Procurators Fiscal

Procurators fiscal were mentioned in the records of the Parliament of Scotland for 22 Aug 1584.[1] They were appointed by sheriffs and they collected fines and assisted the sheriff in criminal proceedings. Under the Sheriff Courts (Scotland) Act 1876, they became responsible for prosecuting criminal matters, but in practice they appear to have been prosecutors in the sheriff courts from at least 1701.[2] Under the Sheriff Courts (Scotland) Act 1907 the right of appointment was removed from sheriffs and given to the Lord Advocate, and under the Sheriff Court and Legal Officers (Scotland) Act 1927 all fiscals were to be paid from central government funds.[3] Most fiscals were then barred from holding any other office or doing any other legal work, but of those already in post, about one third were part-time and permitted to continue in private practice,

Procurators fiscal determine whether a case should be prosecuted or not; and also decide whether to use summary or solemn procedures (that is, with a sheriff alone or with a full trial with jury of 15). They investigate all sudden, unexpected or suspicious deaths, present evidence at all fatal accident inquiries, investigate all fires and explosions where there is substantial damage or suspicious circumstances, investigate ultimus haeres estates (where there is no known heir, and the estate therefore falls to the Crown as the ultimate heir) and provide legal advice to the police and government departments.

Under the Police (Scotland) Act 1967 the police have a duty to report to the appropriate prosecutor and comply with the lawful instructions of the appropriate prosecutor.[4]

Compiler: Elspeth Reid (2024)

Related Knowledge Base entries

Sheriff Courts

Procurators Fiscal records and Fatal Accident Inquiries

Bibliography

Moody, Susan R., and Jacqueline Tombs, Prosecution in the Public Interest (Scottish Academic Press, 1982)

References

[1] Ratification of the decreet arbitral between the merchants and craftsmen of Edinburgh, 22 Aug 1584. The Records of the Parliaments of Scotland to 1707, ed. by K.M. Brown and others (University of St Andrews, 2007-2021), 1584/5/100 <http://www.rps.ac.uk/trans/1584/5/100> [accessed 3 Apr 2024].

[2] Sheriff Courts (Scotland) Act 1876 (39 & 40 Vict. c. 70); Susan R Moody and Jacqueline Tombs, Prosecution in the Public Interest (Scottish Academic Press, 1982), p.18.

[3] Sheriff Courts (Scotland) Act 1907 (7 Edw. VII c. 51); Sheriff Court and Legal Officers (Scotland) Act 1927 (17 & 18 Geo. V c. 35).

[4] Police (Scotland) Act 1967 (c.77) s. 17.

Teind Court

The Teind Court, also known as the Court of Teinds, was established in 1707 when the functions of Commissioners of Teinds were transferred to the judges of the Court of Session.[1] It deals with the regulation of teinds, (Scottish tithes), which were originally a tenth part of the annual produce of land claimed by members of the clergy for their support.

Prior to the Reformation, the teinds of many parishes had been appropriated to support monastic houses or bishops or had been acquired by laymen. In 1560 no provision was made to endow the reformed church and many of its ministers were lacking in financial support. Therefore, various attempts were made by parliament and the privy council to agree on a fair division of teinds to enable the support of the clergy. In 1617 a committee of Parliament called the Commissioners of Teinds was appointed to settle suitable stipends for ministers.[2] This enabled any heritor to apply to the Commissioners to have his teinds valued and to apply to buy his teinds (except for any bishop’s teinds which were restored in 1662 and then acquired by the crown in 1689 when the episcopacy was abolished). The Commissioners of Teinds could also grant decrees of modification and locality, which fixed the amount of the stipend to be paid to the parish minister from the teinds and who would pay this. In 1707 the powers of the commissioners were transferred to the Court of Session judges who formed the Teind Court.

The jurisdiction of the Teind Court included the valuation and sales of teinds, the augmentation of stipends, disjunction of lands from one parish to another, erection and union of parishes and the building of new churches. After 1866 the Teind Court could also rule on applications for the feuing or sale of glebe lands (the lands whose produce directly belonged to the minister of the parish).[3]

The work of the Teind Court changed in 1925 when the provisions of the Church of Scotland (Property and Endowments) Act came into force. This ensured that standardised monetary stipends replaced teinds as and when any parish using teinds became vacant. Stipends were standardised on the basis of a finalised teind roll prepared by the clerk of teinds.[4] This meant that over time there was less requirement for the Teind Court and the Teind Office became a branch of the central office of the court.[5]

The records of the Teind Court are held by the National Records of Scotland (reference code TE). Individual decrees of the Teind Court can sometimes be found among the records of church congregations or in the personal papers of ministers or their lawyers, held by local authority archives services or other archives services.

