Office of the Queen's Printer for Scotland
Where an offence is alleged to be committed in any special capacity, as by the holder of a licence, master of a vessel, occupier of a house, or the like, the fact that the accused possesses the qualification necessary to the commission of the offence shall, unless challenged—
(a) in the case of proceedings on indictment, by giving notice of a preliminary objection under paragraph (b) of section 72(1) of this Act or under that paragraph as applied by section 71(2) of this Act; or
(b) in summary proceedings, by preliminary objection before his plea is recorded,
be held as admitted.
(1) In any trial it shall not be necessary for the accused or for the prosecutor—
(a) to prove any fact which is admitted by the other; or
(b) to prove any document, the terms and application of which are not in dispute between them,
and, without prejudice to paragraph 1 of Schedule 8 to this Act, copies of any documents may, by agreement of the parties, be accepted as equivalent to the originals.
(2) For the purposes of subsection (1) above, any admission or agreement shall be made by lodging with the clerk of court a minute in that behalf signed—
(a) in the case of an admission, by the party making the admission or, if that party is the accused and he is legally represented, by his counsel or solicitor; and
(b) in the case of an agreement, by the prosecutor and the accused or, if he is legally represented, his counsel or solicitor.
(3) Where a minute has been signed and lodged as aforesaid, any facts and documents admitted or agreed thereby shall be deemed to have been duly proved.
(1) Subject to subsection (2) below, the prosecutor and the accused (or each of the accused if more than one) shall each identify any facts which are facts—
(a) which he would, apart from this section, be seeking to prove;
(b) which he considers unlikely to be disputed by the other party (or by any of the other parties); and
(c) in proof of which he does not wish to lead oral evidence,
and shall, without prejudice to section 258 of this Act, take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement.
(2) Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented.
(3) The duty under subsection (1) above applies—
(a) in relation to proceedings on indictment, from the date of service of the indictment until the swearing of the jury or, where intimation is given under section 76 of this Act, the date of that intimation; and
(b) in relation to summary proceedings, from the date on which the accused pleads not guilty until the swearing of the first witness or, where the accused tenders a plea of guilty at any time before the first witness is sworn, the date when he does so.
(1) This section applies where, in any criminal proceedings, a party (in this section referred to as “the first party”) considers that facts which that party would otherwise be seeking to prove are unlikely to be disputed by the other parties to the proceedings.
(2) Where this section applies, the first party may prepare and sign a statement—
(a) specifying the facts concerned; or
(b) referring to such facts as set out in a document annexed to the statement,
and shall, not less than 14 days before the trial diet, serve a copy of the statement and any such document on every other party.
(3) Unless any other party serves on the first party, not more than seven days after the date of service of the copy on him under subsection (2) above or by such later time as the court may in special circumstances allow, a notice that he challenges any fact specified or referred to in the statement, the facts so specified or referred to shall be deemed to have been conclusively proved.
(4) Where a notice is served under subsection (3) above, the facts specified or referred to in the statement shall be deemed to have been conclusively proved only in so far as unchallenged in the notice.
(5) Subsections (3) and (4) above shall not preclude a party from leading evidence of circumstances relevant to, or other evidence in explanation of, any fact specified or referred to in the statement.
(6) Notwithstanding subsections (3) and (4) above, the court—
(a) may, on the application of any party, where it is satisfied that there are special circumstances; and
(b) shall, on the joint application of all the parties,
direct that the presumptions in those subsections shall not apply in relation to such fact specified or referred to in the statement as is specified in the direction.
(7) An application under subsection (6) above may be made at any time after the commencement of the trial and before the commencement of the prosecutor’s address to the court on the evidence.
(8) Where the court makes a direction under subsection (6) above it shall, unless all the parties otherwise agree, adjourn the trial and may, without prejudice to section 268 of this Act, permit any party to lead evidence as to any such fact as is specified in the direction, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(9) A copy of a statement or a notice required, under this section, to be served on any party shall be served in such manner as may be prescribed by Act of Adjournal; and a written execution purporting to be signed by the person who served such copy or notice together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such service.
