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Law of Evidence Revision Notes
What is evidence?
Evidence is all material presented by a party to the court during a case to prove their
argument
...
The questions asked by lawyers are not classed as
evidence, but the answers given by witnesses are
...
Every fact that is relied on must be proved or agreed unless it is judicial knowledge
...

There are four main types of evidence:
Real evidence- has physical form- murder weapons, stolen property etc
...

Affidavit evidence- sworn statement- used when witnesses can’t attend the trial, usually
used in fatal accident inquiry
...

Any evidence can be agreed between arties- can be done by joint minute
...


Court systems and procedures
Criminal courts
Justice of the peace
Sheriff court
High court of the Judiciary
Supreme Court

Civil courts
Statutory tribunals
Sheriff court
Sheriff principal
Court of session
Supreme court

Rules of Evidence are the same in summary and solemn cases
...

There can be circumstances in criminal cases where Judge/Sheriff will hear evidence
without jury and may decide jury not to hear evidence - usually at pre trial hearing
...

Only one ground of Appeal in criminal cases
Miscarriage of justice – can be based on any one of number of points –changes coming in
summary case appeals- Usually a mistake in law or defective representation
...
Questions are posed for answer by the court
...
Sometimes the prosecution will appeal to re-try a person if
they lose the initial case
...
Controversial areas involve cases relating to sexual
offences
...

Criminal Procedure (Scotland) act 1995 sections 274-275 dictates the circumstance under
which a complainer’s sexual history can be questioned:
There is a general prohibition in sexual offence cases on questions that are designed to
establish that the complainer:
(1)

is not of good character (sexual or otherwise); or

(2) has at any time engaged in sexual behaviour not forming part of the charge

but that an application may be made to the court to allow such questioning, but only where
the court is satisfied of the following matters:

(1)
the evidence or questioning will relate to a specific occurrence(s) of sexual or other
behaviour or to specific facts showing the complainers character or condition or
predisposition to which the complainer is subject; and (If there are false allegations, you can
show they are a pathological liar or fantasy
...
(Includes dignity and privacy of the
complainer)
A common law test of relevance also remains which can be seen in the following cases
...

The complainer gave evidence that on the morning of the day in question she had
telephoned the appellant and told him that she had broken up with her boyfriend F, who
was a close friend of the appellant
...
She left to go to Stirling to meet her mother and returned after two or three
hours
...
Her brother went to bed, leaving the complainer and the appellant alone in the
early afternoon
...
She went upstairs and woke her brother, who came down
...

Thomson was convicted of rape in 1999
...
Appeal was refused
...
They argued that the line of questioning did not strictly
fall under prohibition of s274 of the CPSA 1995 as they only wanted to prove the allegations
were false and not that the complainer had taken part in any other sexual behaviour
...
Appeal refused again
...
The appellant lodged two grounds of appeal: (1)
that the trial judge had erred in refusing leave to question the complainer in terms of the s
275 application; and (2) that there was fresh evidence of further false allegations by the
complainer of sexual abuse which was of such significance that a verdict returned in its
ignorance could be regarded as a miscarriage of justice
...
Appeal refused
...
Questions whether it is competent in a rape case to dispute the chastity of
the women alleged to have been sexually assaulted and to prove general bad repute at the
time, and even to prove individual recent voluntary acts
...
Pleaded not guilty
...
Due notice was given of
the times and places at which, and the persons with whom, the complainer proposed to
prove that she had been unduly intimate, and copies of the said notice were duly lodged for
the use of the Court
...
The question being repeated, the Sheriff-Substitute warned the witness that she
was not bound to answer the question unless she chose
...
He was found guilty
...


Bremner v HMA
The appellant was charged with rape and advanced a defence of consent
...
An application was
made under s
...
The trial judge refused the application
...
Held, that whether or not to allow an
application under s
...

Cumming v HMA 2003 S
...
C
...
261Section 7 states that the accused will not be allowed to show that the complainer is not of
good character or that they engaged in any sexual acts outside those outlined in the
charges
...
In terms of s 275(2) the proper administration of justice includes
appropriate protection of a complainer's dignity and privacy
...
He applied to have certain
evidence admitted
...
Judge also
allowed evidence that one of the complainers made no complaint of the appellants
behaviour at the time of the offence
...
The appellant appealed to the High Court
against the judge's decision to exclude evidence
...
The appeal was allowed
...
His defence was that the alleged victim had consented
...
The application was rejected,
Kinnin then appealed to the high court
...

Appeal allowed
...
He denied the
charges and said that the complainer (L) had made a complaint two days after he
reprimanded her for damaging his motorcycle and helmet
...
He sought to lead evidence where L had
made a false allegation against another adult as a response to being chastised by him for
jumping on the roof of his property
...
The sheriff refused leave to lead the evidence and the
appellant appealed to the High Court
...
Two episodes were
compared
...


They were relying on part of section that demonstrates the woman was acting in a certain
way
...
Defence of consent
...
The application was
refused by the judge at a preliminary hearing on the grounds that the occurrences were not
sufficiently specified, that it was not clear what aspect of the complainer's character or what
predisposition was to be demonstrated and because of the time which had elapsed
between the alleged incidents and the alleged rape
...
Appeal refused
...
The appellant sought to introduce evidence that D had made
a false allegation that a man had committed an offence of a sexual nature against her in
2006
...
D's friend did not support her allegation, and when D was interviewed by the police
under caution she had, in the words of a statement by the procurator fiscal to the
appellant's advisers, 'admitted having fabricated the allegation and the unsolicited nature of
the sexual demands made by the man, although other aspects were found to be factual'
...
Applications by the appellant
under section 275 to lead evidence of this admission were repelled at a preliminary hearing
on the ground that the evidence was inadmissible at common law, and again during his trial
on the ground that no grounds had been advanced to enable the application to be
reconsidered, and that in any event it was not admissible in terms of section 275
...
It was accepted in the appeal that section 275 does
not permit the admission of any evidence which would be inadmissible at common law, but
it was submitted by the appellant that the evidence was admissible both at common law
and under section 275
...


Held, by a Bench of five judges, (1) that the proposed evidence was evidence of 'bad
character' proposed to be introduced with the purpose of undermining the complainer's
credibility, and that the situations in which this type of evidence can be admitted are strictly
regulated
...
She was reluctant to pursue the matter
but eventually decided to tell her mother who told the police
...
She later explained to the police that she had told lies and asked them if she would
be in any trouble if she dropped the allegation, explaining that she had made it because she
and her friends had been taking drugs and because her friends had told lies about that and
had made up their statements thinking they would be helping her
...
The judge at the preliminary hearing refused the application, principally on the
ground that it did not meet the requirements of section 275(1)(c) (see para 9)
...
Defence
counsel then renewed his section 275 application, on the ground that that answer created a
change of circumstances
...
He took the view that the effect of the earlier ruling was that the complainer
could not be asked the question put to her, and that the defence had attempted to engineer
a change of circumstances by asking it
...


Burden of Proof
A burden of proof is where one party must prove the case and bear the burden- this is
always the prosecution in criminal cases
...
This is found especially
the case of special defences
...

Tactical burden- each party is trying to prove their case and negative the other
party’s case at the same time
...

Mental disorder and diminished responsibility:
Criminal Procedure (Scotland) Act 1995
S51 A and B- you have a defence to a crime if you can show that you were suffering a
mental disorder at the time of the crime which prevented you from rationalising your
thoughts
...

Used to change the crime of murder to culpable homicide- legally responsible for a crime,
but lacking in the wicked recklessness of a murderer
...
Burden lies with accused
...

Carraher v HMA 1946 JC 108- C charged with murder and tried to suggest he should be
convicted of culpable homicide instead
...
In a case of murder,
the jury get legal direction from the judge
...
Reduced to culpable
homicide
...
His special defence was insanity
...
Told jury that they should look at the prosecution evidence and see if they have
proved guilt beyond reasonable doubt, and then look at defence evidence
...

The burden of proving the guilt of the accused always lies with the prosecution
...
These defences
and burdens of proof exist where a statute offers a defence such as reasonable excuse or
some other justification
...
g
...
)
If the facts are peculiarly in the knowledge of the accused, then there is a tactical burden
as if they do not try to rebut the case of the Crown then they will be convicted
...

