Sheriff Courts (Scotland) Act 1971

Part I S Constitution, Organisation and Administration

General duty of the Secretary of State S

1 Secretary of State to be responsible for organisation and administration of sheriff courts. S

Subject to the provisions of this Act, the Secretary of State shall be under a duty to secure the efficient organisation and administration of the sheriff courts, and for the purpose of carrying out that duty shall have, in addition to any functions conferred on him by or under any other enactment, the functions conferred on him by the following provisions of this Act.

Sheriffdoms S

2 Power of Secretary of State to alter sheriffdoms. S

(1) The Secretary of State may by order alter the boundaries of sheriffdoms, form new sheriffdoms, or provide for the abolition of sheriffdoms existing at the time of the making of the order.

(2) An order under subsection (1) above may contain all such provisions as appear to the Secretary of State to be necessary or expedient for rendering the order of full effect and any incidental, supplemental or consequential provisions which appear to him to be necessary or expedient for the purposes of the order, including, but without prejudice to the generality of the foregoing words—

(a) provision for the abolition of any office,

(b) provisions amending, repealing or revoking any enactment (whether passed or made before or after the commencement of this Act, and including any enactment contained in or made under this Act).

(3) Where an order under subsection (1) above includes, by virtue of subsection (2)(a) above, provision for the abolition of any office, then—

(a) that provision shall have effect notwithstanding the provisions of any enactment (including any enactment contained in this Act), or of any instrument in terms of which any person holds that office;

(b) the Secretary of State may, with the concurrence of the Minister for the Civil Service, pay to or in respect of any person who suffers loss of employment, or loss or diminution of emoluments, which is attributable to the said provision such amount by way of compensation as may appear to the Secretary of State to be reasonable in all the circumstances [F1 but no payment shall be made under this provision to or in respect of any person who is mentioned in section 51(2) of the Scotland Act 1998].

(4) The power to make orders under subsection (1) above shall be exercisable by statutory instrument, but no order shall be made under that subsection unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

Textual Amendments

F1 Words in s. 2(3)(b) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. 1 para. 50(2)

Sheriff court districts and places where sheriff courts are to be held S

3 Sheriff court districts and places where sheriff courts are to be held. S

(1) Subject to any alterations made by an order under section 2(1) of this Act or under subsection (2) below—

(a) the sheriff court districts existing immediately before the commencement of this Act shall continue to exist after such commencement, and

(b) sheriff courts shall, after such commencement, continue to be held at the places at which they were in use to be held immediately before such commencement.

(2) The Secretary of State may by order—

(a) alter the boundaries of sheriff court districts, form new districts, or provide for the abolition of districts existing at the time of the making of the order;

(b) provide that sheriff courts shall be held, or shall cease to be held, at any place.

(3) An order under subsection (2) above may contain all such provisions as appear to the Secretary of State to be necessary or expedient for rendering the order of full effect and any incidental, supplemental or consequential provisions which appear to him to be necessary or expedient for the purposes of the order, including, but without prejudice to the generality of the foregoing words, provisions amending, repealing or revoking any enactment (whether passed or made before or after the commencement of this Act, and including any enactment contained in or made under this Act).

(4) The Secretary of State may, with the concurrence of the Minister for the Civil Service, pay to or in respect of any person who suffers loss of employment, or loss or diminution of emoluments, which is attributable to an order under subsection (2) above such amount by way of compensation as may appear to the Secretary of State to be reasonable in all the circumstances [F2 but no payment shall be made under this provision to or in respect of any person who is mentioned in section 51(2) of the Scotland Act 1998].

(5) The power to make orders under subsection (2) above shall be exercisable by statutory instrument.

(6) Without prejudice to subsection (1) above, any enactment or other instrument in force immediately before the commencement of this Act shall, to the extent that it fixes sheriff court districts or the places at which sheriff courts are to be held, cease to have effect.

Textual Amendments

F2 Words in s. 3(4) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. 1 para. 50(2)

Sheriffs principal and sheriffs U.K.

4 Offices of sheriff principal and sheriff. U.K.

(1) The office of sheriff (that is to say, the office known formerly as the office of sheriff depute, but known immediately before the commencement of this Act as the office of sheriff) shall be known as the office of sheriff principal, the office of sheriff substitute shall be known as the office of sheriff, and the office of honorary sheriff substitute shall be known as the office of honorary sheriff.

(2) Accordingly, any enactment or other document in force or having effect at the commencement of this Act which refers whether expressly or by implication, or which falls to be construed as referring, or as including a reference, to the office of sheriff (as defined in subsection (1) above), or to the office of sheriff substitute, or to the office of honorary sheriff substitute, or to the holder of any of the said offices, shall be construed in accordance with subsection (1) above.

(3) Section 28 of the M1 Interpretation Act 1889 . . . F3 shall not apply for the interpretation of this Act.

Textual Amendments

F3 Words repealed by Interpretation Act 1978 (c. 30 SIF 115:1), s. 25, Sch. 3

Marginal Citations

M1 1889 c. 63.

5 Qualification for offices of sheriff principal and sheriff. S

(1) A person shall not be appointed to the office of sheriff principal or sheriff unless he is, and has been for at least ten years, legally qualified.

For the purposes of this subsection, a person shall be legally qualified if he is an advocate or a solicitor.

(2) Without prejudice to [section 11(3) and 11A]of this Act, in this section “sheriff principal” does not include a temporary sheriff principal and “sheriff” does not include a [part-time]sheriff or an honorary sheriff.

Modifications etc. (not altering text)

C1 Words in s. 5 substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(1)(a)(b)

[5A F4 Retiring age for sheriff principal and sheriff. S

(1) A sheriff principal or sheriff shall vacate his office on the day on which he attains the age of 70.

