bs1258 structure of scots law (1)

8/11/2019 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

bs1258 structure of scots law (1)

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