Preparation for, and the course of, a trial or proof

Question 1

What are precognitions?

Answer 1

The key part of the preparation for trial involves precognitions. Potential witnesses are precognosced in preparation for a trial or proof.

A precognition is a document prepared pre-trial setting out the evidence which it is hoped a witness will give:

“a precognition is any compilation of the evidence which it is hoped that a witness will give derived from statements made by him and reduced to writing” (McAvoy v Glasgow DC 1993 SLT 859, at 860 per Temporary Judge Coutts)

Question 2

Can you be required to submit to precognition in civil cases?

Answer 2

⁃ In civil cases there is no obligation to be precognosced: Henderson v Patrick Thomson 1911[ A woman brought a civil action for damages, averring that she went into a shop and she had been stopped by one of the shop’s employees and accused of having committed a theft. She raised a civil action and asked the court to order the defendants (shop owners) to disclose the names and addresses of their employees so that she could take precognitions from them. The court held that no-one can be compelled in a civil action to give a precognition.] - but refusal will be a matter for comment and cross-examination (i.e. questions about why the the witness did not allow precognition can be asked).

Question 3

Can you be required to submit to precognition in criminal cases?

Answer 3

(A) The “civic duty” to submit to precognition
⁃ There is said to be a civic duty[ I.e. it is the right thing to do but there is no general legal duty.] for a witness in a criminal case to give precognitions both to the defence and to the Crown: *HM Advocate v Monson (1893).

(B) However, the Crown have a general power to cite (compel) witnesses for precognition
⁃ And it is a criminal offences if the person cited to appear either refused to attend or refused to give information in respect of the offence in question.

(C) Precognition on oath
⁃ There is also a procedure called precognition on oath. This involves a witness being taken before the Sheriff where an oath is administered and the person is then asked questions and the answers are recorded. It is now the case that the defence can, in exceptional circumstances request that a would-be witness gives a precognition on oath:
⁃*Low v MacNeill 1981
- Brady v Lockhart 1985

The court held that in these circumstances the witnesses should be taken before the sheriff and precognosced on oath.[ Not really sure what is going on here.]

Question 4

*HM Advocate v Monson (1893)

Answer 4

The judge said that every good citizen should give a precognition - but there is not a legal duty.

Question 5

Low v MacNeill 1981

Answer 5

⁃ A man was charged with various offences. He was given a list of Crown witnesses. He had problems getting hold of one of them whom the solicitor for the accused wanted to precognosce.
⁃ The solicitor regarded this potential witness as crucial but he had been told by the Crown what the Crown believed that witness would say in evidence.
⁃ The accused’s solicitor asked that the person be brought before a sheriff and precognosced on oath but the court held that this procedure is designed only for unusual or exceptional cases and the circumstances of this case it was not necessary.

Question 6

Brady v Lockhart 1985

Answer 6

⁃ A man was charged with assault. There were only two witnesses. Both refused to be precognosced by the defence despite the fact that the Crown agreed that the defence should be able to precognosce both witnesses. The original trial was adjourned to allow precognitions to be taken.

Question 7

What use can be made of precognitions?

Answer 7

Precognitions are to be used in preparation of a case – generally, very little use of them can be made in court.

Question 8

What does it mean when we say precognitions have absolute privilege?

Answer 8

But privilege in this context is NOT EVIDENTIAL PRIVILEGE. It refers to privilege under the law of defamation.

Question 9

Watson v McEwan (1905)

Answer 9

⁃ Held that the same immunity from defamation that applies to witnesses giving evidence applied to what was said in a precognition too.
⁃ [This case just backs up the principle that precognitions are covered by privilege against defamation.]

Question 10

Why are precognitions generally not admissible in evidence?

Answer 10

*Kerr v HM Advocate 1958
⁃ There had been a theft of stolen copper. Two men were found in possession of the copper which was found on lorries belonging to a firm they worked for. The men were arrested and charged with theft. The following day a police officer interviewed a partner in the firm who owned the lorries. The police officer asked questions and took a statement.
⁃ Later in court in giving evidence the police officer read the statement.
⁃ The court held that this should not have happened because this statement was a type of precognition (since the statement was used in preparing for the trial).
⁃ [At page 19 of the JC case report the court made clear why precogntions are not admissible in evidence - the fundamental reason being that a precognition is a compilation of what the questions and answers were - in other words the person taking the precognition constructs a document based on the questions and answers - it is “filtered through the mind of another, whose job it is to put what he thinks the witness means into a form suitable for use in judicial proceedings”.

Question 11

Does the abolition of the rule against hearsay in civil proceedings render precognitions admissible?

Answer 11

No.

There is, however, nothing to stop a precognoser giving hearsay evidence of what the witness said to him[ This is based upon the difference between the precognition itself (inadmissible) and the person who took the precognition repeating as hearsay what the other person said to him (admissible).] in civil cases:
Anderson v Jas B Fraser & Co Ltd 1992
McAvoy v Glasgow DC 1993

Question 12

s 9 of the Civil Evidence (Scotland) Act 1988.