(2) Subsection (1) above is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of 75).

[F5 (3) Without prejudice to sections 11(4A) and (4B) and 11B(3) of this Act, in this section, “sheriff principal” does not include a temporary sheriff principal and “sheriff” does not include a part-time sheriff.]]

Textual Amendments

F4 S. 5A inserted (31.3.1995) by 1993 c. 8, s. 26, Sch. 6 para. 10; S.I. 1995/631, art. 2

F5 S. 5A(3) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(2)

6 Disqualification of sheriffs principal and sheriffs. S

(1) A sheriff principal to whom this subsection applies, or a sheriff, shall not, so long as he holds office as such—

(a) engage, whether directly or indirectly, in any private practice or business, or be in partnership with or employed by, or act as agent for, any person so engaged; . . . F6

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F7

(2) Subsection (1) above shall apply to any person holding the office of sheriff principal who is appointed to that office after the commencement of this Act and on whose appointment the Secretary of State directs that that subsection shall apply to him.

(3) The sheriff principal of any sheriffdom, not being either a sheriff principal who is restricted by the terms of his appointment from engaging in private practice or a sheriff principal to whom subsection (1) above applies, shall not, so long as he holds office as such, advise, or act as an advocate in any court, in any cause civil or criminal arising within or coming from that sheriffdom.

(4) Any reference in any enactment passed before the commencement of this Act to a sheriff principal who is restricted by the terms of his appointment from engaging in private practice shall be construed as including a reference to a sheriff principal to whom subsection (1) above applies.

(5) Without prejudice to the giving of any direction under section 11(5) of this Act, in this section “sheriff principal” does not include a temporary sheriff principal and “sheriff” does not include a [F8 part-time] sheriff or an honorary sheriff.

Textual Amendments

F6 Word repealed by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 36:1), ss. 20, 59, Sch. 4

F7 S. 6(1)(b) repealed by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 36:1), ss. 20, 59, Sch. 4

F8 Words in s. 6(5) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(3)

7 Jurisdiction of sheriff. S

[F9 (1)] For removal of doubt it is hereby declared that a sheriff, by virtue of his appointment as such, has and is entitled to exercise the jurisdiction and powers attaching to the office of sheriff in all parts of the sheriffdom for which he is appointed.

[F10 (2) Without prejudice to section 11A(4) of this Act, in this section, “sheriff” does not include a part-time sheriff.]

Textual Amendments

F9 S. 7 renumbered (9.8.2000) as s. 7(1) by 2000 asp 9, s. 12, Sch. para. 1(4)

F10 S. 7(2) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(4)

8 Sheriff may be appointed to assist Secretary of State. S

Notwithstanding anything in section 6 of this Act, a person holding the office of sheriff principal or sheriff may, without relinquishing that office, be appointed by the Secretary of State to assist him to discharge the functions vested in him in relation to the organisation and administration of the sheriff courts, but a person so appointed shall not perform his duties as the holder of the office of sheriff principal or sheriff, as the case may be, while he retains that appointment.

Functions of the Secretary of State in relation to sheriffs principal, sheriffs, etc. S

9 Power of Secretary of State to give administrative directions. S

[F11 (1)] For the purpose of securing the efficient organisation and administration of the sheriff courts and, in particular, the speedy and efficient disposal of business in those courts, the Secretary of State may give such directions of an administrative nature as appear to him to be necessary or expedient, and any sheriff principal or sheriff, and any officer or servant engaged in the administration of the sheriff courts, to whom a direction is given under this section shall, subject to the provisions of this Act, give effect to that direction.

[F12 (2) In this section, “sheriff” does not include a part-time sheriff.]

Textual Amendments

F11 S. 9 renumbered as subsection s. 9 “(1)” (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(5)

F12 S. 9(2) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(5)

10 Secretary of State may authorise sheriff principal or direct sheriff to act in another sheriffdom. S

[F13 (1) Where a vacancy occurs in the office of sheriff principal of any sheriffdom the [F14 Scottish Ministers] may, if it appears to [F14 them] expedient so to do in order to avoid delay in the administration of justice in that sheriffdom, authorise the sheriff principal of any other sheriffdom to perform the duties of sheriff principal in the first-mentioned sheriffdom (in addition to his own duties) until the [F14 Scottish Ministers] otherwise [F15 decide].

(1A) Where the sheriff principal of any sheriffdom is unable to perform, or rules that he is precluded from performing, all of, or some part of, his duties as sheriff principal the [F16 Scottish Ministers] may authorise the sheriff principal of any other sheriffdom to perform the duties of sheriff principal, or as the case may be that part of those duties, in the first-mentioned sheriffdom (in addition to his own duties) until the [F16 Scottish Ministers] otherwise [F15 decide].]

(2) Where as regards any sheriffdom—

(a) a sheriff is by reason of illness or otherwise unable to perform his duties as sheriff, or

(b) a vacancy occurs in the office of sheriff, or

(c) for any other reason it appears to the [F17 Scottish Ministers]expedient so to do in order to avoid delay in the administration of justice in that sheriffdom,

the [F17 Scottish Ministers] may direct a sheriff appointed for any other sheriffdom to perform, in accordance with the terms of the direction, the duties of sheriff in the first-mentioned sheriffdom (in addition to or in place of his own duties) until otherwise directed by the [F17 Scottish Ministers], and any sheriff to whom a direction is given under this subsection shall give effect to that direction.

(3) A sheriff principal authorised, or a sheriff directed, under this section to perform duties in any sheriffdom shall for that purpose, without the necessity of his receiving a commission in that behalf, have and be entitled to exercise the jurisdiction and powers attaching to the office of sheriff principal or, as the case may be, sheriff in that sheriffdom.

