Sheriff-substitute

Last updated February 21, 2019

In the Courts of Scotland, a sheriff-substitute was the historical name for the judges who sit in the local sheriff courts under the direction of the sheriffs principal; from 1971 the sheriffs substitute were renamed simply as sheriff. When researching the history of the sheriffs and sheriffs principal of Scotland there is much confusion over the use of different names to refer to sheriffs in Scotland. Sheriffs principal are those sheriffs who have held office over a sheriffdom, whether through inheritance or through direct appointment by the Crown. Thus, hereditary sheriff (before 1746) and sheriff-depute (after 1746) are the precursors to the modern office of sheriff principal.

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 judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and, typically, in an open court. The judge hears all the witnesses and any other evidence presented by the barristers of the case, assesses the credibility and arguments of the parties, and then issues a ruling on the matter at hand based on his or her interpretation of the law and his or her own personal judgment. In some jurisdictions, the judge's powers may be shared with a jury. In inquisitorial systems of criminal investigation, a judge might also be an examining magistrate.

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.

Background

The office of sheriff in Scotland is an ancient one, owing its origins to the practice of the King of Scots to appoint leading local magnates to hear disputes between his subjects. In many cases, the office of sheriff became hereditary, a practice strengthened by the clan-based social system that prevailed in parts of Scotland such as the Highlands. As the complexity of the law grew, and its administration began to require specialist knowledge and training, an increasingly common practice was for the hereditary sheriff, usually a layman, to appoint a sheriff-depute to hear cases on his behalf. Because the same sheriff-depute might be appointed to assist several different sheriffs, he in turn would appoint a sheriff-substitute to act in his place when he was unavailable to sit in a particular court.

A magnate, from the late Latin magnas, a great man, itself from Latin magnus, "great", is a noble or a man in a high social position, by birth, wealth or other qualities. In reference to the Middle Ages, the term is often used to distinguish higher territorial landowners and warlords such as counts, earls, dukes, and territorial-princes from the baronage.

A clan is a group of people united by actual or perceived kinship and descent. Even if lineage details are unknown, clan members may be organized around a founding member or apical ancestor. Clans in indigenous societies tend to be exogamous, meaning that their members cannot marry one another. Clans preceded more centralized forms of community organization and government, and exist in every country. Members may identify with a coat of arms or other symbol to show they are an independent clan. The kinship-based bonds may also have a symbolic ancestor, whereby the clan shares a "stipulated" common ancestor that is a symbol of the clan's unity. When this "ancestor" is non-human, it is referred to as a totem, which is frequently an animal.

The Highlands is a historic region of Scotland. Culturally, the Highlands and the Lowlands diverged from the later Middle Ages into the modern period, when Lowland Scots replaced Scottish Gaelic throughout most of the Lowlands. The term is also used for the area north and west of the Highland Boundary Fault, although the exact boundaries are not clearly defined, particularly to the east. The Great Glen divides the Grampian Mountains to the southeast from the Northwest Highlands. The Scottish Gaelic name of A' Ghàidhealtachd literally means "the place of the Gaels" and traditionally, from a Gaelic-speaking point of view, includes both the Western Isles and the Highlands.

In the aftermath of the Jacobite rising of 1745, the British government abolished heritable jurisdictions throughout Scotland, including the office of hereditary sheriff. In most cases, the sheriffs-deputes came to formally assume the responsibilities they had already been discharging. The title of sheriff-depute soon fell into disuse, being shortened simply to "sheriff". A local judge appointed by the sheriff would continue to be called a sheriff-substitute.

The Jacobite rising of 1745, also known as the Forty-five Rebellion or simply the '45, was an attempt by Charles Edward Stuart to regain the British throne for his father, James Francis Edward Stuart. It took place during the War of the Austrian Succession, when the bulk of the British Army was fighting in mainland Europe, and proved to be the last in a series of revolts that began in 1689, with major outbreaks in 1708, 1715 and 1719.

In the latter part of the 20th century, the titles of sheriff and sheriff-substitute were replaced by sheriff principal and sheriff respectively:

Sheriff Courts (Scotland) Act 1971. c. 58. Part I. Sheriffs Principal and Sheriffs, Section 4:

Offices of Sheriff Principal and Sheriff:

(1) The office of sheriff (that is to say, the office known formerly as the office of sheriff depute, but known immediately before the commencement of this Act as the office of sheriff) shall be known as the office of sheriff principal, the office of sheriff substitute shall be known as the office of sheriff, and the office of honorary sheriff substitute shall be known as the office of honorary sheriff.^[1]

Related Research Articles

The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a magistratus was one of the highest ranking government officers, and possessed both judicial and executive powers. In other parts of the world, such as China, a magistrate was responsible for administration over a particular geographic area. Today, in some jurisdictions, a magistrate is a judicial officer who hears cases in a lower court, and typically deals with more minor or preliminary matters. In other jurisdictions, magistrates may be volunteers without formal legal training who perform a judicial role with regard to minor matters.

