and the [[Dean of Guild courts]] were developed to deal with building and public safety (which they continued to do into the mid 20th century).
From the end of the 13th century the Scottish parliament of the [[Three Estates#In Scotland|Three Estates]] developed [[Statute Laws]].
====Continental influence ====
From the 12th century the assimilation of the [[Celtic Christianity|Celtic church]] into the [[Roman Catholic Church]] brought [[Canon law (Catholic Church)|Canon law]] and [[Church courts]] dealing with areas of [[Civil law (legal system)|civil law]], introducing [[Roman law]] based on 6th century law from the [[Eastern Roman empire]] of [[emperor Justinian|Justinian]]. This influence extended as [[Medieval]] Scots students of Civil or Canon Law mostly went abroad, to [[universities]] in [[Italy]], [[France]], [[Germany]] or the [[Netherlands]]. (The English universities, [[Oxford University|Oxford]] and [[University of Cambridge|Cambridge]], were closed to Scots.) The [[University of St. Andrews]], founded in 1413, included the teaching of Civil and Canon Law in its purposes, though it appears that little or no such teaching took place. The [[University of Glasgow]] (1451) was active in [[law teaching]] in its early years, one [[scholar]] there being [[William Elphinstone]], who then studied abroad and went on to found the [[University of Aberdeen]] (1495) which taught canon law until the mid 16th century. Studying on the [[European mainland]] continued to be the norm for Scottish law students until the 18th century.
In the early 16th century a costly war pushed [[James V of Scotland]] to do a deal with [[Pope Paul III]] for funds in the form of a [[tithe]] on the church in exchange for agreeing to found a [[College of Justice]], in 1532. By 1560 the [[Reformation]] removed [[Papal authority]] and Canon Law jurisdiction was taken over by the [[Commissary Courts]], whose jurisdiction, along with that of the Scottish [[Court of Exchequer]] was subsumed into that of the [[Court of Session]] in the 19th century.
====United Kingdom ====
The [[Treaty of Union 1707|1707 Treaty of Union]], confirmed in the [[Act of Union 1707|Act of Union]], preserved the Scottish legal system, with provisions ''that the [[Court of Session]] or [[College of Justice]] (and the [[Court of Justiciary]]) ... remain in all time coming within Scotland'', and that Scots Law ''remain in the same force as before''. The [[Parliament of Great Britain]] was now unrestricted in altering laws concerning ''public right, policy and civil government'', but concerning ''private right'', only alterations for the ''evident utility of the subjects within Scotland'' were permitted. The [[Scottish Enlightenment]] then reinvigorated Scots law as a university-taught discipline. The transfer of legislative power to the [[Westminster parliament]] and the introduction of appeal to the [[House of Lords]] brought further English influence and it is sometimes stated that this marked the introduction of [[common law]] into the system, but Scots common law incorporates different principles and makes use of legal writings which long predate the Union (see [[Legal institutions of Scotland in the High Middle Ages]]).
Appeal decisions by [[English lords]] raised concerns about this appeal to a foreign system, and in the late 19th century Acts allowed for the appointment of [[Scottish Lords of Appeal in Ordinary]]. At the same time, a series of cases made it clear that no appeal lay from the High Court of Justiciary to the House of Lords. Nowadays the House of Lords judicial committee usually has a minimum of two Scottish Judges to ensure that some Scottish experience is brought to bear on Scottish appeals.
The [[Scottish Highlands]] had been affected by Scots law but remained largely independent, with remnants of Celtic law still in force. Their involvement in [[Jacobitism]] led to a series of Acts attempting to crush the [[Scottish clan]] structure and bring them firmly within Scots law. The [[Heritable Jurisdictions Act]] of 1747 removed the virtually sovereign power the chiefs had over their clan, but probably affected other hereditary offices more, with the result that [[sheriffs-depute]], who had actually done the work for the hereditary office holders, became [[the crown|crown]] appointees and took over the role.
Scots law has continued to change and develop, with the most significant change coming with the establishment of the [[Scottish Parliament]] as described below.
==Sources of law==
===Common law===
Many Scots laws are simply part of the law of the land. For example, [[murder]] and [[theft]] are not defined in [[statute]] as [[offence]]s, but come under ''[[common law|Common Law]]''. This has sources in [[convention (norm)|custom]], in legal writings and in previous court decisions. Unlike in English law, the use of such ''[[precedent]]s'' is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a ''precedent''.
The principles of [[natural justice]] and [[fairness]] have always formed a source of Scots Law and are applied by the courts without distinction from the law. Thus Scots Law does not have the complex construct of "''[[Equity (law)|Equity]]''" applicable in [[England]].