Answer 12

See the definition of “statement”

Question 13

Anderson v Jas B Fraser & Co Ltd 1992

Answer 13

⁃ This case concerned an action for damages for personal injuries. A key person involved was a fellow employee of the pursuer who was an eyewitness to the accident. A solicitor had precognosced the fellow employee and the solicitor gave evidence as to what the fellow employee had said to him during the process of taking the precognition.
⁃ It was held that the evidence of the solicitor was admissible (hearsay - which is admissible in civil proceedings) because the solicitor was not producing a precognition - he was repeating as accurately as he could exactly what the fellow employee had said to him.

Question 14

McAvoy v Glasgow DC 1993

Answer 14

⁃ Another civil case for damages said to have come about because of the condition of the common entry to a flat. A man claimed he was injured while visiting a friend who lived there. The person he had visited died before the civil proof. Evidence was led as to what the deceased had told his family about the incident and also statements made by that man to a solicitor who was taking a precognition.
⁃ It was held that the statements made to the mans’s family, although hearsay, were admissible, but the precognition was not admissible because it was a precognition.

Question 15

Does the prohibition about precognitions not being admissible apply to recognitions on oath?

Answer 15

The general prohibition about precognitions not being admissible does not apply to precognitions on oath as they are not subject to the same problems.

Question 16

Do you have to disclose witnesses in civil cases?

Answer 16

In most civil cases, there is an obligation to exchange lists of witnesses.
⁃ This is to allow the other side to precognosce the witnesses in question.

Question 17

What was the rule of disclosure of witnesses at common law?

Answer 17

At common law, there was a power to apply to the court for disclosure of the names or addresses of persons “representing” the parties in the issue under dispute: see

Clarke v Edinburgh and District Tramways 1914
⁃ An action by a woman for damages after being injured by a tram. At an earlier stage of the case she requested the court to make an order on the defenders (the tram company) to supply her with the names of the driver and conductor.
⁃ On appeal it was held that the court must make an order

Similarly: Halloran v Greater Glasgow PTE 1976
⁃ A man was injured on the subway platform. He blamed the operators of the subway. At an early stage he requested that the defenders disclose the name and address of the lookout man and th court held that it would grant that order because otherwise, how would they obtain evidence from key witnesses if they don’t know who the witnesses are.

Question 18

Where are the rules of disclosure of witnesses found in statute?

Answer 18

There is now a statutory provision under the Administration of Justice (Scotland) Act 1972 s 1(a) (as amended by the Law Reform (Miscellaneous Provisions)(Scotland) Act 1985) to seek disclosure of identity of persons who:
⁃ (a) might be witnesses in existing or likely civil proceedings or
⁃ (b) might be defenders in any civil proceedings which are likely to be brought.

This statutory power has given the court greater powers than under the common law.

Question 19

Moffat v News Group Newspapers 1999

Answer 19

⁃ Action of defamation against a news company alleging broadcasts that implied the man and woman who were not married were having an adulterous relationship. They asked the court for an order for the defenders to disclose the name of their source.
⁃ The defenders are claiming the defence of veritas - the court decided that they would not make the order because, why would the pursuer’s need evidence from these witnesses because they could rebut the allegation by their own evidence.

Question 20

What are the rules for disclosing witnesses in solemn procedure?

Answer 20

In solemn procedure, the Crown must provide a list of witnesses with the indictment and the defence must provide one in advance of trial. See CPSA 1995, ss 66, 67 and 78(4).

Question 21

What are the rules for disclosing witnesses in summary procedure?

Answer 21

In summary procedure there is no statutory obligation on Crown to provide list but this is normally done on request. There is no obligation at all on the defence to produce or give any prior notification of the witnesses which it intends to call.

Question 22

What is the general duty of the Crown to dislose information in the course of their investigations?

Answer 22

NB According to ss 121-123 of the Criminal Justice and Licensing (Scotland) Act 2010, the Crown also has a continuing duty to disclose all information obtained in the course of an investigation which would:

(a) materially weaken or undermine the evidence that is likely to be led by the prosecutor,
(b) would materially strengthen the accused’s case, or
(c) is likely to form part of the evidence to be led by the prosecutor.

Failure to do so may result in breach of Article 6 ECHR (Holland v HM Adv 2005 SC (PC) 3; Sinclair v HM Adv 2005 SC (PC) 28; McDonald v HM Adv 2008 SCCR 154, 2008 SLT 993; HM Adv v Murtagh [2009] UKPC 35.) See also COPFS Disclosure Manual, available online at:
http://www.copfs.gov.uk/images/Documents/Prosecution_Policy_Guidance/Disclosur_Manual/Disclosure%20Manual%20-%20Chapters%201-13%20-%20V9%20-%20September%202011%20Edited.PDF

Question 23

What is the oath requirement?

Answer 23

All witnesses must take the oath or affirm before giving evidence. Failure to do so is a contempt of court.

Question 24

What is the prescribed form of oath?

Answer 24

The prescribed form of oath is as follows:
⁃ “I swear by Almighty God that I will tell the truth, the whole truth, and nothing but the truth.”
⁃ (Act of Adjournal (Criminal Procedure Rules) 1996, Rule 14.5 (and Form 14.5A and B); Rules of Court of Session 1994, Forms 36.10A and B.)

Question 25

What happens if the prescribed oath is not appropriate to the oath-taker?

