Judicial Knowledge

Question 1

What is judicial knowledge?

Answer 1

Judicial knowledge (also called judicial notice) refers to facts which are so-well known that they do not call for proof by evidence.  The idea also extends to matters which can be easily established from accepted sources (eg a dictionary or encyclopaedia). Sometimes matters of law will also fall into judicial knowledge.
⁃	To save the time of the court it is not necessary (nor permissible) to lead evidence to prove such facts.

NB while judicial knowledge is applicable to both criminal and civil matters, it is often more heavily relied upon in civil cases since prosecutors in criminal cases like to err on the side of caution and prove their points.

Question 2

Walker & Walker, Evidence, 3rd edn, p 209

Answer 2

“It is unnecessary, and usually incompetent, to lead evidence regarding matters which fall within judicial knowledge. The judge will himself take notice of these matters, either because he is bound by statute to do so, or because it is customary for judges to do so. In general they are matters which can be immediately ascertained from sources of indisputable accuracy, or which are so notorious as to be indisputable.”.

Question 3

What are the two key distinctions to remember in relation to judicial knowledge of facts?

Answer 3

(1) Judicial knowledge is not the same as the personal knowledge of the particular judge
⁃ *Herkes v Dickie 1958
⁃ Facts not significant. Lord Patrick observed (obiter) that the lack or want of proof of a particular fact or matter in a criminal prosecution cannot be mended by the private knowledge of the judge[ I.e. by luck or particular expertise.] - judicial knowledge is an objective standard.

(2) There is a distinction between what is known to the ordinary, reasonable person and what is known only to someone with expertise
⁃ Kennedy v Smith 1976
⁃ The piece of evidence that was forming the crux of the evidence was the effect on an individual who was not used to drinking alcohol of drinking alcohol on an empty stomach. The court held that such knowledge was not within judicial knowledge - rather something for the medical experts, thus this evidence was required to be proved.

Question 4

Is Scots law within judicial knowledge?

Answer 4

(1) Scots law is within judicial knowledge[ In a Scottish court, Scots law is not a matter of proof by evidence but argument by reference to legal authority. Duty of advocate to refer court to all relevant authorities even those not supporting his case.]:

This extends to
1. Acts of Parliament (Interpretation Act 1978, s 3) and ASPs are within judicial knowledge.
⁃ The Scotland Act 1998 s 28(6) means that all ASPs are within judicial knowledge: “Every Act of the Scottish Parliament shall be judicially noticed.”

2. It isn’t clear if statutory instruments fall within judicial knowledge; from a practical sense it is good practice to produce statutory instruments before the court rather than presume they fall within judicial knowledge.
3. Scots common law is deemed to fall within judicial knowledge. This includes customary public international law[ james, 19/01/2014 15:06]. (Lord Advocate’s Reference (No 1 of 2000) 2001 JC 143, para 23 (Lord Prosser).

Question 5

Is English law within judicial knowledge?

Answer 5

English law is generally treated as foreign law and thus not within judicial knowledge
⁃ But English cases (as with other foreign cases) may be used in legal argument as persuasive authorities on Scots law.
⁃ See (4) below too.
Generally this is treated as foreign law and thus not within judicial knowledge. But English cases (as with other foreign cases) may be used in legal argument as persuasive authorities on Scots law. See further on this distinction McGowan v Summit at Lloyds 2002 SC 638.

Question 6

Is EU law within judicial knowledge?

Answer 6

EU law is part of judicial knowledge
⁃ By virtue of the European Communities Act 1972 s 2(1), EU law is explicitly deemed to fall within judicial knowledge.
See also s 3(2): “Judicial notice shall be taken of the Treaties, of the Official Journal of the European Union and of any decision of, or expression of opinion by, the European Court on any such question as aforesaid.”

Question 7

Is foreign law a part of judicial knowledge?

