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Precognition in Scots law is the practice of precognoscing a witness, that is the taking of a factual statement from witnesses by both prosecution and defence after indictment or claim but before trial. This is often undertaken by trainee lawyers or precognition officers employed by firms; anecdotal evidence suggests many of these are former police officers.[1]
This procedure is followed in both civil and criminal causes.[2] The subsequent statement is generally inadmissible as evidence in the trial,[3] but it allows the procurator fiscal, advocate or solicitor in Scotland to appear before the Courts of Scotland knowing what evidence each witness is likely to present. Following the judgement of the Appeal Court in Beurskens v HM Advocate [2014] HCJAC 99 it is possible for a precognition to be considered as a statement, and thus be admissible as evidence in court.[4]
Historically precognitions were not only a distinctive feature of Scottish criminal procedure, but vital to the defence. Before the passage of the Criminal Justice and Licensing (Scotland) Act 2010 there was limited disclosure by the prosecution to the defence.[5] Section 121 of 2010 Act required the prosecutor to disclose all information that would "materially weaken or undermine the evidence... by the prosecution", "materially strengthen the accused's case", or "form part of the evidence to be by the prosecutor".[6] This was in response to the 2007 review by Lord Coulsfield. Before this the accused was entitled to a copy of the indictment with all the charges laid against them, and to a list of prosecution witnesses and productions (other evidence)[7] and to all statements taken by the prosecution and knowledge of witnesses prior criminal records.[8]
Police officers from Police Scotland can be asked to attend for precognition by solicitors for the defence, and it is possible for them to refuse to attend (except where a Sheriff orders a precognition on oath). However, as of 7 August 2013 Police Scotland had no record of how many officers had refused to attend a precognition for the defence.[9]
- ^ David J. Christie; Susan R. Moody (1999). "The Work of Precognition Agents in Criminal Cases" (PDF). Scottish Government. Scottish Executive Central Research Unit. p. 19. Retrieved 11 March 2017.
Whether ex-police officers constitute the majority is difficult to say in the absence of any official statistics but anecdotal evidence would support this view.
- ^ Moenssens, Andre (8 March 2016). "37 Ethical Rules of Expert Behavior". In Jamieson, Allan; Bader, Scott (eds.). A Guide to Forensic DNA Profiling (1 ed.). John Wiley & Sons. p. 319. ISBN 978-1-118-75152-7.
Precognition is a practice used in Scotland to take factual statements from a witness prior to civil or criminal proceedings.
- ^ McNeile vs Her Majesty's Advocate, 1929 JC 51 per Lord Justice-General Clyde (High Court of Justiciary).
- ^ Beurskens v HM Advocate, 99 HCJAC XC28/13, 28 (High Court of Justiciary Appeal Court 26 February 2013) (""Unless the court considers that the jury could not rely on the content of the statement/precognition as accurately recording what the witness actually said, because of the circumstances in which it was taken, it ought to be admitted in evidence for all competent purposes."").
- ^ Fiona, Bawden (8 March 1995). "Solicitors tread where the police fail to go". independent.co.uk. The Independent. Retrieved 15 March 2017.
In Scotland, there is only limited disclosure of police statements. To help preparation of the defence case, solicitors (or their agents) routinely visit and question witnesses to find out what they may be likely to say in court.
- ^ "Criminal Justice and Licensing (Scotland) Act 2010". S.121: legislation.gov.uk. 30 June 2010. Retrieved 11 March 2017.
{{cite web}}: CS1 maint: location (link) - ^ "Criminal Procedure (Scotland) Act 1995". S. 66: legislation.gov.uk. 8 November 1995. Retrieved 11 March 2017.
{{cite web}}: CS1 maint: location (link) - ^ Holland v. Her Majesty's Advocate (Devolution), BAILII UKPC D1 (Judicial Committee of the Privy Council 11 May 2005).
- ^ "Precognition of officers". WhatDoTheyKnow. mySociety. 9 August 2013. Retrieved 15 March 2017.
Your request for information has now been considered and I can advise you that Police Service of Scotland does not hold any of the information requested by you. In terms of Section 17 of the Act, this letter represents a formal notice that information is not held.