Hearsay

Question 1

What is hearsay evidence?

Answer 1

essentially evidence of what another person said: “A told me he hit B”.

Question 2

What is the general rules about hearsay evidence in criminal proceedings?

Answer 2

In criminal proceedings the general rule is that hearsay is inadmissible, with some exceptions.

Question 3

What is the general rules about hearsay evidence in civil proceedings?

Answer 3

In civil proceedings the general rule is that hearsay is admissible, with some exceptions.

Question 4

Teper v The Queen [1952]

Answer 4

“The rule against the admission of hearsay is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost.”

Question 5

Sir G H Gordon, Commentary to Smith v HMA 1986 SCCR 135.)

Answer 5

“There is much to be said for the view that the likelihood is that what a witness says shortly after an incident is more accurate than his recollection at a trial which may take place a year later, but that is not in general the view taken by the law of evidence.”

Question 6

What is the common law approach to hearsay?

Answer 6

The general rule at common law is that hearsay evidence is inadmissible, but there is considerable doubt about the scope of the rule (what counts as hearsay?) and the range of exceptions to it (of which there are many).

Question 7

Wilson v HMA 1988

Answer 7

Evidence was being given by police officers and forensic scientists working in a drug squad. They were speaking about common methods of importing drugs. It was held that their account of what were common methods of importing was ‘received wisdom’ as opposed to hearsay.

Question 8

Which Acts swept away the common law in civil and criminal law?

Answer 8

In civil law the common law has been swept away by the Civil Evidence (Scotland) Act 1988.

In criminal law the common law remains, subject to some statutory tidying-up in the Criminal Procedure (Scotland) Act 1995.

But note: the criminal law is still largely governed by the common law.

It has to be admitted straightaway that the common law has defied attempts to make it coherent or consistent or easy to understand.

Question 9

What counts as hearsay, or different types of hearsay?

Answer 9

There is a distinction between ‘primary’ and ‘secondary’ hearsay. [ NB This terminology is confusing and much-criticised]

1. Primary hearsay is direct evidence that a statement was made (irrespective of its truth or falsehood) and is admissible for that (or similar) purpose. [For some writers such evidence does not amount to hearsay at all since nothing is being said about the truth or veracity of the statement.]
2. Secondary hearsay is evidence of the truth of what is contained in a statement made by someone other than a witness. [This is often viewed as the only type of hearsay in its proper sense. (NB the statutory reforms in the 1995 Act relate mainly to secondary hearsay.)]

Question 10

What is the purpose for which hearsay can be admitted?

Answer 10

A second distinction that largely, but not entirely, corresponds to the first is between
⁃ (1) evidence which is used to prove the fact contained within the statement (secondary or ‘proper’ hearsay); and
⁃ (2) evidence used for some other purpose.
⁃ This purpose could be to prove the fact that a statement was made, irrespective of its truth (primary hearsay); but it could be some other purpose (eg relating to the credibility or reliability of a witness)

Though not the most juristically elegant way of analysing hearsay, probably the easiest way to understand the common law and to know the rules on hearsay as is follows:
⁃ (I) There is a general rule which makes hearsay evidence inadmissible in criminal cases. Hearsay here means the wider concept of hearsay, ie any situation where witness A gives evidence of what person B told to him etc.
⁃ (II) But this rule is subject to various exceptions which are best learned as such.

Question 11

What are the situations where hearsay evidence is allowed in criminal cases?

Answer 11

1) Where the point at issue is whether the statement was made, not whether it is true
[(Arguably this is an example of primary rather than secondary hearsay so isn’t really hearsay at all.) Nevertheless it does purport to be an exception to the rule excluding hearsay.]

2) Where the fact to be proved from the statement was not an intended assertion of the maker of the statement
[The general rule is that ‘implied assertions’ are not hearsay and thus can be admitted.
⁃ E.g. Where the maker of the statement says something which could be interpreted in a particular manner but is not directly asserting the statement itself.]

3) Res gestae
[res gestae: “res gestae is the whole thing that happened” (Greer v Stirlingshire Road Trs (1882) 9 R 1069, 1076).
- Res gestae are spontaneous utterances at the time of the incidence in question. If hearsay evidence falls within the ‘res gestae’ it is admissible since it is held to be an involuntary reaction to the whole circumstances (and is less likely to be concocted).]
- The question in relation to res gestae is what events are held to fall within and without this period.

4) De recenti statements
Reports or statements which are made shortly after an incident (but are not part of the res gestae).
⁃ Such statements are admissible only to show consistency of witness’s story, credibility etc (usually in cases of sexual assault).

5) Prior inconsistent statements
If a witness gives evidence in court but has said something different earlier, evidence of that earlier statement can be lead to cast light on the witness’s credibility: CPSA 1996 s263(4)

6) Incriminating Statements: Hearsay admissible under the CP(S)A 1995 ss 259-262
So some statements which are secondary hearsay are permitted under these statutory exceptions. They may be used to prove the truth of their contents (referred to later in the course).