Certain texts, which come mostly from the 17th century, 18th century and 19th century can be used as authority in the courts in the absence of statute or [[case law]]. Their authors include [[Thomas Craig|Craig]], ''[[Jus Feudale]]'' (1655) for [[Scots_Law#Feudal_law|feudal law]], [[James Dalrymple, 1st Viscount Stair|Stair]], ''[[The Institutions of the Law of Scotland]]'' (1681) for [[Private law|civil law]] and [[David Hume (lawyer)|David Hume]] (nephew of the namesake philosopher [[David Hume]]) for [[criminal law]]. These works may be treated as authoritative sources of the law and are described as "institutional" works. Other authorities may enjoy a particular reputation as being reliable statements of what the law is, if not absolutely authoritative. An example is Sir [[Gerald Gordon]]'s ''[[Criminal Law of Scotland]]'', (edited by Michael Christie), 3rd edition, 2001.
===Statute law ===
Laws can be set by both the Scottish and Westminster Parliaments, and also the [[European Union]]. [[Acts of the Parliaments]] can also provide for more detailed laws made by [[secondary legislation]] known as [[Statutory Instruments]] which are then passed through Parliament more quickly and simply than Acts.
====The Scottish Parliament ====
Some statutes of the pre-1707 [[Estates of Parliament]] are still in force, and are written in the [[Scots language]]. In 1999 the [[devolved]] [[Scottish Parliament]] with legislative competence over any matter not [[Reserved Matters (Westminster)|reserved]] to the [[United Kingdom Parliament]] at [[Westminster]] was established. [[Winnie Ewing]] (a [[Scottish National Party]] [[Member of the Scottish Parliament|MSP]]) presided over the opening, and famously declared 'The Scottish Parliament, [[adjourn]]ed on the 25th day of March in the year 1707, is hereby reconvened'.
The Westminster Parliament remains the "[[Parliamentary sovereignty|sovereign legislature]]" as defined by [[Constitutional lawyers]], retaining all legislative power in relation to Scotland, but the new Scottish Parliament at [[Holyrood]] makes full use of the powers given by the devolution settlement to set laws affecting the domestic affairs of Scotland.
The powers of the Scottish Parliament are set out in the [[Scotland Act 1998]].
====The United Kingdom Parliament ====
The Westminster Parliament serving the whole of the United Kingdom has set Statute law for Scotland since 1707, and continues to deal with [[reserved matters]]. Acts of the United Kingdom Parliament can apply to the whole of the UK including Scotland, to Scotland alone or not to Scotland at all. The Scotland Act 1998 does not affect the power of the Westminster Parliament to legislate as regards Scotland, but during its passage the [[Sewel Convention]] was established, which effectively requires the consent of the Scottish Parliament to Westminster legislation on devolved matters. Until 2007 both Parliaments were controlled by the same party ([[Labour Party (UK)|Labour]]), and it remains to be seen whether this convention will continue under the [[Scottish National Party]] minority government.
====European law====
[[European Union]] Regulations and many parts of the [[Treaty of Rome]] are directly applicable as law. [[EU directives]] passed by the [[Council of Ministers]] require member [[state]]s to legislate to implement them.
[[Scottish courts]] are required to interpret legislation in a way compatible with the [[European Convention on Human Rights]] (an instrument of the Council of Europe not of the European Union). If the Scottish Parliament legislates contrary to the Convention the law can be struck down by the courts. Courts may make a declaration that an Act of the Westminster Parliament is incompatible with the Convention.
==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 "[[juristic person]]" from the individuals in it, which is not the case in [[English law]]) and [[limited companies]].
===Private law===
''See also [[Law of obligations]].''
===Contract===
[[Contract]] is created by [[bilateral]] agreement and is distinguished from [[unilateral]] promise, the latter being recognised as a distinct and enforceable species of obligation in Scots Law. The English requirement for ''consideration'' does not apply in Scotland, so it is possible to have a ''gratuitous'' contract, i.e. a contract where only one of the parties comes under any duties to the other (e.g. a contract to perform services for no consideration).
Note however that not all declarations made by a person to another person will amount to a promise that is enforceable under Scots law. In particular, a declaration of intention, a [[Will (law)|testament]]ary provision and an offer will not be a promise.