Editor: Elspeth Reid (2023)

Related Knowledge Base entries

Court records

Court of Session

Commissary Courts

Bibliography

Birnie, Arthur, A Short History of the Scottish Teinds (W & R Chambers, 1928)

Black, William George, What are Teinds? An account of the History of Tithes in Scotland (Edinburgh, 1893)

Cooper, Lord, of Culross, ‘The Central Courts after 1532’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton (Stair Society, 1958), pp. 341-49

Elliot, Nenion, Teinds or tithes and procedure in the Court of Teinds in Scotland (Edinburgh, 1893)

Elliot, Nenion, Teind papers: containing an account of tithes in Scotland with suggestions for the amendment of the system (Edinburgh, 1874)

Scottish Record Office Guide to the National Archives of Scotland (HMSO, 1996)

References

[1] Kirk and Teinds Act, 1707 (6 Anne c.10).

[2] Plantation of Kirks Act 1617 (c.3).

[3] Glebe Lands (Scotland) Act, 1866 (29 & 30 Vict. c.71).

[4] Church of Scotland (Property and Endowments) Act (15 & 16 Geo. V c.33).

[5] Lord Cooper of Culross, ‘The Central Courts after 1532’ in An Introduction to Scottish Legal History ed. by G. C. H. Paton (Stair Society, 1958), pp.341-49 (pp.348-49).

Synods

The term ‘synod’ has been used by the Christian church since early times, and the original meaning was an assembly or council of the church. Various forms of church government include synods and their constitution and functions differ. In Scotland, Presbyterian, Episcopal, Methodist and Roman Catholic churches have all had synods at various periods. Other churches, such as Baptists and Congregationalists, tend not to use this term.

In Presbyterian church government, synods are one of the four main church courts, sitting between the general assembly and the presbyteries. Each synod consists of all members of the presbyteries within their bounds, along with any corresponding members appointed by neighbouring synods. Presbyterian synods elect a moderator from amongst their membership, to hold office for a year, and also appoint a clerk. Generally, Presbyterian synods supervise the schemes of the church and they act as a court of appeal from presbyteries. Note, however, that some Presbyterian churches omit synods from their structure, and that the largest Presbyterian church, the Church of Scotland abolished synods in 1992. Some smaller Presbyterian churches only have one synod and therefore do not need a general assembly.[1] The National Records of Scotland holds records of Church of Scotland synods and some other Presbyterian church synods.

The Roman Catholic church uses the term synod for meetings of bishops, held either in Rome, or in the context of national, or provincial and diocesan locations throughout the world. These meetings are held to discuss and decide matters of faith, morals or discipline. Scottish bishops have and continue to attend ecumenical or general synods called by the Pope, generally in Rome; and they have held national synods, such as the Provincial Synod held at Fort Augustus Abbey in 1886. Scottish dioceses have held diocesan synods since the late 19^th century, and each diocese generally has held no more than a dozen since then. Records of these synods will be kept in diocesan or national church archives, and the decisions and outcomes are usually published. Records up to 1965 will likely be written in Latin.

Synods in Episcopalian churches are meetings within one of the levels (deanery, diocese and province) of Episcopalian church government. The Scottish Episcopalians gradually formed a separate communion after 1689, but for decades there were no regular general or diocesan synods, although some local meetings of clergy resembled the pre-1689 presbyteries. From 1720 the bishops constituted a ‘college’ and met in synod, but internal divisions remained until a concordat in 1731 enabled an acceptable form of diocesan governance. Among other measures, the Canons of 1743 provided for Episcopalian synods to meet, presided over by a bishop with a casting vote elected as ‘Primus’. Elected deans could attend synods, represent their clergy and discuss matters, but had no vote. In 1811 a General Synod was established, with a house of bishops and a second house of deans and representative clergy, to decide upon doctrine, worship and discipline. From 1828 the occasional diocesan synods of clergy and bishops were to be held annually, and in 1863 these synods admitted a lay representative from each congregation to vote for bishops. In 1890 the General Synod became the Provincial Synod, reflecting the Scottish Episcopal Church’s place within the Anglican communion. In 1905 lay representatives were included in a Consultative Council on Church Legislation, and from 1961 a third house of lay representatives was added to the Provincial Synod. Alongside this a Representative Church Council was established in 1876 to deal with church finance and general administration, consisting of bishops, clergy, lay officials and lay representatives from every congregation. In 1982, the Provincial Synod and Representative Church Council were merged into one General Synod, which consists of the bishops and elected members, comprising an equal number of clergy and laity and dealing with all areas of church governance, meeting annually, and conducting business through committees in between meetings.[2] The National Records of Scotland holds the records of the College of Bishops, Provincial Synod, Representative Church Council and General Synod.

