High Court of Justiciary
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 in the adjacent Justiciary Building in the Old Town 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. On one occasion the High Court of Justiciary sat outside Scotland, at Zeist in the Netherlands during the Pan Am Flight 103 bombing trial, as the Scottish Court in the Netherlands. At Zeist the High Court sat both as a trial court, and an appeal court for the initial appeal by Abdelbaset al-Megrahi.
The president of the High Court is the Lord Justice General, who holds office ex officio by virtue of being Lord President of the Court of Session, and his depute is the Lord Justice Clerk. The remaining judges are the Lords Commissioners of Justiciary, who hold office ex officio by virtue of being appointed as Senators of the College of Justice and judges of the Court of Session. As a court of first instance trials are usually heard with a jury of 15 and a single Lord Commissioner of Justiciary; the jury can convict on a majority verdict. In some cases, such as the trial of Abdelbaset al-Megrahi and Lamin Khalifah Fhimah for the bombing of Pan Am Flight 103, a trial can be heard by a bench of judges alone; sitting without a jury. As an appeal court the hearings are always without a jury, with two judges sitting to hear an appeal against sentence, and three judges sit to hear an appeal against conviction.
The High Court will hear appeals from the sheriff courts of Scotland where the trial was under solemn proceedings; the High Court will also hear referrals on points of law from the Sheriff Appeal Court, and from summary proceedings in the sheriff courts and justice of the peace courts. Cases can be remitted to the High Court by the sheriff courts after conviction for sentencing, where a sheriff believes that their sentencing powers are inadequate. The High Court can impose a life sentence but the sheriff has a limit of five years sentencing; both can issue an unlimited fine.
As of 4 February 2025, the Lord Justice General was Lord Pentland, the Lord Justice Clerk was Lord Beckett, and there were a total of 36 Lords Commissioners of Justiciary.
History
Justiciar
The origins derive from the Justiciar and College of Justice, as well as from the medieval royal courts and barony courts. The medieval Justiciar took its name from the justices who originally travelled around Scotland hearing cases on circuit or 'ayre'. From 1524, the Justiciar or a depute was required to have a "permanent base" in Edinburgh.The King of Scots sometimes sat in judgment of cases in the early King's Court, and it appears that appeals could be taken from the King's Court to the Parliament of Scotland in civil cases but not in criminal ones. In 1532 the College of Justice was founded, separating civil and criminal jurisdiction between two distinct courts. The King's Court was, however, normally the responsibility of the Justiciar. The Justiciar normally appointed several deputes to assist in the administration of justice, and to preside in his absence. A legally qualified clerk advised the Justiciar and his deputes as they were generally noblemen and often not legally qualified. This clerk prepared all the indictments and was keeper of the records. Eventually the influence of the clerk increased until the clerk gained both a vote in the court, and a seat on the bench as the Justice-Clerk.
Courts Act 1672
The High Court in its modern form was founded in 1672 by the Courts Act 1672, when five of the Lords of Session were added as permanent judges of the Justice Court. Previously the Lord Justice General had appointed deputes to preside in the court. From 1672 to 1887, the High Court consisted of the Lord Justice General, Lord Justice Clerk, and five Lords of Session.The Court Act 1672 also gave statutory effect to the position of the Lord Justice Clerk, and the Lord Justice-General was made president of the Court, and the Justice-Clerk vice-president. During the period when the office of Lord Justice-General was held by noblemen the Lord Justice-Clerk was virtual head of the Justiciary Court.
Treaty of Union
Article XIX of the Treaty of Union that united Scotland and England into Great Britain preserved the High Court of Justiciary, though now the High Court was subject to the Parliament of Great Britain which could enact "...regulations for the better administration of Justice". Dominic Scullion, writing in the Aberdeen Student Law Review in 2010, identified that the Union of England and Scotland saw an increase in references to English law and cases in the reports of the High Court. However, Scullion identified that it was only in the latter half of the 20th century that the judgments of the High Court were directly influenced by English decisions and precedent.The High Court of Justiciary remained the final authority on all matters of criminal law after the Act of Union, though the Parliament of Great Britain appears to have had appellate jurisdiction through the judicial functions of the House of Lords this appeared to have little effect in practice. In 1713 a case was heard by the House of Lords which overturned a decision of the High Court. However, in 1781 the House of Lords resolved that there could be no appeal from the High Court, as no right of appeal had existed beyond the Court beyond the Treaty of Union.
