Robert Stillie Watt Strain (ap) V. Premier Custodial Group Ltd
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2007] CSOH 28 |
| Court | Court of Session |
| Docket Number | A854/04 |
| Published date | 12 February 2007 |
| Date | 20 December 2006 |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 28 | |
| A854/04 | OPINION OF LORD BRAILSFORD in the cause ROBERT SMILLIE WATT STRAIN (AP) Pursuer; against PREMIER CUSTODIAL GROUP LIMITED Defenders: ________________ |
Defenders: Simpson; Simpson & Marwick
Lord Advocate: Sheldon; Office of Scottish Executive
20 December 2006
[1] This case called before me on the motion roll on 20 December 2006 when the defenders sought a commission and diligence in terms of a specification of documents, No.26 of process. The only contentious part of the specification was call 2 which sought, inter alia, "...precognitions ....in the hands of the Procurator Fiscal, Kilmarnock Sheriff Court, Kilmarnock....showing or tending to show: (i) the content of statements obtained by or used by the Procurator Fiscal's Service in connection with the prosecution of those accused of assaulting the pursuer at Kilmarnock Prison on 13 March 2001....". I refused to allow diligence for recovery of documents insofar as relating to precognitions and granted leave to reclaim against that decision.
[2] The dispute before me resolved to the single issue of whether or not precognitions taken by the Crown as part of a criminal prosecution were recoverable in a civil litigation. Mr Simpson on behalf of the defenders contended that there was no objection in principle to the recovery of such documents. Mr Sheldon, who appeared on behalf of the Lord Advocate, the haver, submitted that as a matter of principle precognitions obtained by the Crown as part of the process of a criminal prosecution were not recoverable. Mr Sheldon sought to justify his position by submitting that it was not in the public interest that Crown precognitions should be recovered. Precognitions were never recoverable because of the nature of the information they might contain and, further, because of the method of obtaining such statements. It was explained by Mr Sheldon that in using this language he meant that precognitions were not merely a narrative of what a potential witness stated as being his or her position but were documents obtained by a process of question, answer and interpretation by the precognoser. The product of this process, the precognition, was inevitably influenced by input from the precognoser. This he described as a "filtering process". Although it was not cited to me Mr Sheldon presumably had in mind when using that language the dicta of the Lord Justice Clerk (Thomson) in the well known case of Kerr v HMA 1958 J.C.14 where at page 19 the Lord Justice Clerk described the process of taking a precognition. In that passage the Lord Justice Clerk observed that "in a precognition you cannot be sure that you are getting what the potential witness has to say in a pure and unrefined form. It is filtered through the mind of another, whose job it is to put what he thinks the witness means into a form suitable for use in judicial proceedings". Mr Sheldon also brought to any attention the fact that section 2(1) of the Civil Evidence (Scotland) Act 1988 relating to the admissibility of hearsay statements did not apply to precognitions (section 9 of the 1988 Act). This he submitted was support for his proposition that precognitions which could not be used in evidence were not recoverable documents.
[3] Authority for the position adopted by Mr Sheldon was, he said, to be found in the cases of Graham v The Western Bank (1865) 3M 617, HMA v Ward 1993 S.L.T.1202 and B v Burns 1994 S.L.T.250. In Graham (supra) the pursuer sought, during the course of a civil jury trial, to produce a precognition taken by a solicitor of a person who had died prior to the trial. During the course of a hearing on a motion for a new trial this issue was discussed. At page 619, the Lord President (McNeill) expressed the view that he knew of no authority requiring the production of a precognition. He observed that there were some dicta against the competency of production of such a document and none in favour of it but then disposed of the point by observing that the information in the precognition would not be admissible under the law relating to hearsay and therefore sustained the objection to production of the precognition. HMA v Ward (supra) was, of course, a criminal case. In that case an accused person sough to recover at a preliminary diet...
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