Noticeboard
| Published date | 01 January 2004 |
| Date | 01 January 2004 |
| DOI | http://doi.org/10.1350/ijep.8.1.69.38079 |
| Subject Matter | Noticeboard |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2004) 8 E&P 69–76 69
NOTICEBOARD
Notices should be sent to Rosemary Pattenden, School of Law, University of East
Anglia, Norwich NR4 7TJ, UK. E-mail: R.Pattenden@uea.ac.uk
Hearsay evidence—European Convention on Human Rights, Article 6—
Scotland
The High Court of Justiciary concluded in N v HM Advocate 2003 SLT 761 that
evidence given at a previous aborted criminal trial by a witness who is unavailable
at a subsequent trial is admissible evidence under the statutory exception to the
hearsay rule created by s. 259 of the Criminal Procedure (Scotland) Act 1995. Once
the statutory requirements of s. 259 are satisfied the trial judge has no discretion
to exclude the evidence or to direct the jury to ignore it in order to avoid unfairness
to the accused. Lord Cullen said that the fact that the judge (unlike his English
counterpart) lacks this discretion is an unsatisfactory state of affairs and in a
particular case could result in a contravention of Article 6 of the European
Convention on Human Rights:
Hearsay evidence may be true and it may be highly relevant. It is
therefore understandable that the trend in modern evidential
legislation to extend the range of admissible evidence should have
resulted, in both England and Scotland, in general provisions for the
admission of such evidence. But hearsay is by its nature a less
satisfactory form of evidence than direct evidence spoken to in the
fact of the court and tested by cross examination. Where a general
provision such as s. 259 applies, there are bound to be cases in the
circumstances of which hearsay evidence would be so prejudicial to
the fairness of the trial that the only just and proper course would
be to exclude it. This, I think, is such a case. (2003 SLT 761 at [25])
The requirement of corroboration, the ability to lead evidence bearing upon the
credibility of the maker of the hearsay statement and the safeguard of the judge’s
direction, in Lord Cullen’s opinion, may not (and in this case did not) eliminate
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