7) Prior Statements or ’Against interests’ statements
8) Hearsay and previous identification

Question 12

*Subramaniam v Public Prosecutor [1956]

Answer 12

Case example for (1):

The appellant had been found in a wounded condition by the security forces and had been kept in captivity by terrorists. He was subsequently tried on a charge of being in possession of ammunition. He put forward the defence that he was acting under duress. He sought to give evidence of the types of things that the terrorists said to him. This was disallowed at trial since it was ‘hearsay’ evidence of the terrorist’s statements.
⁃ On appeal it was held that the trial judge had erred in ruling out such evidence of this conversation, since the evidence was not seeking to establish the truth of the threats, rather just the fact the statements had been made.

Question 13

*McLaren v Macleod 1913

Answer 13

Case law for (2):

The law in this area was relatively clear but now it is more complex. In the case of *McLaren v Macleod 1913 there was an implied assertion being permitted on the grounds that it was not hearsay. The Scottish Law Commission then wrote a report on the matter which stated that implied assertions were clearly admissible under Scots law and ought to remain so. However in the recent case of Ogilvie v HMA 1999 this was an example of an implied assertion not being admitted.

⁃ Public prosecution of an individual for keeping a house as a brothel. The prosecutor was examining two policemen who had overheard a conversation in the house using the term ‘short-time’ (which apparently implied the house was a brothel). The accused objected on the ground that this was hearsay (and the people alleged to have said this term were not examined).
⁃ The court held that such evidence was admissible because it was not led to prove the truth of the content of the statement but merely to prove that the conversations took place.

Question 14

Ogilvie v HMA 1999

Answer 14

Case law for (2):

Ogilvie tried for supplying drugs. A witness had been asked by undercover officers if she could tell them where to buy some drugs. She agreed and led them to a house and stated I’m going to go and find Glen Ogilvie. (She didn’t say that the person who the drugs could be bought from was Glen Ogilvie, but she brought them to the house and mentioned the name).
⁃ This evidence was admitted at trial. The witness could not recall making this statement so the police officer’s evidence of her making the statement was admitted. Ogilvie was convicted at trial and appealed on the grounds that this ‘implied admission’ had been wrongfully admitted.
⁃ The court held that the police officer’s evidence identified (or at least was capable of making identification of) Glen Ogilvie (it was an implied assertion) and was thus prejudicial to the accused and ought not to have been admitted. So this was a contrasting approach form McLaren.
⁃ NB the court made no reference to authority in its judgement and did not engage in any principled analysis.

Question 15

O’Hara v SMT 1941

Answer 15

Case law for (3):

⁃ A bus was driving along and a passenger was standing by the door. The bus swerved to avoid a pedestrian on the road and the individual at the back of the bus fell off and was suing the bus driver.
⁃ The driver and conductor got of the bus to question the pedestrian who apologised and gave the conductor a piece of paper with his name and address then vanished. The police arrived, and followed up the name and address and spoke to the pedestrian.
⁃ He then could not be produced at the trial and the question arose as to what fell within the res gestae?
⁃ It was held that the first statement which the pedestrian made (to the driver and conductor), although it was hearsay was part of the res gestae.
⁃ Furthermore, the court held that it would be unfair to exclude the evidence about the second statement (to the policemen) even though it was not strictly part of the res gestae.[ This part of the decision is quite hard to justify.]

⁃ Some useful obiter comments were given - the event does not have to be absolutely contemporaneous to fall within the res gestae but there should be close association - there shouldn’t be a long interval which would allow time for reflecting or concocting a story (which is why the second part of this judgement is lacking in justification).

Question 16

*Teper v The Queen [1952]

Answer 16

Case Law for (3): Noted again that if there isn’t contemporaneity then there has to be close association, and there is a strict test of close association.

Question 17

Ratten v The Queen [1972]

Answer 17

Case Law for (3): Again noting that any delay could lead to concoction of false evidence.

Question 18

*Cinci v HMA 2004

Answer 18

Case Law for (3): Complainer and boyfriend were on an organised tour of the highlands and the appellant C was also on this tour. Huge amounts of alcohol were drunk.
⁃ Everyone ended up in hospital. The complainer was put to bed in a female dorm. The tour guide found the complainer in bed in an awful state so brought her to the bathroom to clean herself up and left her there.
⁃ She was in the shower cubicle. The appellant tried to get into the shower cubicle with her, but she rebuffed his advances. However they ended up in a locked cubicle together and the tour guide heard some noise. He found them locked in the shower cubicle naked, and she stated “he raped me”.
⁃ At the trial the complainer had no recollection of the situation. His recollection was also hazy and he suggested that the sex may have been consensual. Her statement “he raped me” was admitted at trial as falling in the res gestae.
⁃ The appellant was convicted and he appealed on the ground that this evidence shouldn’t have been admitted. The court held that “the uttering of the words: ‘he raped me’ did not form part of the res gestae” since the utterance had been made after the event. The reason was that since it was unknown when the event had taken place, it was impossible to say that the statement formed part of the res gestae.