19th Century
Unification of judiciary
The Court of Session Act 1830 united the offices of Lord President of the Court of Session and Lord Justice General, with the person appointed as Lord President assuming the office of Lord Justice General ex officio.In 1834 the five Lords of Session who were appointed as Lords Commissioners of Justiciary were paid an additional allowance of over their basic salary of. A Select Committee of the House of Commons was appointed to investigate the remuneration and working conditions of the Lords of Session and Lords Commissioners of Justiciary. The Select Committee recommended that all the Lords of Session should be made Lords Commissioners of Justiciary and that the additional allowance be abolished. At the same time the Committee recommended that the basic salary of a Senator be increased to.
The membership of the court remained unchanged until 1887 when all of the Senators of the College of Justice were made Lords Commissioners of Justiciary, by the Criminal Procedure Act 1887. Writing in 1896, Charles Pearson attested that no appeal was competent from the High Court to the House of Lords.
Supremacy of High Court
The House of Lords made a final determination in the case of Mackintosh v. Lord Advocate 2 App. Cas. 41 that it had no jurisdiction over criminal appeals, as it had inherited the power of the Parliament of Scotland to hear civil appeals, but that the pre-union Parliament did not have any jurisdiction to hear criminal appeals.20th Century
Criminal Procedure (Scotland) Act 1995
In 1913, Edwin Keedy, writing in the Journal of the American Institute of Criminal Law and Criminology, would affirm that the High Court "is the Supreme Court for the trial of criminal causes".The supremacy of the High Court was affirmed by Section 124 of the Criminal Procedure Act 1995, which stated:
Scottish devolution
and the establishment of the Scottish Parliament by the Scotland Act 1998 introduced the right to refer points of law to the Judicial Committee of the Privy Council. Such points of law related to human rights compatibility issues or related to devolution issues. Devolution issues are concerned with the legislative competence of the Scottish Parliament and the executive functions of the Scottish Government under the Scotland Act 1998.21st century
Scottish Court in the Netherlands
From May 2000 until March 2002 the High Court of Justiciary sat as the Scottish Court in the Netherlands to try Abdelbaset al-Megrahi and Lamin Khalifah Fhimah for the bombing of Pan Am Flight 103. The Pan Am Flight 103 bombing trial required a treaty between the Government of the United Kingdom and Government of the Kingdom of the Netherlands which created extraterritoriality for the Scottish Court, with Camp Zeist in Utrecht made a subject of Scots law.Legal effect was given to the treaty in the United Kingdom by the High Court of Justiciary Order 1998, an Order in Council. The order empowered the Lord Justice Clerk to appoint three Lords Commissioners of Justiciary to sit as bench trial as both trier of fact and for determining any points of law. The High Court had full authority to determine contempt of court relating to the proceedings.
Following the conviction, which was upheld on appeal of Abdelbaset al-Megrahi, the Scottish Court in the Netherlands ceased to sit. Subsequent appeals were heard in Scotland.
Supreme Court of the United Kingdom
The jurisdiction of the Judicial Committee of the Privy Council in human rights and devolution issues was transferred to the Supreme Court of the United Kingdom by the Constitutional Reform Act 2005. Such a transfer was not without controversy, as commentators, including the Law Society of Scotland and the Advocate General for Scotland, noted that this notionally placed an English court in a position of superiority to the High Court.In May 2013, the Supreme Court's guidance on its jurisdiction over Scottish appeals stated that:
Section 35 of the Scotland Act 2012 modified the procedure for referrals by removing the ability of the Supreme Court to determine the final judgment of the case; in essence a criminal case cannot be remitted to the Supreme Court. The Scotland Act 2012 requires that once the point of law has been decided upon by the Supreme Court, it is for the High Court to resolve the case. An issue can be referred to the Supreme Court either by the Lords Commissioners of Justiciary who are presiding, the Lord Advocate, or the Advocate General for Scotland. Though where two or more Lords Commissioners are presiding they may determine the human rights issue without referral to the Supreme Court.