Answer 7

Foreign law (including English law) is not part of judicial knowledge
⁃	Thus this requires experts in that other jurisdiction to testify in court as to the nature and substance of the law in the foreign jurisdiction. If foreign law is not averred or proved, the Scottish courts will apply Scots law instead. (Emerald Stainless Steel Ltd v South Side Distribution Ltd 1983 SLT 162).
⁃	However there are a number of exceptions:

• (A) Supreme Court serves as the ultimate appellate court for Scotland in some instances and is deemed to have judicial knowledge of Scots law (and all other legal jurisdictions of the UK) (Elliot v Joicey 1935); position of the UK Supreme Court as final court of appeal in civil matters: Perry v Serious Organised Crime Agency [2012] UKSC 35 [101]
  ⁃ (B) Crimes construed Treason &c in England to be so construed in Scotland (Treason Act 1708, s 1).
  ⁃ (C) Reciprocal enforcement of maintenance orders - Maintenance Orders Act 1950, s 22; Maintenance Orders (Reciprocal Enforcement) Act 1972, ss 7, 9.
  ⁃ (D) Child abduction case under the 1980 Hague Convention on International Child Abduction (Child Abduction and Custody Act 1980, Sch 1, art 14).[ These laws are deemed to be part of judicial knowledge throughout the UK.]

Question 8

Are the ordinary meaning of words within judicial knowledge?

Answer 8

1. The judge can also consult a dictionary etc to determine the precise scope of a particular word (IRC v Russell 1955)
   ⁃ It is important to consider the ordinary meaning of words in a particular geographical or social context[ So what might be held to be judicial knowledge in a particular countryside setting may not be in the city.]:
2. Oliver v Hislop 1946 - if a word is notorious in a particular area it may fall within judicial knowledge within that place, but not in other areas. So in this case two words concerning fishing were held to be judicial knowledge because they were so well known in the locality, despite the fact that they would not be understood by the ordinary person in other locations.
3. Words with a technical meaning may require proof by evidence (Ciceri v Sutton (1889)).

Question 9

Do facts of history and public events fall within judicial knowledge?

Answer 9

Facts of history and public events are deemed to fall within judicial knowledge
⁃ Renouf’s Trs v Haining 1919 - an individual was donating a particular amount of money in his will. Held that judicial knowledge involves acquaintance with ancient history but also present day conditions.

Question 10

Do facts of nature and science fall within judicial knowledge?

Answer 10

Facts of nature and science are deemed to fall within judicial knowledge
⁃ Williamson v M’Clelland 1913 - involved an argument about whether the particular period of gestation was scientifically possible or impossible. Court held that the lengths of gestation were within judicial knowledge.

Question 11

Do facts of economic and social life fall within judicial knowledge?

Answer 11

Facts of economic and social life are within judicial knowledge
⁃ Taylor v Wylie 1912 - the notion/intricacies of a hire purchase agreement was held to be within judicial knowledge.
⁃ Doyle v Ruxton 1999 - the requirement that alcohol would only be sold in licensed premises was held to be within judicial knowledge.
⁃ Petto v HM Advocate 2012 - man murdered one individual and then chose to dispose of the body by burning the tenement building down. Held that an understanding of the structure and details surrounding tenement buildings, and the impossibility of escape from the upper levels except via the internal stairway was within judicial knowledge.

Question 12

What are judicial admissions?

Answer 12

Admissions (essentially concessions of fact) made as part of legal proceedings are binding on the party making them and do not need proof. These formal admissions must be distinguished from extra-judicial admissions which do require proof

The effect of a judicial admission is to bind the party that makes it and proof is not needed.

But note:
⁃ 1) A judicial admission must be taken subject to any explanation or qualification (Lee v NCB 1955)
⁃ 2) In the Civil Evidence Act 1988 s 8 it provides that in relation to family relationships there cannot be admissions - there must be proof.

Question 13

Buick v Jaglar 1973

Answer 13

an admission was made by an individual as the amount of money they had embezzled, followed by a later statement to the effect that they had embezzled much less. The first admission was held to be an extra-judicial admission, so it was not binding on them.