Question 19

Morton v HMA 1938

Answer 19

Case Law for (4): A girl had been assaulted and met her brother at home and said to him “I’ve just been assaulted.” This was seen to be a complaint ‘de recenti’ (it wasn’t res gestae since it wasn’t spontaneous.

Question 20

Anderson v McFarlane (1899)

Answer 20

Case Law for (4): A girl had allegedly been assaulted by her employers. 3 days after the assault she told her mother what had happened. It was argued that these statements were inadmissible on the ground that they were not de recenti.
⁃ However the court held that what is or is not de recenti depends on the circumstances: in this case the girl had spoken to her mother on the first opportunity she had so it was de recenti.

Question 21

Ahmed v HMA 2010

Answer 21

Case Law for (4):

⁃ Case of alleged rape - argument as to whether a statement was de recenti.
⁃ The court held that the true value of a de recenti statement lay in the evidence of the recipient that this statement had been made to him or her. The court emphasised that if the jury accepted that the statement had been made de recenti (and thus admissible), then it could use it only for the purpose of deciding whether the complainer had been telling the truth about what happened to her, and not as corroboration.
⁃ The appeal court held that these instructions to the jury had been articulated clearly and thus the de recenti statements had been correctly admitted, thus the appeal failed.
- She complained and said she hadn’t made a complaint to her friend. The crown argued: we do not need to cross-examine the complainer as to whether she had made the claim to her friend as it was a de recenti statement. So it is about whether we believe the complainer.
- Held: in refusing the appeal [para 12] the true value of the de recent statement lay in the evidence of the friend that the statement had been made to him/her. There is no logical requirement that the complainer attest to having made the statement. We can have a derecenti statement without having the person who made it cross-examined.
- Limited purpose for de recenti statement is merely to bolster the evidence given by the witness, it is not for corroboration.

Question 22

CPSA 1995 s 263(4)

Answer 22

NB the courts have interpreted this provision very strictly:

⁃ “In a trial a witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in the trial; and evidence may be led in the trial to prove that the witness made the different statement on the occasion specified.”

Question 23

Paterson v HMA 1998

Answer 23

This case shows that s 263(4) has been interpreted very strictly:

The witness had been questioned as to having made a statement in the past but no evidence was given about the precise time he had made such a statement. The court held that before s 263(4) could operate, the witness needed to be notified of both the time and place at which the alleged statement was supposed to have been given. (This illustrates how strictly the courts are in interpreting the provision).

• Paterson entered a special defence of ‘self defence’.
• B said P stabbed complainer after P had intervened in a quibble between P and his girlfriend and later gave her the knife.
• At trial the sheriff disallowed evidence on the trial that s263 had not been satisfied and this was a discredited witness.
• s263(4) had not been allowed by the court and the appeal court refused. Court said before it could operate it was necessary to inform the witness of the time and place of statement. The evidence given here was not specific enough. It has been strictly interpreted by the court.

Question 24

Does s263(4) apply to precognitions?

Answer 24

s 263(4) does not apply to ‘precognitions’ - thus a witness may not be questioned about a precognition.

Question 25

What is a precognition?

Answer 25

MacPhail - precognition does not seem to have been authoritatively defined.

Question 26

What is the general rule about precognitions?

Answer 26

General rule that a statement given to the police does not count as a precognition, but it is a statement made to an agent working on behalf of the defence. It is given by a witness ONLY and not the accused.
⁃ (Usually these statements are taken by an agent acting on behalf of the Crown or defence council will talk to the witness to find out what the witness’s evidence is likely to be about and it will be written in the first person in narrative form. This will be put in a document and the document is given to the Advocate to use in court so they have a rough idea what the witness is going to talk about. Usually a precognition is not a statement taken by a police officer.

Question 27

*Kerr v HMA 1958

Answer 27

However in this case a statement made to the police was held to be a precognition. In this case it was held that it is always a question of circumstance as to whether a statement is a precognition or not. Even a statement to a police officer in certain limited instances may fall into the category of precognitions if it is taken at a time where preliminary investigation has passed

[Men had been taking copper illegally. they were charged and refused bail. a police officer questioned a partner in the firm and recorded in his notebook a statement given by the partner. the partner then gave evidence which was inconsistent with evidence given to the police. the prosecutor drew jury’s attention to the lack of coherence. the accused in this case were convicted. LJC said that the statement given by the partner was taken at a time when a preliminary investigation was passed, and so it should not have been admissible as evidence.

LJC Wheatley said: It was always be a question of circumstance as to whether a statement made is a precognition. a statement made to a police officer may be a precognition if it was taken as a precognition… it is a matter of circumstance.