Answer 25

Witnesses may, however, give the oath in another appropriate manner if this form is not appropriate to their religious belief.

But If a witness has declared a form of oath to be binding upon him, no objection can be taken on the ground that it later appears to be in conflict with his religious beliefs (see Oaths Act 1978, s 4(1)

Question 26

R v Kemble [1990]

Answer 26

The main witness for the Crown was a man who was muslim. He took the oath using the new testament. The accused was convicted and on appeal the accused argued that no account should have been taken of that witness’s evidence because his own religious beliefs meant that his oath was not binding on him. The court held that because no objection was made at the time to taking the oath, the oath was binding on the witness.

Question 27

Meehan v HM Advocate 1970

Answer 27

⁃ Meehan was a man convicted of murder which he probably didn’t commit. There was a long campaign after his conviction to have him freed which was eventually successful. At one stage it was argued on behalf of Meehan that he would willingly take a truth drug and he wanted the evidence that he made under the influence of this drug to be admissible in court. The court held that this was simply incompetent because that evidence was not evidence given on oath.
⁃ [Not too important?]

Question 28

How should evidence be recorded in cases?

Answer 28

In civil proofs in the ordinary cause level of the sheriff court and in the Outer House evidence taken is recorded either by shorthand notes or by electronic means.

The same is true in solemn criminal proceedings.

There is no procedure for taking a record of evidence in summary criminal cases or in summary cause small claims civil cases.

Evidence (Scotland) Act 1866; Rules of the Court of Session 1994, r 36.11; Ordinary Cause Rules 1993, rule 29.18; CPSA 1995, ss 93, 157.

Question 29

Can a person give evidence in a trial or a proof if prior to giving evidence he or she has heard earlier evidence?

Answer 29

There is a general prohibition on a person giving evidence in a trial or a proof if prior to giving evidence he or she has heard other earlier evidence in that case.

Question 30

What is the common law position in relation to this question?

Answer 30

The common law position:
⁃ “At common law a witness who had been in court and heard the evidence of other witnesses was thereby rendered incompetent to testify. The only exception was that skilled (expert) witnesses might be allowed to hear evidence of fact, but were required to withdraw during the evidence of other skilled witnesses.” (Walker and Walker (2nd edn), para 13.22.1).

Question 31

How has the common law position been amended by statute?

Answer 31

The common law position has now been amended by statute. The court has a discretion to:
⁃ “admit the witness, where it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent, and that the witness has not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his examination.”
⁃ [CPSA 1995, s 267/Evidence (Scotland) Act 1840, s3; terms almost identical as 1840 Act formerly applied to both civil and criminal cases]

Question 32

Can the parties consent to the witness being present in court?

Answer 32

Yes - Affleck v HM Advocate 2005

Question 33

Affleck v HM Advocate 2005

Answer 33

⁃ Trial for murder. One of the witnesses for the Crown was the mother of a deceased person. She was cited to give formal identification evidence. However both the Crown and the defence both agreed that she did not need to give this evidence. She was allowed to sit through the rest of the trial. During the trial she spoke to the Advocate-Depute for the Crown and told him that she had had a conversation with the accused sometime after the event. She also said that during investigations she had told the police that she had had this conversation but the police had not informed the Crown.
⁃ The court held that from the perspective of the crown it couldn’t be said that the presence of this woman in court was a result of culpable negligence because they were unaware of the potential evidence that she could give - so the woman was allowed to give evidence.

Question 34

Can the judge alone raise the issue of the competency of the witness?

Answer 34

The judge can raise the issue (of whether such a witness is competent) even if no party objects:
⁃ Macdonald v Mackenzie 1947
⁃ Defence in a criminal case called as a witness someone who had been in court for an earlier part of the trial. The Crown itself made no objection to this person giving evidence. But the sheriff hearing the case himself raised the question as to whether the witness is competent because there is no automatic rule under the statute that a person who has already been in court can always give evidence.

Question 35

Can the competency of a witness be a basis for objecting to a person’s presence in court (as opposed to their evidence being led thereafter)?

Answer 35

Gerrard v R W Sives Ltd 2003
⁃ Civil action against a company. Company was represented by its managing director. But before the case began the pursuer pointed out that the company director would be giving evidence and therefore should not be present prior to him giving evidence himself.
⁃ It was held that this was a perfectly legitimate objection to make - the pursuer was giving notice to the other side that the pursuer would be calling the managing director as a witness and therefore he should be unaware of the prior evidence.

Question 36

What happens if a witness gives evidence and it is not anticipated that he/she will give further evidence, but that person remains in court, what happes if they are later recalled?

Answer 36

The rule seems to be that in these circumstances no objection can be made to the witness giving further evidence on being recalled simply because he/she remained in the court after giving their own original evidence.
⁃ Civil Evidence (Scotland) Act 1988 s 4; CPSA 1995, ss 268-269.[ Not very well taught?]

Question 37

What is the procedure of the examination of a witness?

Answer 37

The general order of examination is as follows:
⁃ Examination in chief
⁃ Cross-examination
⁃ Re-examination (should be confined to matters raised in cross)

Each witness is examined by the above three stage process:
⁃ So the party who has called a witness questions that witness first (examination in chief).
⁃ Then the other side examine the witness by a process called cross examination.
⁃ The remaining stage is where the party who called the witness questions the witness about the points made in the cross examination (re-examination)

Question 38

How is the procedure of examination of a witness complicated by more than one witness?

