Administration of Justice (Scotland) Act 1933

The Administration of Justice (Scotland) Act 1933 is an act of the Parliament at Westminster legislating for Scotland which introduced changes in Scottish legal procedure "following the recommendations of a Royal Commission which reported in 1927".[1]:12

Administration of Justice (Scotland) Act 1933
Long titleAn Act to amend the law of Scotland relating to the Court of Session and procedure therein, to the appointment of Officers in the said Court and the High Court of Justiciary, to criminal jury trials and to the Sheriffs and procedure in the Sheriff Court, and with regard to solicitors' fees ; and for purposes connected therewith.
Citation23 & 24 Geo. 5, c. 41
Territorial extentScotland
Dates
Royal assent28 July 1933
Part of a series on
Scots law
Administration
Civil courts
Criminal courts
Special courts
Criminal prosecution
Legal profession

Background to Act

The Act was introduced following the Royal Commission on the Court of Session and the Office of Sheriff Principal.[1]:12[2]

The Judiciary

The Act abolished the ancient practice of a trial (or examination) of qualifications of a nominee for appointment as a judge of the Court of Session (s. 1). The Bill ChamberA was abolished (s. 3) and an additional division of the Inner House was created (s. 2). It provided new arrangements for the sittings of judges (granting them a power to extend a session if required) and for the work of the vacation judge (s. 4).[1]:12

Officers of the Courts

Provisions were made for the appointment of officers of the High Court of Justiciary and the Court of Session and their superannuation arrangements.[1]:13

Civil procedure

Court of Session

The Act ended the right of parties to choose the judge (Lord Ordinary) or Division for the hearing of their causes or appeals (s. 5). It simplified the form of proceedings (ss. 6-9) and created a procedure to allow summary trial (by a judge without a jury) (s. 10).[1]:12

A procedure for a simple majority verdict by a jury was introduced (majority verdicts had long been available to criminal juries in Scotland).[3]:1078 Provision for made for situations where a juror died or became unfit to continue serving (s. 11).B

Rules Councils

A Rules Council for the Court of Session and another for the Sheriff Courts were established fashioned on the Rule Committee of the Supreme Court in England. They were given a power to draft rules regarding any matters about which Acts of Sederunt may be made. These were then to be submitted to the Court which might enact them (with or without amendment) in an Act of Sederunt. An express power was granted so that, as "in the similar provision for rules of court in England, an Act of Sederunt may "modify, amend or repeal any enactments, including enactments contained in this Act," relating to procedure."[1]:12

Both Scottish Rules Councils included representatives of the judiciary and the two branches of the legal profession (advocates and solicitors); and the Lord President of the Court of Session was made an ex officio member of both Councils.[1]:12

The statutory power to make Acts of Sederunt granted in sections 16 and 17 of the Act was consolidated and replaced by sections 5 and 6 of the Court of Session Act 1988 (UK).[4]:[16], [29], [50]

Criminal procedure

Courts were given a discretion to continue a solemn proceeding in cases where a juror died or became unfit to continue serving, provided that the number of continuing jurors was not less than twelve.B Should the jury return a majority verdict of guilty, there must be at least eight jurors supporting that verdict.[1]:12–13

Either side in criminal trials on indictment were given a right to admit documents without formal proof by the other side; by agreement between the prosecution and defence, copies of documents might be tendered as if they were the originals; but, if not legally represented, the accused may not so admit nor agree.[1]:13

Sheriffdoms

A power to reorganise the then fifteen territorial sheriffs and the sheriff of Chancery was created. The Secretary of State for Scotland was permitted to form new sheriffdoms by uniting two or more counties or parts of counties should a vacancy occur in the office of sheriff; but such orders were not to take effect until both Houses of Parliament have resolved to approved them.[1]:13

1934 Rules of Court

After commencement of the Act, new Rules of Court for the Court of Session were embodied by Act of Sederunt in 1934. The then Lord President Clyde wrote in the Preface to the new Rules:[4]:[48]

"The purpose of these Rules is not to provide a comprehensive summary of Court of Session procedure, but to reform and extend the existing procedure so far as necessary to adapt it to the new conditions created by the Act ....
"As regards matters of procedure, the Act restores to the Court of Session its ancient autonomy which modern legislation had almost smothered."

See also

Notes
A.^ The Bill Chamber was "under the same roof"[2] as the Court of Session, but was a separate court[5]:547 or jurisdiction.[2] Its history and function were discussed in the Report of the Royal Commission on the Court of Session and the Office of Sheriff Principal (1927) which concluded "the usefulness of the Bill Chamber as a Court separate from the Court of Session no longer exists."[2]
B.^ Juries in civil causes are impanelled in Scotland with twelve jurors and fifteen jurors in solemn proceedings of criminal charges.[6][7]

References
  1. Cecil T. Carr, C. W. Duret Aubin, Arthur Quekett, A. Denis Pringle, "British Isles", (1935) 17 (2) Journal of Comparative Legislation and International Law, Third Series 1 at pp 12-13,JSTOR 754005 accessed 28 November 2011.
  2. Report of the Royal Commission on the Court of Session and the Office of Sheriff Principal with summary of evidence, Volume I (The report) (1927) (Cmd. 2801).
  3. T. B. Smith, "Civil Jury Trial: A Scottish Assessment", (1964) 50 (6) Virginia Law Review 1076, JSTOR 1071461 accessed 28 November 2011.
  4. Tonner & Anor v Reiach & Hall [2007] CSIH 48, [2007] ScotCS CSIH_48 (12 June 2007) accessed 29 November 2011.
  5. Robert Wyness Millar, "Civil Pleading in Scotland" (Part I) (1932) 30 (4) Michigan Law Review 545 JSTOR 1280689 accessed 23 October 2011.
  6. Rufus Fleming, "The Scottish Jury", (1907) 5 (7) Michigan Law Review 520 JSTOR 1273463 accessed 23 September 2011
  7. Judicial Studies Committee, Jury Manual (2011, Judicial Studies Committee for Scotland, Edinburgh).
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