1 The role and function of courts
There are certain important criteria that apply to all court proceedings. Courts are all presided over by at least one judge. A court must always uphold the rule of law and ensure justice is done. It is not only necessary to ensure justice is done but also that it is seen to be done. A court must follow procedure, act within its powers and make decisions that follow relevant laws and guidelines, such as the ECHR. The website of the judiciary in Scotland states that:
We believe it is vital in a democracy that justice is not only seen to be done, but that it operates in an open and transparent way and contributes to public understanding and awareness of what takes place in courts each day across Scotland.
(Judiciary of Scotland, n.d.).
Other than in very exceptional circumstances, court business must be open to public scrutiny.
Activity 1 Reflections about courts
Timing: Allow about 10 minutes
- a.You have learnt about the role and structure of courts in Scotland. Take a few moments to reflect on what you have learnt and make a note of the main points you will remember from your studies of this course.
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- b.Revisit the notes you made for Week 1 Activity 1 [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] . Have your thoughts about the courts and their role changed?
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Comment
Through study of this course you have been introduced to a number of important aspects of the role and function of courts. These are some of the points the team who wrote this course noted:
- a court is the body through which the state prosecutes criminal conduct and which enables citizens to enforce their legal rights
- courts form part of the separation of powers
- an independent judiciary is essential to the rule of law
- as public bodies the courts are bound to proceed and make judgments in line with the fundamental rights and freedoms embodied in the ECHR
- courts perform an important role in providing checks and balances on the power of government and protecting the rights of individuals and citizens
- a court rules on disputes between members of society as to legal rights and obligations and dispenses justice in relation to individuals who have broken certain rules − i.e. committed a criminal offence
- we have courts because within the day-to-day business of any society there will be times when individuals are unable to exercise their legal rights alone and require the state to enforce them. The court is the body charged with this task
- in any state a mechanism to deal with individuals who breach its rules is required. This is the role of the court
- courts will always consist of at least one judge although there are various titles for this role. There may be a jury and there will be support from a clerk
- courts are important because they are the method by which we can enforce our legal rights and the state can dispense justice
Whether your thoughts have changed will depend on what you wrote in response to Activity 1 in Week 1.
Before moving on to consider procedures for hearing court cases in civil and criminal matters you should watch this video in which Elish Angiolini (former Lord Advocate) reflects on the work of Scottish courts.
Download this video clip.Video player: Reflections on courts
Transcript: Reflections on courts
Elish Angiolini:
The work of the courts is important because the court is the forum in which the problems which people have in society can be resolved, where they can seek a remedy.
Openness and accessibility, if I deal first of all with openness, it is important that what takes place in our justice system is something which is understood and conveyed to the public at large in order that they can understand that the laws are being applied and how they're being applied and that justice is operating, and to have an understanding of what is at the heart of our constitution and our society.
So far as accessibility is concerned, there is no justice, justice is denied, if you can't have access to the courts. And indeed, the European Convention on Human Rights requires countries to provide accessibility. That it shouldn't be something that is an illusory right, a right that's not practicable. And therefore, given that it's so expensive if you want to go to court to sue someone or to achieve a remedy, it's very important that there is funding that supports that for individuals.
And in Scotland, legal aid does provide it to support people who wish to go to court in certain circumstances. However, sometimes it can still be very difficult to achieve that. And I think we have to as a community ensure that what we do provide by way of support, financial support, to individuals is adequate to ensure that that right, that openness and accessibility is something that is real and not an illusory notion that we talk about, but in fact that people can go to court to seek the remedies that they wish.
The Rebuttable presumption is that justice will always take place in an open atmosphere. The courts are public, and people can come in. And on occasion, the cameras are now being allowed into the court. Our Supreme Court, for instance, is televised. The video recordings are available to the public to watch thereafter.
The reality, however, is that court proceedings are not terribly exciting to most people. What you see in television, television drama, you will have a whole case taking place in 30 minutes, when in fact the reality is that will have taken place perhaps over two weeks. So it doesn't move at the pace of an interesting justice drama, and therefore there are not always courtrooms populated with packed benches of people wanting to hear the outcome of a trial. Occasionally that happens when it's a dramatic outcome. But having the public understand what's taking place in the courts is a really important part of our democracy.
There are occasions, however, where you need to modify that. So if a very vulnerable witness is giving evidence, for instance in a sexual case, the courts will be clear to the public, and representatives of the press can be present and the lawyers will be present while the individual gives her evidence. And there may be cases where, for instance, the evidence is so sensitive you have a member of the security services giving evidence, and there identity has to be protected. And they may give evidence from behind screens in order that their identity is protected.
So there are occasions where there is an exception to that rule, but that's one which is very closely guarded to ensure that it doesn't expand and that the presumption will always be that justice will be open.
Reflections on courts
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