Coll, Petitioner
| Jurisdiction | Scotland |
| Judgment Date | 26 January 1977 |
| Date | 26 January 1977 |
| Docket Number | No. 5. |
| Court | High Court of Justiciary |
JC
L. J.-C. Wheatley, Lords Kissen, Robertson.
Nobile Officium—Evidence—Witness—Precognition—Whether witness entitled to have precognition on oath produced and destroyed prior to trial—Evidence (Scotland) Act 1852 (cap. 27), sec. 3.1
A potential witness for a trial due to take place in the High Court of Justiciary was cited by the Crown to appear before a Sheriff for the purpose of taking his precognition. He gave his precognition on oath, read it over and signed it. He was thereafter cited to attend the trial. Prior to his giving evidence, he presented a petition to the High Court of Justiciary for exercise of the power nobile officium to ordain Her Majesty's Advocate to produce the precognition and to ordain its destruction prior to the trial.
Held (1) that as the precognition in this case was made in the form of a judicial declaration on oath and was subject to sufficient safeguards calculated to avoid defects and unfairness, it fell outwith the category of precognitions in the modern sense. (2) Thedicta in Hume and Alison in relation to precognitions of this type had been superseded by the Evidence (Scotland) Act 1852, sec. 3. (3) The petitioner's precognition could be used for the purposes of that section and accordingly he was not entitled to have it produced and destroyed prior to giving evidence at the trial.
Bernard Martin Coll presented a petition to the nobile officium of the High Court of Justiciary in which he craved the Court "to ordain Her Majesty's Advocate to produce all depositions taken from the petitioner in relation to the case of Ronan Andrew O'Donnell and John Connell and all copies thereof and to order that they be destroyed prior to the petitioner being called to depone in the trial of the said Ronan Andrew O'Donnell and John Connell or to do otherwise as seems to your Lordships proper."
The petitioner averred: "(1) That on or about 25th November 1976 in response to a citation by the Procurator-fiscal at Glasgow to appear before the Sheriff at Glasgow for precognition on oath in relation to the case against Ronan Andrew O'Donnell and John Connell, the Petitioner duly appeared before Sheriff James Irvine Smith. Warrant for his imprisonment in Her Majesty's Prison, Barlinnie, Glasgow, was granted by the learned Sheriff and the Petitioner was detained there overnight. On 26th November 1976 the precognition on oath continued. (2) The Petitioner was thereafter ordained to appear on 13th December 1976 before the said Sheriff Irvine Smith. He did so. On said date he was required to read over and sign the complete precognition taken on oath on 25th and 26th November 1976.
He so signed and added an addendum to said precognition. (3) On 5th January 1977 he was cited to appear at the High Court of Justiciary at Glasgow on Monday 10th January 1977 under explanation that his attendance was not required until Friday 14th January 1977 in relation to the trial of Ronan Andrew O'Donnell and John Connell. Said citation is produced. (4) On 5th January 1977 his agents called upon the...To continue reading
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