MacPhail uses the words tentative.]

Question 28

Why are precognitions excluded from s 263(4)?

Answer 28

⁃ 1) Generally witness’s feel that the information they disclose in this setting is confidential.
⁃ 2) It’s not the witness writing the statement, rather it is the person taking the statement writing what the witness says to him or her, so arguably the statement has been (re)interpreted by the person who is describing it so it cannot be relied on in the same way a statement coming directly from a witness can be

Question 29

Low v HMA 1988

Answer 29

The court noted that whether a statement is a statement which would fall within 263(4) or is a precognition is a matter which normally falls to be decided by the trial judge. However in certain instances when the question is truly an open one it could be left to the jury (thus in this case the judge left it to the jury to determine whether a statement made to the police was a precognition. The jury held that it was not a precognition, therefore it was something which she could be questioned about.)
- It normally falls to be decided by the trial judge as a matter of judgement. However, in Lowe the interesting caveat was that the AC said that “if it was a completely open question, it would be open to the trial judge to leave that to the jury”.

Question 30

Section 260

Answer 30

adoption of evidence
⁃ s 260 - this allows a witness in a criminal case to adopt a prior statement into his or her oral evidence given in court.
⁃ s 260(1) “Subject to the following provisions of this section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings.
⁃ (2) A prior statement shall not be admissible under this section unless– (a)the statement is contained in a document; (b)the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence; and (c)at the time the statement was made, the person who made it would have been a competent witness in the proceedings.
⁃ (3) For the purposes of this section, any reference to a prior statement is a reference to a prior statement which, but for the provisions of this section, would not be admissible as evidence of any matter stated in it.
⁃ (4) Subsections (2) and (3) above do not apply to a prior statement– (a) contained in a precognition on oath[ So if a precognition is made on oath then it can be admissible under s 260.]

Question 31

A v HMA [2012]

Answer 31

An accused had been charged with assault. Various witnesses had made statements to the police and there were some discrepancies between the statements that the witnesses had made to the police and the evidence they gave in court.
⁃ One of the witnesses sought to rely on the prior statement and the trial judge believed that in allowing this he was applying s 260 (the witness was adopting a prior statement.) In this instance the witness had initialed the prior statement.
⁃ The accused was convicted and appealed on the grounds that s 260 had been misapplied and the jury had been misdirected as to the prior statements. The court held that the trial judge had gone too far in telling the jury that a witness who had merely initialed a statement had adopted it under s 260. Crucially the court held that what does constitute adoption is a matter of fact for the jury, rather than a matter of law for the trial judge.
⁃ There were also obiter remarks about 4 elements by Lord Bonnymay (**check - para 4-8] which must be satisfied before a prior statement could be seen as adopted and could be treated as truth of the contents (in other words, not hearsay):
⁃ 1) The witness needs to remember giving the statement
⁃ 2) The witness needs to be able to say that the statement was true
⁃ 3) The witness needs to be able to recollect the events described in the statement
⁃ 4) A police officer needs to give evidence of recording the statement.

Lord Marnoch said at 44 that for adoptions this merely needs to prove unambiguous acceptance. At para 45 Lord Marnoch said that oral evidence is given under oath and given in the witness box remains central to our criminal justice system. It would not do for expediency to introduce hearsay.

Question 32

When is hearsay allowed under s 259(1)?

Answer 32

Under s 259(1) hearsay is admissible if:
⁃ (a) witness unavailable,
⁃ (b) had person given direct oral evidence, such evidence would be admissible,
⁃ (c) maker of statement competent at time statement was made and
⁃ (d) statement can be proved without reliance on hearsay[ (ie either a document can substantiate the evidence or a third party (e.g. a police officer can substantiate it))]
⁃ ⁃ And if circumstances in s 259(2) arises

Question 33

When is hearsay allowed under s 259(2)?

Answer 33

(i) maker of statement is dead or unable to give evidence: s 259(2)(a)

Patterson v HM Advocate 2000
⁃ Patterson was charged with assault. One of the witnesses who had made a statement to the police had subsequently died between the incident and the trial and evidence was sought to be admitted under s 259(2)(a).
⁃ This case was also interesting because there was a challenge to the witness’s competency at the time the statement was made. This challenge was not accepted by the court, so the evidence was admitted under s 259(2)(a).

⁃ HM Advocate v Nulty 2000
⁃ One witness couldn’t give evidence as a result of mental illness so s 259(2)(a) was relied upon.