(4) [F18 The Scottish Ministers may], pay to a sheriff principal or a sheriff, in respect of any duties performed by that sheriff principal or sheriff (in addition to his own duties) in pursuance of an authority or direction under this section, such remuneration and allowances as may appear to the Secretary of State [F19 ,with the consent of the Treasury,] to be reasonable in all the circumstances.

(5) In this section “sheriff” does not include an honorary [F20 or a part-time] sheriff.

Textual Amendments

F13 S. 10(1)(1A) substituted for subsection (1) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55, SIF 36:3), s. 10(a)

F14 Words in s. 10(1) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. 1 para. 50(3)(a)(b)

F15 Word in s. 10(1)(1A) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. 1 para. 50(3)(c)

F16 Words in s. 10(1A) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. 1 para. 50(3)(a)

F17 Words in s. 10(2) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. 1 para. 50(3)(a)

F18 Words in s. 10(4) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. 1 para. 50(3)(d)(i)

F19 Words in s. 10(4) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. 1 para. 50(3)(d)(ii)

F20 Words in s. 10(5) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(6)

11 Secretary of State may appoint temporary sheriffs principal and sheriffs. S

[F21 (1) Where a vacancy occurs in the office of sheriff principal of any sheriffdom the Secretary of State may, if it appears to him expedient so to do in order to avoid delay in the administration of justice in that sheriffdom, appoint a person to act as sheriff principal of the sheriffdom.

(1A) Where the sheriff principal of any sheriffdom is unable to perform, or rules that he is precluded from performing, all of, or some part of, his duties as sheriff principal the Secretary of State may appoint a person to act as sheriff principal of the sheriffdom, or as the case may be to perform that part of the duties of the sheriff principal.

(1B) A person appointed under subsection (1) or (1A) above shall be known as a temporary sheriff principal.]

F22 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A person shall not be appointed to be a temporary sheriff principal F23 . . . unless he is legally qualified, and has been so qualified—

(a) F24 . . . for at least ten years;

F25 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

For the purposes of this subsection, a person shall be legally qualified if he is an advocate or a solicitor.

(4) The appointment of a temporary sheriff principal F26 . . . shall subsist until recalled by the Secretary of State.

[F27 (4A) No appointment under this section of a person to be a temporary sheriff principal F28 . . . shall extend beyond the day on which the person reaches the age of 70.

(4B) Subsection (4A) above is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of 75).]

(5) If the Secretary of State, on appointing any person to be a temporary sheriff principal F29 . . ., so directs, the provisions of section 6(1) of this Act shall apply in relation to that person as they apply in relation to a person holding the office of sheriff.

(6) A person appointed to be temporary sheriff principal of, F30 . . .any sheriffdom shall for the purposes of his appointment, without the necessity of his receiving a commission in that behalf, have and be entitled to exercise the jurisdiction and powers attaching to the office of sheriff principal F30 . . . in that sheriffdom.

(7) The appointment of any person holding the office of sheriff to be a temporary sheriff principal shall not affect the commission held by that person as sheriff, but he shall not, while his appointment as a temporary sheriff principal subsists, perform any duties by virtue of the said commission.

(8) The Secretary of State may pay to any person appointed to be a temporary sheriff principal F31 . . . such remuneration and allowances as the Treasury, on the recommendation of the Secretary of State, may determine.

Textual Amendments

F21 S. 11(1)(1A)(1B) substituted for subsection (1) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55, SIF 36:3), s. 10(b)

F22 S. 11(2) repealed (9.8.2000) by 2000 asp 9, s. 6(1) (with s. 6(2))

F23 Words in s. 11(3) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(7)(i)

F24 Words in s. 11(3)(a) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(7)(a)(ii)

F25 S. 11(3)(b) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(7)(a)(iii)

F26 Words in s. 11(4) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(7)(b)

F27 S. 11(4A)(4B) inserted (31.3.1995) by 1993 c. 8, s. 26, Sch. 6 para. 11; S.I. 1995/631, art. 2

F28 Words in s. 11(4A) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(7)(c)

F29 Words in s. 11(5) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(7)(d)

F30 Words in s. 11(6) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(7)(e)

F31 Words in s. 11(8) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(7)(f)

Modifications etc. (not altering text)

C2 S. 11(1) modified (9.11.1998) by 1998 c. 42, ss. 18(5), 22(2) (with ss. 7(8), 22(5))

S. 11(1) modified (27.9.1999) by 1999 c. 22, s. 68(4) (with Sch. 14 para. 7(2))

[F32 11A Appointment of part-time sheriffs S

(1) The Scottish Ministers may, under this section, appoint persons to act as sheriffs, and persons so appointed shall be known as “part-time sheriffs”.

(2) In making those appointments, the Scottish Ministers shall comply with such requirements as to procedure and consultation as may be prescribed by regulations made by them.

(3) A person shall not be appointed a part-time sheriff unless qualified under section 5(1) of this Act to be appointed to the office of sheriff.

(4) A part-time sheriff shall, without the necessity of receiving a commission in that behalf, be entitled to exercise in every sheriffdom the jurisdiction and powers attaching to the office of sheriff.

(5) The number of persons holding appointments as part-time sheriffs shall not, at any one time, exceed 60 or such other number as may be fixed in substitution by order made by the Scottish Ministers.

(6) A part-time sheriff shall be subject to such instructions, arrangements and other provisions as fall to be made under this Act by the sheriff principal of the sheriffdom in which the part-time sheriff is sitting.