Fox v Patterson 1948 JC 104Being prosecuted for theft
...
Mr Fox In possession of Bronze which had been
stolen
...
He showed he paid fair price and the bronze had been weighed
on a waybridge
...
Two witnesses saying a man from
Motherwell approached him to sell the goods
...
The evidence showed
that he had behaved reasonably
...
There must be possession by the accused, the goods
must have been stolen recently and there must be something in the possession which is
peculiar- criminative circumstances
...
Pub had
been broken into and had alcohol removed
...
Trail of bottles leading to house where they were lying
in amongst the bottles
...
You never have to prove

your innocence but tactically you need to refute the Crown’s case to avoid conviction in
some circumstances
...

Criminal cases- Beyond Reasonable doubt
Civil cases- Balance of probabilities
Standard of proof in criminal cases (proof beyond reasonable doubt)
In a criminal case the burden of proof of guilt is always on the Crown and they must
discharge the burden of proof by proving the guilt of the accused beyond reasonable doubt
...

Lord Denning in Miller v Minister of Pensions 1947 63 TLR 474 described it as:
"It need not reach certainty but it must carry a high degree of probability…(it) does not
mean proof beyond a shadow of a doubt…
...

**Note when any burden of proof falls to the accused it will be on the balance of
probabilities – this is a lesser standard**
General rule of sufficiency in any criminal case that there must be sufficient evidence in law
against the accused for a conviction to follow
...

No Case to answer
If there is insufficient evidence the defence can argue that there is no case to answer at the
end of the crown case
...

Crown case taken at its highest
- as if all witnesses credible and reliable
- as if all inconsistencies are resolved in favour of the Crown
The reason for this is that the court is testing the sufficiency of the evidence in law and not
whether the facts are proved
...
If the Sheriff agrees with the defence then the case is at an end and the
accused is acquitted, however if the Sheriff disagrees then the case continues
...
The right of silence remains and the accused can lead no evidence and
simply argue that the case is not proved beyond reasonable doubt
...


Corroboration
Relates to sufficiency in criminal cases
...
Therefore they must lead at least two types of evidence from different sources
...
These are:
1) That a crime was committed
2) The accused committed it
"Corroboration may be by facts and circumstances and proved by other evidence than that
of the single witness who is to be corroborated
...
At one stage she had
consensual sexual intercourse with a man in a bathroom although she subsequently had no
recollection of it
...
She awoke to discover the accused having intercourse with her
...
The complainer was later seen to be distressed
...
The trial judge repelled a submission of
no case to answer and the accused was convicted
...

Held, (by a bench of five judges),
(1) that the essence of corroboration was evidence which was independent and confirmed
or supported the direct evidence of the principal witness on the crucial facts, and so long as
circumstantial evidence was capable of providing such support, it did not require to be more
consistent with that evidence than with any other explanation to provide corroboration of it
(2) that in the present case, the jury having accepted the complainer's evidence and
rejected the accused's, were entitled to find in the evidence of her distress, confirmation of
that part of her evidence where she said she had not consented to sexual intercourse and
appeal refused
...

The corroborating evidence must be independent of the primary source not just a repeat of
the other evidence led
...
He was cautioned and asked about whether he had broken
the window and he admitted that he had
...

Police called to disturbance at midnight, he is right next to the window and there is no-one
else around
...
Admission (usually a source of
evidence)
...

The High Court refused the Appeal indicating that very little other evidence was required to
corroborate an “unequivocal admission of guilt”
...
He admitted to breaking the window
...

It would have been different had Armit not confessed
...
It is not in your interest to admit guilt, so usually a clear admission of
guilt can pass as truthful, strong evidence
...

Gallagher v HMA 2000 SCCR 634
Appellant identified by complainer as having assaulted him
...
Accused admitted being in house with co
accused and was seen running away before complainer found injured
...
There was not
really any immediate evidence found
...
He was interviewed and admitted to being in the

house where the assault took place
...
Were seen running
away just before victim was found injured
...
The admission of being present in the house was not enough to corroborate
involvement in the crime and the presence of blood a week later was not said to be
significant
...

Gonshaw v Bamber
Accused of disturbing nest and taking eggs of an eagle
...
Conversation seen by two others who could not ID them
...
The appellant was found two days later
with a rucksack and binoculars
...
Insufficient evidence to support direct
evidence of crucial facts
...

Inconsistent accounts
Different accounts can be similar but they must not contradict each other
...

Sherriff court case
...
Victim gave evidence that she had been attacked and
suffered bruising to her face and arm as a result of a punch
...
This was the only evidence the crown had
...
Appeal was successful
...
1994
...
Had arrived at
deceased’s home and deceased’s girlfriend gave evidence that he stabbed her BF in the
toilet of the house and that he died after that
...
He gave evidence that Millar
had punched the deceased in the hall and that there had been no knife
...
He appealed on lack of corroboration
...
Millar walked away
from murder charge
...

Campbell v Vannet 1988 SCCR 78- Known as Fiscal's friend- IMPORTANT CASE!
Assault
...
She had sustained minor injury
...
Could
not be corroborated because second witness only gave second part of crime
...
He was convicted, but appealed on lack of corroboration
...

Conviction on whole charge was allowed to stand
...
Witness said punched and wrist injury – sufficient as general
attack corroborated
...

Must still have sufficient independent check- depends on case
...
He made detailed confession
...
Detail can be unimportant if evidence consistent
with confession
...

Appealed on grounds of insufficient corroboration of his confession
...

This changes the approach previously taken by the Courts in Hartley v HMA 1979 SLT 26Hartley was 17 and may have had learning difficulties- not recognised in 70's
...
He
confessed to the killing after he had been with police for 12 hours, with no special
provisions made
...
Convicted
and appealed- confession was not enough because there was nothing to corroborate it
...
Evidence was sufficient in this case
...

Manuel v HMA 1958 JC 41 – took police to the body
...
He was
interviewed by police and made a statement and mentioned a field and said a body might
be found, and another part of the field where the shoe of a victim could be found
...

Pointed out that it was just a confession and had to be corroborated
...
But still found guilty because it was only information you could know if you were
the killer
...


Special knowledge confessions
The confession corroborates itself where the accused displays knowledge which would only
have been known to him if he was the perpetrator
...
The only reasonable
explanation for the knowledge must be that he committed the crime
...

Wilson V HMA 1987 SCCR 217- Accused confessed to killing in terms which matched exactly
what was found at scene – argued he had the knowledge because the details were public
knowledge by then
...
He was convicted and appealed
...

Where some of the knowledge is wrong it can be ignored
Gilmour v HMA 1982 SCCR 590-Famous case- Young girl killed in Drumchapel- bluebell
woods
...
He was granted bail after losing appeal
and 2 others
...
Confession had inconsistencies, but it was for jury to consider when
directed as to what they made of the evidence
...
Had told police at the interview
when he was charged with one actual assault and robbery, he said "I already told you I did
that one with Kenny and Bruce
...
Convicted of all charges, and appealed
...
Appellant admitted to a number of
perpetrations
...

Cairns V Howdle 2000 SCCR 742- Tried to argue specialist knowledge because had
witnessed crime so knew what had happened, but the approach was not successful as it was
reiterated that the only test is that the only explanation for the special knowledge is that
the accused was the perpetrator
...

He was charged at first on specialist knowledge, but he said that the co- accused had told
him the whereabouts of the video before the police had talked to him
...


Identification of the accused
Must be corroborated by two different sources
...
Full bench of judges made it clear that for the conviction here could
only be sustained if two sources corroborated
...

Ralston v HMA 1987 SCCR 467- R was instigator of peterhead prison riots
...
Third said he might have been
perp
...
Where you have one strong ID
and two other maybe ones, is sufficient
...

John Mcluckie v HMA 2015 SCCR 46- no ID by complainers but description fitted people on
cctv who were identified – sufficient evidence
...

Identification normally takes place in the witness box, by way of pointing to the accused in
the dock
...
No
recording of the evidence, nowadays all solemn cases are recorded
...
Bruce
appealed saying there was no proof it was him and he was acquitted
...

Murphy v HMA 2007 SCCR 532- accused of several sexual offences whilst teaching in a
religious order- had religious name and nickname
...
Crown brought in people to say yes, this person
is known as this
...
High court held that
prosecution can use any method of ID they like for corroboration- no rule that they had to
be pointed out in court
...
But at trial said they
couldn't identify and person wasn't in court
...
Police pointed at
accused
...
High court refused, it was perfectly
legit
...

To be a valid ID in court should be positive






So saying “doesn’t look unlike” … the perpetrator was not sufficient in terms of
Identification
See Macdonald v HMA 1998 SLT 37- witnesses talked in negatives
...
Made clear that ID should be positive and if not crown should reinforce it
by questions
...

