BS1258 Structure of Scots Law (1)
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Transcript of BS1258 Structure of Scots Law (1)
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Structure of Scots LawIntroduction to Media Law
BS1258
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Introduction to Media Law
Maggie Anderson
Department of Law - Level 4 ABS
Tel 263351 Email: [email protected]
mailto:[email protected]:[email protected] -
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Module Information
Lectures
Tutorials (begin next week)
Module assessmentEXAM Only!
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Reading materials
ESSENTIAL READING McInnes .R. (2010) Scots Law for Journalists, 8th ed.,
W.GreenScots Law text!
BUSBY et al., (2006) Scots Law - A Student Guide. 3rd ed.,Totte
l Publishing Ltd
ADDITIONAL RECOMMENDED READING Quinn, F., (2011) Pearson Longman Publications
See the module handbook on MOODLE
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The Role of the Media why the
law module?
Journalists Watchdogs of Justice
Require a knowledge andunderstanding of the law
Rights but also responsibilities
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The media in the UK - Any
special protection?
No rights distinct from the ordinary citizen
However there are a number of relevantdefences available to the press/media inlaw that are distinct (and will be coveredin future lectures)
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Legal Resources
STATUTE/BOOKS/JOURNALARTICLES/CASES
Finding:
Case Law For the duration of the module you will be
referred to case law
WESTLAW!Case citation example:HM Advocate v. Danskin 2000 S.C.C.R 101
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Resources - Case citations
Session Cases (SC)
The Scots Law Times (SLT)
Scottish Criminal Case Reports (SCCR)
Scottish Civil Law Reports (SCLR)
Greens Weekly Digest (GWD)
English case reports can be found in:
Appeal Cases (AC)
Queens Bench (QB)
Chancery (Ch)
Weekly Law Reports (WLR)
All England Law Reports (All ER)
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Resources - databases
LAW RESOURCES
WESTLAW
LEXIS NEXIS
Alsosee moodle for further
e-resources
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Structure of Scot law
Types of law
Public Law Criminal
The State v. The Accused
Murder Culpable Homicide Rape Theft/Reset Fraud Purgery Driving Offences Public Order Offences
Private Law Civil
Person v. Person
Delict (negligence) Family Adoption Divorce Bankruptcy Employment
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Scots Courts
Distinct from the English court system
CRIMINAL COURTS
High Court of Justiciary (as court ofappeal)
High Court of Justiciary (as court in thefirst instance
Sheriff Court (sitting as a criminal court) Justice of the Peace Courts( previously
District Court)
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High Court of Justiciary
The HIGHEST criminal court in Scotland ascourt of appeal
Lord Justice-General
Lord Justice-Clerk.
Lord Commissioners of Justiciary
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HC of J - Circuit Court
Based in Edinburgh but can sit in any town inScotland
But typically sits in
Aberdeen/Dundee/Perth/Glasgow etc.
Always solemnprocedure
Lord Advocate; Solicitor General; Advocate
DeputePENALTIES = UNLIMITED!!!
Appeal to HCofJ as court of appeal
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High Court of Justiciary as court of
APPEAL!!!
EVERY 3-4 WEEKS IN EDINBURGH
Lord Commissioners of Justiciary
CAN Quash
Modify sentence
Or Refuse Appeal
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High Court of Justiciary as court of
APPEAL!!!
Preliminary Hearing to check
Preparation
Pleas??, guilty? Not guilty?
Special Defences Alibi
Incrimination
Insanity Coercion
Automatism
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Sheriff Court
The Sheriff
Can hear all crimes committed inSheriffdom but NOT the most serious onesi.e. Murder, Rape as HCofJ has exclusive
jurisdiction over such criminal
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Sheriff Court
Summary Procedure
Sheriff sits alone no jury
Less serious cases
Summary complaint
Notice of Penalties Schedule of previous
convictions IF accused foundor pleads guilty
Up to 12 months imprisonmentand or up to 10000 fine
Appeal to HCofJ
Solemn Procedure
Sheriff + Jury of 15
More serious crimes
Sheriff advises jurors on law
Jury decide Petition
Statements
Indictment
Up to 5 years imprisonment
and or an UNLIMITED fine May refer to HCofJ if greater
sentence to be imposed
Appeal to HCofJ
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Prevention ofDelayPrevention of Delay of Trials The Twelve Month Rule s.65 of CP(S) Act 1995 The 80-day Rule
The 110-day Rule for Summary proceedings inSheriff Court (and preliminary diet proceedingsin Solemn proceedings)
140 day ruleSolemn Trials (extended byCriminal Procedure (amendment) (Scot) Act
2004
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Verdicts
There are 3 possible verdicts:
Guilty
Not Guilty
Not Proven = verdict of acquittal
IF GUILTY
Mitigation - How soon did accused pleadGUILTY SEE Criminal Procedure (Scotland) Act 2004 s196
Sentencing!