(7) In the performance of their functions under this Act, sheriffs principal shall together have regard to the desirability of securing that every part-time sheriff—

(a) is given the opportunity of sitting on not fewer than 20 days; and

(b) does not sit for more than 100 days,

in each successive period of 12 months beginning with the day of the part-time sheriff’s appointment as such.

(8) The Scottish Ministers shall pay to part-time sheriffs such remuneration and allowances as they determine.]

Textual Amendments

F32 Ss. 11A-11D inserted (9.8.2000) by 2000 asp 9, s. 7

F33 11B Limitation, termination etc. of appointment of part-time sheriffs S

(1) An appointment as a part-time sheriff shall, subject to subsections (2) to (4) below, last for 5 years.

(2) A part-time sheriff may resign at any time by giving notice to that effect to the Scottish Ministers.

(3) An appointment of a person as a part-time sheriff shall not extend beyond the day when the person reaches the age of 70.

(4) A part-time sheriff’s appointment shall come to an end upon the part-time sheriff’s being removed from office under section 11C of this Act.

(5) A part-time sheriff whose appointment comes to an end by operation of subsection (1) above may be reappointed and, except in the circumstances set out in subsection (6) below, shall be reappointed.

(6) The circumstances mentioned in subsection (5) above are that—

(a) the part-time sheriff has declined that reappointment;

(b) the part-time sheriff is aged 69 or over;

(c) a sheriff principal has made a recommendation to the Scottish Ministers against the reappointment;

(d) the part-time sheriff has not sat for a total of 50 or more days in the preceding five year period; or

(e) the Scottish Ministers have, since the part-time sheriff was last appointed, made an order under section 11A(5) of this Act reducing the number of persons who may hold appointment as part-time sheriffs.

(7) A part-time sheriff whose appointment comes to an end by resignation under subsection (2) above may be reappointed.

(8) The provisions of section 11A and this section of this Act apply to a reappointment under subsections (5) and (7) above as they apply to an appointment.

(9) A part-time sheriff who is a solicitor in practice shall not carry out any function as a part-time sheriff in a sheriff court district in which his or her main place of business as such solicitor is situated.

Textual Amendments

F33 Ss. 11A-11D inserted (9.8.2000) by 2000 asp 9, s. 7

F34 11C Removal of part-time sheriffs from office S

(1) A part-time sheriff may be removed from office by and only by order of the tribunal constituted by and under subsection (3) below (“the tribunal”).

(2) The tribunal may order the removal from office of a part-time sheriff only if, after investigation carried out at the request of the Scottish Ministers, it finds that the part-time sheriff is unfit for office by reason of inability, neglect of duty or misbehaviour.

(3) The tribunal shall consist of the following three members, who shall be appointed by the Lord President of the Court of Session—

(a) either a Senator of the College of Justice or a sheriff principal (who shall preside);

(b) a person who is, and has been for at least ten years, legally qualified within the meaning of section 5(1) of this Act; and

(c) one other person.

(4) Regulations, made by the Scottish Ministers—

(a) may make provision enabling the tribunal, at any time during an investigation, to suspend a part-time sheriff from office and providing as to the effect and duration of such suspension; and

(b) shall make such further provision as respects the tribunal as the Scottish Ministers consider necessary or expedient, including provision for the procedure to be followed by and before it.

Textual Amendments

F34 Ss. 11A-11D inserted (9.8.2000) by 2000 asp 9, s. 7

F35 11D Regulations and orders under sections 11A and 11C S

(1) Regulations under section 11A or section 11C and orders under section 11A of this Act shall be made by statutory instrument.

(2) No such regulations or order shall be made unless laid in draft before, and approved by a resolution of, the Scottish Parliament.

Textual Amendments

F35 Ss. 11A-11D inserted (9.8.2000) by 2000 asp 9, s. 7

13 Functions of Secretary of State with respect to residence and leave of absence of sheriffs principal. S

(1) The Secretary of State may require any sheriff principal (being a sheriff principal who is restricted by the terms of his appointment from engaging in private practice or to whom section 6(1) of this Act applies) to reside ordinarily at such place as the Secretary of State may specify.

(2) The Secretary of State may approve such leave of absence for any sheriff principal (being a sheriff principal who is restricted by the terms of his appointment from engaging in private practice or to whom section 6(1) of this Act applies) as appears to the Secretary of State to be proper, but the amount of leave so approved (other than leave granted on account of ill-health) shall not, unless the Secretary of State for special reasons otherwise permits, exceed seven weeks in any year.

14 Functions of Secretary of State with respect to number, residence and place of duties of sheriffs. S

(1) The Secretary of State may, with the approval of the Treasury, by order prescribe the number of sheriffs to be appointed for each sheriffdom.

(2) The Secretary of State may require any sheriff to reside ordinarily at such place as the Secretary of State may specify.

(3) The Secretary of State—

(a) shall, on the appointment of a person to hold the office of sheriff for any sheriffdom,

(b) may, at any subsequent time while the said person holds that office,

give to that person a direction designating the sheriff court district or districts in which he is to perform his duties as sheriff:

Provided that a direction given to a sheriff under this subsection shall be subject to any instruction given to that sheriff under section 15 of this Act by the sheriff principal of the sheriffdom, being an instruction given for the purpose of giving effect to any special provision made by the sheriff principal under section 16(1)(b) of this Act.

(4) If for the purpose of securing the efficient organisation and administration of the sheriff courts, and after consultation with the Lord President of the Court of Session, the Secretary of State by order so directs, a person holding the office of sheriff for any sheriffdom shall, on such date as may be specified in the order, cease to hold that office and shall, on and after that date, without the necessity of his receiving a commission in that behalf, hold instead the office of sheriff for such other sheriffdom as may be so specified; and on making an order under this subsection with respect to any person the Secretary of State shall give to that person a direction under subsection (3) above designating the sheriff court district or districts in which he is to perform his duties as sheriff.