In Methodism, the name synod was given to district meetings from the 1890s. District meetings began in 1791 as committees of the annual Conference and membership was initially restricted to preachers. The Wesleyan Methodists included laity from 1817 onwards, and other methodist churches also included laity at later dates. District synods set policy and liaise between circuits and the connexion (the central leadership). Records of Scotland District are held in the National Records of Scotland and records of Shetland District are held in Shetland Museum & Archives and copies are held by the Methodist Archives and Research Centre, University of Manchester

Compilers: Elspeth Reid (2024); Tristram Clarke (2024); Andrew Nicoll (2024)

Related Knowledge Base entries

Churches – Presbyterian churches in Scotland

Churches – Episcopalians in Scotland

Churches – Methodists in Scotland

Kirk sessions

Presbyteries

Bibliography

Cox, James T., Practice and Procedure in the Church of Scotland (Church of Scotland, 1934, 1948, 1964, 1976)

MacLean, Marjory A. (ed.), Legal Systems of Scottish Churches (Edinburgh University Press, 2010)

Weatherhead, James L., The constitution and laws of the Church of Scotland ( Board of Practice and Procedure, Church of Scotland, 1997)

References

[1] Marjory A MacLean, ‘Presbyterian Governance’ in Legal Systems of Scottish Churches ed. by Marjory A. MacLean, (Edinburgh University Press, 2010) pp. 1-12.

[2] A.B. Wilkinson ‘Scottish Episcopal Church: polity, law and governance’ in Legal Systems of Scottish Churches ed. by Marjory A. MacLean, (Edinburgh University Press, 2010) pp. 43-55.

Commissary Courts

Before the Reformation, the church, rather than the civil courts, had jurisdiction in cases concerning marriage and legitimacy, confirmation of testaments and inheritance of moveable estates, oaths, defamation or slander, and cases involving the clergy or benefices. Bishops were responsible for exercising this jurisdiction, but much was delegated to clerics called officials and commissaries who seem to have operated on a geographical basis within each diocese and heard cases on consistorial courts.[1]

Following the Reformation, the Privy Council appointed commissaries in Edinburgh and by 1566 commissary courts had been re-established. In addition to covering Edinburgh and the Lothians, the principal commissary court at Edinburgh dealt with marriage, divorce, separation and legitimacy and with the confirmation of testaments of people who died outside Scotland or who had no fixed domicile. Local commissary courts dealt with the confirmation of testaments and related matters, and with defamation or slander, aliment and debts under £40 Scots.

In 1823 all commissary courts apart from Edinburgh ceased to be separate courts and their jurisdictions effectively transferred to the sheriff courts with each sheriffdom becoming a local commissariot.[2] At the same time the debts jurisdiction was removed from the Edinburgh commissary court to the sheriff court. In 1830 cases relating to marriage, divorce and legitimacy were transferred to the Court of Session while aliment cases were transferred to the sheriff courts.[3] In 1836 the Edinburgh commissary court ceased to exist and its jurisdiction transferred to the sheriff court of Edinburgh.[4] The commissariots were finally abolished in 1876 and the duties of commissary clerks transferred to sheriff clerks except for the commissary clerk of Edinburgh. Thereafter, sheriff clerks were required to provide a quarterly list of confirmations to the Edinburgh commissary clerk, creating a central register of confirmations. The Edinburgh commissary clerk also continued to deal with the confirmation of testaments of people who died outside Scotland.[5]

The records of the Commissary Courts are held by the National Records of Scotland (reference code CC). Further details about the history of the commissary courts and the types of records they generated can be found in the NRS online research guide <https://www.nrscotland.gov.uk/research/research-guides/research-guides-a-z/commissary-court-records.> Information on the history of divorce in Scotland, and the records these created, can be found in the relevant NRS guides: <https://www.nrscotland.gov.uk/research/research-guides/research-guides-a-z/divorce-records > and <https://www.nrscotland.gov.uk/research/guides/divorce-records/finding-divorce-records> [all accessed 26 April 2024]

Compiler: Elspeth Reid (2023)

Related Knowledge Base entries

Court records

Court of Session

Sheriff Courts

Bibliography

Cooper, Lord, of Culross ‘The Central Courts after 1532’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton, (Stair Society, 1958) pp. 341-49

Donaldson, Gordon ‘The Church Courts’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton, (Stair Society, 1958) pp. 363-73

Scottish Record Office Guide to the National Archives of Scotland (HMSO, 1996)

Walton, F.P., ‘Courts of the Officials and the Commissary Courts, 1512-1830’ in An Introductory Survey of the Sources and Literature of Scots Law (Stair Society, 1936) pp. 133-53

The Laws of Scotland: The Stair Memorial Encyclopaedia 2^nd re-issue Vol 6 (Butterworths, 2023)

References

[1] Gordon Donaldson, ‘The Church Courts’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton pp. 363-64.

