It is vitally important for our clients to have a sufficient understanding of the court process:
Generally, when the police report a case to the Procurator Fiscal, they recommend the court they believe the case should be prosecuted in. The more serious the crime, the higher the court. This is because the courts have increasing sentencing powers the higher up you go. Some offences, such as murder and rape, are required by law to be prosecuted in the High Court. For the rest, the Lord Advocate has set out guidelines to ensure a case is prosecuted in the appropriate court. The decision is largely up to the prosecutor.
The High Court
Where a crime is of such gravity that the sentence has the potential to go above 5 years imprisonment, the case will initially be raised by a petition and then by indictment to the High Court of Justiciary. Among a number of serious crimes, the High Court deals with high value drug cases, serious sexual offences and assaults that have resulted in severe injuries, permanent disfigurement and/or impairment.
The Sheriff Court
Below the High Court is the Sheriff Court, which is split into what are called Solemn and Summary jurisdictions.
The Solemn jurisdiction is similar to the High court in that the procedure is broadly the same, with a case proceeding before a sheriff and jury. Like in the High Court, the proceedings are tape-recorded. The maximum sentence in this jurisdiction is 5 years imprisonment and an unlimited fine for common law crimes such as assault, robbery, abduction, and culpable and reckless conduct. Where an offence is created by statute, like drug offences under the Misuse of Drugs Act 1977 or sexual offences under the Sexual Offences Act 2009, these acts will provide the sentencing powers of the court.
Summary jurisdiction in the Sheriff Court is where less serious offences are prosecuted, such as minor drug offences and assaults, breaches of the peace, and contraventions of the Criminal Justice and Licensing (Scotland) Act. Here the cases are tried before a sheriff only, without a jury. Generally, the maximum sentence in this court is a year’s imprisonment. Very often cases are disposed of with alternative sentences such as community-service, a fine, or a deferred sentence for good behaviour.
Justice of the Peace Court
Created in 2007 to replace the District Courts, the Justice of the Peace Courts are the lowest in the Scottish legal system. A Justice of the Peace is a lay magistrate, elected by the community, who may sit alone or with two others. With the help of legal advisors, Justices handle lesser summary offenses, like breach of the peace, low value theft and reckless driving. The maximum punishment Justices can mete out is two month’s imprisonment and a fine of up to £2,500. They can also disqualify drivers.