Burrows v HMA 1951 SLT(N)69- Acquitted on appeal because only one person heard him
speak
...
- If jury is convinced, lack of corroboration
in one will not matter
...
He was positively identified in the building society charge, but the witnesses at the
bank couldn’t identify him for certain
...
This rule
only applies in circumstances where the jury can be pretty sure the same person committed
both crimes- has to be similar
...
If jury was satisfied beyond reasonable
doubt that the accused committed both crimes, then positive id of the second charge is not
needed
...


Corroboration of the essential fact of ID- Gillan V HMA 2002 SLT 551
Two charges of assault – one charge had only the complainer’s account (no one to
corroborate identity of accused)
...
Unsuccessful on appeal
...

-evidence for each charge corroborates the next
-mutual corroboration- used in sexual and other offences
Different charges can be used to corroborate each other, where a charge has a single
source of evidence, if they are connected by an underlying unity in time place or
circumstance
...

MUST HAVE MORE THAN ONE VICTIM!!!!!!
H
...
Advocate v Moorov
High Court of the Judiciary Appeal Court
1930 S
...
T 596
The Lord Justice-General, The Lord Justice-Clerk, Lords Ormidale, Anderson, Sands,
Blackburn, and Morison
Legal facts
Samuel Moorov was an employer who hired women in his shop and then committed
acts of assault, decent assault and attempted rape against them
...
There were originally 13 charges libelled but the Crown
withdrew 4, leaving a total of 6
...
He was initially found guilty of
seven charges of assault and nine charges of indecent assault
...
He only appealed on
13 charges
...

 Where they were separate crimes, each must be fully proved
...

 To show that the isolated offences constituted a course of conduct, the acts had
to be close in time and character which was not the case here
...


Arguments for the Crown








The appeal should be dismissed
...

The offences were closely connected in time, motive and character
...

The case was a clear example of a course of conduct rather than a series of isolated
acts
...


The Court allowed the appeal on the charges of assault and quashed the convictions, but
dismissed the appeal in relation to the charges of indecent assault and reduced the
sentence from four years to 12 months imprisonment
...
6 of the charges
involved a single witness 1926
...
6 charges didn't have corroboration, but only
victim as witness
...
Appeal court ruled that where there is an underlying unity of character
between the offences such as to highlight the conduct of the accused, they can corroborate
each other
...


Offences need not have the same nameCarpenter v Hamilton 1994 SCCR 109
Breach of the peace and indecent exposure but underlying similarity of character
...
In each case, only the
victim was a witness
...
Appeal court held it could, as both crimes had an underlying character of
indecency
...

Rape of 4 year old and sodomy of 2 year old brother could mutually corroborate as each an
instance of penetrative abuse of a child
...
Evidence of single witness
applied
...

2 indecent assaults on pupils single witness each charge Moorov applied
Similarity between accused actions may not be enough
Tudhope v Hazelton 1985 SLT 209
Hazelton was policeman accused of assaulting two people in police custody in may 1981 and
august 1982
...
2nd- hit prisoner in head with hammer
...
Sheriff acquitted
him, dismissing moorov doctrine
...
There was nothing about the charges in
terms of character which allowed the moorov doctrine to be applied
...

Two assaults whilst in police custody – held no “ nexus” between them
...
Periods of over 3 years between offences will be carefully considered
...
The bigger the time between crimes the harder
it is to use the doctrine
...

Turner v Scott 1995 JC 150 - almost 3 years was “borderline”
...

Bargon V HMA 1997 SLT 1232– 3 years 7 months too long but no fixed rule
...


K v HMA 2012 JC 74- Exceptional case
...
Accused said "i missed you (and name of
previously abused person)
...

AS v HMA 2015 SCCR 62 – 18 years between incidents involving generations in same family
– compelling and extraordinary features allowed this to be considered as a course of
conduct
...


Character of offencesIf similarities are insufficient then the Moorov doctrine will not apply
...
Not applied as different crimes
and time gap of three years between two charges
...
Dodds as above- time gap and dissimilar
...
Young men were accosted in public park and toilet- 50 miles apart
...
Appeal court said that although nature
of accosting was different, there was sufficient info for the doctrine to be used
...
Suggested that he made indecent
remarks and nude practices towards boys
...
Courts said that it could
not be proven that it was a course of conduct
...

Where charges are interrupted by period where accused had opportunity to offend again
but didn't, its hard to use the doctrine
...

MR V HMA 2013 SCCR 190
Rape and indecent assault – will corroborate if characteristically linked
Was convicted of both charges using the doctrine
...


Silence of the accused
Should not usually count as corroboration as the accused has the right to remain silent
...

Robertson v Maxwell 1951 JC11
Charged with number of others for damage of property in fife- would not answer police
questions or tell them who else was involved
...
Silence was taken as
evidence he was working with others
...
You cannot have an
adverse inference arriving from silence
...
– Conviction quashed as no adverse inference could be
drawn from his silence
...
He was convicted, and the high court stated on appeal that the use of the reply by the
crown breached article 6 and the crown couldn't use it
...
Prosecution appealed against human rights decision to
Privy Council
...
Privy Council agreed
...
172- police can
ask for registrated keeper of vehicle- you must answer or you are guilty of an offence
...
and the regulatory
requirement of which section 172 is part was a proportionate response to the problem of
maintaining road safety
...


Fox v Patterson
1948 S
...
T
...

Initially after pleading not-guilty, he was convicted of reset and sentenced to one month
imprisonment
...
Fox’s
father owned a company that dealt in scrap metal which had been in contract with Cub oil’s
the store which the metal had allegedly been stolen from, and the appellant said he was
collecting the metal on behalf of his father, although it was not scrap
...
The appellant
phoned James Shearer, a metal dealer and asked the price for the metal, was told about £90
a ton
...
Fox
delivered and sold the metal to Shearer
...
The
appellant accompanied the lorry and was paid by shearer through two open cheques which
he cashed at shearer’s bank
...
The appellant was unable to
afford a reasonable and credible explanation of his possession of the said phosphor bronze,
and when he sold it to the said James Shearer he was aware that it had been dishonestly
obtained
...
The police found no trace of a dealer
called McQuade
...


Each piece of evidence does not need to be corroborated
...
Looking at picture as a whole
...

Scott v HMA – Read this case!!! Plus Moorov and Howden, fox v patterson
Murder – appellant and father on trial
...
There was evidence that the appellant
and his father were in the pub at same time as the deceased and his father and that there
may have been some altercation
...
That young

man left a bottle on the bar
...
DNA
and fingerprints of the appellant were found on the bottle
...
It was held that there was clear evidence that he had been drinking, behaving
aggressively, that he was asked to leave, that he left a bottle behind and was involved in the
attack
...
The appeal was refused
...
Where
long gap for course of conduct to be made out must be compelling similarities – not made
out here
...


Little v HMA 1983 SCCR 56 – High court case- Three charged with Murder of Mrs Little’s
husband, Little, Haggarty and MacKenzie
...
They submitted
they had no case to answer
...
All three
were convicted
...

Had been seen in company of McKenzie and Haggarty who had a sexual relationship with
the deceased
...
Had written a letter saying how
much she hated her husband and wanted to be rid of him
...

Broadley v HMA 2005 SCCR 620- Appeal against Broadley’s murder conviction
...
She had beaten her and
threatened her regularly, and the day before the murder Broadley had abducted the victim
and kept her in her flat overnight
...
Claimed that the judge erred in denying submission for no case
to answer
...
Had said to the victim previously that she would put her through the
window
...
No basis in evidence connected to B and the death
...
It was assumed B wanted the victim alive because she
depended on B for drugs and employment
...


Fingerprint evidence
This is considered as very important evidence in terms of proving presence at the scene or a
crime, but it cannot be used a s evidence for accused having committed the offence
...
Failure to
explain presence at the crime scene along with prints can lead to a valid conviction
...
The bottle
was different after the housebreaking
...
He was convicted on
this
...
Matter for jury as to whether this was
sufficient for conviction
...

HMA v Rolley 1945 JC 155- Palm print found inside premises where housebreaking had
taken place
...

Langan v HMA 1989 SCCR 379-Murder case- evidence of single fingerprint of accused found
on hot water tap of kitchen sink made when finger wet with blood was sufficient evidence
when occupier found dead after savage attack and blood on sink which had been wiped
clean was of deceased’s blood group and accused denied being there
...
Timing is also important, as the print
must have been left at or about the time of the offence
...

Slater v Vannet 1997 SCCR 578- Palm print on plastic bag in one of units broken into could
not be sufficient as no evidence as to the timing
...
The guy said he had been
shopping at other shop
...