[2] Commissary Courts (Scotland) Act 1823 (4 Geo.IV c.97); Donaldson ‘The Church Courts’ p. 371.

[3] Court of Session Act 1830 (11 Geo. IV & 1 Will IV c. 69).

[4] Commissary Court of Edinburgh, etc, Act, 1836 (6 & 7 Will. IV. c. 41).

[5] Sheriff Court (Scotland) Act 1876 (39 & 40 Vict. c.70).

Lists of local authorities after 1975

Sources: Local Government (Scotland) Act 1973 (c.65) Schedule 1; Local Government etc. (Scotland) Act 1994 (c. 39)

Regional Councils, 1974-1996

Borders Region

Central Region

Dumfries & Galloway Region

Fife Region

Grampian Region

Highland Region

Lothian Region

Strathclyde Region

Tayside Region

District Councils, 1974-1996

Where names were changed, the original names are shown in brackets.

City of Aberdeen

Angus

Annandale and Eskdale

Argyll and Bute (Argyll)

Badenoch and Strathspey

Banff and Buchan

Bearsden and Milngavie

Berwickshire

Caithness

Clackmannan

Clydebank

Clydesdale (Lanark)

Cumbernauld and Kilsyth (Cumbernauld)

Cumnock and Doon Valley

Cunninghame

Dumbarton

City of Dundee

Dunfermline

East Kilbride

East Lothian

Eastwood

City of Edinburgh

Ettrick and Lauderdale

Falkirk

City of Glasgow

Gordon

Hamilton

Inverclyde

Inverness

Kilmarnock and Loudon

Kincardine and Deeside

Kirkcaldy

Kyle and Carrick

Lochaber

Midlothian

Monklands

Moray

Motherwell

Nairn

Nithsdale

North-east Fife

Perth & Kinross

Renfrew

Ross and Cromarty

Roxburgh

Skye and Lochalsh

Stirling

Stewartry

Strathkelvin (Bishopbriggs and Kirkintilloch)

Sutherland

Tweeddale

West Lothian

Wigtown (Merrick)

Islands Councils, 1974-present

Orkney Islands

Shetland Islands

Comhairle nan Eilean Siar (previously Western Isles)

Councils, 1996-present (see also Islands Councils shown above)

Where names were changed, the original names are shown in brackets.

City of Aberdeen

Aberdeenshire

Angus

Argyll and Bute

Clackmannan

City of Dundee

Dumfries and Galloway

East Ayrshire

East Dunbartonshire

East Lothian

East Renfrewshire

City of Edinburgh

Falkirk

Fife

City of Glasgow

Highland

Inverclyde

Midlothian

Moray

North Lanarkshire

North Ayrshire

Perth & Kinross (Perthshire and Kinross)

Renfrewshire

Scottish Borders (The Borders)

South Ayrshire

South Lanarkshire

Stirling

West Dunbartonshire (Dumbarton and Clydebank)

West Lothian

Sheriff Courts

Sheriff Courts originated with the development of sheriffs and sheriffdoms during the 12^th century, from the time of David I.[1] Sheriffs had military, administrative, financial and judicial powers and were responsible for dealing with rebels, collecting taxes and other revenues, maintaining royal castles, local defence and holding royal courts in the local area. The position became, in many jurisdictions, heritable and profitable.

By the 16^th century, Sheriff courts were presided over by the sheriff or by a sheriff depute. The head courts were to be held three times a year with additional lesser courts held to deal with minor matters. Sheriff courts could deal with manslaughter, theft and other lesser crimes as well as civil matters. They could also act as a court of appeal from the barony courts, but the separate jurisdictions of the various franchise courts and regality courts gave litigants some choice in where cases were pursued. Sheriff courts also registered deeds covering a wide range of bonds, agreements and other legal actions. They could not, however, deal with the four pleas of the crown (murder, rape, robbery and arson) which had to be heard by the High Court of Justiciary.[2]

There were attempts to improve and reform the sheriff court, such as in 1709 when sheriffs were required to attend the justices of the High Court on their circuits.[3] Major reform came in 1747, as a direct consequence of the Jacobite rebellions, when heritable sheriffs along with other heritable judicial positions, apart from baronies with their powers limited to petty offences, were abolished and instead advocates were appointed as sheriffs depute to preside over the sheriff courts.[4] Payment through salaries instead of fees and permanent appointments of experienced lawyers drove a greater professionalisation of sheriffs.