(ii) maker abroad: s 259(2)(b) [Aslam v HM Advocate 2000]
(iii) maker identified but cannot be found, after all reasonable steps taken: s 259(2)(c)

Hill v HM Advocate 2005
⁃ Hill had been convicted of theft and reset. Prior to trial the sheriff had decided to allow hearsay evidence to be admitted under s 259(2)(c) on the grounds that the witness could not be found and the Crown had taken all reasonable steps to trace the witness. The defence suggested further steps that could have been taken to ascertain the location of the particular witness. The trial was delayed while these steps were carried out.
⁃ On appeal it was argued by the appellant that admitting the hearsay evidence before the trial was premature since not all reasonable steps had been taken.
⁃ The court held that admitting hearsay evidence has a significant risk of prejudicing a fair trial (due to inability to cross examine witness etc) and so their needed to be a proper assessment as to whether all reasonable steps had been taken and in this instance the sheriff had erred in not having that consideration in mind when making his determination.

(iv) maker refuses to give evidence, on grounds of incrimination: s 259(2)(d)[ This paragraph altered the law following McLay.]
McLay v HM Advocate 1994
⁃ Paragraph (d) was added in response to this case.

(v) maker refuses to give evidence for other reasons:259(2)(e)
⁃ This may be where the maker refuses to take the oath or refuses to give evidence because of some fear or anxiety.
⁃ Macdonald v HM Advocate 1999
⁃ This was a shameless indecency case. There was a witness who was only 8 years old who broke down in the witness box. An application was made to have the statement admitted under s 259(2)(e). At trial this application was successful so that hearsay evidence could be admitted.
⁃ However, on appeal it was held that the statement ought not to have been admitted. The court held that s 259(2)(e) only concerns refusal - does not concern inability or difficulty. Thus it only applies where a witness has been directed to or has started to give evidence, then refuses to do so. Since this had not occurred in this case, the hearsay evidence ought not to have been admitted - in other words, the appeal was successful.
⁃ This represents a strict adherence to the precise terms of the legislation and this has been heavily criticised.

Question 34

What are prior Statements or ’Against interests’ statements concerned with?

Answer 34

This concerns evidence relating to the fact that a person has made a statement against his own interests at an earlier stage. The most straightforward example of this is confession evidence.
⁃ Evidence can be led that a person had at some earlier stage made a statement against his own interests as proof of the truth of that statement. The main context in which this arises is confession evidence in criminal trials (dealt with later in the course).

Question 35

When is a prior statement admissible?

Answer 35

If it is:

• Contained in a document
• Witness adopts his statement as his evidence; and
• Maker competent witness at the time the statement was made

However, the case law is not entirely consistent.

Question 36

What is heresay and previous identification concerned with?

Answer 36

If a witness has earlier identified the accused as the person who committed a crime (usually at the time or close to the event) but at the trial he is unsure or can’t remember, can the police give evidence of what the witness said or did at the earlier identification? Yes the rule is that it can be admitted.

Question 37

Muldoon v Herron 1970

Answer 37

Three accused persons being charged. Two eyewitness’ identified the accused to a police officer but then later couldn’t/didn’t give evidence so the evidence was admitted via the police officer. This was the only evidence against the accused and it led to a conviction.
⁃ On appeal the court held that no issue of hearsay arises - that this is primary and direct evidence of the matter that occurred. It is evidence not of the accuracy of the identification, but of who was actually identified. Thus the appeals were refused. It was witnesses giving precise undimmed evidence to the police and the evidence of the police is not about the accuracy of the identification but whether the evidence was made or not.
- Not heresay therefore it is admissible.

Question 38

Frew v Jessop 1989

Answer 38

An accused was convicted of drink driving. Two witnesses had immediately spoken to the police after the event describing him in a certain way (taller with lighter hair etc). The trial was two years and seven months later. Neither witness at that stage could remember much and failed in court to identify the appellant.
⁃ The high court held (contra Muldoon) that this was hearsay evidence but it was an exception to the general rule against the admissibility of hearsay evidence. Therefore the court allowed the admission of the evidence on the basis that after such a long period of time it was understandable that the witnesses might be unable to remember the description of the driver / vehicle etc.

Question 39

Maxwell v HMA 1991

Answer 39

Follows the Muldoon logic in saying that this sort of evidence is not hearsay evidence - it is rather primary and direct evidence. The police recounting this evidence is merely recounting primary and direct evidence.

Question 40

*Jamieson v HMA (No 2) 1995

Answer 40

Like Muldoon, denies that using prior identification evidence is hearsay. Look this up - about statements

Question 41

A v HMA 2012 HCJAC 29

Answer 41

From tutorial - look up. Judges sat to look at what circumstances Jamieson statements could be used in. DON’T READ IN DETAIL - look up the jury manual.

Question 42

There have been challenges as to the compatibility of hearsay evidence with Article 6 of the ECHR but they were resolved in which case?