(5) In this section “sheriff” does not include an honorary sheriff [F36 or a part-timesheriff.

Textual Amendments

F36 Words in s. 14(5) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(9)

12 Removal from office, and suspension, of sheriff principal or sheriff. S

(1) The Lord President of the Court of Session and the Lord Justice Clerk may of their own accord and shall, if they are requested so to do by the Secretary of State, undertake jointly an investigation into the fitness for office of any sheriff principal or sheriff and, as soon as practicable after completing that investigation, shall report in writing to the Secretary of State either—

(a) that the sheriff principal or sheriff is fit for office, or

(b) that the sheriff principal or sheriff is unfit for office by reason of inability, neglect of duty or misbehaviour,

and shall in either case include in their report a statement of their reasons for so reporting.

(2) The Secretary of State may, if a report is made to him under subsection (1) above to the effect that any sheriff principal or sheriff is unfit for office by reason of inability, neglect of duty or misbehaviour, make an order removing that sheriff principal or sheriff from office.

(3) An order under subsection (2) above—

(a) shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament,

(b) shall not be made so as to come into operation before the expiry, in relation to the order, of the period of forty days mentioned in section 5(1) of the M2 Statutory Instruments Act 1946.

(4) The Lord President of the Court of Session and the Lord Justice Clerk may, on undertaking an investigation under subsection (1) above or at any time during the course of such an investigation, if they think it proper so to do, recommend in writing to the Secretary of State that the sheriff principal or sheriff who is the subject of the investigation be suspended from office, and the Secretary of State may, on receiving such a recommendation as aforesaid, suspend that sheriff principal or sheriff from office.

(5) A sheriff principal or a sheriff suspended from office under subsection (4) above shall remain so suspended until the Secretary of State otherwise directs.

(6) The suspension from office of a sheriff principal or a sheriff under subsection (4) above shall not affect the payment to him of his salary in respect of the period of his suspension.

(7) In this section “sheriff principal” does not include a temporary sheriff principal and “sheriff” does not include a [F37 part-time] sheriff or an honorary sheriff.

Textual Amendments

F37 Words in s. 12(7) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(8)

Modifications etc. (not altering text)

C3 S. 12 extended by District Courts (Scotland) Act 1975 (c. 20), s. 5(8)

Marginal Citations

M2 1946 c. 36.

13 Functions of Secretary of State with respect to residence and leave of absence of sheriffs principal. S

(1) The Secretary of State may require any sheriff principal (being a sheriff principal who is restricted by the terms of his appointment from engaging in private practice or to whom section 6(1) of this Act applies) to reside ordinarily at such place as the Secretary of State may specify.

(2) The Secretary of State may approve such leave of absence for any sheriff principal (being a sheriff principal who is restricted by the terms of his appointment from engaging in private practice or to whom section 6(1) of this Act applies) as appears to the Secretary of State to be proper, but the amount of leave so approved (other than leave granted on account of ill-health) shall not, unless the Secretary of State for special reasons otherwise permits, exceed seven weeks in any year.

14 Functions of Secretary of State with respect to number, residence and place of duties of sheriffs. S

(1) The Secretary of State may, with the approval of the Treasury, by order prescribe the number of sheriffs to be appointed for each sheriffdom.

(2) The Secretary of State may require any sheriff to reside ordinarily at such place as the Secretary of State may specify.

(3) The Secretary of State—

(a) shall, on the appointment of a person to hold the office of sheriff for any sheriffdom,

(b) may, at any subsequent time while the said person holds that office,

give to that person a direction designating the sheriff court district or districts in which he is to perform his duties as sheriff:

Provided that a direction given to a sheriff under this subsection shall be subject to any instruction given to that sheriff under section 15 of this Act by the sheriff principal of the sheriffdom, being an instruction given for the purpose of giving effect to any special provision made by the sheriff principal under section 16(1)(b) of this Act.

(4) If for the purpose of securing the efficient organisation and administration of the sheriff courts, and after consultation with the Lord President of the Court of Session, the Secretary of State by order so directs, a person holding the office of sheriff for any sheriffdom shall, on such date as may be specified in the order, cease to hold that office and shall, on and after that date, without the necessity of his receiving a commission in that behalf, hold instead the office of sheriff for such other sheriffdom as may be so specified; and on making an order under this subsection with respect to any person the Secretary of State shall give to that person a direction under subsection (3) above designating the sheriff court district or districts in which he is to perform his duties as sheriff.

(5) In this section “sheriff” does not include an honorary sheriff or a part-time]sheriff.

Textual Amendments

F36 Words in s. 14(5) substituted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(9)

Valid from 01/06/2009

14A Re-employment of retired sheriffs principal and sheriffs S

(1) A sheriff principal may, if it appears to him to be expedient as a temporary measure in order to facilitate the disposal of business in the sheriff courts of the sheriffdom, appoint a qualifying former sheriff principal or sheriff to act as a sheriff of that sheriffdom during such period or on such occasions as the sheriff principal thinks fit.

(2) A qualifying former sheriff principal is someone who—

(a) ceased to hold that office other than by virtue of an order under section 12E of this Act, and

(b) has not reached the age of 75 years.

(3) A qualifying former sheriff is someone who—

(a) ceased to hold that office other than by virtue of an order under section 12E of this Act or by being appointed as a sheriff principal, and

(b) has not reached the age of 75 years.

(4) A person appointed under subsection (1) above is not to be treated as a sheriff for the purposes of any statutory provision or rule of law relating to—

(a) the appointment, retirement, removal or disqualification of sheriffs,

(b) the tenure of office and oaths to be taken by sheriffs, or

(c) the remuneration, allowances or pensions of sheriffs.