As a result of the abolition of heritable jurisdictions, the powers of some burgh courts in criminal matters were limited and effectively transferred to the sheriff courts, and over the 19^th and 20^th century sheriff courts acquired more powers as the roles of Justice of the Peace courts and burgh courts diminished. Sheriff courts also took over the functions of the Commissary Courts (wills and testaments) and the Admiralty Court on their abolition in 1823 and 1830.[5] Small debts, bankruptcy, sequestration and matters relating to heritable rights moved into the sheriff court’s jurisdiction by 1877 and fatal accident inquiries were added in 1895.[6] Between 1897 and 1946 sheriff courts dealt with workmen’s compensation.[7] In the 20^th century, sheriff courts were given jurisdiction in adoptions, and their jurisdiction over actions of aliment, declarator, divisions of commonty and registrations of bonds and obligations was further extended.[8] From 1908 sheriffs dealt with juvenile offenders in juvenile courts until these were replaced by children’s hearings in 1971.[9]

In 2014 a Sheriff Appeal Court was established, and the judicial functions of the sheriff courts and their various officers (sheriffs principal, sheriffs and summary sheriffs) were re-defined.[10] Sheriff courts can deal with all criminal matters except murder, rape and treason, and hears all civil matters under a defined limit (currently £100,000) and can also hear all civil matters above that limit. Most appeals following sheriff court judgements go to the Sheriff Appeal Court but appeals in some civil cases go to the Court of Session and appeals in ‘solemn’ (ie: serious) criminal cases go to the High Court of Justiciary.

By 1700 there were 33 sheriffdoms and this has declined over time to, in 2023, six sheriffdoms operating 39 sheriff courts.

The records of sheriff courts are held by the National Records of Scotland (reference code SC).

Compiler: Elspeth Reid (2023)

Related Knowledge Base entries

Court records

Burgh courts

District courts

High Court of Justiciary

Court of Session

Bibliography

Malcolm, C.A., ‘The Sheriff Court: Sixteenth Century and Later’ in An Introduction to Scottish Legal History (Stair Society, 1958), pp. 356-62

Milne, Isabel A., ‘The Sheriff Court before the Sixteenth Century’ in An Introduction to Scottish Legal History (Stair Society, 1958), pp. 350-55

National Records of Scotland Research Guide – Sheriff Court Records <https://www.nrscotland.gov.uk/research/research-guides/research-guides-a-z/sheriff-court-records > [accessed 26 April 2024]

Scottish Record Office Guide to the National Archives of Scotland (Stair Society/HMSO, 1996)

The Laws of Scotland: The Stair Memorial Encyclopaedia 2nd re-issue Vol 6 (Butterworths, 2023)

Whetstone, Ann E., Scottish County Government in the Eighteenth and Nineteenth Centuries (John Donald, 1981)

References

[1] Isabel A. Milne ‘The Sheriff Court before the Sixteenth Century’ in An Introduction to Scottish Legal History (Stair Society, 1958), pp.350-55 (p.350).

[2] Milne, ‘The Sheriff Court before the Sixteenth Century’ p.354.

[3] Circuit Courts (Scotland) Act 1709 (8 Anne c.16).

[4] Heritable Jurisdictions (Scotland) Act 1746 (20 Geo. II c.43).

[5] Commissary Courts (Scotland) Act, 1823 (4 Geo. IV c. 97); Court of Session Act, 1830 (11 Geo. IV c. 30).

[6] Bankruptcy (Scotland) Act 1839 (2 & 3 Vict. c.41); Sheriff Courts (Scotland) Act 1876 (39 & 40 Vict. c. 70); Fatal Accident Inquiry (Scotland) Act 1895 (57 & 58 Vict. c.36).

[7] Workmen’s Compensation Act, 1897 (59 & 60 Vict. c.37).

[8] Adoption of Children (Scotland) Act 1930 (c.37); Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII c. 51); Sheriff Courts (Scotland) Act, 1971 (c.58).

[9] Children Act 1908 (8 Edw. VII c.67).

[10] Courts Reform (Scotland) Act 2014 (asp 18).

Presbyteries

The presbytery is a church court in the presbyterian system of church government, and its role is to superintend ministers, Kirk Sessions and all spiritual matters within its bounds and to elect annually the ministers and elders to sit on the higher church courts. Presbyterian church government is based on a hierarchy of church courts: kirk session, presbytery, synod and general assembly are the four main courts, but some presbyterian churches omit synods and some smaller presbyterian churches only have one synod and therefore do not need a general assembly.[1]

Presbyteries are formed by the relevant General Assembly, which has the power to unite, disjoin and erect presbyteries and to change their boundaries. Each presbytery consists of ministers and elders. The ministers may include ordained missionaries, chaplains and retired ministers. A representative elder is elected by each kirk session within the bounds of the presbytery. Additional elders are elected by the presbytery in order to ensure that the number of ministers and elders in the presbytery are equal.