At common law, a promise had to be proved by [[writ]] or [[oath]]. However, after the introduction of the [[Requirements of Writing (Scotland) Act 1995]], a promise need only be evidenced in writing for:
• the creation, transfer, variation or extinction of an interest in land (s 1(2) (a)(i) of Requirements of Writing (Scotland) Act 1995); and
• a gratuitous unilateral obligation except an obligation undertaken in the course of business (s 1(2) (a)(ii) of Requirements of Writing (Scotland) Act 1995.) [Note that this section has caused great debate amongst academics as to the meanings of "unilateral" and "gratuitous". Some believe that the inclusion of the two terms in this section points to a desire of the drafters that they be given different meanings. This would allow some promises to be unilateral but not gratuitous. This argument was particularly discussed by both Martin Hogg (Edinburgh University) and Joe Thomson (Glasgow University) in articles for the [[Scots Law Times]] (News) in 1998 and 1997 respectively. See also "Contract Law in Scotland", by MacQueen and Thomson (3rd edition, 2007), and "Obligations" by Martin Hogg (2nd edition, 2006).
===Delict===
[[Delict (Scots law)|Delict]] deals with the righting of legal wrongs in [[Civil law (legal system)|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.
"Delict" as a word derives from the [[Latin]] "[[delictum]]" 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 (legal)|reparation]]. There are many many various delicts which can be committed, ranging from ''assault'' to ''procurement of breach of contract''.
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] AC 562) which, while strictly a Scottish case, quickly established itself as the leading authority in the field of negligence in English Law also.
Mrs Donoghue had been enjoying an [[ice cream]] with [[ginger beer]] her friend had bought her in Mr Minchella's [[café]] in [[Paisley, Scotland|Paisley]], when she emptied the [[Opacity (optics)|opaque]] ginger beer bottle out and the decomposing remains of a [[snail]] emerged. Interestingly owing to quirks of the case it was never established that the drink was [[ginger beer]] in the literal sense. It is common in [[Paisley, Scotland|Paisley]] and surrounding areas to use the term 'ginger' to describe a variety of carbonated drinks. The case however proceeds on the assumption that [[ginger beer]] was served in [[Opacity (optics)|opaque]] bottles preventing discovery of the [[snail]], had it actually been a clear bottle the case may have gone differently. 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 café [[proprietor]] as her friend had paid, so she sued the manufacturer for his [[negligence]]. The case of the snail in the 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.
===Property law ===
Scots Law of [[Property]] distinguishes between ''Heritable'' property, such as land and buildings, and ''Moveables'', which include including physically moveable objects, title to which normally passes only on delivery; and moveable rights including [[intellectual property]] such as [[patents]], [[trade marks]] and [[copyrights]]. It is worth noting that agreement on an offer for property purchase is a legally binding contract, resulting in a system of [[conveyancing]] where buyers get their [[surveying|survey]] done before making a bid to the seller's solicitor, and after a closing date for [[bid]]s the seller's acceptance is binding on both parties, preventing [[gazump]]ing. In recent times sales of house by way of offering to sell to the first party to make an unconditional offer of a fixed price has eroded the traditional ''offers over'' system.
====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 ''feu duties'' so that most of these payments were ended, but it was only with the attention of the [[Scottish Parliament]] that a [http://www.ejcl.org/83/art83-5.html series of acts] were passed to end the disadvantages while keeping the benefits of the system, the first in 2000, the [[Abolition of Feudal Tenure etc. (Scotland) Act 2000]], coming into force on [[November 28]] [[2004]].
====Udal law====
The [[Northern Isles]] used a system called [[Udal Law]], owing to their former status as territory of [[Norway]]. However, following legal reforms in November 2004, the significance of udal law in those islands is greatly reduced.
====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 categorising the net as a [[cable programme]]. This definition has now been superseded by [[European directives]] but the principle still stands.
===Public law===
====Criminal law====
Scots [[criminal law]] relies far more heavily on Common Law than in 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]]. Some areas of criminal law, such as [[misuse of drugs]] and [[traffic offences]] appear identical on both sides of [[Border country|the Border]]. In fact, the Scots requirement of [[corroboration]] in criminal matters changes the practical prosecution of crimes derived from the same enactment.
=====Crown Office and Procurator Fiscal Service=====
The [[Crown Office and Procurator Fiscal Service]] provides independent [[prosecutor|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. The Crown Office is headed by the [[Lord Advocate]], in whose name all prosecutions are carried out, and employs [[Advocate Depute|Advocates Depute]] (for the [[High Court of Justiciary]]) and [[Procurator Fiscal|Procurators Fiscal]] (for the [[Sheriff Court]]s) as [[public prosecutors]].
[[Private prosecution]]s are very rare in Scotland. These require "Criminal Letters" from the High Court of the Justiciary. Criminal Letters are unlikely to be granted without the agreement of the [[Lord Advocate]].
====="Not proven" verdict=====
* Main article: [[Not proven]]
The Scots legal system is unique in having three possible [[verdict]]s for a criminal [[trial]]: "[[Guilt (law)|guilt]]y", "[[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 they did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy.
