Lawburrows
Encyclopedia
Lawburrows is a little-known civil action in Scots law
initiated by one person afraid of another's possible violence.
has been rendered somewhat ineffective because of the need to involve the police
, the Procurator Fiscal
(the Scottish name for a prosecutor
), to provide witness
es and to establish the case "beyond reasonable doubt". Civil law
is about the enforcement of private rights and obligations between individuals. Lawburrows enables people to "take the law into their own hands" by exercising their rights under civil law. Legal aid
is available for civil actions.
The standard of proof in civil cases is much less onerous than that of criminal law and so too is the standard required of the evidence
.
, but this can be refused by the court on the grounds of public interest
. Since public interest (the general effects of the action on the welfare of society) is involved, corroborative witnesses may be required. Interdict may require the defender
to refrain from a specific conduct. Although provisional interdicts can be granted speedily, obtaining a perpetual interdict may be very time consuming and costly.
A great disadvantage of interdict is the uncertainty about what happens should the defender disobey the interdict. If it is a first offence, a mild or nominal punishment may be imposed or a warning given.
of James I
in 1429 as a remedy against threats to the safety of members of the public. The aim of Lawburrows was stated in the Act "...to prevent such delinquences (the issuing of threats) and terrify evil doers..." The process is remarkable for its simplicity, speed of execution, low cost of process and the absolute certainty of the exact penalty should the order be contravened. Neither the police nor the Procurator Fiscal is involved unless there is a contravention of lawburrows.
Very roughly: If Alice is put in fear by Bob, Alice asks a Sheriff to hear the case against Bob (this is a civil action and so standard of proof is low). If proven, the Sheriff shall require a deposit from Bob. If, later, Alice shows the Sheriff that Bob has continued to put Alice in fear, the deposit is forfeited and divided equally between Alice and the Court. This does not preclude a criminal action being taken against Bob.
to the Sheriff Court
, the pursuer
asserts that he fears harm to his person, property
, family, tenant
or employees from the defender
. He asks the Sheriff to obtain a certain sum of money (a "caution") or a bond
as security against being molested or troubled further by the defender.
As soon as this writ is received, the Sheriff must immediately order it to be served on the defender and a date for an early hearing
has to be fixed at the same time.
At the hearing, the standard of proof is "on the balance of probabilities" as in other civil actions, so only one credible witness is needed if there is evidence to show that are reasonable grounds for the pursuer’s fear of harm. The pursuer himself may be that witness, although it has been held that corrobarative evidence may be required. This is a summary procedure—no jury
is present and no shorthand
notes of the evidence are kept.
If the pursuer is successful, the Sheriff can order a sum of money to be found (or a bond to be given) and he can order that, should the defender fail to provide this, he shall be imprisoned for up to six months.
If the defender does any harm of the kind specified in the initial writ, the pursuer may (with the consent of the Procurator Fiscal) raise an action for "contravention of lawburrows" asking that the money, or bond, be forfeited and divided equally between the Crown
and himself.
The action for contravention of lawburrows does not preclude any other remedies, such as a civil action for damages for assault
, or criminal proceedings by the Procurator Fiscal.
Several cases in the 1980s failed because lawburrows was misapplied and, consequently, in 1988, the case for the repeal or the overhaul of lawburrows was argued cogently by W J Stewart.
Civil Judicial Statistics Scotland records 25 instances in the four year period 1999—2002, 17 of which were in 2001.
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
initiated by one person afraid of another's possible violence.
Lawburrows Act 1429
The 1429 Act remains in force and says- It is statute ande ordanit that gif ony of the kingis liegis haf ony doute of his life outhir be dede or manance or violent presumpcioun ande he ask souerte of thaim that he doutis the schiref sal tak souerte of the party that the complante is maid apoun sa that the party playntife mak prufe of the dede or of manance or of the violent presumpcioun maid or done till hym
Civil law and the rights of individuals
It is said that, in some communities, there is a fear of violence from certain known people and that the criminal lawCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
has been rendered somewhat ineffective because of the need to involve the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
, the Procurator Fiscal
Procurator Fiscal
A procurator fiscal is a public prosecutor in Scotland. They investigate all sudden and suspicious deaths in Scotland , conduct Fatal Accident Inquiries and handle criminal complaints against the police A procurator fiscal (pl. procurators fiscal) is a public prosecutor in Scotland. They...
(the Scottish name for a prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
), to provide witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
es and to establish the case "beyond reasonable doubt". Civil law
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
is about the enforcement of private rights and obligations between individuals. Lawburrows enables people to "take the law into their own hands" by exercising their rights under civil law. Legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
is available for civil actions.
The standard of proof in civil cases is much less onerous than that of criminal law and so too is the standard required of the evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
.
Interdicts
The most common action against someone who threatens violence is interdict or court orderCourt order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
, but this can be refused by the court on the grounds of public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
. Since public interest (the general effects of the action on the welfare of society) is involved, corroborative witnesses may be required. Interdict may require the defender
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
to refrain from a specific conduct. Although provisional interdicts can be granted speedily, obtaining a perpetual interdict may be very time consuming and costly.
A great disadvantage of interdict is the uncertainty about what happens should the defender disobey the interdict. If it is a first offence, a mild or nominal punishment may be imposed or a warning given.
Lawburrows
In Scotland the alternative to interdicts is lawburrows. This was first passed by a ParliamentParliament of Scotland
The Parliament of Scotland, officially the Estates of Parliament, was the legislature of the Kingdom of Scotland. The unicameral parliament of Scotland is first found on record during the early 13th century, with the first meeting for which a primary source survives at...
of James I
James I of Scotland
James I, King of Scots , was the son of Robert III and Annabella Drummond. He was probably born in late July 1394 in Dunfermline as youngest of three sons...
in 1429 as a remedy against threats to the safety of members of the public. The aim of Lawburrows was stated in the Act "...to prevent such delinquences (the issuing of threats) and terrify evil doers..." The process is remarkable for its simplicity, speed of execution, low cost of process and the absolute certainty of the exact penalty should the order be contravened. Neither the police nor the Procurator Fiscal is involved unless there is a contravention of lawburrows.
