Advice

Scottish Criminal Justice System

The Scottish Criminal Justice System has developed separately and distinctly over many centuries from the English System. Scotland has now its own devolved Parliament but long before that came into existence there were significant differences in the Scottish approach. Accordingly a significant amount of law applicable in England is of no relevance at all in Scotland and the approach to the rules of evidence, corroboration, police powers of search, arrest and detention are in the main unique.

Police Powers Of Search

The police have no automatic power of search in Scotland and any search generally must be carried out either in exercise of a statutory power (such as Misuse of Drugs Act, Carrying of Knives (Scotland) Act. Any search carried out in terms of these statutory powers can only properly happen where there is “reasonable suspicion” that the person is carrying a prohibited article. Other than that, a search warrant should be obtained from a Justice of the Peace or Sheriff to authorise search of premises or persons and their possessions. A search without a warrant or carried out arbitrarily and without consent can be objected to which, if successful, will exclude any evidence recovered from that search.

Police Powers of Arrest

The police have a power to arrest an individual for up to 12 hours if they have reasonable grounds to suspect that the person has committed a crime punishable by imprisonment. The reasonable grounds for suspicion do not require to be corroborated and during the course of arrested the suspect, while having the right to have a solicitor informed of his arrested, has no automatic right to have that solicitor present during any questioning. If being questioned, the any arrested persons must be cautioned that they need not answer any questions. In the absence of such a caution evidence of any answers given in response to such questioning is likely to be inadmissible in a subsequent prosecution. The police have powers during the course of arrest to take samples, fingerprints etc. from the individual. At the end of the 6 hour period the individual must be released or charged.

Accident Claims

For accident claims to succeed you need to show 2 main things – firstly that the accident was caused by fault or negligence on the part of the person against whom you wish to make the claim; and secondly, that as a result of that fault or negligence you suffered some form of loss, such as an injury, loss of income, damage to property, etc. However, the other person’s act of negligence must be of a type that would have been avoided if he or she had taken reasonable precautions. In addition the person responsible will only have to compensate you for losses which are reasonably foreseeable.

There are time limits for pursuing such cases, and indeed many other legal claims, which means it is better to take legal advice about any such claims as soon as you possibly can. After these time limits expire, you will generally not be able to pursue your claim, no matter how strong it may be; although there are some exceptions to this rule.

In appropriate cases we will be prepared to proceed with accident claims on a “no win – no fee” basis. Please ask us about this.

Grounds for Divorce

While there is currently only one ground for divorce in Scotland – that the marriage has broken down irretrievably – it can only be proved in any one of 4 ways:-

Unreasonable behaviour

Adultery

1 year separation with the other party’s consent, or

2 years separation, without consent

Divorce - Financial Claims

These can either be for aliment – based on the income and expenditure of both parties and continuing for up to 3 years after divorce – or for capital – usually based on the value of the “matrimonial property” at the separation date. That property nowadays sometimes includes pension rights which may have a very large value.

The law normally looks for a “clean break” on divorce, so that continuing aliment after divorce is relatively unusual nowadays, particularly if there has been an award of a capital sum of money. However, there can still be awards of aliment (termed “periodical allowance”) if either spouse can show that such an award will be necessary for a period to allow for adjustment to the changed financial circumstances.

Divorce - Court Proceedings

In situations where the irretrievable breakdown of the marriage is being proved by evidence of a 1 year separation with consent of the other party or by evidence of 2 year separation, and there are no children under 16 and there are no financial claims to be made by either party, the case can proceed under a simplified procedure. Parties can obtain the appropriate forms from their local Sheriff Courts. However, it would always be wise to take legal advice first of all to be absolutely sure that there is no basis for financial claims, as the right to pursue a financial claim will ordinarily be lost for ever if it is not put forward at the time of divorce.

Even if the other party does not defend an action based on the first three of those types of cases, the person raising the action must produce corroborating evidence to the court.

Actions can be raised in the Court of Session in Edinburgh or, more commonly, in the local Sheriff Court for the area in which the person raising the action (the "Pursuer") resides.

If there are any children of the marriage, then the Court will require evidence as to their welfare arrangements before being able to grant and order (a "decree") for divorce.