In February 1999, [[United States]] [[Senator]] [[Arlen Specter]] voted against conviction in the [[impeachment of Bill Clinton|impeachment trial 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, Scotland|Perth]] accused of murdering his mother, [http://news.scotsman.com/index.cfm?id=287052005 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.
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.
=====Notable criminal cases=====
*[[Brennan v HM Advocate]] 1977 JC 38 - authority against automatism in cases of voluntary intoxication
*[[Cawthorne v HM Advocate]] 1968 JC 32
*[[Crawford v HM Advocate]] 1950 JC 67
*Drury v HM Advocate 2001 SCCR 538 - provided modern definition of murder
*[[HM Advocate v Ross]] 1991 JC 210 - first authoritative recognition of non-insane automatism
*[[Jamieson v HM Advocate]] 1994 SLT 537
*[[Khaliq v HM Advocate]] 1984 JC 23
*[[Smart v HM Advocate]] 1975 JC 30
*[[Sutherland v HM Advocate]] 1994 SLT 634
==References==
{{Refimprove|date=October 2007}}
{{Reflist}}
==See also==
*[[Legal systems of the world]]
*[[Roman Dutch law]]
*[[List of Leading Scottish Legal Cases]]
*[[English law]] (also applies to [[Wales]])
*[[Contemporary Welsh Law]] (Wales' new legal powers)
*[[Northern Ireland law]]
*[[European Union Law]]
*[[List of Scottish topics]]
*[[Udal Law]]
*[[Feudal law]]
==External links==
*{{cite web|url=http://www.casecheck.co.uk|title=CaseCheck}} Scottish Courts Case Reports, Employment Tribunal Case Reports, Legal Opinions, Comments and Analysis.
*{{cite web|url=http://www.scotcourts.gov.uk|title=Scottish Court Service}} Details of Scottish courts and case law.
*{{cite web|url=http://www.lawscot.org.uk/|title=Law Society of Scotland}} The Law Society of Scotland organizes solicitors, which comprise 95% of all Scottish lawyers. The site has a section headed 'What is Scots law'.
*{{cite web|url=http://www.advocates.org.uk|title=Faculty of Advocates: Scottish Bar}} The Faculty of Advocates organizes advocates, which comprise the elite 5% of Scottish lawyers.
*{{cite web|url=http://www.law.ed.ac.uk/|title=Edinburgh Law School}} Law degree, public lecture, research and publication information.
**{{cite web|url=http://www.law.ed.ac.uk/sln/|title=Scots Law News}} Scottish law blog with news of current developments.
*{{cite web|url=http://www.scotlawcom.gov.uk/|title=Scottish Law Commission}} The Scottish Law Commission is in charge of proposals for law reform in Scotland. This site has discussions of current law and reform proposals.
*{{cite web|url=http://criminalletters.blogspot.com|title=Criminal Letters}} Blog of Scottish criminal and procedural law.
*{{cite web|url=http://www.murraystable.com|title=The Murray Stable}} Collection of articles on different areas of Scots law, re-usable under [[Creative Commons licenses|Creative Commons license]].
*{{cite web|url=http://www.jonathanmitchell.info/|title=Jonathan Mitchell QC}} Material on how to use advocates, jurisdiction of Scottish courts, freedom of information, and much else. Weekly update of most recent cases decided in [[Court of Session]].
*{{cite web|url=http://www.govanlc.com/|title=Govan Law Centre}} Material on welfare law in Scotland.
*{{cite web|url=http://www.slab.org.uk/|title=Scottish Legal Aid Board}} Material on how to get legal aid in Scotland.
*{{cite web|url=http://www.cjscotland.org.uk/|title=Criminal Justice in Scotland (CjS)}} This includes a daily blog of links to media and other information sources on Scottish criminal justice, original articles, parliamentary updates and so on.
*{{cite web|url=http://www.sccrc.org.uk/|title=Scottish Criminal Cases Review Commission}} All cases accepted by the SCCRC are subjected to a robust and thoroughly impartial review before a decision on whether or not to refer to the High Court is taken.
*{{cite web|url=http://www.copfs.gov.uk/|title=Crown Office and Procurator Fiscal Service}} The COPFS is responsible for criminal prosecution in Scotland, the investigation of sudden or suspicious deaths and complaints against the police.
*{{cite web|url=http://www.scottishlaw.org.uk/|title=Scottish Law Online}} This site provides information about Scots Law through a bulletin board and discussion forum.
{{Scotland topics}}
{{Law of Europe}}
[[Category:Scots law| ]]