Scottish forensic scientists talk about statistical probabilities
...

When found at a scene it can be very good evidence of presence there
...

DNA of the accused found at the scene will probably not be sufficient evidence unless there
is another adminicle- small piece of evidence
...
Wet blood found on stair and on
deceased’s clothing
...
DNA evidence that the
chance of the blood found not being that of the appellant between 88-89 million to 1
...
Sufficient for conviction
...

The adminicle can be the lack of explanation from the accused
Maguire v HMA 2003 SCCR 758- Convicted of robbing bank
...
He got away without being caught and threw it away
...
Appellant known as local boy who lived nearby and
description of perpetrator fitted his general appearance but not identified in court
...
Held sufficient evidence with
scientific evidence and failure to explain association with mask
...
As it was not as direct as finding someone in possession
of drugs, it didn't have same evidential weight as fingerprints
...


Admissibility of evidence
There are rules which preclude certain piece of evidence from being led which derive from
the interests of justice and usually the protection of the rights of the accused
...

The judge or Sheriff will decide if it is to be allowed and that decision can be appealed
...
For example;
Opinions from a witness who is not an expert
Hearsay in a criminal case- rumours
Evidence obtained involuntarily

Reply to a question which would be covered by privilege- excused by some rule from
answering a question- Judge warns the witness that they don't have to answer a question
...
It will
usually only be objected to if it is prejudicial, as this can be a tactical move given that the
Jury must leave the room each time such an objection is raised
...
This is sometimes
called similar fact evidence, which is evidence relating to something other than the case
before the Court
...

The Best Evidence Rule
This rule requires that where possible primary evidence is submitted other than secondary
evidence, ie
...

This rule is of limited significance but should not be ignored
...

Objecting party is usually the accused and even then the other party can normally show
that it would be impractical or inconvenient to produce the item e
...

Anderson v Laverock 1976 JC 9– fish need not be produced – it had been destroyed
...
Accused
of reset
...

Kelly v Allan 1984 SCCR 186- Failure to produce allegedly reset motorcycle or photographs
of it
...

The Hearsay rule
Hearsay evidence is evidence of a statement made by a person which statement is not a
statement made on oath in court
...


An example would be where A witnesses an assault and tells B who is then called as a
witness to speak to the conversation
...

In civil cases such evidence is admissible but in criminal cases only secondary hearsay is
inadmissible – primary hearsay is admissible
...
- why the party relying on it wants to lead it
...
E
...

If the purpose is to prove the truth of the content of the statement this would be secondary
hearsay and inadmssible in criminal cases
...

McLaren V McLeod – 1913 SC 61- Conversation in brothel between two women who were
not witnesses but whose conversation was overheard by police-hearsay evidence prosecution wanted to use it to prove that what the women were talking about was true,
but this was not allowed
...

McLeod v Lowe 1991 JC 187- People moved into hotel and left stuff in room indicative of
drug use
...
In this case what the police said
was relied on
...
Sheriff ruled inadmissible, but on appeal it was allowed- they could
use it to explain what they did after the crime
...
Held – Sheriff was mistaken and evidence could have
been given by police or hotel staff
...
Defence appealed in the criminal murder case
...

Evidence of fact call made and showed her state at the time
...

Also the demeanour of the witness is lost- the court cannot judge whether the witness is
credible if they are not giving evidence themselves - credibility cannot be judged
...

Statements by the accused- i
...
given on statements by police officers
...

The Res Gestae may be defined as the whole circumstances immediately and directly
connected with an occurrence which is part of the facts in issue
...
Five accused and someone shouts
tom, Michael leave him alone, but the person cannot be found, someone who overheard it
(third party) can testify
...

It must have occurred at the time of the incident, and be so closely linked to the offence
that it is material
...

The rationale for the Res Gestae is the value of a spontaneous statement often delivered
under pressure as we see below – but remember the formula in Teper
...
(Intellectually
feeble) Her mother had overheard some of the rape because she overheard the cry of rape
during the crime itself
...
Could be
construed as part of the whole events
...


Allows evidence to be led which would not normally be allowed if it was said in the heat of
the moment
...

O’Hara v Central SMT 1941 SC 363
Res Gestae statements have to be distinguished from what are called de recenti statements
...
These are statements made
soon after the crime but are not regarded as part of it
...
Evidence was that
manageress of hostel had gone into the bathroom, found the accused in the shower and a
female appeared distressed and stated to the manageress that he raped her
...
Wanted to lead it to point to
accused being the rapist
...
The
judge told the jury it could be regarded as part of res exception
...
Allowed to show that statement was made, not to prove truth of
contents
...

Statutory exceptions- Main one is section 259 CPSA 1995- Deals with evidence from a
statement – usually written, made by a witness who is unavailable for the trial for a very
good reason, most often if they are dead
...
Conditions have to be fulfilled before the statement can be
relied on
...

The main principle guiding admissibility in relation to both real and documentary evidence is
fairness
...

An individual’s freedom should not be illegally invaded but on the other hand relevant
evidence should not be excluded on a technicality
...

Mrs Lawrie was milk producer
...
Some inspectors came to dairy and showed warrant
saying they were inspecting on behalf of SSMB
...


She was convicted of theft based on the evidence of finding these bottles under the warrant
they had
...
The appeal court considered balancing
act between rights of individual and interests of state
...

Hoekstra and others V HMA 2002 SCCR 135-READ
Four Dutch men convicted of importation of cannabis resin by boat
...
They
appealed based on the irregularity of the tracking device
...


Searches
It is important first of all to clarify whether or not an actual search has taken place, as shown
in the case of Mackintosh v Stott 1999 SCCR 291- doorman at club had info M was dealing
drugs and went into toilets when accused did
...
He made
negative gesture
...
he did
...
He was
prosecuted
...
The point he missed was
that he wasn't searched
...
He probably didn't have to in
terms of law
...

Howard v HMA 2006 SCCR 321- Landlady gathered up tenant’s belongings- had given notice
to quit due to behaviour
...
Howard said it was a search, should
not have happened, but she had stumbled upon them whilst bagging up the items
...

Statutory Authority:
Two main examplesMisuse of drugs act 1971 section 23- Power to search person, vessel, vehicle or premises
(with valid warrant) if reasonable cause to suspect that the person is in possession of
controlled drugs
...


It is not enough to merely suspect a person is committing an offence to search them- there
must be reasonable cause to suspect
...
Defence objected as it was not reasonable cause because he did not know what
he had on him
...
Crown appealed successfully, as he was entitled to search when
he thought something might be there
...

If information is old, then the search cannot take place unless something in the present
situation gives rise to reasonable cause to suspect
...


Statutory Authority- Search of Premises
There are three types of cases with regards to warrants;
1) Where there is a defect in the warrant which is fatal to its validity and thus any
material seized in the search is illegally obtained and inadmissible
...

3) Cases where the warrant is valid but the premises searched are not as specified in
the warrant
...

HMA v Cumming 1983 SCCR 15- there was nothing about where they wanted to search, the
warrant said James Cumming instead of John Cumming
...

HMA V Bell 1985 SLT 349- JP warrant
...
- Not valid
...

If the name or address is wrong, then as long as you can say there is only one place it could
be then it can be held as valid
...
Most of the
cases referred to here cover accidental finds
...


Was being prosecuted for fraud and various tax frauds
...
Some of them were about clients, and they took case files and kept
them
...
There was a challenge against
the admissibility of the evidence, on the grounds that they had gone beyond the scope of
the warrant
...

The police cannot go on a fishing expeditionLeckie v Milne 1981 SCCR 261Looking for stolen items
...
An attempt to lead them as
evidence met an objection
...
The appeal court looked at the warrant and held that the items were not
covered by the warrant, neither had the owners given consent for them to be removed
...
Police cannot go on
a “ fishing expedition”
Burke v Wilson 1988 SLT 749- Removal of videos not covered by warrant but allowed in
evidence as urgency as material could have easily been disposed of
...
They tried to lead them as evidence and there was an
objection
...

Premises searched not as specified
McAvoy v Jessop 1998 SLT 621- Search of a bedsit in a house which was occupied by a large
number of people held to be unlawful as the warrant specified a different bedsit
...
The warrant specified the wrong bedsit but within the same
house
...


Guthrie v Hamilton 1988 SLT 823-police were in a house with a search warrant for drugs
...
He was detained and searched for
drugs
...
The warrant gives the police the power to search anyone within the
premises and it was held that the doorstep search was legal
...

HMA v Hepper 1958 JC 39- Accused consented to search of house – no search warrant – a
briefcase was taken which led to further charges against him
...
Since found incidentally urgency justified its
removal and evidence admissible
...