(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied—
(a) that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in subsection (2) below;
(b) that evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it;
(c) that the person who made the statement would have been, at the time the statement was made, a competent witness in such proceedings; and
(d) that there is evidence which would entitle a jury properly directed, or in summary proceedings would entitle the judge, to find that the statement was made and that either—
(i) it is contained in a document; or
(ii) a person who gave oral evidence in the proceedings as to the statement has direct personal knowledge of the making of the statement.
(2) The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement—
(a) is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;
(b) is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;
(c) is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;
(d) having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or
(e) is called as a witness and either—
(i) refuses to take the oath or affirmation; or
(ii) having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement refuses to do so,
and in the application of this paragraph to a child, the reference to a witness refusing to take the oath or affirmation or, as the case may be, to having been sworn shall be construed as a reference to a child who has refused to accept an admonition to tell the truth or, having been so admonished, refuses to give evidence as mentioned above.
(3) Evidence of a statement shall not be admissible by virtue of subsection (1) above where the judge is satisfied that the occurrence of any of the circumstances mentioned in paragraphs (a) to (e) of subsection (2) above, by virtue of which the statement would otherwise be admissible, is caused by—
(a) the person in support of whose case the evidence would be given; or
(b) any other person acting on his behalf,
for the purpose of securing that the person who made the statement does not give evidence for the purposes of the proceedings either at all or in connection with the subject matter of the statement.
(4) Where in any proceedings evidence of a statement made by any person is admitted by reference to any of the reasons mentioned in paragraphs (a) to (c) and (e)(i) of subsection (2) above—
(a) any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;
(b) evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and
(c) evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.
(5) Subject to subsection (6) below, where a party intends to apply to have evidence of a statement admitted by virtue of subsection (1) above he shall, before the trial diet, give notice in writing of—
(a) that fact;
(b) the witnesses and productions to be adduced in connection with such evidence; and
(c) such other matters as may be prescribed by Act of Adjournal,
to every other party to the proceedings and, for the purposes of this subsection, such evidence may be led notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(6) A party shall not be required to give notice as mentioned in subsection (5) above where—
(a) the grounds for seeking to have evidence of a statement admitted are as mentioned in paragraph (d) or (e) of subsection (2) above; or
(b) he satisfies the judge that there was good reason for not giving such notice.
(7) If no other party to the proceedings objects to the admission of evidence of a statement by virtue of subsection (1) above, the evidence shall be admitted without the judge requiring to be satisfied as mentioned in that subsection.
(8) For the purposes of the determination of any matter upon which the judge is required to be satisfied under subsection (1) above—
(a) except to the extent that any other party to the proceedings challenges them and insists in such challenge, it shall be presumed that the circumstances are as stated by the party seeking to introduce evidence of the statement; and
(b) where such a challenge is insisted in, the judge shall determine the matter on the balance of probabilities, and he may draw any reasonable inference—
(i) from the circumstances in which the statement was made or otherwise came into being; or
(ii) from any other circumstances, including, where the statement is contained in a document, the form and contents of the document.
(9) Where evidence of a statement has been admitted by virtue of subsection (1) above on the application of one party to the proceedings, without prejudice to anything in any enactment or rule of law, the judge may permit any party to lead additional evidence of such description as the judge may specify, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(10) Any reference in subsections (5), (6) and (9) above to evidence shall include a reference to evidence led in connection with any determination required to be made for the purposes of subsection (1) above.
(1) Subject to the following provisions of this section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings.
(2) A prior statement shall not be admissible under this section unless—
(a) the statement is contained in a document;
(b) the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence; and
(c) at the time the statement was made, the person who made it would have been a competent witness in the proceedings.
