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Lawburrows is a little-known civil action in Scots law initiated by one person afraid of another's possible violence. The term is derived from law-borrow, where borrow is used in the archaic sense of a pledge, guarantee, or surety (souerte in the act below). Hence, it is a "legal security" that a person "will not injure the person, family, or property of another". [1]
| Lawburrows Act 1429 | |
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| Act of Parliament | |
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| Long title | Of soverte askit be ony of the kingis liegis that hes doute of his life. |
| Citation | 1429 c. 20 (12mo ed: c. 129) |
| Other legislation | |
| Amended by | |
Status: Amended | |
| Text of the Lawburrows Act 1429 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk. | |
The Lawburrows Act 1429 (c. 20) remains in force and says:
It is statute ande ordanit that gif ony of the kingis liegis haf ony doute of his life outhir be dede or manance or violent presumpcioun ande he ask souerte of thaim that he doutis the schiref sal tak souerte of the party that the complante is maid apoun sa that the party playntife mak prufe of the dede or of manance or of the violent presumpcioun maid or done till hym [2]
Normally, where there is a fear of violence from certain known people, the normal recourse is through Scots criminal law and police. However, because of the need to involve the police and the Procurator Fiscal Service to seek remedies in criminal law; this recourse may be lengthy with no direct control by the complainer (in other jurisdictions, the complainant ). There is also a need in criminal proceedings to provide witnesses and evidence to satisfy the corroboration requirement and to establish the guilt of the accused beyond reasonable doubt in order to secure a criminal conviction. As such, remedies available in criminal law may be limited if the threats of violence struggle to meet the criminal law's burden of proof.
Civil law primarily deals the enforcement of private rights and obligations between individuals and/or property. Lawburrows, as a civil law remedy, enables people to "take the law into their own hands" by exercising their rights under civil law. The burden of proof in civil cases is much less onerous than that of criminal law, only requiring that there is a likelihood of violence on the balance of probabilities and accordingly so too is the standard required of the evidence.
The most common action against someone who threatens violence is interdict, in other jurisdictions, an injunction, but this is awarded at the discretion of judge or sheriff. Since public interest (the general effects of the action on the welfare of society) is involved, corroborative witnesses may be required. Interdict may require the defender to refrain from a specific conduct. Although provisional, or interim, interdicts can be granted speedily, obtaining a perpetual interdict may be very time-consuming and costly. A great disadvantage of interdict is the uncertainty about what happens should the defender disobey the interdict. If it is a first offence, a mild or nominal punishment, such as contempt of court, may be imposed or a warning given.
In Scotland an alternative to interdicts is lawburrows. Lawburrows in a civil action allows a pursuer, in other jurisdictions termed a plaintiff, to require the defender to make a deposit of money as a guarantee they will not harm the pursuer. If the pursuer is later harmed by the defender, the deposit is forfeit and is split between the court and the pursuer. This was first passed by a Parliament of James I in 1429 as a remedy against threats to the safety of members of the public. The aim of Lawburrows was stated in the act "...to prevent such delinquences (the issuing of threats) and terrify evil doers..." The process is remarkable for its simplicity, speed of execution, low cost of process and the absolute certainty of the exact penalty should the order be contravened. Neither the police nor the procurator fiscal is involved unless there is a contravention of lawburrows.
Very roughly: If Alice is put in fear by Bob, Alice asks a Sheriff to hear the case against Bob (this is a civil action and so standard of proof is low). If proven, the Sheriff shall require a deposit from Bob. If, later, Alice shows the Sheriff that Bob has continued to put Alice in fear, the deposit is forfeited and divided equally between Alice and the Court. This does not preclude a criminal action being taken against Bob.
In an initial writ to the sheriff court, the pursuer asserts that he fears harm to either his person, property, family, tenant or employees from the defender. He asks the sheriff to obtain a certain sum of money (a "caution") or a bond as security against being molested or troubled further by the defender.
As soon as this writ is received, the sheriff clerk must immediately order it to be served on the defender and a date for an early hearing has to be fixed at the same time. At the court hearing, the standard of proof is on the balance of probabilities, so the pursuer need only show that on the balance of probabilities it is likely that harm may occur. This is a summary procedure —with no civil jury present and the Sheriff alone deciding on the facts of the case.