Answer 38

The position may be complicated where there are more than two parties (usually in criminal cases where there are co-accused). see e.g. Sandlan v HM Advocate 1983 SCCR 71.
⁃ Example: crown indicted two accused for trial (A and B). If A has witnesses, A questions first, then B and then the Crown. It seems to be the order in which co-accused cross-examine other witnesses is the order that they appear on the indictment. [Strange rule because there is no hard practice as to which order co-accused appear on the indictment.]

Question 39

What is the examination in chief method?

Answer 39

There is a method whereby you must ask questions of your own witness - you cannot ask “leading questions.”

Question 40

What are leading questions?

Answer 40

⁃ “Leading questions” (those which contain or suggest the answer[ Usually to e.g. yes or no.

Example. If the witness is thought to be an eyewitness to an assault, then the Crown must not ask “Did A hit B?”. Instead, what they would have to say is “What did you see?”]) are generally prohibited. If they are nevertheless asked, the answers obtained are generally worthless: see
⁃ McKenzie v McKenzie 1943

Question 41

McKenzie v McKenzie 1943

Answer 41

A witness had been examined by counsel reading from a precognition asking the witness if this was true or not. The court held that this method of examination (using leading questions) makes the examination worthless.

Question 42

When can a person who calls a witness ask leading questions?

Answer 42

In English law there is an expression “hostile witness” although this term is not used in Scotland in a technical sense (but it is still often used). A hostile witness is one who’s evidence does not quite measure up to what the party thought or their evidence points in different directions. At a certain stage when asking questions in chief, in these circumstances counsel can treat the witness as hostile and start asking leading questions

Question 43

Avery v Cantilever Shoe Co 1942

Answer 43

It was pointed out that unlike in English law counsel do not require the leave of the court before they can treat their own witness as hostile.

Question 44

Frank v HMA 1938

Answer 44

It was pointed out that very often in criminal cases the Crown has to lead witnesses to establish some important point although the witness may also give evidence which is against the Crown’s case.
⁃ In these circumstances once the Crown has asked the questions it want’s to ask, and depending on what the witness has said, it can treat the witness as hostile and ask leading questions.

Question 45

What happens when a witness gives internally contradictory evidence?

Answer 45

Where a witness gives internally contradictory evidence, it is up to the jury to decide which part of the witness’s evidence they prefer

Question 46

*McLeod v HMA 1939

Answer 46

⁃ This case concerned a charge of sexual assault on a young girl. Evidence was led from the girl herself. The Crown led another witness to corroborate the girls evidence. That other witness gave contradictory evidence.
⁃ There was an argument that the evidence of the other witness could not corroborate the complainer’s evidence.
⁃ The court disagreed and held that it was a question for the jury to decide which bits, if any, of the other witness’s evidence they would believe. And if they decided that they would believe the parts consistent with the complainer’s evidence then corroboration had been established.

Question 47

During the course of giving evidence (mainly examination in chief) the question arises as to whether a witness in giving oral evidence can refer to notes made at or about the time of the incident in question?

Answer 47

⁃ The general rule is that a witness should speak from memory, but can refresh his or her memory by looking at notes which he made at the time or shortly thereafter.
⁃ If this happens then the notes are not written evidence - they are treated as if they are part of the oral evidence.
⁃ But it follows that the other side are entitled to see the notes

Question 48

Niven v Hart 1898

Answer 48

⁃ Crown witness referred to notes taken earlier for the purpose of refreshing his memory. Counsel for the accused asked if he could see the notes. The judge refused to allow this. The man was convicted.
⁃ On appeal it was held that the trial judge had been wrong because the rule was that where the witness uses notes when giving evidence to refresh memory then the other side are entitled to see the notes in question.

Question 49

Black v Bairds & Dalmellington 1939

Answer 49

⁃ Pointed out that the same also applies to medical reports. Medical reports are often lodged as written evidence but in this case the court was talking about the situation where there had been a post mortem report which had not been lodged as written evidence but which a medical witnesses was using while giving oral evidence to refresh his memory. The court held that in these circumstances the normal rule applies[ That these notes can be used.] but the other side are entitled to see the notes in question.

Question 50

If the witness refers to notes does the other party have a right to see them?

Answer 50

But if these notes are not referred to by the witness, the other party has no right to see them

Question 51

Hinshelwood v Auld 1926

Answer 51

⁃ Evidence was given by police officers for the Crown. They said that after the incident in question they had made notes for the purposes of passing to their superior officers. These notes were not used while giving evidence to refresh memory. However, counsel for the accused requested to see these notes. The court refused this for two reasons:
⁃ 1) The notes were probably privileged; and more importantly for our purposes
⁃ 2) Since the notes were not referred to or used as a basis for the oral evidence, then the other side had no right to see them.

Question 52

Deb v Normand 1997

Answer 52

⁃ A police witness was giving evidence. He was cross examined by counsel for the accused. During cross examination he was asked if he had taken notes at the time of the incident. The witness said that he had and it seems that prior to giving evidence in court he had consulted his notes. Crucially he had not used the notes whilst giving evidence.
⁃ It was held that the other side could not see these notes because the witness had not used them whilst giving oral evidence in court itself.