Question 14

Civil Evidence Act 1988 s 8

Answer 14

“(1) In any action to which this subsection applies (whether or not appearance has been entered for the defender), no decree or judgment in favour of the pursuer shall be pronounced until the grounds of action have been established by evidence.
((2) Subsection (1) above applies to actions for divorce, for dissolution of civil partnership, for separation of spouses or of civil partners, for declarator of marriage or of nullity of marriage or of civil partnership, or of parentage or non-parentage.
(3) Subject to subsection (4) below, in any action for divorce, separation or declarator of marriage or nullity of marriage, the evidence referred to in subsection (1) above shall consist of or include evidence other than that of a party to the marriage (or alleged or purported marriage).
(3A) Subject to subsection (4) below, in any action for dissolution of civil partnership, separation of civil partners or declarator of nullity of civil partnership, the evidence referred to in subsection (1) above shall consist of or include evidence other than that of a partner in the civil partnership (or purported civil partnership). “

Question 15

What are judicial admissions in civil actions?

Answer 15

1) Admissions on record

⁃ In the civil context admissions are made on record. This is the process where written pleadings are submitted by open record, adjustment[ Alterations can be made to the admissions on open record.] and closed record[ When an admission is made on closed record, the admission becomes binding and does not need to be proven by evidence.].

⁃ Admissions made in closed record are binding even in later proceeding against the party making the admission. This applies even in later cases against party making the admission: Jackson v Glasgow Corporation 1956

Question 16

Jackson v Glasgow Corporation 1956

Answer 16

• woman injured in a collision in a car that her husband had been driving. She sued the owner of the bus who crashed into the car. The bus owner’s claimed that in previous proceedings her husband had admitted liability, and that admission was binding on the husband. Court held that although binding admissions do carry to subsequent court cases, they only carry if the person who made the admission is a party in both the first and the second action. Since the husband was not a party to the subsequent case, the admission did not carry. (NB if the husband had been a witness in the second case then the admission would have carried to the second case).

Question 17

What are implied admissions?

Answer 17

where a person does not expressly deny a fact which is within his knowledge he is deemed to have admitted it, even where the pleadings say that the matter is ‘not admitted’.

OCR 9.7 (Sheriff Court): “Implied admissions. Every statement of fact made by a party shall be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party shall be deemed to have admitted that statement of fact.”
Central Motor Engineering Co v Galbraith 1918 SC 755, 765; Clark v Clark 1967 SC 296, 305;

Question 18

What are admissions by minute?

Answer 18

⁃ These are made by one or both parties in an action. Convery v Kirkwood 1985 SLT 483.
⁃ In certain actions a ‘joint minute’ can be submitted where parties reach agreement on a particular matter; if this occurs then this piece of evidence need not be proved or contested.

For use in consistorial actions see OCR 33.26:
“Joint minutes
Where any parties have reached agreement in relation to-
(a) a section 11 order,
(b) aliment for a child, or
(c) an order for financial provision,
a joint minute may be entered into expressing that agreement; and subject to rule 33.19(3) (no order before views of child expressed), the sheriff may grant decree in respect of those parts of the joint minute in relation to which he could otherwise make an order, whether or not such a decree would include a matter for which there was no crave.”
(See also RCS 49.27 (Court of Session)).

Question 19

What are notices to admit?

Answer 19

OCR 29.14;
Notices to admit and notices of non-admission
29.14. (1) At any time after the record has closed, a party may intimate to any other party a notice or notices calling on him to admit for the purposes of that cause only-
(a) such facts relating to an issue averred in the pleadings as may be specified in the notice;
(b) that a particular document lodged in process and specified in the notice is-
(i) an original and properly authenticated document; or
(ii) a true copy of an original and properly authenticated document.
(2) Where a party on whom a notice is intimated under paragraph (1)-
(a) does not admit a fact specified in the notice, or
(b) does not admit, or seeks to challenge, the authenticity of a document specified in the notice,
he shall, within 21 days after the date of intimation of the notice under paragraph (1), intimate a notice of non-admission to the party intimating the notice to him under paragraph (1) stating that he does not admit the fact or document specified.
(3) A party who fails to intimate a notice of non-admission under paragraph (2) shall be deemed to have admitted the fact or document specified in the notice intimated to him under paragraph (1); and such fact or document may be used in evidence at a proof if otherwise admissible in evidence, unless the sheriff, on special cause shown, otherwise directs.
(6) A deemed admission under paragraph (3) shall not be used against the party by whom it was deemed to be made other than in the cause for the purpose for which it was deemed to be made or in favour of any person other than the party by whom the notice was given under paragraph (1).
(7) The sheriff may, at any time, allow a party to amend or withdraw an admission made by him on such conditions, if any, as he thinks fit.
(8) A party may, at any time, withdraw in whole or in part a notice of non admission by intimating a notice of withdrawal.
(RCS 28A.1-28A.2)

Question 20

What are oral admission at the bar?