If the pursuer is successful, the sheriff can order a sum of money to be found (or a bond to be given) and he can order that, should the defender fail to provide this, he shall be imprisoned for up to six months. If the defender does any harm of the kind specified in the initial writ, the pursuer may (with the consent of the Procurator Fiscal) raise an action for "contravention of lawburrows" asking that the money, or bond, be forfeited and divided equally between the Crown and himself.
The action for contravention of lawburrows does not preclude any other remedies, such as a civil action for damages for assault, or criminal proceedings by the Procurator Fiscal.
The remedy of lawburrows has a very long history. Its application is very narrow, referring only to people being put in fear and there are many alternative remedies in the criminal law, involving the police to whom people put in fear are most likely to appeal in the first instance. Many attempts to obtain remedies in this way are thwarted by the reluctance of the police to get involved in domestic disputes and quarrels between neighbours, often because of the difficulty of obtaining the witnesses needed in criminal proceedings. Such a need is largely circumvented in actions of lawburrows. Although little known to the public, and even to some solicitors, lawburrows is still in use in the present time.
Several cases in the 1980s failed because lawburrows was misapplied and, consequently, in 1988, the case for the repeal or the overhaul of lawburrows was argued cogently by W J Stewart.
Civil Judicial Statistics Scotland records 25 instances in the four-year period 1999–2002, 17 of which were in 2001. A freedom of information request in 2017 showed there were no civil actions of this type in the preceding three years. [3]
The simplicity of lawburrows actions has attracted some vexatious litigation. In one case in 2012, a lawburrows action was sought against an accountant by a pursuer who was themselves the subject of a sequestration (bankruptcy) action, apparently to delay the latter. [4]
A plaintiff is the party who initiates a lawsuit before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order. "Plaintiff" is the term used in civil cases in most English-speaking jurisdictions, the notable exceptions being England and Wales, where a plaintiff has, since the introduction of the Civil Procedure Rules in 1999, been known as a "claimant" and Scotland, where the party has always been known as the "pursuer". In criminal cases, the prosecutor brings the case against the defendant, but the key complaining party is often called the "complainant".
A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
Civil procedure is the body of law that sets out the rules and regulations along with some standards that courts follow when adjudicating civil lawsuits. These rules govern how a lawsuit or case may be commenced; what kind of service of process is required; the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases; the timing and manner of depositions and discovery or disclosure; the conduct of trials; the process for judgment; the process for post-trial procedures; various available remedies; and how the courts and clerks must function.
Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.
A restraining order or protective order is an order used by a court to protect a person in a situation often involving alleged domestic violence, child abuse, assault, harassment, stalking, or sexual assault.
Breach of the peace or disturbing the peace is a legal term used in constitutional law in English-speaking countries and in a public order sense in the United Kingdom. It is a form of disorderly conduct.
A sheriff court is the principal local civil and criminal court in Scotland, with exclusive jurisdiction over all civil cases with a monetary value up to £100,000, and with the jurisdiction to hear any criminal case except treason, murder, and rape, which are in the exclusive jurisdiction of the High Court of Justiciary. Though the sheriff courts have concurrent jurisdiction with the High Court over armed robbery, drug trafficking, and sexual offences involving children, the vast majority of these cases are heard by the High Court. Each court serves a sheriff court district within one of the six sheriffdoms of Scotland. Each sheriff court is presided over by a sheriff, who is a legally qualified judge, and part of the judiciary of Scotland.
The Crown Office and Procurator Fiscal Service is the independent public prosecution service for Scotland, and is a Ministerial Department of the Scottish Government. The department is headed by His Majesty's Lord Advocate, who under the Scottish legal system is responsible for prosecution, along with the sheriffdom procurators fiscal. In Scotland, virtually all prosecution of criminal offences is undertaken by the Crown. Private prosecutions are extremely rare.
Delict in Scots law is the area of law concerned with those civil wrongs which are actionable before the Scottish courts. The Scots use of the term 'delict' is consistent with the jurisdiction's connection with Civilian jurisprudence; Scots private law has a 'mixed' character, blending together elements borrowed from Civil law and Common law, as well as indigenous Scottish developments. The term tort law, or 'law of torts', is used in Anglo-American jurisdictions to describe the area of law in those systems. Unlike in a system of torts, the Scots law of delict operates on broad principles of liability for wrongdoing: 'there is no such thing as an exhaustive list of named delicts in the law of Scotland. If the conduct complained of appears to be wrongful, the law of Scotland will afford a remedy even if there has not been any previous instance of a remedy being given in similar circumstances'. While some terms such as assault and defamation are used in systems of tort law, their technical meanings differ in Scottish delict.
