Exploring Legal Differences: English Law In Scotland

Scotland has its own distinct legal system and jurisdiction, which are separate from those in England. This means that English law does not apply in Scotland. The Scottish legal system is a hybrid or mixed system, containing civil law and common law elements, and can be traced back to the High Middle Ages. While there are some similarities between English and Scottish law, there are also significant differences, including in the areas of property law, criminal law, trust law, inheritance law, evidence law and family law.

Scots law is separate from English law

Scots law is the legal system of Scotland and is separate from English law. It is a hybrid system, containing both civil law and common law elements, and can be traced back to a number of different historical sources.

Since the Union with England Act of 1707, Scotland has shared a legislature with England and Wales. However, Scotland retained a fundamentally different legal system, and the Union brought English influence to bear on Scots law.

There are important differences between Scots law and English law in areas such as property law, criminal law, trust law, inheritance law, evidence law, and family law. For example, the age of legal capacity in Scotland is 16 years old, whereas in England and Wales, it is 18. In criminal law, Scotland employs 15-member juries for trials, compared to 12-member juries in England and Wales. Additionally, judges and juries in Scottish criminal trials have access to a "third verdict" of "not proven", which does not exist in English law.

The Scottish court structure also differs from that of England and Wales. Scotland's supreme criminal court is the High Court of Justiciary, while the Court of Session is the supreme civil court. In contrast, the Supreme Court is the highest court in England and Wales for both criminal and civil cases.

While there are some similarities between Scots law and English law, particularly in areas of UK-wide interest such as commercial law, consumer rights, taxation, employment law, and health and safety regulations, the two legal systems remain distinct.

Scotland has a distinct judicial system and jurisdiction

Scotland's legal system is a hybrid or mixed system, containing civil law and common law elements. It recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. The Scottish Parliament passes legislation on all areas of devolved responsibility, while the United Kingdom Parliament does so on reserved matters.

The Scottish court system consists of three separate courts: civil cases are tried in the Court of Session, criminal cases in the Court of Judiciary, and the Sheriff Courts handle both civil and criminal cases. In contrast, the English court system consists of judges who make decisions based on legal precedent, with overall power held in the Supreme Court of the UK.

There are several differences between Scottish law and English law. For example, in Scotland, the drink-driving limit is lower, shops cannot sell alcohol after 10 pm, and there is no such offence as arson or manslaughter (these are called 'wilful fire raising' and 'culpable homicide' respectively). Additionally, Scottish law allows for a 'not proven' verdict, which is not used in England.

Differences also exist in financial settlements following divorce, wills and probate law, property law, and personal injury claims. For instance, Scottish law adopts a fair sharing principle for financial settlements after divorce, aiming for an even 50:50 split of total assets. In England, the needs of the parties and any children are prioritised over sharing. In terms of wills, marriage does not invalidate a previous will in Scotland, and witnesses can be beneficiaries, which is not the case in England.

Scotland's distinct judicial system and jurisdiction result from its historical influences and traditions, which differ from those of England and Wales.

Differences in drink-driving limits

There are three legal systems in the UK: English law, which applies in England, Northern Ireland, and Wales; Welsh law, which applies in Wales; and Scottish law, which applies in Scotland. While there is substantive law that is applicable to the whole of the UK, the three legal systems have their own unique histories and roots.

One of the differences between English and Scottish law is the drink-driving limit. In England, Wales, and Northern Ireland, the drink-driving limit is 80 milligrammes of alcohol per 100 millilitres of blood, 35 micrograms per 100 millilitres of breath, and 107 milligrammes per 100 millilitres of urine. In Scotland, the limit is lower, with a blood alcohol limit of 50 milligrammes per 100 millilitres, a breath alcohol limit of 22 micrograms per 100 millilitres, and a urine alcohol limit of 67 milligrammes per 100 millilitres.

The lower limit in Scotland means that people can be charged with drink-driving at a lower level of alcohol consumption compared to England, Wales, and Northern Ireland. This difference in limits can be confusing for people travelling between the countries, and it is important to be aware of the specific laws in each region. The safest advice is to avoid alcohol completely if you plan to drive, as even small amounts of alcohol can affect your ability to drive safely.

The drink-driving limits are based on the amount of alcohol detected in someone's breath, blood, or urine. However, it is impossible to determine exactly how many drinks this equates to, as it varies from person to person depending on factors such as weight, age, sex, metabolism, stress levels, and the type and amount of alcohol consumed.