(5) But, otherwise, such a person is to be treated for all purposes as a sheriff of the sheriffdom for which the person is appointed (and so may perform any of the functions of a sheriff of that sheriffdom).

(6) The Scottish Court Service may pay to, or in respect of, a person appointed under subsection (1) above such remuneration or allowances as the Scottish Ministers may determine.

(7) Despite subsection (1), the period during which or an occasion on which a person appointed under that subsection may act under that appointment does not extend beyond, or (as the case may be) is not to be after, the date on which the person reaches the age of 75 years.

(8) Despite the expiry (whether by virtue of subsection (7) above or otherwise) of any period for which a person is appointed under subsection (1) above—

(a) the person may attend at a sheriff court for the purpose of continuing to deal with, giving judgment in, or dealing with any matter relating to, any case begun before the person while acting under that appointment, and

(b) for that purpose, and for the purpose of any proceedings arising out of any such case or matter, the person is to be treated as acting or, as the case may be, having acted under that appointment.

(9) In this section—

• “sheriff principal”, where it first occurs in subsection (1), includes temporary sheriff principal, and

• “sheriff” does not include part-time sheriff or honorary sheriff.

Valid from 20/02/2010

[F38 Consideration of fitness for, and removal from, shrieval office S

Textual Amendments

F38 Ss. 12A-12F and cross-heading substituted (20.2.2010 for the insertion of s. 12C(5) and 1.4.2010 otherwise) for s. 12 by Judiciary and Courts (Scotland) Act 2008 (asp 6), ss. 40, 76; S.S.I. 2010/39, art. 2, Sch. (with art. 3)

Valid from 01/04/2010

12A Tribunal to consider fitness for shrieval office S

(1) The First Minister—

(a) must, when requested to do so by the Lord President of the Court of Session, and

(b) may, in such other circumstances as the First Minister thinks fit,

constitute a tribunal to investigate and report on whether a person holding a shrieval office to which this section applies is unfit to hold the office by reason of inability, neglect of duty or misbehaviour.

(2) The shrieval offices to which this section applies are—

(a) the office of sheriff principal,

(b) the office of sheriff, and

(c) the office of part-time sheriff.

(3) The First Minister may constitute a tribunal under subsection (1)(b) above only if the Lord President has been consulted.

(4) A tribunal constituted under this section is to consist of—

(a) one individual who is a qualifying member of the Judicial Committee of the Privy Council,

(b) one individual who holds the relevant shrieval office,

(c) one individual who is, and has been for at least 10 years, an advocate or a solicitor, and

(d) one individual who is not (and never has been) a qualifying member of the Judicial Committee of the Privy Council, who does not hold (and never has held) a shrieval office to which this section applies and who is not (and never has been) an advocate or solicitor.

(5) A qualifying member of the Judicial Committee of the Privy Council is someone who is a member of that Committee by virtue of section 1(2)(a) of the Judicial Committee Act 1833 (c. 41) (that is, someone who is a member of the Privy Council who holds, or has held, high judicial office).

(6) The relevant shrieval office is—

(a) where the investigation is to be of a person's fitness to hold the office of sheriff principal, that office,

(b) where the investigation is to be of a person's fitness to hold the office of sheriff or part-time sheriff, the office of sheriff.

(7) The selection of persons to be members of a tribunal under this section is to be made by the First Minister, with the agreement of the Lord President of the Court of Session.

(8) The person mentioned in subsection (4)(a) is to chair the tribunal and has a casting vote.

Valid from 01/04/2010

12B Suspension during investigation S

(1) Where the Lord President of the Court of Session has requested that the First Minister constitute a tribunal under section 12A, the Lord President may, at any time before the tribunal reports to the First Minister, suspend the person who is to be, or is, the subject of the investigation, from office.

(2) Such a suspension lasts until the Lord President orders otherwise.

(3) A tribunal constituted under section 12A may, at any time before the tribunal reports to the First Minister, recommend to the First Minister that the person who is the subject of the tribunal's investigation be suspended from office.

(4) Such a recommendation must be in writing.

(5) The First Minister, on receiving such a recommendation, may suspend the person from office.

(6) Such a suspension lasts until the First Minister orders otherwise.

(7) Suspension under this section from the office of sheriff principal or sheriff does not affect remuneration payable to, or in respect of, the office in respect of the period of suspension.

12C Further provision about tribunals S

(1) A tribunal constituted under section 12A may require any person—

(a) to attend its proceedings for the purpose of giving evidence,

(b) to produce documents in the person's custody or under the person's control.

(2) A person on whom such a requirement is imposed is not obliged to answer any question or produce any document which the person would be entitled to refuse to answer or produce in a court in Scotland.

(3) Subsection (4) applies where a person on whom a requirement has been imposed under subsection (1)—

(a) refuses or fails, without reasonable excuse, to comply with the requirement,

(b) refuses or fails, without reasonable excuse, while attending the tribunal proceedings to give evidence, to answer any question, or

(c) deliberately alters, conceals or destroys any document which the person is required to produce.

(4) The Court of Session may, on an application made to it by the tribunal—

(a) make such order for enforcing compliance as it sees fit, or

(b) deal with the matter as if it were a contempt of the Court.

(5) The Court of Session may by act of sederunt make provision as to the procedure to be followed by and before tribunals constituted under section 12A.

(6) The Scottish Ministers may pay such remuneration to, and expenses of, members of tribunals constituted under section 12A as they think fit.

(7) The Scottish Ministers must pay such expenses as they consider are reasonably required to be incurred to enable a tribunal constituted under section 12A to carry out its functions.