Presbyteries elect a moderator from amongst their membership, to hold office for a year. Until 1996, Church of Scotland presbyteries were required to elect an ordained minister as their moderator, but from then an elder or deacon could be elected.[2]

Ministers are subject to discipline through presbyteries and what might loosely be termed employment matters are normally dealt with by presbyteries, including calls, demissions, resignations, admission of candidates for ministry, the diaconate and the readership, ordination and trials for licence. Presbyteries carry out quinquennial visitations of congregations and examine their records. They also consider matters referred to them by Synods and General Assemblies, consider petitions and overtures including matters of public interest, and act as a court of appeal from kirk sessions.

The records of presbyteries of the Church of Scotland are held by National Records of Scotland (NRS) or by local archives under the charge and superintendence of NRS. NRS also holds some presbytery records for other presbyterian churches in Scotland. Further details can be found in the NRS online catalogue by searching for records beginning with the reference code CH and with the word presbytery in the description.

Compiler: Elspeth Reid (2023)

Related Knowledge Base entries

Kirk Sessions

Synods

Presbyterian Churches

Bibliography

Cox, James T., Practice and Procedure in the Church of Scotland (Church of Scotland, 1934, 1948, 1964, 1976)

MacLean, Marjory A. (ed), Legal Systems of Scottish Churches (Edinburgh University Press, 2010)

United Free Church of Scotland. General Assembly, Manual of practice and procedure of the United Free Church of Scotland (Offices of the United Free Church, 1905, 1916, 1927)

Weatherhead, James L., The constitution and laws of the Church of Scotland (Board of Practice and Procedure, Church of Scotland, 1997)

References

[1] Marjory A MacLean, ‘Presbyterian Governance’ in Legal Systems of Scottish Churches ed. by Marjory A. MacLean, (Edinburgh University Press, 2010) pp. 1-12.

[2] James L Weatherhead, The constitution and laws of the Church of Scotland (Board of Practice and Procedure, Church of Scotland, 1997) p. 97

High Court of Justiciary

The High Court of Justiciary, often referred to simply as the High Court, is the supreme criminal court in Scotland.[1]

The High Court had its origins in the office of king’s justice or justiciar, which emerged in the 12^th century. The justiciars held court in each sheriffdom, ‘on ayre’ (circuit), and in the 15^th century there were attempts to hold these more regularly.[2] These justice ayres heard both criminal and civil cases, including the four pleas of the crown (murder, robbery, rape and arson) and appeals from the sheriff courts. From the 14^th century there were two justiciars, covering the north and south of Scotland but in the early 16^th century these two offices were combined into the Lord Justice General and from 1524 the court was based in Edinburgh to hear criminal cases. Its effectiveness was limited by the power of local nobility, franchise courts as well as form the King and Privy Council. The Campbells, Earls and Dukes of Argyll, for example, held the office of Justiciar-General for the Sheriffdom of Argyll and Tarbert and the Hebridean Isles until 1748, having previously held the office of Lord Justice General on a hereditary basis.

The High Court of Justiciary was established as a separate court from the Court of Session in 1672 to hear criminal cases.[3] It consisted of the Lord Justice General, the Lord Justice Clerk and five Lords of Session, and it sat in Edinburgh but was to hold circuit courts annually, and from 1747, bi-annually. The circuits were initially set up to cover the north, sitting in Perth, Aberdeen and Inverness; the south, sitting in Dumfries and Jedburgh; and the west, sitting in Glasgow, Ayr and Stirling. This was adjusted in 1748 to include a sitting at Inverary as part of the western circuit, with Ayr moving into the southern circuit. Sittings at Dundee were added to the northern circuit in 1881. After 1887, the Lord Advocate could call for special sittings of the High Court at any convenient time or place as required and this led to the effective demise of the bi-annual circuit system. Instead, the High Court sits in Edinburgh, Glasgow and other towns on circuit, as and when required.[4]

The High Court hears all murder, rape and treason cases and generally any criminal cases where the penalty on conviction is potentially more than the penalty that a sheriff court can impose. The High Court also acts as the court of appeal from the sheriff courts as well as from its own trials.

The records of the High Court are held by the National Records of Scotland and further details can be found in the NRS online catalogue by searching for the phrase ‘High Court of Justiciary’ (reference code JC).