Question 53

Daly v Vannet 1999

Answer 53

⁃ Police officer giving evidence. He referred to his notebook to assist his memory. The other side (accused) were therefore entitled to see these notes. However the counsel for the accused wanted to see an earlier part of the notes (i.e. notes taken by the police officer concerning earlier events).
⁃ It was held that the police officer was not entitled to see those parts of the notes but only the part of the notebook about which the officer had given evidence.

Question 54

What is the value of cross-examination?

Answer 54

Here are two quotes which give alternative views of the value of cross examination:
⁃ “The greatest legal engine ever invented for the discovery of truth”, or “…the best means of working upon witnesses and leading them astray”? (J Spencer and R Flin, The Evidence of Children, 2nd edn (1993) 222 and 270, quoting Wigmore and Schneikert respectively.)

Question 55

What is the purpose of cross-examination?

Answer 55

The purpose of cross examination is to test a witness’s veracity and accuracy, to obtain evidence on points about which the witness has not been questioned, and generally to elicit admissions or information favourable to the cross-examiner’s case. But it is open to serious objections, particularly in the case of young or vulnerable witnesses[ This is why there are special rules about when such questions can be asked in these cases.]. See Spencer and Flin, 70-276.

Question 56

Are leading questions permissible in cross-examination?

Answer 56

Leading questions are permissible, but hypothetical questions, and “double” or trick questions will be discouraged: e.g. “Have you stopped beating your wife?”[ The reason this question is not allowed is that people who haven’t ever beaten their wife can’t answer the question yes or no.]

“…the most obvious principles of fairplay dictate that, if it is intended later to contradict a witness upon a specific and important issue to which that witness has deponed, or to prove some critical fact to which that witness ought to have a chance of tendering an explanation or denial, the point ought normally to be put to the witness in cross-examination.” (*McKenzie v McKenzie 1943 SC 108 at 109 per the Lord Justice-Clerk (Cooper)).

Question 57

What are the two issues that can arise in cross-examination?

Answer 57

(1) Failure to cross examine[ This is where the other side do not cross-examine]: civil cases

(1) a failure to cross-examine the pursuer’s witness can be objectionable as failing to lay a foundation for the defence case[ I.e. it is not giving notice as to the line of defence that] – i.e. pursuer has been prejudiced because no opportunity to “meet” defence case. Here, the court can simply prevent the defence from leading the relevant evidence themselves, but the courts tend not to act that harshly: see
⁃ *Bryce v British Railways Board 1996

(2) failure to cross-examine defender’s witness.
Here, there is no question of prejudice, but the failure can be taken as implied acceptance of the evidence: see
⁃ Keenan v Scottish Wholesale Co-operative Society 1914

Modern cases have not, however, gone so far[ These modern cases tend to simply treat failure to cross examine as an aspect of weight rather than a full admission of the other side’s case.]: see e.g.
⁃ Harrington v Milk Marketing Board 1985

[Incidentally, this analysis assumes that the pursuer is leading at the proof, which is not inevitable: the defender can be ordained to lead in appropriate cases. If so, these rules are reversed.]

Question 58

*Bryce v British Railways Board 1996

Answer 58

⁃ Medical witness for the defender’s. This line of evidence had not been put in cross-examination to the pursuer’s witness. And the evidence from the medical witness did not involve cross-examination by the pursuer either.
⁃ The court held that the effect of all this was simply a question of the weight to be given to the evidence in question.

Question 59

Keenan v Scottish Wholesale Co-operative Society 1914

Answer 59

⁃ This was an action for personal injury said to have been caused by the way in which a man had driven a car. It was averred that the driver at the time of the accident had been talking to a man in the passenger seat. The pursuer produced 3 witnesses all of whom testified that this is what happened. However the defender produced witnesses saying that the driver had been aware in the car.
⁃ The pursuer did not cross-examine the defender’s witnesses. It was held that by failing to cross-examine on this key point, the pursuer had admitted the defender’s version of events.

Question 60

Harrington v Milk Marketing Board 1985

Answer 60

⁃ This case concerned alleged negligence by a driver of a lorry. It was alleged that the engine of the lorry was failing and the driver simply parked the lorry on the main road. This led to an accident. It was averred that the driver could and should have parked the lorry at a nearby petrol station.
⁃ The point about whether the driver could have parked at the petrol station was not put in cross examination to the driver when he gave evidence. However the court accepted that failure to cross examine on this point went only to weight and not to an admission because there was strong other evidence by the pursuer that suggested that the driver could have parked the lorry somewhere else.

Question 61

Walker v McGruther & Marshall 1982

Answer 61

⁃ There had been an action of damages for fatal injuries. It was alleged that a man had been injured in a lorry in which he was travelling and driven by a particular man. But that man gave evidence for the defender. Pursuer’s counsel asked various questions intended to discredit his evidence because the man said it was the deceased who had been driving the lorry. But pursuer’s counsel did not cross examine on that particular issue.
⁃ Again it was held on the facts of the case that all the other evidence clearly suggested that the point here was who had been driving the lorry, and it was quite clear that the witness for the defender would say that he didn’t drive it - it was the now deceased man. SO the court held that the failure to cross examine was not fatal - it only affected the weight to be given to the evidence for the pursuer.