The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh and is both a trial court and a court of appeal. Decisions of the Court can be appealed to the Supreme Court of the United Kingdom, with the permission of either the Inner House or the Supreme Court. The Court of Session and the local sheriff courts of Scotland have concurrent jurisdiction for all cases with a monetary value in excess of £100,000; the pursuer is given first choice of court. However, the majority of complex, important, or high value cases are brought in the Court of Session. Cases can be remitted to the Court of Session from the sheriff courts, including the Sheriff Personal Injury Court, at the request of the presiding sheriff. Legal aid, administered by the Scottish Legal Aid Board, is available to persons with little disposable income for cases in the Court of Session.

The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or the former Sheriff Court building in Edinburgh, or in dedicated buildings in Glasgow and Aberdeen. The High Court sometimes sits in various smaller towns in Scotland, where it uses the local sheriff court building. As an appeal court the High Court sits only in Edinburgh.

In Scotland a sheriff principal is a judge in charge of a sheriffdom with judicial, quasi-judicial, and administrative responsibilities. Sheriffs principal have been part of the judiciary of Scotland since the 11th century. Sheriffs principal were originally appointed by the Monarch of Scotland, and evolved into a heritable jurisdiction before appointment was again vested in the Crown and the Monarch of the United Kingdom following the passage of the Heritable Jurisdictions (Scotland) Act 1746.

The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance. The chief justice is the Lord President, with their deputy being the Lord Justice Clerk, and judges of the Inner House are styled Senators of the College of Justice or Lords of Council and Session. Criminal appeals in Scotland are handled by the High Court of Justiciary sitting as the Court of Appeal.

Arthur Campbell Hamilton, Lord Hamilton,, is a Scottish judge and served as Lord Justice General and Lord President of the Court of Session from November 2005 until 8 June 2012, succeeding Lord Cullen.

A sheriffdom is a judicial district in Scotland, led by a sheriff principal. Since 1 January 1975, there have been six sheriffdoms. Each sheriffdom is divided in to a series of sheriff court districts, each sheriff court is presided over a resident or floating sheriff Sheriffs principal and sheriffs are all members of the judiciary of Scotland.

The Scottish Land Court is a Scottish court of law based in Edinburgh with subject-matter jurisdiction covering disputes between landlords and tenants relating to agricultural tenancies, and matters related to crofts and crofters. The Scottish Land Court is both a trial court and an appeal court; hearings at first-instance are often heard by a Divisional Court of one of the Agricultural Members advised by the Principal Clerk. Decisions of the Divisional Court can be appealed to the Full Court, which will consist of at least one legally qualified judicial member and the remaining Agricultural Member. Some cases are heard at first-instance by the Full Court, and these cases may be appealed to the Inner House of the Court of Session.

Ad vitam aut culpam is a Latin phrase found in Scots law which meaning "for life or until fault" which guarantees the right of a Sheriff Depute (judge) to hold office permanently or until they forfeit such by misconduct. The Heritable Jurisdictions (Scotland) Act 1746 used the phrase to guarantee a Sheriff's term office after they have held office for seven years.

Scots civil procedure governs the rules of civil procedure in Scotland. It deals with the jurisdiction of the country's civil courts, namely the Court of Session and sheriff courts.

The Heritable Jurisdictions (Scotland) Act 1746 was an Act of Parliament passed in the aftermath of the Jacobite rising of 1745 abolishing judicial rights held by Scots heritors. These were a significant source of power, especially for clan chiefs since it gave them a large measure of control over their tenants.

An Act of Sederunt is secondary legislation made by the Court of Session, the supreme civil court of Scotland, to regulate the proceedings of Scottish courts and tribunals hearing civil matters. Originally made under an Act of the Parliament of Scotland of 1532, the modern power to make Acts of Sederunt is largely derived from the Courts Reform (Scotland) Act 2014. Since 2013, draft Acts have also been prepared by the Scottish Civil Justice Council and submitted to the Court of Session for approval.

The judiciary of Scotland are the judicial office holders who sit in the courts of Scotland and make decisions in both civil and criminal cases. Judges make sure that cases and verdicts are within the parameters set by Scots law, and they must hand down appropriate judgments and sentences. Judicial independence is guaranteed in law, with a legal duty on Scottish Ministers, the Lord Advocate and the Members of the Scottish Parliament to uphold judicial independence, and barring them from influencing the judges through any form of special access.

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.

The Sheriff Appeal Court is court in Scotland that hears appeals from summary criminal proceedings in the sheriff courts and justice of the peace courts, and hears appeals on bail decisions made in solemn proceedings in the sheriff court. The Sheriff Appeal Court also hears appeals in civil cases from the sheriff courts, including the Sheriff Personal Injury Court.

The Scottish Sentencing Council is an advisory non-departmental public body in Scotland that produces sentencing guidelines for use in the High Court of Justiciary, sheriff courts and justice of the peace courts. Judges, sheriffs, and justices of the peace must use the guidelines to inform the sentence they pronounce against a convict, and they must give reasons for not following the guidelines.

References

↑ Sheriff Courts (Scotland) Act 1971 available in the following UK legislation website: http://www.legislation.gov.uk/ukpga/1971/58/section/4 Accessed 2012-10-03

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[1] Sheriff Courts (Scotland) Act 1971 available in the following UK legislation website: http://www.legislation.gov.uk/ukpga/1971/58/section/4 Accessed 2012-10-03

Sheriff-substitute

Contents

Background

See also

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References