As a journalist, I aim to make sure I know what I can and cannot say. And in so doing, I have discovered that the court system, specifically the Scottish system (which is where I live) is not as obvious as it might seem.

Sheriff Court

The vast majority of criminal and civil cases are heard in Sheriff Courts. Only extremely serious cases or appeals cases go to higher courts. Criminal procedures, as in the procedure for the investigation and prosecution of crimes of the state, is regulated into two categories: solemn procedure and summary procedure. This regulation is set out by the Criminal Procedure (Scotland) Act 1995. Solemn procedures are reserved for the most serious of criminal cases, and are either before a judge in the High Court or before a sheriff in the sheriff court. They are also conducted with a jury. Summary procedures are used for less serious offences. This will either be before a sheriff or may go to the Justice of the Peace Court before one or more lay justices. There is no jury in this type of case. Summary procedure is also used for civil cases with a monetary value of up to £100,000.

There is also the Sheriff Appeal Court. It deals with both criminal appeals and civil appeals. In its role as a court of criminal appeal, it hears appeals in summary cases from both sheriff and justice of the peace courts. In relation to bail appeals only, its jurisdiction extends to decisions of sheriffs under solemn procedure. It is presided over by appeal sheriffs, generally two or three in a criminal case depending on the type of appeal. A decision of the Sheriff Appeal Court may be appealed to the High Court, with the permission of the High Court, on a point of law only.

There are 39 sheriff courts spread across the country together with the Sheriff Appeal Court located in Edinburgh.

Justice of the Peace Courts

Justice of the Peace Courts are the lowest level of court in Scotland. They are held before a Justice of the Peace, a lay magistrate appointed from within the local community and trained in criminal law and procedure. Justices sit either alone, or in a bench of three, and deal with the less serious summary crimes, such as speeding, careless driving and breach of the peace. In court, justices have access to advice on the law and procedure from lawyers, who fulfil the role of legal advisors or Clerk of Court. These courts were established to replace district courts, and so have yet to be built in certain sheriff court districts. There are no Justice of the Peace Courts in the sheriff court districts of Lerwick, Kirkwall, Wick, Stornoway, Lochmaddy, and Portree.

High Court of Justiciary

The High Court of Justiciary is Scotland’s highest criminal court of appeal. Cases can be appealed further to the UK Supreme Court, but only when dealing with issues concerning Human Rights, which in practice is extremely rare. They do not hear civil cases, which are heard by the Court of Session. It is also the court of first instance when dealing with cases of treason, murder and rape. In practice, it also deals with armed robbery, drug trafficking and sexual offences involving minors. Cases held here are tried by a judge and jury under solemn procedure.

Verdicts

There are three kinds of verdict in criminal Scots Law: one of conviction, “guilty”, and two of acquittal, “not guilty” and “not proven”. When a jury believes there is sufficient evidence for a verdict, they can choose “guilty” if the evidence supports a guilty verdict, or “not guilty” if it supports a not guilty verdict. However, a third option, rarely seen in court systems, is that of “not proven”. This means that there was not enough evidence either way to prove anything. Systematically, this means the accused is acquitted as if it were a not guilty verdict. However, someone may be able to still assert that the accused conducted the supposed crime without fear of a defamation suit as it was not officially disproven in court. That protection does not exist if the accused was given a not guilty verdict.

Contempt of Court

Contempt of Court is either a criminal or civil offence of being disobedient or disrespectful towards a court of law that opposes or defies the authority, justice and dignity of the court. In the UK, Contempt is normally part of common law, but has since been codified in the Contempt of Court Act 1981. This has resulted in two types of contempt: Statutory Contempt, which is regulated by the 1981 Act, and Common Law Contempt, which covers all remaining types of Contempt not mentioned in the 1981 Act.

Contempt of Court Act 1981

The Contempt of Court Act 1981 introduces the Strict Liability rule to law. This rule says that intent is not required to be in Contempt of Court, such as in Regina v Simon Harwood (2012). However, this only applies to “active” proceedings as defined in Schedule 1 of the act. It also only applies to publications in speech, writing, broadcast, cable programme or other communication in whatever form which is addressed to the public or any section of it. Tommy Robinson, also known as Paul Harris or Stephen Yaxley-Lennon, was arrested for Contempt of Court in 2018 after live streaming out Leeds Crown Court while reporting restrictions had been ordered by the judge.

For Contempt of this kind, there must be ‘substantial risk’. This risk ends by either: acquittal or sentence; any other verdict, finding decision or order which ends the proceedings; by discontinuance or operation of law.

In Scots Courts, sentences vary depending on which court the accused is in contempt of. Being in Contempt of a Justice of the Peace Court is a maximum sentence of 60 days and a level 4 fine. In the Sheriff Court, it is a maximum 3 months and a level 4 fine. In other courts, it is a maximum of 2 years and an unlimited fine.

The two most relevant sections of the act to journalists is Section 3 and Section 5. Section 3 concerns the defence of innocent publication and distribution. Section 5 concerns the discussion of public affairs. This often gives rise to the question as to whether laws surrounding contempt is in fact a breach of freedom of expression or freedom of the press. It is said that a press that is too heavily regulated, as in told what it can or cannot say, is not truly free. However, the opposing argument is that laws of contempt exist to protect those undergoing legal proceedings and the upkeep of fair and impartial justice.

Sources

Scottish Courts and Tribunals [Homepage of Scottish Courts and Tribunals], [Online]. Available: https://www.scotcourts.gov.uk/.

About JP Courts [Homepage of Scottish Courts and Tribunals], [Online]. Available: https://www.scotcourts.gov.uk/the-courts/jp-court.

Contempt of Court [Homepage of Wikipedia], [Online]. Available: https://en.wikipedia.org/wiki/Contempt_of_court.

Contempt of Court Act 1981 [Homepage of Legislation.gov.uk], [Online]. Available: https://www.legislation.gov.uk/ukpga/1981/49.

Contempt of Court, Reporting Restrictions and Restrictions on Public Access to Hearings [Homepage of The Crown Prosecution Service], [Online]. Available: https://www.cps.gov.uk/legal-guidance/contempt-court-reporting-restrictions-and-restrictions-public-access-hearings.

Court Structure [Homepage of Judiciary of Scotland], [Online]. Available: http://www.scotland-judiciary.org.uk/16/0/Court-Structure.

Courts of Scotland [Homepage of Wikipedia], [Online]. Available: https://en.wikipedia.org/wiki/Courts_of_Scotland.

Sheriff Court – Civil Procedure Rules [Homepage of Scottish Courts and Tribunals], [Online]. Available: https://www.scotcourts.gov.uk/rules-and-practice/rules-of-court/sheriff-court—civil-procedure-rules.

MCINNES, R., 2010. Defamation. Scots Law for Journalists. Eighth edn. Thomson Reuters, pp. 268.

QUINN, F., 2018. Law For Journalists: A Guide to Media Law. Sixth edn. United Kingdom: Pearson.

QUINN, F., 2011. Law for Journalists. Third edn. United Kingdom: MyLawChamber.