Precognition in
Scots law
Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland l ...
is the practice of
precognoscing a witness, that is the taking of a factual statement from witnesses by both
prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
and
defence
Defense or defence may refer to:
Tactical, martial, and political acts or groups
* Defense (military), forces primarily intended for warfare
* Civil defense, the organizing of civilians to deal with emergencies or enemy attacks
* Defense indus ...
after
indictment
An indictment ( ) is a formal accusation that a legal person, person has committed a crime. In jurisdictions that use the concept of felony, felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concep ...
or
claim but before
trial
In law, a trial is a coming together of Party (law), parties to a :wikt:dispute, dispute, to present information (in the form of evidence (law), evidence) in a tribunal, a formal setting with the authority to Adjudication, adjudicate claims or d ...
. This is often undertaken by trainee lawyers or precognition officers employed by firms; anecdotal evidence suggests many of these are former police officers.
This procedure is followed in both
civil
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
*Civil disobedience
*Civil engineering
*Civil (journalism), a platform for independent journalism
*Civilian, someone not a membe ...
and
criminal causes. The subsequent statement is generally inadmissible as evidence in the trial, but it allows the
procurator fiscal,
advocate
An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a barrister or a solicitor. However, ...
or
solicitor
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and ...
in
Scotland
Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...
to appear before the
Courts of Scotland
The courts of Scotland are responsible for administration of justice in Scotland, under statutory, common law and equitable provisions within Scots law. The courts are presided over by the judiciary of Scotland, who are the various judicial ...
knowing what evidence each witness is likely to present. Following the judgement of the
Appeal Court
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...
in ''Beurskens v HM Advocate''
014HCJAC 99 it is possible for a precognition to be considered as a
statement, and thus be admissible as evidence in court.
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
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
there was limited
disclosure
Disclosure may refer to:
Arts and media
* ''Disclosure'' (The Gathering album), 2012
*Disclosure (band), a UK-based garage/electronic duo
* ''Disclosure'' (novel), 1994 novel written by Michael Crichton
** ''Disclosure'' (1994 film), an American ...
by the prosecution to the defence. 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 accused's case", or "form part of the evidence to be by the prosecutor". 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) and to all statements taken by the prosecution and knowledge of witnesses prior criminal records.
Police officers from
Police Scotland
Police Scotland ( gd, Poileas Alba), officially the Police Service of Scotland (), is the national police force of Scotland. It was formed in 2013, through the merging of eight regional police forces in Scotland, as well as the specialist service ...
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
A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transla ...
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.
Types of precognition
There are two main types of precognition: narrative summaries (written by the precognition officer), and precognitions on oath which are verbatim records.
Summaries
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.
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
The Crown Office, also known (especially in official papers) as the Crown Office in Chancery, is a section of the Ministry of Justice (formerly the Lord Chancellor's Department). It has custody of the Great Seal of the Realm, and has certain a ...
guidance that a witness should do so.)
Precognitions on oath
A
Sheriff
A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transla ...
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
Chambers may refer to:
Places
Canada:
*Chambers Township, Ontario
United States:
*Chambers County, Alabama
* Chambers, Arizona, an unincorporated community in Apache County
* Chambers, Nebraska
* Chambers, West Virginia
* Chambers Township, Hol ...
; refusal to attend is an offence subject to
fine
Fine may refer to:
Characters
* Sylvia Fine (''The Nanny''), Fran's mother on ''The Nanny''
* Officer Fine, a character in ''Tales from the Crypt'', played by Vincent Spano
Legal terms
* Fine (penalty), money to be paid as punishment for an offe ...
or
imprisonment
Imprisonment is the restraint of a person's liberty, for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. In the latter case it is "false imprisonment". Imprisonment does not necessari ...
. 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.
The defence may only call the complainer in cases of
sexual offences
Sex and the law deals with the regulation by law of human sexual activity. Sex laws vary from one place or jurisdiction to another, and have varied over time. Unlawful sexual acts are called sex crimes.
Some laws regarding sexual activity are ...
when the
accused
Accused or The Accused may refer to:
* A person suspected with committing a crime or offence; see Criminal charge
** Suspect, a known person suspected of committing a crime
* The Accüsed, a 1980s Seattle crossover thrash band
*''The Accused'', a ...
is not present.
See also
*
Pre-trial rights of the accused in Scots law
The legal system in Scotland grants certain rights to persons accused in criminal proceedings.
Right to retain a personal copy of the complaint document
At all times the accused has the right to retain a copy of the complaint document. The ...
References
{{Criminal procedure (investigation), state=collapsed
Scots law
Prosecution
Scottish criminal law