In fishing expeditions the argument of urgency fails as seen in HMA v Turnbull
...

Lord Advocate’s Reference No 1 of 1983
Lord Justice General Emslie –
“The simple and intelligible test is whether what has taken place is fair or not”
What is meant is fairness to the accused person, whose confession is being discussed
...
Some time passed
and he was cautioned again, and then he confessed to killing a girl
...
Appealed, stating that it
was unfair
...
The accused person made
statement under caution, then was re cautioned and confessed to killing a girl and after
charge offered to show police where the weapon used and an item belonging to the
deceased could be found
...
The evidence was said to have been properly admitted
...
There was direct evidence about those involved by main
evidence was said by her to the police- she had kicked the person who had died
...
She said that the circumstances around her admissions were
unfair- her father was there but wasn't feeling well and as she was a child she argued on this
point
...
Her appeal was
successful
...

The main case to start with is Chalmers v HMA 1954 JC 66- Serious case- interrogated by
police and led them to a field where they found a purse next to where she died
...

Stage 2
After suspicion crystallizes on an individual the rules of fairness kick in, with relation to
questions, protect the individual
...

Interrogation and cross examination are defined by the Lord Justice General Emslie as
“bullying or pressure designed to break the will of the suspect
...

The purpose of the interview can be relevant – is it to extract a confession or for the
purpose of investigating further?
If this to extract a confession this suggests unfairness whilst further enquiries is a legitimate
line of questioning
...
The caution must consist
of two elements


The accused must be notified of his right to remain silent
They must be told that anything they do say may be used at trial
...

There is no certain script or form this must take, as long as the suspect is made aware of
both elements
...

Two men detained, but Tonge in particular gave a long explanation, some of which
incriminated himself
...
Appeal was successful because he should have had a
common law caution
...

HMA v Von 1979 SLT (N) 62- allegations of terrorism acts
...
He was in fact told it was an offence to withhold information regarding terrorist
acts and therefore he gave them information
...

A caution is not always required- the test of fairness will be applied in such cases
...
They approached him and decided he was
under the influence of alcohol and asked him if he had been the driver of one of the vehicles
without any caution
...
It went to appeal on whether it was
admissible
...

Pennycuick v Lees a man was asked if he was the man who had made a benefit claim
...
He had not been cautioned
...
On Appeal the questioning was allowed in evidence as the
interview had clearly not been intended to break his will but to gather information
...

Luke Mitchell-thin case- convicted of murder of his girlfriend
...
The appeal court described the questions asked to him as outrageous, but
because they passed the test of being fair then it was admissible, as his will was not broken
...

Rowan v Grant 2009 SCCR 496- Prison officer spoke to accused to ask if it was true she had
assaulted a prisoner
...
Appealed on the point that she had not been
cautioned
...
Evidence was therefore admissible
...

HMA v Gilgannon 1983 SCCR 10- Statement taken from a man when he had been examined
by a police casualty surgeon
...
He
described him as being mentally subnormal
...
The answers he gave were said to be inadmissible due to
his mental health issues
...


Gilmour v HMA 2007 HCJAC 48- Raymond Gilmour in his last appeal (6 grounds of appeal)
...
Evidence of forensic
psychologist said he was very suggestible
...
" Then
he confessed
...

Wilson and Murray v HMA 2009 HCJAC 58- They were trying to bring psychological
evidence to show why they had so much information about the crime
...
The expert witness tried to tell
the jury what to do and went too far
...

Beattie v HMA-appealing in 2009- tried to present evidence from psychologist that he was a
slow learner of less than average intelligence- not successful
...

Physical state and age of accused
Mc lory v McInnes 1992 SLT 501- Aroused from sleep- asleep in car
...
He said he lost it on the corner at half past 12
...

Thomson v HMA- convicted of assault
...
Appeal court held there was no evidence he
could lead to show he didn't know what he was saying to the police- unsuccessful
...

LB v HMA 2003- 14 year old tried for rape
...
He made unpleasant remarks about the girl's character during the interview
which were completely unfounded
...
Argued interview was unfairly
obtained because he was tired, unfamiliar with police interviews and had a low IQ so didn't
understand
...

Hartley v HMA 1979 SLT 26- 17 year old on murder charge made admissions to police after
being in custody for several hours – admissible as no unfairness
...

Entrapment
Occurs when someone is trapped into giving a confession
...

HMA v Campbell 1964 JC 80- Accused phoned newspaper to have a statement taken for
money – meeting arranged , one of reporters who came was policeman in disguisestatement made inadmissible
...
He arranged to
give a paid statement to the press before he talked to the police
...
Newspaper told
the police and the reporter took a disguised policeman with him
...
Info passed on and attempt was made to
lead the statement at trial
...
The high
court took the view that it was unfair as he should have been cautioned
...

Police were interested in Graham and he made incriminating remarks to a business man
...
The police made the
businessman wear a wire so he could be overheard by the police
...
Inadmissible
...

Hopes v HMA 1960 JC 104-witness interviewed accused with a radio transmitter – broadcast
to police – heard by police
...
Police heard conversation between him and victim through
transmission- was typed into transcript
...
The recording was not objected to but
the fact the police were listening was objected to
...
Held to be admissible
...

Where an accused is trapped into committing a crime and the crime would not otherwise
have been committed then evidence will be inadmissible
...
Weir was convicted because
he supplied them with cannabis- appealed because he said it was entrapment
...
Upheld
...

Jones and Doyle v HMA 2009 HCJAC 86- The solicitor, the accountant and the private
detective
...
Accused charged with
conspiracy to commit extortion re stolen painting
...
Private detective gets in touch with the duke and said they could
get it back for a reward
...
Charged for
trying to extort money
...

Held that entrapment should be dealt with as a plea in bar of trial rather than point of
admissibility
...
Regulation of Investigatory powers Scotland act- to do covert
surveillance they must get authority
...
He supplied it to him
...
Anderson was convicted and appealed- appeal was refused as it was said the
authorisation covered what was done by the police
...

Jamieson v Annan 1998 SCCR 278- police overheard conversation in cells between the
accused which was incriminating
...
No question of inducement
or unfairness therefore evidence allowed
...

HMA v Higgins 2006 SCCR 305- regarded article 8 of the ECHR 1950
...
Incriminating comments were made and
prosecution tried to lead them as evidence in the trial
...

High court said it was blatantly unfair
...

Threats or inducements
Obvious example is threat of violence or deprivation of liberty or offer of money or even
drugs
...
Accused told he would be kept in detention
until he cooperated and was convicted- appeal court held it was unfairly obtained
...

Harley v HMA 1995 SCCR 595- He was having an affair and did not want it to emerge
...
Held to be unfair
...

Right to a solicitor
The accused is entitled to legal advice prior to the interview
...
In Salduz held person in custody had right of
access to solicitor prior to interrogation otherwise breach of Article 6
...
Turkey,
(2009) EHRR 49
...

Cadder-The Supreme Court held that the detainee was entitled to have legal aid and
representation
...

This case was controversial as many thought that as he refused legal aid, then the law had
not violated his rights
...

In Salduz the Grand Chamber held that, as a rule, a detainee was to have access to a lawyer
from the time of his first interrogation, unless there were compelling reasons in the
particular circumstances of the case that made the presence of a lawyer impracticable
...

The act provides a statutory right to legal advice for suspects detained for questioning
...
L
...
1125
UK Supreme Court
Lord Hope, Lord Rodger, Lord Walker, Lord Brown, Lord Manc, Lord Kerr, Sir John Dyson
Right to legal aid
...
14 of the Criminal Procedure (Scotland) Act 1995
...
- the law was
held to be inadequate
...

He made a number of admissions which were led and relied on, by the Crown in obtaining a
conviction
...
6(1) and art
...
Turkey
...
The evidence was deemed to be inadmissible
...
OVERRULED BY CADDER
...
s15A criminal procedure
Scotland act 1995
...

M v HMA – accused not in custody but asked question designed to incriminate him
...
Held to
be in police custody
...


You can waive your right to a solicitor
...

HMA VP 2011 UKSC44
Accused interviewed without legal advice and told police of friend who could confirm his story
...
Tried to argue everything
flowed from the interview where he gave info about the witness with no legal advice
...

S15A Criminal procedure (Scotland) Act 1995
15A Right of suspects to have access to a solicitor
(1) This section applies to a person (“the suspect”) who—
(a) is detained under section 14 of this Act,
(b) attends voluntarily at a police station or other premises or place for the purpose of being
questioned by a constable on suspicion of having committed an offence, or
(c) is—
(i) arrested (but not charged) in connection with an offence, and
(ii) being detained at a police station or other premises or place for the purpose of being questioned
by a constable in connection with the offence
...