Question 62

What happens in failure to cross-examine in criminal cases?

Answer 62

A failure by the defence to cross-examine a Crown witness does not supply corroboration to the Crown: Wilson v Brown 1947.

Failure to cross-examine can be the subject of comment but does not amount to acceptance of evidence - it only goes to the weight of the witness’s evidence

Question 63

Young v Guild 1985

Answer 63

Failure by the Crown to cross examine witnesses did not mean the Crown accepted their evidence.

Question 64

McPherson v Copeland 1961

Answer 64

Failure by defence

⁃ 2 Crown witnesses about same point. Defence chose to cross examine only the second one - allowed.

Question 65

Can a witness ever be re-examined?

Answer 65

1. The party who called the witness can re-examine on points which come out of the cross examination.
2. Where a witness makes damaging admissions, the court may have regard to a failure to re-examine on that point (but it doesn’t amount to acceptance of the damaging admissions): Gibson v BICC 1973

Question 66

Can a party recall a witness?

Answer 66

After re-examination it is normally the end of examination of a witness but it is possible for a party to recall a witness.
⁃ There is a statutory power to do this in both criminal and civil cases. In criminal cases, see CPSA 1995 s 263(5) (only up to the close of that party’s case). In civil cases, see the Evidence (Scotland) Act 1852 s 4 and the Civil Evidence (Scotland) Act 1988 s 4(1)(a).

Question 67

Is there an automatic right of recall?

Answer 67

There is no automatic right of recall: an “interests of justice” test applies

Question 68

Thomson v HM Advocate 1988

Answer 68

Witness refusing to answer questions as to identification. Detained until end of trial. Next day Crown asked for her to be recalled because she was now willing to answer. Court was correct in exercising its discretion to allow her to be recalled.

Question 69

Birrell v HM Advocate 1995

Answer 69

Murder trial. Crown witness brother of accused was rather hesitant about replying and gave some denials about prior statements. Arrested and charged with perjury. Next sitting the court exercised discretion and recalled because he had now accepted he wasn’t telling the truth

Question 70

In what cases can further evidence be led?

Answer 70

In addition to recalling a witness there are procedures for allowing further evidence to be led. (This is because the Crown leads all their witnesses then the Defence leads all their witnesses. Thus all the Crown’s witnesses are led quite early on. So procedures are available whereby after listening to all the other sides case the party first in has an opportunity to lead further evidence
⁃ In both civil and criminal law there is a procedure allowing the prosecutor or pursuer to lead such evidence called proof in replication.

Question 71

What is proof in replication?

Answer 71

⁃ This is something which the prosecutor or pursuer may be allowed to do to avoid prejudice.
⁃ Allows them to lead evidence to contradict evidence by the defence which couldn’t have reasonable been anticipated.
⁃ NB it is incompetent to use this procedure to contradict evidence introduced by a prosecution witness.

Question 72

When does additional evidence arise?

Answer 72

⁃ This arises in Criminal cases only: CPSA 1995 s 268; available to either the prosecutor or the accused.
⁃ An application to lead such additional evidence must be made prior to the stage of the parties making speeches to the jury. The judge can grant permission provided the additional evidence is material and not dealing with some collateral matter and secondly the additional evidence was not available at the time of the start of the trial or its relevant could not reasonably have been foreseen.
⁃ The defence can lead additional evidence to contradict evidence led by the prosecutor in replication.

Question 73

When may a judge put questions to the witness?

Answer 73

The judge may put questions to “clear up ambiguities that are not being cleared up by either the examiner or the cross-examiner [and] such questions as he might regard relevant and important for the proper determination of the case”, but should not take over the role of examiner or cross-examiner” (*Tallis v HM Advocate 1982 SCCR 91 at 98 per the Lord Justice-General (Emslie)).

Question 74

*Tallis v HM Advocate 1982

Answer 74

Two accused charged with theft. They claimed someone else had committed the theft by preparing a bogus order for goods. One of the accused pled guilty and the other accused in evidence now said the accused who pled guilty had prepared the bogus order and admitted this was not what he had told the police but that he had only become aware of this point sometime after his interview with the police. His evidence was unclear as to exactly what he now believed he had told the police. The judge questioned this witness to seek clarification of his exact position. In directing the jury the sheriff referred to this line of questioning by himself and specifically said to the jury that they might consider the accused was someone who was likely to shift his ground.

It was held that although the sheriff could ask questions in this case the sheriff had gone beyond this proper role and the conviction was quashed.

Question 75

Can leading questions by the judge ever be permissible?

Answer 75

Leading questions may be permissible:
⁃ Elliot v Tudhope 1987[ After Crown witness examined in chief, cross examined and re-examined Sheriff asked witness 28 questions to fully understand his evidence. On appeal after conviction the court held this was more than normal but on the facts of this case the questions were all designed to seek clarification and did not give rise to new issues.]

Question 76

When will a second cross-examination by allowed?