Answer 42

*Al-Khawaja & Tahery v United Kingdom [2011] ECHR 2127
⁃ The grand chamber of the ECHR held that hearsay evidence does not prevent or preclude a fair trial automatically. However there must be a very good reason why the witness is not attending. Hearsay evidence does not by itself infringe Article 6.[ This falls into line with UKHL cases]
⁃ Article 6 may be breached (but not automatically) if the conviction is based solely or to a decisive extent on this hearsay evidence (i.e. someone who has not been cross-examined).
- This followed on from Horncastle which altered the previous Al-Khawaja 2009 decision which held that there was a breach of Article 6. Horncastle held that hearsay evidence does not breach Article 6 as long as it is sufficiently reliable to be decisive.
- The court must subject the proceedings to the most searching scrutiny of the hearsay evidence and the grand chamber said there must be counter-balancing factors such as strong procedural safeguards — the court must take a holistic approach.

Question 43

HM Adv v Nulty

Answer 43

??

Question 44

HM Adv v Beggs (No 3)

Answer 44

Held the court was not in breach of Article 6. [Look these up**]. Article 6 was raised and dismissed. The objections raised to heresay evidence on the grounds that they breach Article 6 were dismissed. Beggs was charged with assault and murder, and at this trial the Crown sought to get evidence from witness P (who died before trial, falls under s259). In the statetment that P had made to the police beforehand, he said that Beggs had met him in the clubbing scene of Edinburgh and Beggs had admitted he liked to cruise Edinburgh and look for partners. Held: had P been alive this evidence would have been admitted and P could be cross-examined in turn, since this statement seemed to indicate Beggs sexual habits, and practices at night, so this statement was relevant and would be admissible. Since it would have been admitted under s259, it was not a breach of Article 6 to admit that. [NB we have other corroborative evidence inc. Special directions given to the jury as to how to interpret the statement by P].

Question 45

N v HMA 2003

Answer 45

NB in the earlier Scottish case of N v HMA 2003 it was held that in exceptional cases hearsay evidence may indeed breach the Article 6 right:
⁃ Mr N had been convicted various sexual offence charges against 3 different individuals. At trial one witness gave evidence that not only had she had a relationship with Mr N, but she had also had a relationship with her brother. She then fell ill and for other reasons the trial was abandoned. She had not admitted this at previous stages; the trial was abandoned and then resumed.
⁃ At the second trial this witness was still ill (the sister) and couldn’t give evidence. The prosecution sought to use s 259(2)(a)[ Unable to give evidence at the later trial.] to admit her evidence from the previous trial.
⁃ This hearsay evidence was allowed. The hearsay evidence went to the jury and the appellant was convicted. The court held that the statutory provisions in s 259 were satisfied and that it had to be admitted (since there was no discretion afforded to the court). However the court held that the admissibility of this hearsay evidence deprived the appellant of a fair trial under Article 6 on the ground that the appellant was denied the opportunity to cross examine the witness as to her credibility and reliability. [So this case demonstrates that the admission of hearsay evidence can breach Article 6 in certain circumstances.]
- Held in exceptional circumstances Article 6 can be breached. N was convicted.
- The court set out a detailed appraisal of the evidence and s259. They said that there was no purpose for excluding the evidence at a previous stage so it was admissible under s259. The court in N noted that s259 does not give the court any discretion to exclude hearsay evidence. The appeal was allowed, conviction quashed, on the basis that Article 6 in this instance was breached but this is NOT a general rule that hearsay evidence would breach Article 6.

Question 46

Section 260 (Admissibility of prior statements of witnesses)

Answer 46

(1) Subject to the following provisions of this section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings.
(2) A prior statement shall not be admissible under this section unless -
(a) the statement is contained in a document;
(b) the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence; and
(c) at the time the statement was made, the person who made it would have been a competent witness in any proceedings
(3) For the purposes of this section, any reference to a prior statement is a reference to a prior statement which, but for the provisions of this section, would not be admissible as evidence of any matter stated in it.
(4) Subsections (2) and (3) above do not apply to a prior statement -
(a) contained in a precognition on oath; or
(b) made on other proceedings, whether criminal of civil and whether taking place in the United Kingdom or elsewhere,
and for the purposes of this section, any such statement shall not be admissible unless it is sufficiently authenticated.

Question 47

Section 262 (Construction of sections 259 to 262)

Answer 47

(1) For the purposes of sections 259 to 261 of this Act, a “statement” includes
(a) any representation (however made or expressed) of fact or opinion; and
(b) any part of a statement,
but does not include a statement in a precognition other than a precognition on oath.
(2) For the purposes of the said sections 258 to 261, a statement is contained in a document where the person who makes it -
(a) makes the statement in the document personally;
(b) makes a statement which is, with or without his knowledge, embodied in a document by whatever means or by any person who has direct personal knowledge of the making of the statement; or
(c) approves a document as embodying the statement.
(3) In the said sections 259 to 261 -
“criminal proceedings” include any hearing by the sheriff of an application made under Chapter 3 of Part II of the Children (Scotland) Act 1995 for a finding as to whether grounds for the referral of a child’s case to a children’s hearing are established, in so far as the application relates to the commission of an offence by the child, or for review of such a finding;
“document” includes, in addition to a document in writing -
(a) any map, plan, graph or drawing;
(b) any photograph;
(c) any disc, tape, sound track or other device in which sound or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(d) any film, negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom:
“film” includes a microfilm;
“made” includes allegedly made.
(4) Nothing in the said sections 259 to 261 shall prejudice the admissibility of a statement made by a person other than in the course of giving oral evidence in court which is admissible otherwise than by virtue of those sections.