(3) The suspect also has the right to have a private consultation with a solicitor—
(a) before any questioning of the suspect by a constable begins, and
(b) at any other time during such questioning
...

(5) In subsection (3), “consultation” means consultation by such means as may be appropriate in the
circumstances, and includes, for example, consultation by means of telephone
...

(7) Where the suspect wishes to exercise a right to have intimation sent under subsection (2), the
intimation must be sent by a constable—
(a) without delay, or
(b) if some delay is necessary in the interest of the investigation or the prevention of crime or the
apprehension of offenders, with no more delay than is necessary
...


(9) Subsection (3) does not apply in relation to the questioning of the suspect by a constable for the
purpose of obtaining the information mentioned in section 14(10) of this Act
...

Malone v UK 1985 7 EHRR 14- telephone tapping of antique dealer in criminal case
Martin v McGuiness 2003 SLT 1424 - activities of private investigator- unlawful acts of surveillance
...
In solemn cases this is for the benefit of a jury
...

Sufficiency is a question of law- has the party who has the burden of proof led sufficient
evidence to prove the case? Today in Scotland you need corroborated evidence
...

Sufficiency means that a party must reach a certain level of proof and is different from
failing to meet the standard of proof
...


Human Rights
Human rights can have an impact on the law of evidence, particularly articles 8 the right to
privacy and article 6 the right to a fair trial
...


Presumptions
These allow facts to be inferred from other facts
...
They can be based on human experience
or convenience
...

Presumptions can be categorised in two ways:




Presumption in law or fact
Rebuttable or irrebuttable

There are only three types of presumption:




Irrebuttable presumptions of law- cannot be challenged
Rebuttable presumptions of law- can be challenged
Rebuttable presumptions of fact- can be challenged

Irrebuttable presumptions of Law
Legal presumptions which cannot be challenged and are therefore irrebuttable i
...
if fact A
is proved, conclusion B will inevitably be reached by the court using the irrebuttable
presumption in law
...

Contractual Capacity
Since 1991 a child over 16 is deemed to have legal capacity to enter a formal contract under
the Age of Legal Capacity (Scotland) Act 1991- If you are under 16 you do not have the legal
capacity to contract
...
There must be a registered title to the
land
...

Negative: a right to claim will be lost if an action is not raised within certain time limits e
...

five years for a debt action
Rebuttable presumptions in law
These also arise from statutory provisions or from case law but are able to be challenged in
any particular case and “disproved”
...
G’s trustees v G1936 SLT 631- This
could be rebutted in the future with advancement of science
...
Life is presumed to continue in the
absence of evidence to the contrary until at least 80
...

General common law rule is important
...
First is a “common calamity”- A common calamity is defined in the Succession (s) Act
1964 S31
...
Common after second world war when they could never be sure who
died first- succession law is effected- who inherits
...
Exception of when husband and wife when they are presumed they died together
...
Where two people die in circumstances
suggesting they died simultaneously or where it is uncertain which survived the other
...

This presumption was formulated to avoid the sort of situation which arose in the following
cases
...
Mrs Drummond had savings certificates and issue over who would
inherit
...
One relative tried to argue she should get it
...
This was shown as a gap in the law
...

Lamb v HMA 1976 SC 110- After act
...
Mr Grant left
everything to his wife and Mrs grant's sister (Lamb) tried to claim her sister's estate which
included her inheritance
...
Standard of proof is on the pursuer
...

Presumption of Death (S) Act 1977-The act allows a person with an interest to apply to the
court for a declarator of death in respect of a missing person
...

The court will establish a date and the declarator is conclusive for all purposes, including
dissolution of marriage (even if the person later turns up) and for succession purposes
...
He has not been
heard of since
...
The children went to court in
England to prove he was dead- ahead of scots law
...

These presumptions can be rebutted on proof on balance of probabilities and a DNA
paternity test can now be taken
...


Rebuttable presumptions of fact
THE MOST IMPORTANT CATEGORY
...
The threshold will be met in some cases but not in others
...
These presumptions arise
from case law
...
The
main example is:
Res Ipsa Loquitur- used in negligence cases
This is a presumption of negligence and is translated as “the thing speaks for itself “
There must be an absence of direct evidence of the cause of the accident the cause of the
accident must be within the exclusive management and control of the defender
...
The thing that caused the accident must
have been within the exclusive management and control of the defender at the time of the
accident
...
Normally he would
have to bring reasonable evidence of the docks in relation to the barrel of sugar but nobody
knew how it happened
...

Devine v Colvilles 1969 SLT 154- Colvilles was steel company and there was an explosion at
the steelworks which was followed by a fire
...

They panicked and Mr Devine jumped from a 15ft platform to escape from the fire and was
injured
...
Tried to claim Res Ipsa
...

They said that particles from explosion was in fire hose and caused friction leading to fire
...
Held no- he was awarded
...
Mr Inglis was travelling on
LMS trains with 8 year old son
...
Could not be
explained and the door was inspected
...
Door was under
control of railway
...
If the
defender can give a credible explanation which absolves them of liability they can win but in
this case LMS couldn't
...
Two employees came to the house to test an off peak emersion
heater
...
This presumption was successfully used
...


Evidence in Civil cases
Burden of proof
The evidential and persuasive burdens rest on the party who would lose on the issue if no
other evidence was led or if at the end of the case, the evidence led by both on the issue is
equally persuasive or the burden of proof is on the pursuer in civil cases
...
Likewise if the defender raises the issue of contributory negligence
then he must prove that if the pursuer fails to prove negligence in the first place
...
Mr
Thomson fell from staging plank and hit his head
...
Because he couldn't remember how it
happened, he failed on the proof of negligence
...

“Burden of proof on a balance of probabilities is the burden of showing odds of at least 51
to 49 that such and such has taken place or will do so … in other words is it more likely that
not ?”- Lord Simon in Davies v Taylor
If an explanation is a remote possibility, the standard of balance of probabilities is not met:
simply because it is the only explanation does not mean that it has to be accepted: the
option is to treat the burden as undischarged
...
Arguement was over the condition of the ship and how it was lost
as it had been in collision- insurance argued it was due to the condition of the ship
...
Insurance had to prove
why the boat sank
...

Where a case contains both civil and criminal elements, there is often a debate over which
standard applies
...
Before the
Divorce(S) act 1976 this had to be proved to the criminal standard (beyond reasonable
doubt)
...

Breach of Interdict- order to stop you doing something
...

These proceedings are classed as Civil under the Civil Evidence (Scotland) Act 1988 section 1
But they have some criminal aspects, as there are Criminal penalties for breach
...
Lord Advocates’ permission required to raise
proceedings for breach of interdict as he may wish to prosecute on the same facts
...
g
...
Although the PF conducts the FAI he is not acting
as a prosecutor and other parties can be represented e
...
next of kin
...

Allegations of crime- This could arise with an allegation of embezzlement in an action for
repayment, an action of reduction of a deed on the basis of forgery or an allegation of arson
in an insurance claim
...
5 judge bench held that the civil standard of proof applies
...
There was a debate over the standard of
proof, held by the inner house that the civil standard of proof applied
...
For example In a common law personal injury case the
Pursuer would require to show there is a duty of care, that it was breached, that the breach
caused the loss and that the loss is not too remote
...

Where the case is a breach of contract the following may need to be proved:





that there was a valid and enforceable contract between the parties
that the contract was breached
that the breach led to a loss
that the loss was not too remote

For a statutory wrong e
...
Occupiers Liability (Scotland) Act 1960




have to show defender was occupier
he failed to take reasonable care
that injury was caused

In any appropriate statutory liability case:



the defender will have to establish to the appropriate standard
the terms of any statutory defence- employers will have to show that they did
take steps to ensure safety of employees- burden of proof E
...
that taking the
steps which it is claimed would have prevented an accident were not reasonably
practicable
...


Corroboration
Before 1968 corroboration was required in both civil and criminal cases
...

This section was repealed in 1988 by section 1(1) of the Civil Evidence (Scotland) Act which
abolished corroboration for all civil cases
...