Very roughly: If Alice is put in fear by Bob, Alice asks a Sheriff to hear the case against Bob (this is a civil action and so standard of proof is low). If proven, the Sheriff shall require a deposit from Bob. If, later, Alice shows the Sheriff that Bob has continued to put Alice in fear, the deposit is forfeited and divided equally between Alice and the Court. This does not preclude a criminal action being taken against Bob.
The process of lawburrows
In an initial writWrit
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
to the Sheriff Court
Sheriff Court
Sheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom.Sheriff courts deal with a myriad of legal procedures which include:*Solemn and Summary Criminal cases...
, the pursuer
Pursuer
A pursuer in Scotland is the party who initiates a lawsuit before a Court of Scotland. The term is the same in civil and criminal proceedings. The pursuer is seeking a legal remedy, and if successful, the court will issue judgment in favour of the pursuer and make the appropriate court order...
asserts that he fears harm to his person, property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
, family, tenant
Leasehold estate
A leasehold estate is an ownership of a temporary right to land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord....
or employees from the defender
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
. He asks the Sheriff to obtain a certain sum of money (a "caution") or a bond
Surety bond
A surety bond is a promise to pay one party a certain amount if a second party fails to meet some obligation, such as fulfilling the terms of a contract...
as security against being molested or troubled further by the defender.
As soon as this writ is received, the Sheriff must immediately order it to be served on the defender and a date for an early hearing
Hearing (law)
In law, a hearing is a proceeding before a court or other decision-making body or officer, such as a government agency.A hearing is generally distinguished from a trial in that it is usually shorter and often less formal...
has to be fixed at the same time.
At the hearing, the standard of proof is "on the balance of probabilities" as in other civil actions, so only one credible witness is needed if there is evidence to show that are reasonable grounds for the pursuer’s fear of harm. The pursuer himself may be that witness, although it has been held that corrobarative evidence may be required. This is a summary procedure—no jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
is present and no shorthand
Shorthand
Shorthand is an abbreviated symbolic writing method that increases speed or brevity of writing as compared to a normal method of writing a language. The process of writing in shorthand is called stenography, from the Greek stenos and graphē or graphie...
notes of the evidence are kept.
If the pursuer is successful, the Sheriff can order a sum of money to be found (or a bond to be given) and he can order that, should the defender fail to provide this, he shall be imprisoned for up to six months.
If the defender does any harm of the kind specified in the initial writ, the pursuer may (with the consent of the Procurator Fiscal) raise an action for "contravention of lawburrows" asking that the money, or bond, be forfeited and divided equally between the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
and himself.
The action for contravention of lawburrows does not preclude any other remedies, such as a civil action for damages for assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
, or criminal proceedings by the Procurator Fiscal.
Characteristics
- One action can encompass not only the person of the pursuer, but also his family, property and employees.
- Only the pursuer has to offer evidence to show that his fear of harm is rational and well-founded.
- Proof is at the level of balance of probability.
- If judgement cannot be given immediately, then it has to be delivered by a date specified at the time of the hearing.
- The nature of the threat does not have to be specified in detail, only that vindictive persecution is feared.
- The penalty is lodged in advance of any contravention, and its amount does not depend on the circumstances in which any contravention took place.
- The specific sum to be lodged as security is not predetermined. The pursuer may suggest an amount, but the sheriff has discretion to determine it. The amount is intended to deter contravention of the order.
- The process is straightforward at every stage, There is no room for defences, preliminary pleaPleaIn legal terms, a plea is simply an answer to a claim made by someone in a civil or criminal case under common law using the adversary system. Colloquially, a plea has come to mean the assertion by a criminal defendant at arraignment, or otherwise in response to a criminal charge, whether that...
s, debateDebateDebate or debating is a method of interactive and representational argument. Debate is a broader form of argument than logical argument, which only examines consistency from axiom, and factual argument, which only examines what is or isn't the case or rhetoric which is a technique of persuasion...
s, and continuations. - The process is speedy, the date of proof is fixed at the outset.
- The rules of summary criminal procedure apply so there are no written pleadings.
- The objective of the action is clear and simple. It is to keep the pursuer harmless from illegal violence of which he alleges he is in dread at the time of the application.
Application
The remedy of lawburrows has a very long history. Its application is very narrow, referring only to people being put in fear and there are many alternative remedies in the criminal law, involving the police to whom people put in fear are most likely to appeal in the first instance. Many attempts to obtain remedies in this way are thwarted by the reluctance of the police to get involved in domestic disputes and quarrels between neighbours, often because of the difficulty of obtaining the witnesses needed in criminal proceedings. Such a need is largely circumvented in actions of lawburrows. Although little known to the public, and even to some solicitors, lawburrows is still in use in the present time.Several cases in the 1980s failed because lawburrows was misapplied and, consequently, in 1988, the case for the repeal or the overhaul of lawburrows was argued cogently by W J Stewart.
Civil Judicial Statistics Scotland records 25 instances in the four year period 1999—2002, 17 of which were in 2001.
See also
- InjunctionInjunctionAn injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
- court orderCourt orderA court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
- Anti-social behaviour orderAnti-Social Behaviour OrderAn Anti-Social Behaviour Order or ASBO is a civil order made against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders, introduced in the United Kingdom by Prime Minister Tony Blair in 1998, were designed to correct minor incidents that...
- List of Acts of the Scottish Parliament to 1707