Scots Criminal Law in the Netherlands
| DOI | 10.1177/002201839906300206 |
| Published date | 01 April 1999 |
| Date | 01 April 1999 |
| Author | Robert S. Shiels |
| Subject Matter | Article |
Scots
Criminal
Law
in
the
Netherlands
Robert S. Shiels
Solicitor
in the
Supreme
Courts
of
Scotland
On 21 December 1988
there
was
an
incident over Lockerbie in Scotland
and
an aircraft was destroyed
and
many
people died, including pas-
sengers, air crew
and
local residents. A
warrant
for
the
arrest of certain
men
from
outwith
Scotland was obtained
on
13 November 1991. For
various reasons it became expedient to consider criminal proceed-
ings in
another
country
and
to
that
end
legislative change has
been
necessary.
High
Court
of
Justiciary
The High Court of Justiciary was established in 1672
and
it is the
supreme
criminal
court
in Scotland. There is
no
appeal from
that
court
to
the
House of Lords in England.' The presiding
judge
is
the
Lord Justice
General
who
also holds
the
office of Lord President of
the
Court of
Session which is the
supreme
civil
court
in Scotland."
In
the
absence of
the
Lord Justice General,
the
presiding
judge
is
the
Lord Justice Clerk.
The judges are
known
as Lords Commissioners of Justiciary.
The High Court of Justiciary
has
jurisdiction
over
all Scotland
and
in respect of all crimes, unless jurisdiction is expressly
or
impliedly
excluded by
the
terms of a statute.
It
has
exclusive jurisdiction to try
the
most serious crimes, especially
murder
and
rape,
and
in practice deals
with
nearly all
such
crime.
The court is
both
a
court
of first instance
and
a
court
of appeal. In
the
former category,
the
court
sits in Edinburgh
and
elsewhere in Scotland
on
circuit as required. Scotland is divided into four circuits: Home, West,
North
and
South. The Lord Justice General does
not
go
out
from
Edinburgh
on
circuit. The Lord Justice Clerk goes
out
on
circuit only for
exceptionally
important
cases.' The Lords Commissioners of Justiciary
go
on
circuit regularly. As a rule only
one
judge sits at a trial
but
in cases
of difficulty or importance
two
or more, usually
three
may
sit. Several
judges
may
sit in
the
course of a trial to decide a particular point." In the
latter category,
the
High Court of Justiciary sits in Edinburgh to decide
appeals
and
on these occasions
two
or
more
judges sit. Full Benches of
five or seven judges
are
not
uncommon
for
important
cases.
1
Macintosh
v Lord
Advocate
(1876) 3 R (HL) 34.
2Section 1(1) of
the
Criminal
Procedure
(Scotland) Act 1995.
30M
Walker. The
Scottish
LegalSystem (7th ed, 1997) p 309.
4 See, eg,
Copeland
vHM
Advocate
1987 SCCR 232,
when
three
judges
sat to decide a
point
during
a trial.
154
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