Answer 76

Cross-examination[ I.e. by the parties.] should be allowed if the judge’s questioning elicits new evidence:
*McLeod v HM Advocate
⁃ Sexual assault of child. Evidence given by child. Second witness gave no evidence which was directly incriminating. Trial judge asked 2nd witness questions and the witness made a directly incriminating answer. Judge didn’t allow witness to be further cross examined. On appeal held given judge’s questions gave rise to new evidence the Crown and defence should have been allowed to ask further questions.

Question 77

What if the evidence elicited is improper?

Answer 77

McCallum v Paterson 1969
⁃ Questioning by judge strayed into asking questions, the answer to which would have been incompetent evidence. It was pointed out later on that the parties should object immediately to the line of questioning by the judge.

Question 78

Can a judge recall a witness?

Answer 78

The judge has power at common law to recall a witness ex proprio motu, but only to clear up ambiguities

Question 79

Rollo v Wilson 1988

Answer 79

Crown led evidence from police. One made direct identification of accused when asked but second officer did not make a similar response so no corroboration. Sheriff recalled the second witness because the Crown said when the second officer was asked if the person was the accused he didn’t say anything but he nodded his head. It was confirmed that the police officer had nodded his head and this was an ambiguity so the recall of the witness was correct.

Question 80

Brown v Smith 1981

Answer 80

Accused alleging assault by police officers while giving evidence. Neither defence or Crown saw this as relevant to theft charge. Judge recalled witness and asked questions. Held judge recalling witness was improper because it was not intended to clarify any doubt or ambiguities.

Question 81

Can you cross examine a witness on credibility?

Answer 81

It is legitimate to cross-examine a witness on credibility, but this right is said to be “limited”: *Dickie v HM Advocate (1897)

You cannot, however, normally[ I.e. the s 275C is an exception to this rule. It is specifically designed to held in the common situation where a victim of sexual assault denies the acts to themselves and others and that the willingness to admit having been assaulted may only arise much later - this expert evidence is allowed to explain that this is a common reaction.] lead evidence on the point: HM Advocate v Grimmond 2002.

Question 82

HM Advocate v Grimmond 2002.

Answer 82

⁃ Charge of sodomy against two young boys. Boys made complaint to police after incident which led to charge of indecent behaviour to which he pled guilty. After this further charge of sodomy came to light. At trial the crown wished to lead evidence from child psychologist saying that the second statements made after the prior trial were credible and reliable because they could explain the reasons why boys in that situation might have not reported the more serious act earlier. Held this evidence was inadmissible - evidence could only be led to explain some oddity in the witness’s reporting a crime if that witness suffered from a psychiatric illness.
⁃ NB this particular point has been overruled by s 275C of the 1995 Act - it allows psychological or psychiatric expert evidence to be led relating to the behaviour of the complainer subsequent to the event in question to rebut any inference which might be drawn as to the complainers credibility or reliability.

Question 83

Can you cross-examine a witness on previous convictions?

Answer 83

Yes. But until recently the defence were not able to obtain records of previous convictions.
⁃ See Dickie and also
⁃ HM Advocate v Ashrif 1988

This has changed as a result of
⁃ *Holland v HM Advocate 2005

Question 84

HM Advocate v Ashrif 1988

Answer 84

Defence prior to trial wanted to recover convictions held by the Scottish Criminal Record Office in order to attack credibility of witnesses. Held they were not entitled to obtain these records because the court approved the then practice that if a witness giving evidence falsely denied that they had a previous conviction the Crown would disclose the true state of affairs.

Question 85

*Holland v HM Advocate 2005

Answer 85

Defence refused information about previous convictions of witnesses. On appeal held that this refusal was a breach of Article 6(1) of the ECHR. As a result of this case under statute the Crown must disclose prior to a trial any information that would include previous convictions of witnesses which has a bearing and is relevant to the defence.

Question 86

When must objections to questioning be made?

Answer 86

Objections to questions should always be noted, in case an appeal has to be lodged. [So objections must be made at the time.]

Question 87

What is the rule about the review of evidence at criminal trials?

Answer 87

No review of the competence, relevance or admissibility of evidence is possible unless objection was taken at the trial: CPSA 1995 ss 118(8) (solemn) and 192(3) (summary).

The question of admissibility of evidence is a question of law and if there is a doubt as to admissibility then one or other of the parties may beforehand tell the judge that there may be a legal issue as to admissibility. If the issue arises during questioning then the counsel should stop and tell the judge that there is a point of law that they wish to raise. The jury are then excluded and a legal debate on admissibility takes place before the judge. If there is a need to establish surrounding facts to determine admissibility, a trial within a trial can be held

Question 88

*Thompson v Crowe 2000

Answer 88

So if there is a trial within a trial the judge decides on the facts on this particular point and also on the legal question of admissibility.

Question 89

What happens where an improper question is asked but not answered?

Answer 89

If an improper question is asked but not answered, the general position is that the accused will suffer no harm.

Question 90

HM Advocate v Sinclair 1986

Answer 90

Question put to witness that the witness had colluded with the accused to deceive the court. This question was objected to before an answer was given. Judge told the jury to disregard the whole incident. Accused convicted but appealed on the ground that prejudice had been suffered by what had happened. Appeal court held there had been no prejudice because the question had not been answered and the judge had told the jury to disregard the incident.

Question 91

What is the rule about objections to questions in civil cases?