Answer 20

Counsel may make an oral admission during the court case. These are deemed to be equivalent to formal admissions.

Question 21

What are judicial admissions in criminal cases?

Answer 21

Any facts which the accused person judicially admits need not be proven by the Crown. This can be either express or implicitly.

⁃ 1) Guilty pleas
⁃ A plea of guilty accepted by the Crown and not withdrawn by the accused is conclusive against the accused (Criminal Procedure (S) Act 1995 s 146(8)): “It shall not be necessary for the prosecutor to establish a charge or part of a charge to which the accused pleads guilty” (summary cases)).

⁃ The Crown does not have to accept a guilty plea; where a guilty plea is not accepted or withdrawn then the facts must be proved.
⁃ *Strathern v Sloan 1937 - a prosecutor is never bound to accept a guilty plea and may insist on leading evidence before a jury.
- McLean v HM Adv 2008 JC 97.

⁃ If an accused has plead guilty to one of several charges then in solemn cases, no reference can be made in the course of the trial to the plea of guilty (*Walsh v HMA 1961). However in summary cases consideration can be taken by a court to a plea of guilty to one charge notwithstanding the fact that no plea of guilty is given in relation to other charges (McColl v Skeen 1980).

Admission by accused when giving evidence is not a formal plea.

⁃ 2) Minute of admission
⁃ This is a written submission which outlines matters which the accused admits. It is governed by ss 256-258 of the 1995 Act which seeks to encourage the use of these minutes.
⁃ The effect is that if one party admits something then it does not have to be proved before the court.

⁃ Though there are various means in place to facilitate the use of minutes and admissions, these minutes are interpreted very strictly as in the case of Evans v Wilson 1981. Therefore, while documents may be the subject of a minute of admission or agreement, those documents must accompany the agreement, notwithstanding the fact it doesn’t need to be proven before the court.

Question 22

ss 256-258 1995 Act

Answer 22

256 - Agreements and admissions as to evidence.
(1) In any trial it shall not be necessary for the accused or for the prosecutor—
(a) to prove any fact which is admitted by the other; or
(b) to prove any document, the terms and application of which are not in dispute between them,
and, without prejudice to paragraph 1 of Schedule 8 to this Act, copies of any documents may, by agreement of the parties, be accepted as equivalent to the originals.
(2) For the purposes of subsection (1) above, any admission or agreement shall be made by lodging with the clerk of court a minute in that behalf signed—
(a) in the case of an admission, by the party making the admission or, if that party is the accused and he is legally represented, by his counsel or solicitor; and
(b) in the case of an agreement, by the prosecutor and the accused or, if he is legally represented, his counsel or solicitor.
(3) Where a minute has been signed and lodged as aforesaid, any facts and documents admitted or agreed thereby shall be deemed to have been duly proved.

257 - Duty to seek agreement of evidence.
(1) Subject to subsection (2) below, the prosecutor and the accused (or each of the accused if more than one) shall each identify any facts which are facts—
(a) which he would, apart from this section, be seeking to prove;
(b) which he considers unlikely to be disputed by the other party (or by any of the other parties); and
(c) in proof of which he does not wish to lead oral evidence,
and shall, without prejudice to section 258 of this Act, take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement.
(2) Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented.
(3) The duty under subsection (1) above applies—
(a) in relation to proceedings on indictment, from the date of service of the indictment until the swearing of the jury or, where intimation is given under section 76 of this Act, the date of that intimation; and
(b) in relation to summary proceedings, from the date on which the accused pleads not guilty until the swearing of the first witness or, where the accused tenders a plea of guilty at any time before the first witness is sworn, the date when he does so.
(4) Without prejudice to subsection (3) above, in relation to proceedings on indictment, the parties to the proceedings shall, in complying with the duty under subsection (1) above, seek to ensure that the facts to be identified, and the steps to be taken in relation to those facts are identified and taken—
(a) in the case of the High Court, before the preliminary hearing;
(b) in the case of the sheriff court, before the first diet.
(5) Without prejudice to subsection (3) above, in relation to summary proceedings, the parties to the proceedings shall, in complying with the duty under subsection (1) above, seek to ensure that the facts to be identified, and the steps to be taken in relation to those facts, are identified and taken before any intermediate diet that is to be held.