Valid from 01/04/2010

12D Report of tribunal S

(1) The report of a tribunal constituted under section 12A must—

(a) be in writing,

(b) contain reasons for its conclusion, and

(c) be submitted to the First Minister.

(2) The First Minister must lay the report before the Scottish Parliament.

Valid from 01/04/2010

12E Removal from office S

(1) Where subsection (2) applies, the First Minister may remove a person from the office of sheriff principal, sheriff or part-time sheriff.

(2) This subsection applies if—

(a) a tribunal constituted under section 12A has reported to the First Minister that the person is unfit to hold that office by reason of inability, neglect of duty or misbehaviour, and

(b) the First Minister has laid the report before the Scottish Parliament.

(3) The First Minister may remove a sheriff principal or sheriff under subsection (1) only by order made by statutory instrument.

(4) Such a statutory instrument—

(a) is to be subject to annulment in pursuance of a resolution of the Scottish Parliament,

(b) is not to be made so as to come into effect before the expiry, in relation to the instrument, of the period of 40 days mentioned in article 11 of the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 (S.I. 1999/1096).

(5) Article 10 of that Order applies to such an instrument subject to the following modifications—

(a) the reference to the period of 21 days in paragraph (2) is to be read as a reference to 40 days, and

(b) paragraph (3) does not apply.

Valid from 01/04/2010

12F Interpretation of sections 12A to 12E S

(1) In sections 12A to 12E “office of part-time sheriff” means an appointment (or reappointment) as a part-time sheriff; and references to removal or suspension from that office are to be construed accordingly.

(2) In those sections—

(a) a reference to the office of sheriff principal does not include a reference to an appointment as a temporary sheriff principal,

(b) a reference to the office of sheriff does not include a reference to the office of honorary sheriff.

Functions of the sheriff principal in relation to sheriffs, etc. S

15 General functions of sheriff principal. S

(1) Subject generally to the provisions of this Act, and in particular to the provisions of this or any other Act conferring functions on the Secretary of State or anything done under any such provision, the sheriff principal of each sheriffdom shall be under a duty to secure the speedy and efficient disposal of business in the sheriff courts of that sheriffdom, and for the purpose of carrying out that duty shall have, in addition to any functions conferred on him by or under any other enactment, the functions conferred on him by the following provisions of this Act.

(2) For the purpose of securing the effective discharge of any of the said functions the sheriff principal of any sheriffdom may give such instructions of an administrative nature as appear to him to be necessary or expedient, and any sheriff appointed for that sheriffdom, [F39 any part-time sheriff]and any officer or servant engaged in the administration of the sheriff courts in the sheriffdom, to whom an instruction is given under this section shall, subject to the provisions of this Act, give effect to that instruction.

Textual Amendments

F39 Words in s. 15(2) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(10)

16 Functions of sheriff principal with respect to duties and leave of absence of sheriffs. S

(1) The sheriff principal of each sheriffdom shall make such arrangements as appear to him necessary or expedient for the purpose of securing the speedy and efficient disposal of business in the sheriff courts of that sheriffdom, and in particular, but without prejudice to the generality of the foregoing words, may—

(a) subject to any direction given by the Secretary of State under section 9 of this Act, provide for the division of such business as aforesaid between the sheriff principal F40 . . .the sheriffs appointed for the sheriffdom [F41 , and any part-time sheriffs], and for the distribution of the business (so far as allocated to the sheriffs) amongst those sheriffs;

(b) where any of those sheriffs is by reason of illness or otherwise unable to perform his duties as sheriff, or a vacancy occurs in the office of sheriff in the sheriffdom, or for any other reason it appears to the sheriff principal expedient so to do in order to avoid delay in the administration of justice in the sheriffdom, make special provision of a temporary nature for the disposal of any part of the said business either by the sheriff principal or by any of the sheriffs appointed for the sheriffdom [F42 or by any part-time sheriffs], in addition to or in place of the sheriff [F43 or part-time sheriff] principal’s or, as the case may be, that sheriff’s own duties;

so, however, that nothing done under this subsection shall enable a sheriff to dispose of business which he does not otherwise have power to dispose of.

(2) The sheriff principal of any sheriffdom may approve such leave of absence for any sheriff appointed for that sheriffdom as appears to the sheriff principal to be proper, but the amount of leave so approved (other than leave granted on account of ill-health) shall not, unless the Secretary of State for special reasons otherwise permits, exceed seven weeks in any year.

(3) In subsection (2) above “sheriff” shall not include [F44 a part-time or] an honorary sheriff.

Textual Amendments

F40 Word in s. 16(1)(a) repealed (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(11)(a)(i)

F41 Words in s. 16 (1)(a) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(11)(a)(i)

F42 Words in s. 16(1)(b) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(11)(a)(ii)

F43 Words in s. 16(1)(b) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(11)(a)(iii)

F44 Words in s. 16(3) inserted (9.8.2000) by 2000 asp 9, s. 12, Sch. para. 1(11)(b)

17 Sheriff principal may fix sittings and business of sheriff courts in sheriffdom, and sessions for civil business. S

(1) The sheriff principal of each sheriffdom may by order prescribe—

(a) the number of sheriff courts to be held at each of the places within that sheriffdom at which a court is required under or by virtue of this Act to be held,

(b) subject to section 25(2) of this Act, the days on which and the times at which those courts are to be held,

(c) the descriptions of business to be disposed of at those courts.