Question 48

Civil Evidence (S) Act 1988 s 2(1)

Answer 48

a statement made by a person otherwise than in the course of the proof shall be admissible as evidence of any matter contained in the statement[ So it is evidence of the truth of the statement, not just the statement being made.] of which direct oral evidence by that person would be admissible.

**Must be familiar with this legislation

Section 2 (Admissibility of hearsay)

(1) In any civil proceedings: -
(a) evidence shall not be excluded solely on the ground that it is hearsay;
(b) a statement made by a person otherwise than in the course of a proof shall be admissible as evidence of any matter contained in the statement of which direct oral evidence by that person would be admissible;
(c) the court, or as the case may be the jury, if satisfied that any fact has been established by evidence in those proceedings, shall be entitled to find that fact proved by the evidence notwithstanding that the evidence is hearsay.
(2) Nothing in this section shall affect the admissibility of any statement as evidence of the fact that the statement was made.

Question 49

*Section 3 (Statement as evidence as to credibility)

Answer 49

In any civil proceedings a statement made otherwise than in the course of the proof by a person who at the proof is examined as to the statement shall be admissible as evidence in so far as it tends to reflect favourably or unfavourably on that person’s credibility.
- So if there is inconsistency or incoherence with a previous statement this can affect credibility and may go to the fact or truth of the content of the matter

Question 50

Section 4 (Leading of additional evidence)

Answer 50

(1) For the purposes of section 2 or 3 above, any person may at the proof, with leave of the court, at any time before the commencement of closing submissions -
(a) be recalled as a witness whether or not he has been present in court since giving evidence initially; or
(b) be called as an additional witness whether or not he has been present in court during the proof (or during any other part of the proceedings).
(2) Nothing in section 3 of the Evidence (Scotland) Act 1840 (presence in court not to disqualify witness in certain cases) shall apply as respects a witness called or recalled under subsection (1) above.

Question 51

*Section 9 (Interpretation)

Answer 51

“business” includes trade or profession;
“civil proceedings” includes, in addition to such proceedings in any of the ordinary courts of law -
(a) any hearing by the sheriff of an application under section 65(7) or (9) of the Children (Scotland) Act 1995 for a finding as to whether grounds for the referral of a child’s case to a children’s hearing are established or of an application for a review of such a finding under section 85 of that Act, except in so far as the application or, as the case may be, the review relates a ground mentioned in section 52(2)(i) of that Act (commission by the child of an offence);
(b) any arbitration, whether or not under an enactment, except in so far as, in relation to the conduct of the arbitration, specific provision has been made as regards the rules of evidence which are to apply;
(c) any proceedings before a tribunal or inquiry, except in so far as, in relation to the conduct of proceedings before the tribunal or inquiry, specific provision has been made as regards the rules of evidence which are to apply; and
(d) any other proceedings conducted wholly or mainly in accordance with rules of procedure agreed between the parties themselves (or as respects which it would have been open to them to agree such rules had they wished to do so) except in so far as any such agreement makes specific provision as regards the rules of evidence which are to apply;
“court” shall be construed in accordance with the definition of “civil proceedings”;
“document” includes, in addition to a document in writing -
(a) any map, plan, graph or drawing;
(b) any photograph;
(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(d) any film, negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom:

“film” includes a microfilm;
**“hearsay” includes hearsay of whatever degree; (e.g primary or secondary — this is an explicit recognition that there is a distinction to be made but these provisions encompass both sorts.
“made” includes “allegedly made”;
“proof” includes trial or other hearing of evidence, proof on commission and any continued proof;
“records” means records in whatever form;
**“statement” includes any representation (however made or expressed) of fact or opinion but does not include a statement in a precognition. [E.g. MacPhail discrepancies over what a statement is or includes].

Question 52

What is the caveat on the weight of hearsay evidence?

Answer 52

There is an important caveat: the weight of hearsay evidence may not be such as to surmount actual oral evidence.
- Although we have statutory rules admitting hearsay evidence it may be the case that statuary evidence is not actually weighty.

Question 53

TSB Scotland v James Mills (Montrose) 1992

Answer 53

⁃ One of the individuals was not able to attend court as a witness. His prior (hearsay) statements were relied upon. The court held that it would be dangerous to rely upon statements where the witness was either unwilling or unable to attend court and these statements were not conclusive of the facts within them. [So this is an acknowledgement that while the statements may be admissible, they may not necessarily be the most weighty statements.]