258 - Uncontroversial evidence
(1) This section applies where, in any criminal proceedings, a party (in this section referred to as “the first party”) considers that facts which that party would otherwise be seeking to prove are unlikely to be disputed by the other parties to the proceedings.
(2) Where this section applies, the first party may prepare and sign a statement—
(a) specifying the facts concerned; or
(b) referring to such facts as set out in a document annexed to the statement,
and shall, not less than [the relevant period] before the [relevant] diet, serve a copy of the statement and any such document on every other party.
(2ZA) In subsection (2) above, the “relevant period” means—
(a) where the relevant diet for the purpose of that subsection is an intermediate diet in summary proceedings, 7 days;
(b) in any other case, 14 days.
(2A) In subsection (2) above, “the relevant diet” means–
(a) in the case of proceedings in the High Court, the preliminary hearing;
(aa) in summary proceedings in which an intermediate diet is to be held, that diet;
(b) in any other case, the trial diet.
court, the first diet;
(3) Unless any other party serves on the first party, not more than seven days after the date of service of the copy on him under subsection (2) above or by such later time as the court may in special circumstances allow, a notice that he challenges any fact specified or referred to in the statement, the facts so specified or referred to shall be deemed to have been conclusively proved.
(4) Where a notice is served under subsection (3) above, the facts specified or referred to in the statement shall be deemed to have been conclusively proved only in so far as unchallenged in the notice.
(4A) Where a notice is served under subsection (3) above …, the court may, on the application of any party to the proceedings made not less than 48 hours before the relevant diet, direct that any challenge in the notice to any fact is to be disregarded for the purposes of subsection (4) above if the court considers the challenge to be unjustified.
(4AA) Where in summary proceedings the relevant diet for purposes of subsection (4A) above in an intermediate diet, an application under that subsection may be made at (or at any tome before) that diet
(4B) In subsection (4A) above, “the relevant diet” means–
(a) in proceedings in the High Court, the preliminary hearing;
(b) in solemn proceedings in the sheriff court, the first diet
(c) in summary proceedings—
(i) in which an intermediate diet is to be held, that diet;
(ii) in which such a diet is not to be held, the trial diet.
(4C) In proceedings in the High Court, the Court may, on cause shown, allow an application under subsection (4A) above to be made after the time limit specified in that subsection.
(4D) In summary proceedings, the court may allow an application under subsection (4A) above to be made late if the court is satisfied that a timeous application would not have been practicable.
(5) Subsections (3) and (4) above shall not preclude a party from leading evidence of circumstances relevant to, or other evidence in explanation of, any fact specified or referred to in the statement.
(6) Notwithstanding subsections (3) and (4) above, the court—
(a) may, on the application of any party, where it is satisfied that there are special circumstances; and
(b) shall, on the joint application of all the parties,
direct that the presumptions in those subsections shall not apply in relation to such fact specified or referred to in the statement as is specified in the direction.
(7) An application under subsection (6) above may be made at any time after the commencement of the trial and before the commencement of the prosecutor’s address to the court on the evidence.
(8) Where the court makes a direction under subsection (6) above it shall, unless all the parties otherwise agree, adjourn the trial and may, without prejudice to section 268 of this Act, permit any party to lead evidence; as to any such fact as is specified in the direction, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(9) A copy of a statement or a notice required, under this section, to be served on any party shall be served in such a manner as may be prescribed by Act of Adjournal; and a written execution purporting to be signed by the person who served such copy or notice together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such service.

Question 23

Evans v Wilson 1981

Answer 23

Strictness in interpreting minutes

Question 24

What are admissions from special defence?

Answer 24

The lodging of a special defence is not equivalent to an admission that the accused is responsible for any of the acts alleged to have been committed by them: *Owens v HMA 1946. The only purpose of lodging a special defence is to give notice to the Crown that that defence will be adopted, but this does not prejudice the not guilty plea.