In Morrison v Kelly 1970 SC 65 it was stated that there was still a rule that corroboration
was required where it was still available
...
He reported the faulty back twice to employers but they did
nothing about it
...
If corroborated evidence was available it should be used
...
Miss
Thomson worked for them and became injured when a removable plate came off the
machine and fell on her foot
...
Miss Thomson was a
good witness but did not like or believe Miss B and didn’t think she was a good witness
...
The judge
believed the Pursuer but disbelieved the corroborating witness
...
He was trying to link a railway carriage onto a coach and because he
had to do certain things a metal bar from a door fell on his foot
...
The judge in the first case said that the
failure to call other witness was fatal because of no corroboration but on appeal it was said
that the matters in dispute were only matters of fine detail and it could be accepted on the
evidence of one witness
...

Airnes v Chief Constable of Strathclyde 1998 SLT (Sh Ct) 15- Airnes said she had been
punched by police officer, fallen on the ground and had an epileptic fit
...
Was successful at first but Chief appealed saying there were a number
of witnesses who could have been brought but she did not
...
A witness to an assault was
not called but this was not fatal – even although there was a five year gap between the
incident and the hearing and this was pointed out by the court
...

Sued Grampian health board
...
So court could not rule what had
happened and it was fatal to her case
...
It was also a case which concerned
hearsay and is unlikely to be followed
...
This is because where corroboration is available it will almost
always be used since a party will use his best efforts to prove a case
...
A witness may have
a poor recollection, be dead or not be able to be found

Evidence may have perished- you would be asked to account for why there is no
corroboration
...

Corroboration in consistorial cases
Under the 1988 Act section 8(2) even in undefended cases of a certain type evidence will be
needed in order for a decree to be granted
...

These cases include divorce, separation or nullity of marriage
...

In these cases evidence by affidavits, (sworn statements) is usually provided, not oral
evidence
...

There are, however, some exceptions:
Corroboration is still not required in two and five year separation “simplified divorces
...
710- action of divorce on grounds of adultery
...
The wife tried to use a
separate incident of him acting indecently to corroborate the adultery
...
Adultery supposed
to have occurred between stepdaughter and defender
...


Admissibility of evidence
Best evidence Rule
Parties in a civil case should try to bring the best evidence before the Court and if they don’t
then secondary evidence may not be allowed
...

Stewart v Glasgow Corp 1958 SC 28Suing for an accident which happened to her son- clothes pole fell on her son- Glasgow
tenement with shared drying area
...

- a clothes pole was not produced by Mrs Stewart, nor was any other evidence of the
condition of the pole
...
- appeal not successful
...
Expert evidence disallowed- he never examined
the fire which was considered in the issue
...

Inverclyde DC v Carswell 1987 SCLR 145
In summary cause action for damages copies of day records produced
...

Scottish and Universal Newspapers v Gherson’s Trustees 1987 SC 27
Sales day book not produced – Book of daily sales- pursuer argued not their fault – wanted
to lead evidence of witness who had seen the document and ask them to speak about what
they had seen- disallowed- cannot cross examine someone on their memory of a document
if you are not looking at the evidence at the same time
...
This is only allowed if the document is authenticated before
the start of the proof or by seeking a declarator from the Court of Session proving the tenor
of the lost document
...

Hearsay
There is no rule against hearsay evidence – this was abolished by section 2 of the CE(S)A
1988 so hearsay is competent
...
Girl gave statement of father making lewd and lobidous actions
towards her to the police
...
The father did not accept the
allegation so it was referred to sheriff court for a proof
...
Reporter to children's panel had given the statement to the police
...
Father objected and it
was allowed, there was an appeal and it was said that the sheriff could take into account the
police officer's account of what the child said to the police
...

However sometimes this strategy is dangerous, and the case can fail if the direct witnesses
themselves are not heard from in Court, as seen in the case of Gordon v Grampian Health
Board 1991 SCLR 213- Mrs Gordon worked for Aberdeen Hospitals and fell in one of the
kitchens at the ARI- slipped on milk and hurt her ankle
...
One of the colleagues said she had to mop up the milk and another said that the
fridge was leaking and it came from the fridge
...
One was brought to court but not called
...

Must bring corroboration for parts which are essential instead of relying on one piece of
hearsay evidence
...
CESA 1988-s2(1)(b) suggests this evidence would be inadmissible
...


Precognitions and hearsay-

Only a hearsay statement can be offered as evidence – section 9 of CE(S) Act 1988 excludes
a precognition from the definition of statement
...
A document which has been interpreted by
someone is a precognition not a statement
...

Wilkinson on Evidence defines a precognition as “usually not an account of what the witness
has actually said but it is the precognoscer’s reconstruction or interpretation
...

Kerr v HMA 1958 JC 14 shows danger of reliance on precognition – statement used at trial
held to be a precognition- should not have been allowed – conviction quashed: Criminal
case on stolen copper
...
That witness was not called by prosecution and a police officer read out his
statement
...
Question as to whether it was a statement and whether it
should be admissible
...

If, on the other hand the witness revises precognition it can be used as a statement as
shown in the case of Highland Venison Market Ltd v Allwild- agent for the purchaser of
goods gave a precognition but it was sent back to him to sign and he died
...

Has it passed through the mind of the person who wrote it or is it taken verbatim word for
word?
If someone takes precognition and they send it to the witness to check and they change it
and sign it, it becomes a statement
...

You can put the statement to a witness, but you are not allowed to put a precognition to
them, however you can put circumstances surrounding the precognition to them
...

Ellison v Inspirations East Ltd 2003 SLT 291- Action for damages on the part of Mr Ellison
who had sustained injuries in a coach crash on holiday in Turkey
...
They tried to lead evidence from the
solicitor and not the driver because he was in turkey
...


Collateral evidence
Collateral evidence or similar fact evidence is not usually allowed in civil cases, due to the
general rule of relevancy–unless credibility is being attacked
...
)
Collateral evidence is called similar fact evidence and in criminal the Moorov doctrine is an
exception to this
...
In civil procedure in common law a method of collateral
evidence was adopted similar to Moorov
...
Woman accused of adultery and B tried to
prove she did commit adultery to prove it was true
...

H v P (1905) 8F 232-Action for slander on grounds woman had committed adultery
...

However where a course of conduct is alleged, evidence of earlier conduct may be relevant
...
People who had taken delivery of it
tried to use evidence of previous cases of substandard goods being delivered
...

W Alexander v Dundee Corp 1950 SC 123- A was a bus company who brought action for
damages against DC
...
tried to use evidence of previous incidents of skidding
buses- allowed because it related to the condition of the street
...
At present the leading authority is
Rattray v Rattray(1897)25R 315
- if evidence is obtained by criminal means it will be admissible if relevant
...
letter written by one party (paramoor- said to be committing adultery with
defender in divorce action) Never made clear how it was found
...
court made some enquiry as to how it was acquired- found on floor- admissible in
evidence
...
immigration
wanted to interview her and she asked if she could remain but was refused
...
The officials decided she might have been an illegal
immigrant in the first place and started to ask her questions about how she had come into
the country when the issue was about how long she had stayed
...

Where criminal activity is not alleged the courts will admit the evidence
...
she objected saying letter had never
been sent and was a torn up draft
...

ECHR Article 8 also has a part to play- whether admission of evidence would cause conflict
with right to privacy
...
The witness is said to have the privilege of not answering the
questions
...

It is an inviolable principle which cannot be ignored and must be followed
...

There are 5 main situations where privilege applies:




A non accused person has the right not to answer any questions which may self
incriminate
Marital communications privilege
Legal adviser/client privilege




Communications post litam motam
Communications in aid of settlement

Right not to self incriminateThe witness is not expected to refuse to answer a self incriminating question without
guidance
...

Kirkwood v Kirkwood (1875) 3R 235- Pursuer sought divorce on adultery grounds
...
It was held
that the defender could be warned not to answer because the answer would incriminate
them of what then was a crime
...

Where a witness wants to claim the privilege the judge will have to decide if the answer is
liable to incriminate the witness – usually it will be obvious but if it is not the judge will have
to ask what the answer would be
...
” In this
case, there were two business partners with an issue over a bill of sale
...
They were called by prosecution to prove what they talked
about to their solicitor
...

There are limitations to privilege:
1) The witness should still be in danger of prosecution at the time
...

2) It does not apply to answers which may incriminate the spouse of the witness unless
the spouse is giving evidence during his or her spouses’ trial and the matter that the
evidence relates to is not covered by the matrimonial communications privilege
...


Questions designed to establish adultery have their own special category and are still
preserved by privilege, despite the fact that adultery is no longer a criminal offence
...
- does not prevent it from being admissible even if
there is an admission of adultery
...
Divorce case- the pursuer tended
affadavits sworn by the defender and the paramoor (the affair) the adultery was admitted in
these affadavits and the defender argued they did not know that they were not legally
obligated to admit to the adultery in the affadavits and the sherriff refused decree on that
basis
...

