Precognition (Scots law)

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Precognition in Scots law is the practice of taking a factual statement from witnesses by both prosecution and defence after indictment or claim but before trial. This is often undertaken by trainee lawyers or precognition officers employed by firms; anecdotal evidence suggests many of these are former policemen.[1]

This procedure is followed in both civil and criminal causes.[2] The subsequent statement is generally inadmissible as evidence in the trial,[3] but it allows the procurator fiscal, advocate or solicitor in Scotland to appear before the Courts of Scotland knowing what evidence each witness is likely to present. Following the judgement of the Appeal Court in Beurskens v HM Advocate [2014] HCJAC 99 it is possible for a precognition to be considered as a statement, and thus be admissible as evidence in court.[4]

Historically precognitions were not only a distinctive feature of Scottish criminal procedure, but vital to the defence. Before the passage of the Criminal Justice and Licensing (Scotland) Act 2010 there was limited disclosure by the prosecution to the defence.[5] Section 121 of 2010 Act required the prosecutor to disclose all information that would "materially weaken or undermine the evidence... by the prosecution", "materially strengthen the accussed's case", or "form part of the evidence to be by the prosecutor".[6] This was in response to the 2007 review by Lord Coulsfield. Before this the accused was entitled to a copy of the indictment with all the charges laid against them, and to a list of prosecution witnesses and productions (other evidence)[7] and to all statements taken by the prosecution and knowledge of witnesses prior criminal records.[8]

Police officers from Police Scotland can be asked to attend for precognition by solicitors for the defence, and it is possible for them to refuse to attend (except where a Sheriff orders a precognition on oath). However, as of 7 August 2013 Police Scotland had no record of how many officers had refused to attend a precognition for the defence.[9]

Types of precognition[edit]

There are two main types of precognition: narrative summaries (written by the precognition officer), and precognitions on oath which are verbatim records.[10]

Summaries[edit]

A regular or conventional precognition is taken by a precognition officer who are employed by solicitors or insurance companies to evaluate the evidence that may be given by the witness whilst under oath. The precognition itself will be a narrative summary produced by the precognition officer, and will not be a verbatim account of the questions and answers, nor will it will be signed by the witness as an accurate account of their words.[11] A summary precognition cannot be used to directly challenge the evidence given by a witness under oath. This is the kind of precognition that can be produced by a defence solicitor, but a witness is not required by law to give such a precognition (though it is Crown Office guidance that a witness should do so.)[12]

Precognitions on oath[edit]

A Sheriff has the power under Section 194H of the Criminal Procedure (Scotland) Act 1995 to issue a citation for a witness to appear before them in chambers; refusal to attend is an offence subject to fine or imprisonment.[13] In a precognition on oath the witness is questioned by the procurator fiscal or defence solicitor in front of the Sheriff, with a shorthand writer taking verbatim notes on the proceedings. A transcript is then made, read over, and signed by both the witness and the sheriff. Such a transcript may be used in court to challenge the evidence given by a witness, at trial, under oath.[10][14] The defence may only call the complainer in cases of sexual offences when the accused is not present.[15]

See also[edit]

References[edit]