Contributors: Elspeth Reid, Alison Rosie (2023)

Related Knowledge Base entries

Bibliography

Scottish Record Office, Guide to the National Archives of Scotland (HMSO, 1996)

Dickinson, W. Croft, ‘The High Court of Justiciary’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton (Stair Society, 1958), pp. 408-12

Longmore, B., ‘The High Court of Justiciary Databases: a ‘Solemn Path’ through Crime’ Scottish Archives 10 (2004) pp. 39-54

National Records of Scotland Research Guide – Crime and Criminals <https://www.nrscotland.gov.uk/research/guides/crime-and-criminals> [accessed 26 April 2024]

The Laws of Scotland: The Stair Memorial Encyclopaedia, 2nd re-issue Vol 6 (Butterworths, 2023)

References

[1] Constitutional Reform Act 2005 (c.4); Scotland Act 2012 (c. 11) s. 35.

[2] W. Croft Dickinson, ‘The High Court of Justiciary’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton (Stair Society, 1958), pp. 408-12 (p. 408)

[3] Courts Act, 1672 (c.40).

[4] Criminal Procedure (Scotland) Act 1887 (50 & 51 Vict.c.35); Scottish Record Office Guide to the National Archives of Scotland (HMSO, 1996), pp. 120-22.

Fire authorities

Fire authorities were established in 1947 and were responsible for oversight of fire brigades and appointment of the chief fire officers. From 1947 until 1975 the fire authorities were the large burghs, counties and counties of cities which were required to work together within a joint committee for each of the ten designated areas and submit an administrative scheme to the Secretary of State for Scotland covering their arrangements for providing fire services, the relationship between fire authorities represented on the joint committee and other matters.[1]

In 1975, regional and islands councils were designated as the fire authorities. The regional councils of Borders and Lothian formed a joint committee, as did the councils of Orkney, Shetland, Western Isles and Highland; while the other six regional councils were the fire authorities for their respective areas.[2] Under the Local Government etc (Scotland) Act 1994 eight independent joint fire authorities were set up, covering the same geographical areas as before, with representation on their boards from the relevant unitary local authorities.[3] The Police and Fire Reform (Scotland) Act 2012 removed fire services from local authority supervision and created a national service led by a Board of 10 members appointed by Scottish Ministers.[4]

Records of fire authorities before 2012 are generally found with the records of the local authority which provided administrative support. Copies may be held by the other local authorities which had representation on the fire authority.

Compiler: Elspeth Reid (2023)

Related Knowledge Base entries

Fire & Rescue Services

Bibliography

Blackstone, Geoffrey, A history of the British Fire Service (London: 1957)

Bell, James and James Paton, Glasgow: Its Municipal Organization and Administration (MacLehose, 1896)

Ewen, Shane Fighting fires: creating the British fire service, 1800-1978 (Palgrave Macmillan, 2010)

Ferguson, Keith, An introduction to local government in Scotland (The Planning Exchange, 1984)

References

[1] Fire Services Act 1947 (10 & 11 Geo. VI c.41) s.36, Sch.4.

[2] Local Government (Scotland) Act 1973 (c.65) s.147.

[3] Local Government etc (Scotland) Act, 1994 (c.39).

[4] Police and Fire Reform (Scotland) Act 2012 (asp 8)

Court of Session

The Court of Session is the supreme civil court in Scotland. Between 1707 and 2009 there was a further right of appeal to the House of Lords and since 2009 this right of appeal has been to the Supreme Court of the United Kingdom. As a court of first instance (ie: hearing cases for the first time) the Outer House of the Court of Session hears the same range of civil cases as the sheriff courts but generally deals with more complex or high value cases (currently over £100,000) and also hears maritime cases. As a court of appeal, the Inner House of the Court of Session hears civil cases from sheriff courts and from the Outer House of the Court of Session.

The Court of Session was first identified by this name in Article 19 of the Treaty of Union of 1707.[1] Its jurisdiction dates back well beyond this, however, and its formal foundation is generally attributed to the decision of a parliament of James V in 1532 to set up a permanent college of justice ‘for the doing and administration of justice in all civil actions’ consisting of 15 paid judges who became known as Lords of Council and Session.[2]

Very little is known of the administration of civil justice in the medieval period, but the records indicate a range of royal and parliamentary councils which moved with the royal court and which included some legal advisers.[3] The creation of the College of Justice in 1532 enabled the development of professional lawyers and centralised civil justice in Edinburgh.[4]

