SCOTTISH CRIMINAL RECORDS
The Scottish court and criminal system is distinct from that of England and Wales. Nell Darby explains the records that you need to find your ancestor
Nell Darby explains the records you need to find your black sheep ancestor
When the Act of Union took place, the Scottish legal and criminal justice systems were largely preserved
The Scottish court system structure has historically been different from, and separate to, the institutions of England and Wales; when the Act of Union took place in 1707, uniting the parliaments of Scotland and England, the Scottish legal and criminal justice systems were largely preserved. Since then, Scotland has generally continued to maintain its own systems, overseen by Scottish institutions.
The Scottish criminal justice system, however, really developed over the medieval period, and this is evident in some of the surviving names for different courts. For example, the guild courts heard cases involving buildings and streets, whereas burgh courts dealt with offences committed within the royal burghs. Barony courts were civil courts dealing with debt possession and other cases, but could also handle criminal cases such as theft. Sheriff courts were so named because they were presided over by the local sheriff, and dealt with both criminal and civil cases. As in England, ecclesiastical courts also existed, until the Reformation, and primarily, although not solely, heard matrimonial cases. After the Reformation, the Court of Session took on some consistorial cases, alongside the Presbyterian kirk sessions and consistorial courts. The Court of Session, which
developed in the 16th century, is today the supreme civil court of Scotland – in other words, the civil equivalent to the High Court of Justiciary, Scotland’s highest criminal court. However, there is some overlap, with the principal clerk of session and judiciary being responsible for both court staff in the Court of Session, and the administration of the High Court of Justiciary.
Types of court
There are several types of court, and therefore court record, that you will find particularly useful for tracing your criminal ancestor in Scotland. These are the admiralty court; burgh courts and their successors, the police courts; the High Court of Justiciary; justice of the peace courts; the Lord Advocate’s Department (especially helpful for witness statements gathered during the preparation for a prosecution); and the sheriff courts. At the top is the High Court of Justiciary; at the bottom, the sheriff courts – dealing with criminal and civil cases, and focusing on more minor cases such as petty thefts and assaults, and the justice of the peace courts, also dealing with more minor offences.
High Court of Justiciary records will detail the most serious criminal cases. Although now based in Edinburgh, originally the court comprised travelling justices (magistrates) who would travel around circuits of the country hearing cases. In 1672 the Courts Act made five court of sessions judges permanent justice court judges, establishing the High Court. Today, it still sits in cities and towns around the country, but also has permanent bases in Edinburgh, Glasgow and Aberdeen. Opposite the Edinburgh building, you can see brass plates set into the pavement – these mark the former location of a city scaffold, where criminals were executed. If you want to look for cases that involved your ancestor, whether they were accused of a crime or working on the side of the law as a police officer or justice, there are several places to try. However, at time of writing there are relatively few resources online compared with English and Welsh court records, so you may need to visit the National Records of Scotland (NRS) in Edinburgh. For example, the NRS is cataloguing and indexing all of the criminal trials that took place at the High Court of Justiciary between 1800 and 1994. These take two forms – the precognitions, where both the accused and witnesses gave statements which were prepared by the Crown as prosecutor (NRS AD14 and AD15); and the High Court records, including minute books, and process or case papers (NRS JC26). Most of this work has been completed, but some records from the early 19th century are still being catalogued. Although you can search online for trials that took
There are relatively few resources online compared with English and Welsh court records
place between 1800 and 1930 at catalogue.nrscotland.gov.uk/
nrsonlinecatalogue, enabling you to work out the trial records that you need, you can’t access them remotely so will still need to make a research trip.
Equally the Glasgow City Archives and the Edinburgh City Archives have court records and police records that you can search, but you will need to do so in person. The latter archive includes records from sheriff, justice of the peace, burgh and police courts, as well as criminal photograph