  1. ^ David J. Christie; Susan R. Moody (1999). "The Work of Precognition Agents in Criminal Cases" (PDF). Scottish Government. Scottish Executive Central Research Unit. p. 19. Retrieved 11 March 2017. Whether ex-police officers constitute the majority is difficult to say in the absence of any official statistics but anecdotal evidence would support this view. 
  2. ^ Moenssens, Andre (8 March 2016). "37 Ethical Rules of Expert Behavior". In Jamieson, Allan; Bader, Scott. A Guide to Forensic DNA Profiling (1 ed.). John Wiley & Sons. p. 319. ISBN 978-1-118-75152-7. Precognition is a practice used in Scotland to take factual statements from a witness prior to civil or criminal proceedings. 
  3. ^ McNeile vs Her Majesty's Advocate, 1929 JC 51 per Lord Justice-General Clyde (High Court of Justiciary).
  4. ^ Beurskens v HM Advocate, 99 HCJAC XC28/13, 28 (High Court of Justiciary Appeal Court 26 February 2013) (“"Unless the court considers that the jury could not rely on the content of the statement/precognition as accurately recording what the witness actually said, because of the circumstances in which it was taken, it ought to be admitted in evidence for all competent purposes."”).
  5. ^ Fiona, Bawden (8 March 1995). "Solicitors tread where the police fail to go". independent.co.uk. The Independent. Retrieved 15 March 2017. In Scotland, there is only limited disclosure of police statements. To help preparation of the defence case, solicitors (or their agents) routinely visit and question witnesses to find out what they may be likely to say in court. 
  6. ^ "Criminal Justice and Licensing (Scotland) Act 2010". S.121: legislation.gov.uk. 30 June 2010. Retrieved 11 March 2017. 
  7. ^ "Criminal Procedure (Scotland) Act 1995". S. 66: legislation.gov.uk. 8 November 1995. Retrieved 11 March 2017. 
  8. ^ Holland v. Her Majesty's Advocate (Devolution), BAILII UKPC D1 (Judicial Committee of the Privy Council 11 May 2005).
  9. ^ "Precognition of officers" (PDF). WhatDoTheyKnow. mySociety. 9 August 2013. Retrieved 15 March 2017. Your request for information has now been considered and I can advise you that Police Service of Scotland does not hold any of the information requested by you. In terms of Section 17 of the Act, this letter represents a formal notice that information is not held. 
  10. ^ a b CK Davison; EM Clive; Philip N Love; Iain MacPhail; WA Nimmo Smith (1995). Evidence: Report on Hearsay Evidence in Criminal Proceedings (PDF). Scottish Law Commission. p. 42. Retrieved 11 March 2017. ...the witness is examined by the procurator fiscal. The questions and answers are recorded verbatim by a short-hand writer and are transcribed. The transcript (also called a "precognition on oath") is certified by the shorthand writer and is read over and signed by the witness and the sheriff... 
  11. ^ Christie, D.J.; Moody, S.R. (1999). The Work of Precognition Agents in Criminal Cases (PDF). Scottish Executive Central Research Unit. p. 11. Retrieved 11 March 2017. A precognition is usually not an account of what the witness has said but is the precognoscer’s reconstruction or interpretation 
  12. ^ "About giving your statement (Precognition)" (PDF). Crown Office and Procurator Fiscal Service. Victim Information and Advice. 2008. p. 2. Retrieved 11 March 2017. You do not require to speak to a defence lawyer Procurator Fiscal will encourage you to give a statement to the defence lawyer as it will give them a better understanding of the evidence against the accused to help them advise the accused. This before the trial. However, like the Procurator Fiscal, the defence lawyer (or a precognition agent) might also ask you to give a statement. However, the sometimes means that a trial can be avoided or your evidence can be agreed so that you do not need to go to court. 
  13. ^ "Criminal Procedure (Scotland) Act 1995". legislation.gov.uk. 18 November 1995. p. 194H. Retrieved 11 March 2017. 
  14. ^ CK Davison; EM Clive; Philip N Love; Iain MacPhail; WA Nimmo Smith (1995). Evidence: Report on Hearsay Evidence in Criminal Proceedings (PDF). Scottish Law Commission. p. 42. Retrieved 11 March 2017. ...considerations have led the High Court to hold that a precognition on oath, unlike other precognitions, may be used to challenge a witness's evidence in court on the ground that he has made a previous statement inconsistent with his evidence... 
  15. ^ "Sexual Offences (Procedure and Evidence) (Scotland) Act 2002". legislation.gov.uk. S. 4: The National Archives. 11 April 2002. Retrieved 15 March 2017. This section does not, however, extend to the citation of the complainer for precognition by the accused in person.