Answer 91

In summary cause procedure, evidence objected to must be admitted under reservation [this means the evidence is still admitted, but at the end of the case the judge will determine the questions of admissibility]:
⁃ Summary Cause Rules 2002 r 8.15

Question 92

What is a prevaricating witness?

Answer 92

A prevaricating witness is one who is obviously refusing to answer questions or to answer questions truthfully. This can be a contempt of court and also could amount to perjury.

Where a witness is prevaricating the judge should try not to order the witness to be detained or removed in open court because this might create prejudice in the minds of the jury

Question 93

Hutchison v HM Advocate 1984

Answer 93

Two men gave evidence for the Crown. One prevaricated. At the end of his evidence the judge ordered he should be detained. He was taken into custody by the police in the presence of the jury. The other man prevaricated and was also detained after his questioning, and was seen struggling with the police violently in the presence of the jury. Held that ordering their immediate detention in court had been likely to create prejudice, but in this case given the overall evidence against the accused, the appeal court would not quash the conviction against the two accused.

Question 94

What are the special types of witness?

Answer 94

(1) Child witness

(2) Vulnerable witness

Question 95

What are the rules in relation to the questioning of a child witness?

Answer 95

⁃ Children’s evidence cannot be treated in the same way as an adult.
⁃ Used to be a competency test for children under 12 etc.

⁃ The old law has been swept away by s 24 Vulnerable Witnesses (Scotland) Act 2004. However it is not entirely clear what procedure the judge is to use where the witness is a child. It must be the case that the judge still has a discretion as to whether to put a child on oath or admonish them to tell the truth, although it is less clear what factors are to guide this discretion if no preliminary examination can be carried out.

“I have found that when the question is as to what happened on a particular occasion the best witnesses are boys and girls. Their eyes are generally open and they are not thinking of other things and they are not talking to their neighbours.” (Auld v McBey (1881) 18 SLR 312 per the Lord President (Inglis)).

It used to be the case that:
children under 12 were subject to a “competency test” – the judge had to be satisfied they knew the difference between truth and lies – then they would be admonished to tell the truth but not put on oath.
children between 12 and 14: judge had to satisfy himself that they understood the nature of the oath
children aged 14 or over: normally put on oath without any preliminary procedure.

However, the competency test was abolished by s 24 of the Vulnerable Witnesses (Scotland) Act 2004. It seems that the judge still has a discretion as to whether to put a child on oath or admonish them to tell the truth, although it is less clear what factors are to guide this discretion if no preliminary examination can be carried out.

Question 96

Who is a vulnerable witness?

Answer 96

This category includes, but is not limited to, child witnesses. Special statutory provision for such witnesses dates back to 1990 but is now dealt with by the Vulnerable Witnesses (Scotland) Act 2004, which amends the CPSA 1995.

A “vulnerable witness” is a person who falls into one of the following categories (CPSA 1995 s 271(1), as amended):
⁃ 1) A child witness (a person “under the age of 16 on the date of commencement of the proceedings in which the trial is being or to be held”).
⁃ 2) A person who is not a child witness, but “there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of” (a) mental disorder or (b) “fear and distress in connection with giving evidence at the trial”.
⁃ To determine this s 271(2) lists a long list of factors which the court can take account of[ This includes:

1. age
2. maturity
3. relationship between witness and accused
4. social and cultural background and ethnic origins
5. sexuality
6. employment circumstances
7. physical disabilities
   etc] to determine is a person is a vulnerable witness.
   ⁃ 3) The accused themselves can be a vulnerable witness (see s 271F).

Question 97

What special measures are available for vulnerable witnesses?

Answer 97

⁃ The following special measures are available to the court in respect of vulnerable witnesses (CPSA 1995 s 271H, as amended):
⁃ taking of evidence by a commissioner[ A mutual person (usually a lawyer) appointed by the court, to examine the witness.] (which will be video-recorded for use in the proceedings)
⁃ giving evidence by a live television link
⁃ using a screen (which should conceal the accused [in civil cases, the parties] from the sight of the witness, but be coupled with arrangements allowing the accused to see and hear the witness give evidence).
⁃ using a supporter (a person who may be present alongside the witness when giving evidence, but must not prompt or seek to influence them)
⁃ giving evidence in chief in the form of a prior statement [criminal cases only].
- Excluding the public when a vulnerable witness is giving evidence (excluding members of the court, parties to the case and their lawyers, bona fide news reporters and any other persons the court authorises to be present.

Furthermore, as a result of the Victims and Witnesses (Scotland) Act 2014, the Scottish Ministers may specify additional measures which for the time being are to be treated as special measures listed in s271H (CPSA 1995, s271HA).

Question 98

When should special measures be authorised?

Answer 98

⁃ 1) “Standard special measures” are automatically to be granted on request for child witnesses.
⁃ A request can also be made for a child to give evidence without special measures: CPSA 1995 s 271A. There are further protections for child witnesses under 12 in respect of sexual offences or offences of violence, under which the court should not normally require the witness to be in the court building for the purpose of giving evidence (CPSA 1995 s 271B).

⁃ 2) In all other cases, the court has a discretion as to whether or not a special measure should be authorised in the circumstances (CPSA 1995 s 271C).