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The Scots Courts
Civil Courts
All matters NOT criminal i.e. A forum inwhich private citizens can resolve theirdispute between each other
Pursuerseeking a remedy for as legalwrong
And
Defenderseeks to defend/rebut legalaction
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Civil Court
The pursuer, if successful, will be awardeda remedy. i.e. damages payable to thepursuer by the defender
Remedy should put the pursuer back intothe position he or she would have been inhad the loss/damage/injury not occurred
Standard of Proof in civil actions=
A balance of probabilities
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Supreme Court
UK WIDE CIVILCourt of Appeal NO casesin first instance
Was House of Lords
Now
Supreme Court
Based in London
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The Court of Session
Highest Civil Court in Scotland
It has exclusive jurisdiction for actions of
ReductionAdjudication
Proving tenor of lost documents
Declarator of marriage Petition for liquidation
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CofS - Outer House
The Outer House
Court of the first instance, does NOT hear
appeals Lord President and three Lords Ordinary
Summons calls defender to court and sets outpursuers claim/ petition i.e. petition the court
Defender may lodge written defence Open Record, states facts and law both parties
will rely on in court
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Outer House
Appeals from Outer House to the InnerHouse of the Court of Session
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Sheriff Courts
Scotland has 6 Sheriffdoms (HEARINGBOTH CIVIL AND CRIMINAL CASES)
1. Grampian, Highland and Islands;
2. Tayside, Central and Fife; 3. Glasgow and Strathkelvin;
4. Lothian and Borders;
5. North Strathclyde; and 6. South Strathclyde, Dumfries and
Galloway.
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Sheriff Court-Civil
Judge is a Sheriff
The Senior sheriff = Sheriff Principal
No jury - Sheriff sits alone as judge
Civil action procedures
1. Small Claims Procedure
2. Summary Cause Procedure
3. Ordinary Procedure
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Civil cases Some terminology
Initial Writ
Condescendence
Summons
Claim
Statement of Claim
Warrant
Copy Summons
Form of Response
Counter Claim
Undefended Claim
Minute
Defended Claim
Period of Adjustment(open record)
Record Closed
Hearing of Evidence orProof
Productions
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Reading for tutorial
McInnes (2010) CHAPTERS 4&5
Busby et al (2011)
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Sources of Scots Law
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Sources of Scots Law
Sources of Scots law Legislation Precedent Institutional Writers Custom EquityStructure of Scots law The Courts Legal procedure Terminology
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Scots Law - Sources
Legislation/Statute
EUTreaties and Conventions i.e. Humanrights - Directives and Regulations
Westminster Parliament
Scottish Parliament
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Introduction
Primary legislation treaties/conventions
Secondary legislation:
Regulations directly applicable to themember states
Directives not directly applicable
usually time to implement Decisions bind only those to who theyare addressed
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Introduction
Legislation Acts of Parliament, Statutes, Statutory
Instruments, delegated legislation
Bills Westminster green paper, white paper,
consultation, bill, Royal Assent = Act ofParliament
Scotland general debate on the general
principles, consideration of the details, vote onthe bill, Royal Assent = Act of the ScottishParliament
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Legislation
The Scottish Parliament
Scotland Act 1998 s29(1)
An Act of the Scottish Parliament is not
law so far as any provision is outsidethe legislative competence of theParliament
Reserved & devolved matters
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Introduction
Case law/common law/judicialprecedent
Point of law
Decisions of a lower court =persuasive
Decisions of a higher court =
bindingDistinguisheddifferences
between the two cases
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Introduction
Ratio decidendi legal reason onwhich decision is based
Obiter dicta things said by thewayby the judge not binding
Law reports
Case citations:
Morrission v Robertson 1908 SC 332
Stewart v Stewart 1899 1 F 1158
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Institutional Writers
Institutional Writers e.g,
Stair Institutions of Scots Law (1681)
Erskine,An Institute of the Laws ofScotland(1773)
Hume, Commentaries on the Law ofScotland respecting Crimes(1797)
Bell, Commentaries on the Law ofScotland (1810)
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Westlaw
Student portal
library
resources Databases
Westlaw
Robert Gordon University(Log in details as RGU log in)
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For next week
See MOODLE for Tutorials - they beginnext week!
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Westlaw and Lexis Nexis
Legal Data base
Case law
Articles Case comment
Legislationstatus updated regularly