The courts of Scotland are responsible for administration of justice in Scotland, under statutory, common law and equitable provisions within Scots law. The courts are presided over by the judiciary of Scotland, who are the various judicial office holders responsible for issuing judgments, ensuring fair trials, and deciding on sentencing. The Court of Session is the supreme civil court of Scotland, subject to appeals to the Supreme Court of the United Kingdom, and the High Court of Justiciary is the supreme criminal court, which is only subject to the authority of the Supreme Court of the United Kingdom on devolution issues and human rights compatibility issues.
A procurator fiscal, sometimes called PF or fiscal, is a public prosecutor in Scotland, who has the power to impose fiscal fines. They investigate all sudden and suspicious deaths in Scotland, conduct fatal accident inquiries and handle criminal complaints against the police. They also receive reports from specialist reporting agencies such as His Majesty's Revenue and Customs.
Precognition in Scots law is the practice of precognoscing a witness, that is the taking of a factual statement from witnesses by both prosecution and defence after indictment or claim but before trial. This is often undertaken by trainee lawyers or precognition officers employed by firms; anecdotal evidence suggests many of these are former police officers.
George Alexander Way of Plean CStJ is a Scottish Sheriff and former Procurator Fiscal of the Court of the Lord Lyon in Scotland. In November 2015, it was announced that he was to be the first Scottish Sheriff to be appointed a member of the Royal Household in Scotland as Falkland Pursuivant Extraordinary at the Court of the Lord Lyon. In December 2017, he was promoted to Carrick Pursuivant in Ordinary and then to Rothesay Herald in 2024. In 2020, he was appointed Chancellor of the Diocese of Brechin. In June 2021, he was appointed as Genealogist of the Priory of Scotland in the Most Venerable Order of St.John.
Scots criminal law relies far more heavily on common law than in England and Wales. Scottish 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 including mobbing and breach of the peace. Scottish criminal law can also be found in the statutes of the UK Parliament with some areas of criminal law, such as misuse of drugs and traffic offences appearing identical on both sides of the Border. Scottish criminal law can also be found in the statute books of the Scottish Parliament such as the Sexual Offences (Scotland) Act 2009 and Prostitution (Scotland) Act 2007 which only apply to Scotland. In fact, the Scots requirement of corroboration in criminal matters changes the practical prosecution of crimes derived from the same enactment. Corroboration is not required in England or in civil cases in Scotland. Scots law is one of the few legal systems that require corroboration.
A fiscal fine is a form of deferred prosecution agreement in Scotland issued by a procurator fiscal for certain summary offences as an alternative to prosecution. Alternatives to prosecution are called direct measures in Scotland.
The Court of the Lord Lyon, or Lyon Court, is a standing court of law, based in New Register House in Edinburgh, which regulates heraldry in Scotland. The Lyon Court maintains the register of grants of arms, known as the Public Register of All Arms and Bearings in Scotland, as well as records of genealogies.
Scots law is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irish law, it is one of the three legal systems of the United Kingdom. Scots law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. Legislation affecting Scotland and Scots law is passed by the Scottish Parliament on all areas of devolved responsibility, and the United Kingdom Parliament on reserved matters. Some legislation passed by the pre-1707 Parliament of Scotland is still also valid.
In Scots law, an interdict is a court order to stop someone from breaching someone else's rights. They can be issued by the Court of Session or a Sheriff Court. The equivalent term in England is an injunction. A temporary interdict is called an interim interdict. A court will grant an interim interdict if there is a prima facie case and on the balance of convenience the remedy should be granted. Breaching an interdict can result in a fine or imprisonment.
The Sheriff Personal Injury Court is a Scottish court with exclusive competence over claims relating to personal injury where the case is for a work-related accident claim in excess of £1,000, where the total amount claimed is in excess of £5,000, or where a sheriff in a local sheriff court remits proceedings to the Personal Injury Court. It has concurrent jurisdiction with the Court of Session for all claims in excess of £100,000, and concurrent jurisdiction with the local sheriff courts for personal injury claims within its competence.