T v T
| Jurisdiction | Scotland |
| Judgment Date | 10 November 2000 |
| Docket Number | No 22 |
| Date | 10 November 2000 |
| Court | Court of Session |
SC
FIVE JUDGES Lord President (Rodger), Lord Milligan, Lord Nimmo Smith, Lord Bonomy and Lord Allanbridge
PracticeEvidenceHearsayStatement of childWhether necessary that child be competent witnessCivil Evidence (Scotland) Act 1988 (cap 32), sec 2(1)(b)1
Parent and childParental RightsSheriff acting under preconceptionSheriff failing to assess competency and reliability of witnesses
Section 2(1)(a) of the Civil Evidence (Scotland) Act 1988 provides that in civil proceedings evidence shall not be excluded solely on the ground that it is hearsay. Section 2(1)(b) provides that a statement made by a person otherwise than in the course of the proof shall be admissible as evidence of any matter contained in the statement of which direct oral evidence by that person would be admissible. Section 2(2) provides that nothing in the section affects the admissibility of any statement as evidence of the fact that the statement was made. Section 3 provides that a statement made otherwise than in the course of the proof by a person who at the proof is examined as to the statement is admissible as evidence so far as it tends to reflect favourably or unfavourably on that person's credibility.
The pursuer was the father, and the defender the mother, of their daughter E. The pursuer and defender were divorced. The pursuer sought direct contact with E. A proof was heard before the sheriff of Lothian and Borders at Linlithgow in March and May 1999. The defender wished to lead evidence from a police officer as to answers which E had given at an interview in August 1998, when she had only recently passed her fourth birthday. Counsel for the defender took the view that the police officer's evidence of E's answers would be admissible only if E herself were competent, and accordingly he put E into the witness box to give the sheriff an opportunity to examine her. The sheriff, having examined her and thus tested E's competence at the date of the proof rather than at the date of the interview, found E a competent witness. On the basis of the police officer's evidence as to said answers, the sheriff found that the pursuer had behaved inappropriately towards E and that his behaviour amounted to sexual abuse. The pursuer appealed to the Court of Session. The pursuer argued that sec 2(1)(b) involved a competence test which fell to be applied at the time when E made the statements in question, that is in August 1998. The defender argued (1) that sec 2(1)(b) embodied a competence test, to be applied at the date of any proof; and (2) that if she was wrong about that, on a proper interpretation of sec 2(1)(b) no competence test at all fell to be applied and hearsay evidence was admissible unless direct evidence on the matter would be inadmissible if given by the person who had made the statement.
Held (1) that sec 2(1)(b) did not embody a competence test and that hearsay evidence of a statement was admissible unless it concerned a matter as to which direct oral evidence by the maker of the statement would not be admissible (pp 348C, 359G, 361C, 365D); (2) that sec 2(1)(a) introduced a general rule that hearsay evidence was admissible in the same way as direct oral evidence and subject to the same rules as to competency and relevancy as direct oral evidence (pp 355B, 365C); (3) that sec 2(1)(b) enacted that hearsay evidence of a statement could be admitted if it related to a matter on which direct oral evidence by the maker of the statement would be admissible and was narrow in scope and in most cases, including the present case, had no application (p 355D); (4) that what E said at the interview was hearsay
evidence which was admissible in terms of sec 2(1)(a) since there was no reason to exclude it and it did not relate to a matter of which direct evidence, if given by E, would have been inadmissible (p 355E); (5) that the sheriff misdirected himself in a fundamental fashion by approaching the evidence on the basis that it would not be surprising if the pursuer had sought sexual satisfaction from his four-year-old daughter, and failed to assess the credibility and reliability of the witnesses (pp 359AB, 361F); and appeal allowed and caseremitted to sheriff to proceed as accordsF v KennedySC1992 SC 28overruled; L v L 1996 SLT 767 (OH) 1998 SLT 672 (1st Div) overruled in part;Thomas v ThomasSC1947 SC (HL) 45 applied;Sanderson v McManusSC1997 SC (HL) 55commented upon.
Observed (per Lord President and Lord Bonomy) that the practice of providing the sheriff with draft findings was not to be discouraged, although sheriff should be alert to the possible disadvantages in using them (pp 356H357B).
Mt raised proceedings in the sheriffdom of Lothian and Borders at Linlithgow in which he sought contact with his daughter, E. The case came to proof in March and May 1999. The sheriff (H R Maclean) examined the daughter and found her to be a competent witness. The pursuer appealed to the Court of Session. On 5 July 2000, the cause called before the First Division who remitted it to a larger court.