Scotland's 'not proven' verdict

Scotland has a separate legal system from England and Wales. Scots law is a hybrid legal system containing civil law and common law elements, with roots in various historical sources.

One of the most notable differences between the legal systems in Scotland and England is the existence of the 'not proven' verdict in Scotland. This verdict is one of three possible outcomes in Scottish criminal trials, alongside 'guilty' and 'not guilty'. The 'not proven' verdict has the same legal effect as a 'not guilty' verdict, resulting in the accused being acquitted and unable to be tried again for the same offence. However, there is no specific definition of the 'not proven' verdict or its distinction from a 'not guilty' verdict.

Historically, between the late 17th century and early 18th century, jurors in Scotland were only expected to determine whether individual factual allegations were proven, rather than ruling on an accused's guilt. This changed in 1728 when, in a murder trial, the defence lawyer persuaded the jury to declare the defendant 'not guilty', despite the facts being proven. The reintroduction of the 'not guilty' verdict was part of a wider movement that saw an increase in the power of juries.

Today, the 'not proven' verdict is typically used when there is a belief that the defendant is guilty, but the prosecution has not provided sufficient evidence. Critics argue that this verdict is confusing for juries and the public, stigmatises the accused, and fails to provide closure for victims. There have been several calls to abolish the 'not proven' verdict, often prompted by families of victims who feel aggrieved by what they perceive as an unfair verdict.

On the other hand, proponents of the 'not proven' verdict argue that it offers additional protection to the accused and reduces the risk of wrongful convictions. They contend that the current system works well and there is no evidence that it needs to be changed.

In April 2023, the Scottish government proposed the Victims, Witnesses, and Justice Reform Bill, which includes the abolition of the 'not proven' verdict. The bill is currently under consideration, with the Scottish Parliament voting to advance it to Stage 2, where members can submit amendments.

Differences in divorce settlements

There are three legal systems in the UK: English law, which applies in England and Wales, Northern Irish law, and Scottish law. While Scots law and English law have some similarities, they are separate systems that have existed independently for centuries.

Grounds for Divorce

In both England and Scotland, the sole ground for divorce is the irretrievable breakdown of the marriage. However, each jurisdiction has different requirements for proving this. Since April 2022, couples in England and Wales can file for a "no-fault" divorce and simply need to declare that their marriage has irretrievably broken down. In Scotland, spouses must provide evidence or a "reason" for the breakdown, such as adultery or unreasonable behaviour.

Application Process

In England and Wales, couples can make a joint application for divorce, whereas in Scotland, the application must be made by one spouse. Additionally, in Scotland, it is possible to contest your spouse's application for divorce, which is not allowed in England and Wales, except on grounds of jurisdiction and other exceptional legal circumstances.

Financial Settlements

In Scotland, financial provision is dealt with concurrently and legally connected to the divorce. This means that financial matters must be resolved ahead of time, and the divorce ends the couple's financial obligations to each other. On the other hand, in England and Wales, financial settlements are separate from the divorce and can be dealt with after the divorce has been issued. Even after a final divorce order, either party can make financial applications to the court, and claims can be made years later until all financial claims are dismissed.

Division of Assets

Scotland follows a "clean break" philosophy, aiming for a fair and usually equal sharing of assets acquired during the marriage. The Scottish system provides a clear legislative framework, giving couples more predictability and confidence to negotiate their settlement. In contrast, England and Wales can adopt a more paternalistic view, considering the needs of the parties. While the starting point is equal sharing, an unequal division can be ordered if the needs of the parties cannot be met through equal division. This may include invading pre-and post-marital assets, resulting in a potentially more generous settlement for the financially weaker spouse.

Pensions

There is also a difference in how pensions are dealt with. In England, Wales, and Northern Ireland, all pensions, including those built up before and during the marriage, are considered for separation. In Scotland, only the pensions built up during the marriage are divided, and those built up beforehand belong solely to the pension holder.

Childcare Arrangements

Childcare arrangements can be revisited after divorce in Scotland, but they are dealt with concurrently with finances and the divorce itself.

Court System

The court systems also differ between the two jurisdictions. In Scotland, there are Chief Courts, which include the Court of Session for civil cases, the High Court of Judiciary for criminal cases, and Sheriff Courts for both criminal and civil cases. In England and Wales, the system consists of Magistrate's Courts and the Crown Court.

Given these differences, it is essential to seek legal advice to determine the most appropriate jurisdiction for divorce proceedings if you have a choice between the two.

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