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Scottish Criminal Justice
by Diane
Baptie, Professional Genealogist and Historical Researcher
The Scottish system of criminal justice and procedure differs widely from that of the rest of the United Kingdom. In England, a court reaches a decision on the basis of facts alleged and proved by the prosecuting and defence lawyers which takes the form of a contest. In contrast, in Scotland the onus lies entirely on the Advocate Depute, acting for the Lord Advocate’s Department, to prove the case.
Prior to a trial, when someone is suspected of committing a crime by the police, a file is passed to the Procurator Fiscal of a district and he decides whether the case should proceed. If he does decide that there is a case, he continues to investigate it by taking statements, known an Precognitions. The case is then reported to the Crown counsel who decide what the charge should be and whether the case should be tried in the Sheriff Court or the High Court of Justiciary.
The High Court of Justiciary is the highest criminal court in Scotland and there is no appeal from it to the House of Lords. The Court itself acts as an Appeal Court. The judges of this court are known as Lord Commissioners of Justiciary. The court deals with serious crimes committed throughout Scotland, but has exclusive jurisdiction over treason, murder, rape, deforcement of messengers of the court and breach of duty by magistrates.
The Sheriff Court is presided over by the Sheriff of a district who is a qualified judge. The court has two procedures, solemn and summary. In solemn procedure, an indictment is drawn up, listing the nature of the crime and the case is then heard by a jury, while in summary procedure only the Sheriff presides. The sentencing powers of a Sheriff are limited and so it follows that less serious crimes are heard before this court.
A jury in Scotland consists of 15 people and there are three verdicts they can give - guilty, not guilty and not proven. The verdicts of not guilty and not proven can be reached by a simple majority, but a guilty verdict can only be reached if at least eight members of the jury are in favour of it.
Records held by the National Archives of Scotland (NAS)
- Records of the Advocate's Department
Procurator Fiscal - the NAS holds those of Banff, Shetland and Edinburgh only
Precognitions - few survive before 1812. The NAS has a card index arranged alphabetically of Precognitions between 1812 and 1900 which lead to the actual papers in AD14.
- Records of the High Court of Justiciary
The court went on circuit and so, if you are looking for a case involving a crime which occurred outwith Edinburgh, you need to decide where the case would have been heard. There were three circuits - North, South and West. There are circuit minute books (JC10-14) which give a brief account of the trial and from there you go to the Processes (JC26) which are the actual papers of the trial. Obviously, a certain amount of detail will have already appeared in the Precognition.
- Records of the Sheriff Courts
Again, you need to know the area in which the crime took place. Once you have decided on the correct Sheriff Court, you will need to look at the handlist (SC) of that court to see what criminal records there are.
- Records of Prisoners
Prison registers are in the records of the Home and Health Department (HH21). They can also be found in the Sheriff Court records. A fairly common sentence was transportation, abolished as a punishment in 1857. The NAS has microfilm of convict transportation registers 1787-1870 (RH4/160) held in the Home Office records at the PRO in London. The Scots prisoners appear at the end of convicts on each ship
Diane Baptie is a Scottish genealogical and historical researcher. Please contact her by email or visit her web page for additional information about her services.
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