The privilege can be removed by statute where the wider public interest outweighs the
protection of the individual – see section 172 RTA 1988 and the case of Brown v Stott
discussed in the criminal lectures but the same principle can apply to a civil case
eg
...

Marital communicationsSection 3 of the Evidence ( Scotland) Act 1853 suggests but does not spell out that the
spouse is neither competent or compellable
...

Written or oral, text, whatever
...
The privilege has gone in
criminal cases
...

Legal adviser/client PrivilegeCommunications between lawyer/client are confidential and privileged
...
Belongs to the client and can be lost if the client waives it or the
solicitor is called as a witness for the client
...
At the trial he blamed his stepfather and was acquitted
...
His stepfather's solicitor tried to get notes from his solicitor
about is trial, it was objected to, and it was held that legal professional privilege far
outweighed the public interest even in something as important as a murder case
...

In HMA v Davie the point arose but was not decided
...
The partners or other people working
in the firm would be bound by the same privilege after the death of the solicitor dealing
with the client
...
However Walker and
Walker don’t share this view
...

Micosta v Shetland Island Council 1986 SLT 483- Ship owners were claiming damages from
the council following the cancellation of a charter party, as the harbourmaster had barred
the ship from moving at the oil jetty in Shetland
...
They said that
these documents would be an exception to the legal privilege applied, because something
illegal must have taken place
...
The only circumstances where
these would not be privileged would be a fraud is alleged and the solicitor was directly
involved
...
As he
was the solicitor his evidence could be objected to and he could not be compelled to
answer
...
But the court said privilege could not be
used in a precognition if the client had used the solicitor to further a conspiracy to further
an attempt to pervert the course of justice, or use him as an innocent instrument on
perpetrating such a crime
...

Fraser v Malloch (1895) 3 SLT 211- Fraser lodged an action to reduce and agreement of sale
...
In
these circumstances where the nature of the relationship itself was being consider the by

the Court, they granted that they had to recover all of the communications passed between
them- not privileged
...

McLeish v Glasgow Bonding Co 1965 SLT 39A letter written by the solicitor for the pursuer to a medical witness after McLeish raised his
action was inadvertently recovered, and at trial the bonding company sought to use the
letter for the purposes of cross- examination
...

Communications post litam motem
This is a communication made when it is in the mind of the party that litigation may occur
– “after it is apparent that there is going to be a litigious contention”
...
The
Court indicated they would refuse to grant diligence for the document's recovery
...
This privilege doesn’t just cover things said between
solicitor and client in advance of litigation, it applies to anything which may be covered by
privilege- communication between any parties
...
The idea behind it is to allow investigations
into a claim to take place without risk of disclosure of results to the other side
...
In an action for personal injury, Johnson sought to recover from the national coal
board, a written report of the accident
...
It was held as
not recoverable unless prepared by employees involved in the accident
...

More v Brown and Root Wimpey Highland Fabricators 1983 SLT 669- a scaffolder fell from
a ladder and he wanted to recover a document which included photographs which he
thought he could use
...
Not recoverable unless made by employees
at the time of the accident
...

Anderson v St Andrews Ambulance Association 1942 SC 555 – photographs were material
prepared for use in case and not recoverable
...


Injured passenger was suing the ambulance and the bus company
...
But in this case the court refused to allow these to be recovered because the
documents and photographs were taken as preparation for litigation, and therefore were
covered by privilege
...
Pursuers (M&S) sought to obtain all the reports relating to a fractured gas main
after the accident happened
...
If it was a report to put into view the true facts
there would be no privilege, but if it was made in preparation of litigation then privilege
would apply
...


There are two exceptions to the rule –








A communication by an employee witness to the employer shortly after an accident
will not be privileged even if litigation is in contemplation
...
His widow raised
an action for damages and there was an expert investigation after the accident
which apparently showed that certain apparatus was defective so Mrs Young's
solicitor tried to recover these reports
...

Macphee v Glasgow Corp 1915 SC 990- Pursuer had accident on tramcar, was able
to recover a report made by those working on the tram to their employers even
though it contained names of potential witnesses
...
He was entitled to have access to report although it
had list of people present at the incident
...

Hepburn v Scottish Power- SP supplied electricity and sought to recover paperwork
following a fire to a distribution board in Hull
...

Where party not in possession of report cannot examine due to subject matter being
destroyed or altered by previous examination then rule of confidentiality does not
apply
...

Motion to allow them to be opened
...
Held unfair to pickmust waive right to all of them being made public
...

You will often see the words “without prejudice “in a negotiation letter but this is not
essential nor are the words determinative
...
This can be done in writing or orally
...

Ware v Edinburgh District Council 1976 SLT ( Lands Tribunal) 21- related to a compulsory
purchase order and dispute
...

A distinction should be drawn between negotiations and statements of facts or unequivocal
admissions – the latter two will not be privilegedBell v Lothiansure Ltd 1990 SLT 58- bell claimed damage for PN from insurance broker
...
Nothing written without prejudice
could be looked at in court unless both parties agreed
...
Daks raised action against former Executive director
for count reckoning and payment- looking for money back
...
Sought decree for amount set out
...
Court held
no, as it was just admission of fact
...
In correspondence
the insurers admitted liability
...
Held the admission had not been
conditional on settlement and therefore could be allowed
...
Opinion evidence can only be given by skilled or expert witnesses
...
Some examples include a consultant in a personal injury or medical
negligence case, or a valuer where there is a dispute over how much something is worth
...
Sometimes ordinary witnesses will be asked to
give their opinion in such cases as identifying the accused, expressing their opinion on the
identification of a spouse’s handwriting etc
...
E
...
in a dangerous driving case the witness
cannot express a view on whether the driving was dangerous although he can comment on
the speed even where the witness is not an expert
...
In trying to defend Mr Ingram the defence led two experts
who were said to have made extensive studies of pornography
...
Said they had gone too far
...
Wanted to lead evidence about books
being available in public library
...

The role of the expert witness is not to decide the case even where giving evidence on a
crucial point
Davie v Magistrates of Edinburgh 1953 SC 34- role of expert explained- civil case
...
Only one side called an expert in the case
...
Refused then
appealed- held the judge could decide not to accept it, but what the sheriff could not do
was to look in the book mentioned by the expert to refute what the expert said
...
CSN were suing for damage to their vessel
...
Tried to use captain to give evidence- said to be inadequate- failed
to use witness to prove conditions etc
...


The courts in some cases have had to decide on some new admissibility questions relating
to confessions
...

Where pathological outcome is different – see McBrearty v HMA 2004 SLT 917- house
parent at children's care home with history of sexual abuse
...
One of the victims who had low intelligence had
serious psychiatric issues and was telling lies
...

Advocate depute speculated to the jury that her mind and body had been violated by the
accused which caused her to lie
...
(Anderson appeal) They reported they
never called an expert because they thought the witness may say she lied because of the
sexual abuse
...
Victim made two different statements about
what had happened
...
Crown had
psychologist who said there was no such thing
...
Defence objected to crown expert
...

Low IQ is an insufficient reasonCampbell v HMA 2004 SCCR 220- Opens the door to behavioural scientific evidence as well
as empirical evidence
...
Rival families
...
Kept appealing
...
Campbell and steel brought forward a psycholinguistic expert
...
They had two
other linguistic experts who said it was highly unlikely that the police would remember
exactly what they had said
...
They were acquitted and received damages
...
Murder case (strangulation)
police claimed C had said it was an accident
...
Defence tried to lead
same experts as Campbell and steel but it was said it was not relevant as the police officers
did not at any stage claim that they were quoting word for word
...

The court must be satisfied that the witness is in fact an expert- this must be established in
questioning at the outset but no particular standard of qualification or experience is
necessary - qualifications set up by person calling them
...

R v Silverlock 1894 QB 766- Solicitor as amateur handwriting expert allowed to give
evidence
...
Police officer was asked if he thought that the hole was dangerous- objected
to on basis he was not an expert but as part of his job he had to report defects on the roadused as expert
...

It is crucial to lay the basis of fact for the opinion of the expert
...
eg, a psychiatrist
Describing a patient’s mental state where fact and opinion come from different witnesses
eg a road traffic accident expert who gives pure opinion
3 on the basis of empirical evidence being applied to a situation eg – Campbell 2004 abovetalked about studies they had done
...
Not successful
...

The evidence of an expert can be challenged in a number of ways
That he is not an expert
That he is not an expert in the right field



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