• This case looked at s2 and said it allows for the acceptance of that evidence as proof of the truth of those statements made.
• The facts of the case are insignificant
• Dispute about machinery, person made statement about this machinery but did not attend court, yet his statement were permitted under s 2.[ no requirements as under s259 ] Held: it is dangerous to rely on statements of a person who is refusing or unable to attend court. There is no requirement that the court necessarily act upon the statements even where they may be legally permitted.

Question 54

K v Kennedy 1993 SLT 1281

Answer 54

• The hearsay provisions apply similarly to Children’s Hearing Panel cases.
  
  • A reporter had referred a child to one of these panels on several grounds including subjection to lewd and libellous behaviour. At the time the hearing took place she retracted her statement. At the hearing her father refused to accept the grounds (claim of lewd behaviour) and this is the reason why the application moved to the Sheriff court for a finding of lewd behaviour. Again the child retracted her previous statement.
  • The Sheriff accepted as true the previous statement and relied on s2 of the Act to rely on the hearsay evidence. There was other corroborative evidence.
  • The father was convicted and appealed to the CoS
  • The AC noted that while the evidence was thin (not weighty) the Sheriff was under section 2 entitled to rely upon the hearsay evidence. [Contrast TSB case where the evidence was held not to be weighty enough].

Question 55

1988 Act s 2(1)(a))

Answer 55

Under s 2(1)(a) hearsay evidence is admissible as long as there are no other objections raised to the evidence.

Question 56

JF v Kennedy 1992

Answer 56

⁃ Case involving evidence from a child. It was held on appeal that the child was not a competent witness and thus the hearsay evidence was not admissible. So the hearsay evidence must be admissible on other grounds.

• Again, related to the Children’s Hearing Panel.
• There was evidence from 3 young children and social workers about the treatment the children were receiving at home
• The crux of the matter was that the children had been interviewed by social workers and no notes were taken by them, the only evidence was the social workers recollection of what the children had said.
• The proceedings were before a sheriff to determine whether the grounds were sustained, sheriff relied on s2 to admit the hearsay evidence.
• One of the children were 3 when they gave evidence to the SW. The child could not be an admissible witness as s2 only allows hearsay evidence of an admissible witness. The evidence given by 3 year old should not have been allowed.

Question 57

What does Section 24 of the Vulnerable Witnesses (S) Act 2004 abolish?

Answer 57

It abolishes the competency test for witnesses in criminal and civil proceedings - so, while JF illustrates a point, there has been subsequent statutory amendment to permit child witnesses to be seen as competent witnesses.

Question 58

1988 Act, s 9

Answer 58

Statements in precognition:
⁃ Under s 9 of the 1988 Act: ““statement” includes any representation (however made or expressed) of fact or opinion but does not include a statement in a precognition.”
⁃ Thus what is recorded in a precognition is not competent evidence but what was said to the precognoser is competent evidence.

Question 59

Anderson v Jas B Fraser 1992

Answer 59

An employee had been injured in the course of his work (construction of timber housing). A fellow employee supported his view of events and claimed to be an eye witness. this employee had been precognised, the solicitor who carried this out gave evidence on what had been said, the courts obejcted to this as being incompetent since what is recorded in the precognition is not competent.

Question 60

Highland Venison Marketing v Allwild 1992

Answer 60

⁃ In this instance, the person had the opportunity to look at the written precognition and amend the statement. The court held that this was not a precognition because it had been approved and revised by the maker.

Question 61

F v Kennedy (No 2) 1993 [Not mentioned in Lectures- Anderson is sufficient in relation to statements of precognition].

Answer 61

Children had been referred to a children’s hearing panel on the alleged grounds that they’d been victims of sexual abuse. Some of the evidence was hearsay evidence as to statements made upon precognition. The court analysed what a precognition was and held that in this instance the children’s statements prior to court proceedings were not in the nature of precognitions since they were not statements being taken from the children for the purposes of litigation but rather just to ascertain whether the children were in need of any care measures.

Question 62

s 3 of the 1988 Act:

Answer 62

“In any civil proceedings a statement made otherwise than in the course of the proof by a person who at the proof is examined as to the statement shall be admissible as evidence in so far as it tends to reflect favourably or unfavourably on that person’s credibility.”

⁃ So an inconsistency or a comparison that can be drawn between a previous statement and that evidence that can be drawn at trial is something that can only go to the person’s credibility (it doesn’t have any more expansive scope than this).

Question 63

Davies v McGuire 1995

Answer 63

A young boy was killed in a road accident. There were subsequent civil proceedings. The defender sought to adduce evidence from eyewitnesses that had given evidence to the police, but this evidence was sought to be adduced before those eyewitnesses gave evidence in the course of proceedings.
⁃ The court held that while it was competent to recall a witness like a police officer to give evidence about what was said to him by th eyewitnesses, this needed to happen after the eyewitnesses had been examined in the proceedings - nothing in s 2/3 warranted the leading of inconsistent statements prior to the actual examination of the witnesses themselves.