The division of the Court of Session into what became known as the Inner House and Outer House emerged during the regency of Mary of Guise, when preparatory work was dealt with separately from the court’s deliberations. The administration of oaths and preparation of actions required the supervision of only a small number of judges in the outer parts of the building, while deliberations and decisions required the whole court sitting together.[5]

The Court of Session was reformed in 1808 by dividing the Inner House into a First Division headed by the Lord President and a Second Division headed by the Lord Justice-Clerk. With some adjustments this became a settled arrangement by 1825.[6] By 1868 the Outer House consisted of a several courts of first instance, while the Inner House consisted of two appeal courts.[7] This basic division between courts of first instance and courts of appeal has been maintained to date. In 1933 the Lord President was enabled to add a third division of the Inner House as and when needed.[8] The numbers of judges were reduced to 13 in 1830, increased to 15 in 1948 and increased to a maximum of 24 in 1988.[9]

The jurisdiction of the Court of Session has been modified several times over its existence. In 1672 it ceased to hear any criminal cases when the High Court of Justiciary was established.[10] In 1830 the Admiralty Court, which had dealt with both criminal and civil cases relating to maritime contracts, salvage and crimes on the high seas, was abolished and its jurisdiction over maritime civil cases transferred to the Court of Session (while other matters were transferred to the sheriff courts).[11] The Jury Court, established in 1815 to deal with cases remitted to it by the Court of Session, was united with the Court of Session in 1830. That same year, cases relating to marriage, legitimacy and divorce were removed from the Commissary Courts to the Court of Session.[12] In 1856 the business of the Court of Exchequer, dealing with customs and excise, revenue and stamp duty, was absorbed by the Court of Session.[13] The Bill Chamber, which was set up as a vacation court in 1532, and which mainly dealt with bills and petitions to the Court of Session, was abolished in 1933 and its business merged with that of the Court of Session.[14]

Since 2009, the Supreme Court of the United Kingdom has replaced The House of Lords as the final court of appeal for cases from the Court of Session.[15]

The records of the Court of Session are held by the National Records of Scotland and further details can be found in the NRS online catalogue by searching for the Court of Session (reference code CS).

Contributors: Elspeth Reid, Alison Rosie (2023)

Related Knowledge Base entries

Court records

High Court of Justiciary

Sheriff courts

Burgh courts

District courts

Bibliography

Scottish Record Office Guide to the National Archives of Scotland (HMSO, 1996)

Cooper, Lord, of Culross, ‘The Central Courts after 1532’ in An Introduction to Scottish Legal History ed by G H C Paton (Stair Society, 1958), pp. 341-49

Coutts Winifred, The Business of the College of Justice in 1600 (Stair Society, 2003)

Duncan, A.A.M., ‘The Central Courts before 1532’ in An Introduction to Scottish Legal History ed by G. H. C. Paton (Stair Society, 1958), pp. 321-40

Hannay, R.K., The College of Justice (Stair Society, 1990)

The Laws of Scotland: The Stair Memorial Encyclopaedia, 2^nd re-issue Vol 6 (Butterworths, 2023)

References

[1] Union with England Act 1707 (c. 7).

[2] College of Justice Act, 1532 (c.2).

[3] Scottish Record Office Guide to the National Archives of Scotland (HMSO, 1996), p.101.

[4] Hector MacQueen, ‘Introduction’ in The College of Justice by R. K. Hannay, (Stair Society, 1990) pp. i-ii.

[5] R.K. Hannay The College of Justice (Stair Society 1990), pp.95-96.

[6] Cooper, Lord, of Culross, ‘The Central Courts after 1532’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton (Stair Society, 1958), pp. 341-49 (p.343); Court of Session Act, 1825 (6 Geo. IV c. 120).

[7] Court of Session Act 1868 (31 & 32 Vict. c. 100).

[8] Administration of Justice (Scotland) Act 1933 (23 & 24 Geo V c. 41).

[9] Court of Session Act 1830 (11 Geo. IV & 1 Will IV c. 69); Administration of Justice (Scotland) Act, 1948 (12, 13 & 14 Geo. VI c. 10); Court of Session At 1988 (c. 36).

[10] Courts Act 1672 (c.40).

[11] Court of Session Act 1830 (11 Geo. IV & 1 Will IV c. 69).

[12] Jury Trials (Scotland) Act 1815 (55 Geo. III c. 42); Court of Session Act 1830 (11 Geo. IV & 1 Will IV c. 69).

[13] Exchequer Court (Scotland) Act 1856 (19 & 20 Vict. c. 56).

[14] Scottish Record Office Guide to the National Archives of Scotland (HMSO, 1996), pp. 113-14; Administration of Justice (Scotland) Act 1933 (23 & 24 Geo V c. 41).

[15] Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (SSI 2009 No. 323).