Cases referred to:
Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35
Davie v Magistrates of EdinburghSC 1953 SC 34
Deans's J F v DeansENR 1912 SC 441
F v KennedySC 1992 SC 28
L v L 1996 SLT 767 (OH) 1998 SLT 672 (1st Div)
M v FergusonUNK 1994 SCLR 487
M v KennedySC 1993 SC 115
Pepper v HartELR [1993] AC 593
Rees v LoweSC 1990 JC 96
Sanderson v McManusSC 1997 SC (HL) 55
Thomas v ThomasSC 1947 SC (HL) 45
Textbooks etc referred to:
Dickson, Treatise on the Law of Evidence in Scotland, paras 266267 and 1542
Macphail, Evidence, paras 1901 to 1921, 1927 and S19.27
Walker and Walker, The Law of Evidence in Scotland, p 374
The cause called before a bench of five judges, comprising the Lord President (Rodger), Lord Milligan, Lord Nimmo Smith, Lord Bonomy and Lord Allanbridge for a hearing on 9, 10, 11, 12 and 13 October 2000.
At advising, on 10 November 2000
LORD PRESIDENT (Rodger)[1] This appeal from the interlocutor of the sheriff at Linlithgow dated 25 August 1999 raises an important point about the interpretation of sec 2(1)(b) of the Civil Evidence (Scotland) Act 1988 (the 1988 Act). The long title is An Act to make fresh provision in relation to civil proceedings in Scotland regarding corroboration of evidence and the admissibility of hearsay and other evidence; and for connected purposes. Section 1 abolishes the rule requiring corroboration and secs 2 and 3 provide inter alia: 2.(1) In any civil proceedings(a) evidence shall not be excluded solely on the ground that it is hearsay; (b) a statement made by a person otherwise than in the course of the proof shall be admissible as evidence of any matter contained in the statement of which direct oral evidence by that person would be admissible;(2) Nothing in this section shall affect the admissibility of any statement as evidence of the fact that the statement was made.... 3. In any civil proceedings a statement made otherwise than in the course of the proof by a person who at the proof is examined as to the statement shall be admissible as evidence in so far as it tends to reflect favourably or unfavourably on that person's credibility.
[2] As I explained in the short opinion of the court which I delivered on 5 July when the First Division decided to remit it to a Court of Five Judges, the appeal arises out of proceedings in which the pursuer seeks direct contact with his daughter E. The parties separated on 26 December 1997, since when E has lived with the defender. In fact the parties are now divorced and the defender has remarried, while the pursuer has formed a relationship with another lady whom he intends to marry. When the parties first separated, the pursuer had regular contact with E but, following on certain alleged difficulties, on 1 July 1998 the sheriff ordered that contact should be supervised by the pursuer's mother. As a result of the allegations which are the focus of the present appeal, the sheriff altered his interlocutor on 5 August 1998 to direct that the contact should take place in the presence of Mr John Sheldon, a social worker. Eventually, on 21 October 1998 the sheriff varied the award of contact to nil. Since that time the pursuer has had no contact with his daughter.
[3] In March and May 1999 the sheriff heard a proof spread over a number of days. The defender had been ordained to lead at the proof and among the witnesses whom counsel for the defender wished to lead was a police officer, WPC Lawlor. She was to speak to answers which E had given at an interview in August 1998 when she had only recently passed her fourth birthday.
[4] In anticipation of that evidence certain discussions took place between counsel for both parties and the sheriff. In the light of the decision of the Second Division in F v Kennedy, counsel for the defender at the proof accepted that Constable Lawlor's evidence of E's answers would be admissible only if E herself would be a competent witness at the proof. He therefore indicated that he would put E into the witness box so that the sheriff would have an opportunity to examine her. Counsel for the pursuer at the proof submitted that this approach was wrong in principle and that the relevant issue was whether E would have been a competent witness at the time when she gave the answers in the interview in August 1998. In the event the sheriff decided to examine E and she was therefore called on 24 March 1999. Having put a number of questions to her, the sheriff then allowed counsel for the defender to question E but he did no more than ask her name, where she lived and some questions about school. Counsel for the pursuer declined the opportunity to cross-examine.
[5] After an adjournment the sheriff stated: I think for the record I should state formally that I found E a competent witness. This led to a debate between the sheriff and counsel for the pursuer as to whether he should have made that determination, with counsel for the...
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