(2) The sheriff principal of each sheriffdom shall by order prescribe the dates of the sessions to be held in the sheriff courts of that sheriffdom for the disposal of civil business, and may prescribe different dates in relation to different courts, so however that—

(a) there shall be held in the courts of each sheriffdom three sessions in each year for the disposal of civil business, that is to say, a winter session, a spring session and a summer session;

(b) the dates of the sessions prescribed under this subsection shall not be such as to allow, in any court, a vacation of longer than two weeks at Christmas time, four weeks in the spring and eight weeks in the summer.

(3) The sheriff principal of each sheriffdom shall, before the end of the spring session in each year, fix in respect of each sheriff court in that sheriffdom at least one day during the vacation immediately following that session for the disposal of civil business in that court, and shall, before the end of the summer session in each year, fix in respect of each court at least two days during the vacation immediately following that session for the said purpose; but civil proceedings in the sheriff courts may proceed during vacation as during session, and interlocutors may competently be pronounced during vacation in any such proceedings.

(4) A sheriff principal shall give notice of any matter prescribed or fixed by him under the foregoing provisions of this section in such manner as he may think sufficient for bringing that matter to the attention of all persons having an interest therein.

(5) Subject to anything done under subsection (1) above, or by an order under section 2(1) or section 3(2) of this Act, after the commencement of this Act—

(a) there shall be held at each of the places at which a sheriff court was in use to be held immediately before such commencement the same number of courts as was in use to be held there immediately before such commencement;

(b) the court days and times in use to be observed in any sheriff court immediately before such commencement (whether in pursuance of any enactment or other instrument or otherwise) shall continue to be observed in that court;

(c) the descriptions of business in use to be dealt with on court days in any sheriff court immediately before such commencement shall continue to be dealt with on those days.

(6) Without prejudice to subsection (5) above, any enactment or other instrument in force immediately before the commencement of this Act shall, to the extent that it contains provisions with respect to any matter which the sheriff principal has power to prescribe under subsection (1) above, cease to have effect.

Modifications etc. (not altering text)

C4 S. 17(1)(b) amended by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), s. 10(2)

Valid from 01/04/2010

[F45 17A Lord President's power to exercise functions in sections 15 to 17 S

(1) Subsection (2) applies where in any case the Lord President considers that the exercise by the sheriff principal of a sheriffdom of a function conferred by any of sections 15 to 17 of this Act—

(a) is prejudicial to the efficient disposal of business in the sheriff courts of that sheriffdom,

(b) is prejudicial to the efficient organisation or administration of those sheriff courts, or

(c) is otherwise against the interests of the public.

(2) The Lord President may in that case—

(a) rescind the sheriff principal's exercise of the function, and

(b) exercise the function.

(3) Subsection (2)(b) applies where in any case the Lord President considers that the failure of the sheriff principal of a sheriffdom to exercise a function conferred by any of sections 15 to 17 of this Act—

(a) is prejudicial to the efficient disposal of business in the sheriff courts of that sheriffdom,

(b) is prejudicial to the efficient organisation or administration of those sheriff courts, or

(c) is otherwise against the interests of the public.

(4) The exercise of a function by the Lord President by virtue of subsection (2)(b) is to be treated as if it were the exercise of the function by the sheriff principal.]

Textual Amendments

F38 Ss. 12A-12F and cross-heading substituted (20.2.2010 for the insertion of s. 12C(5) and 1.4.2010 otherwise) for s. 12 by Judiciary and Courts (Scotland) Act 2008 (asp 6), ss. 40, 76; S.S.I. 2010/39, art. 2, Sch. (with art. 3)

F45 S. 17A inserted (1.4.2010) by Judiciary and Courts (Scotland) Act 2008 (asp 6), ss. 49(2), 76; S.S.I. 2010/39, art. 2(b), Sch.

18 Secretary of State may exercise certain functions of sheriff principal in certain circumstances. S

If in any case the Secretary of State considers—

(a) that the exercise by the sheriff principal of any sheriffdom of any of the functions conferred on him by sections 15 to 17 of this Act, or

(b) that the failure of the sheriff principal of any sheriffdom to exercise any of the said functions,

is prejudicial to the speedy and efficient disposal of business in the sheriff courts of that sheriffdom or to the efficient organisation or administration of the sheriff courts generally, or is otherwise against the interests of the public, the Secretary of State may—

(i) (in the circumstances mentioned in paragraph (a) above) rescind that exercise of that function by the sheriff principal and, if he thinks fit, himself exercise that function in that case;

(ii) (in the circumstances mentioned in paragraph (b) above) himself exercise that function in that case,

and the exercise of any function of a sheriff principal by the Secretary of State under this section shall have effect as if it were an exercise of that function by the sheriff principal.

Miscellaneous S

19 Travelling allowances for sheriffs principal. S

The Secretary of State may pay to any sheriff principal, in addition to the salary of that sheriff principal, such allowances as the Secretary of State, with the concurrence of the Treasury, may determine in respect of the travelling expenses incurred by the sheriff principal in the performance of the duties of his office.

20 Extension of purposes for which Lord Advocate may give instructions to procurators fiscal. S

The purposes for which the Lord Advocate may issue instructions to procurators fiscal under section 8(1) of the M3 Sheriff Courts and Legal Officers (Scotland) Act 1927 shall include, in addition to the purpose mentioned in the said section 8(1), the speedy and efficient disposal of business in the sheriff courts.

Marginal Citations

M3 1927 c. 35.

F46 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F46 S. 21 repealed by House of Commons Disqualification Act 1975 (c. 24), Sch. 3 and Northern Ireland Assembly Disqualification Act 1975 (c. 25), Sch. 3 Pt. I

22 Saving for existing functions. S

Nothing in the foregoing provisions of this Act shall affect the discharge by any person of any function lawfully held by him immediately before the commencement of this Act, except in so far as the discharge of that function is or would be inconsistent with any of those provisions or anything done thereunder.]