(3) For the purposes of this section, any reference to a prior statement is a reference to a prior statement which, but for the provisions of this section, would not be admissible as evidence of any matter stated in it.
(4) Subsections (2) and (3) above do not apply to a prior statement—
(a) contained in a precognition on oath; or
(b) made in other proceedings, whether criminal or civil and whether taking place in the United Kingdom or elsewhere,
and, for the purposes of this section, any such statement shall not be admissible unless it is sufficiently authenticated.
(1) Subject to the following provisions of this section, nothing in sections 259 and 260 of this Act shall apply to a statement made by the accused.
(2) Evidence of a statement made by an accused shall be admissible by virtue of the said section 259 at the instance of another accused in the same proceedings as evidence in relation to that other accused.
(3) For the purposes of subsection (2) above, the first mentioned accused shall be deemed—
(a) where he does not give evidence in the proceedings, to be a witness refusing to give evidence in connection with the subject matter of the statement as mentioned in paragraph (e) of subsection (2) of the said section 259; and
(b) to have been, at the time the statement was made, a competent witness in the proceedings.
(4) Evidence of a statement shall not be admissible as mentioned in subsection (2) above unless the accused at whose instance it is sought to be admitted has given notice of his intention to do so as mentioned in subsection (5) of the said section 259; but subsection (6) of that section shall not apply in the case of notice required to be given by virtue of this subsection.
(1) For the purposes of sections 259 to 261 of this Act, a “statement” includes—
(a) any representation, however made or expressed, of fact or opinion; and
(b) any part of a statement,
but does not include a statement in a precognition other than a precognition on oath.
(2) For the purposes of the said sections 259 to 261 a statement is contained in a document where the person who makes it—
(a) makes the statement in the document personally;
(b) makes a statement which is, with or without his knowledge, embodied in a document by whatever means or by any person who has direct personal knowledge of the making of the statement; or
(c) approves a document as embodying the statement.
(3) In the said sections 259 to 261—
“criminal proceedings” include any hearing by the sheriff of an application made under Chapter 3 of Part II of the Children (Scotland) Act 1995 for a finding as to whether grounds for the referral of a child’s case to a children’s hearing are established, in so far as the application relates to the commission of an offence by the child, or for a review of such a finding;
“document” includes, in addition to a document in writing—
any map, plan, graph or drawing;
any photograph;
any disc, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
any film, negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom;
“film” includes a microfilm;
“made” includes allegedly made.
(4) Nothing in the said sections 259 to 261 shall prejudice the admissibility of a statement made by a person other than in the course of giving oral evidence in court which is admissible otherwise than by virtue of those sections.
(1) In any trial, it shall be competent for the party against whom a witness is produced and sworn in causa to examine such witness both in cross and in causa.
(2) The judge may, on the motion of either party, on cause shown order that the examination of a witness for that party (“the first witness”) shall be interrupted to permit the examination of another witness for that party.
(3) Where the judge makes an order under subsection (2) above he shall, after the examination of the other witness, permit the recall of the first witness.
(4) In a trial, a witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in the trial; and evidence may be led in the trial to prove that the witness made the different statement on the occasion specified.
(5) In any trial, on the motion of either party, the presiding judge may permit a witness who has been examined to be recalled.
(1) The spouse of an accused may be called as a witness—
(a) by the accused;
(b) by a co-accused or by the prosecutor without the consent of the accused.
(2) Nothing in this section shall—
(a) make the spouse of an accused a compellable witness for a co-accused or for the prosecutor in a case where such spouse would not be so compellable at common law;
(b) compel a spouse to disclose any communication made between the spouses during the marriage.
(3) The failure of the spouse of an accused to give evidence shall not be commented on by the defence or the prosecutor.
(4) The spouse of a person charged with bigamy may be called as a witness either for the prosecution or the defence and without the consent of the person charged.
(1) Every person adduced as a witness who is not otherwise by law disqualified from giving evidence, shall be admissible as a witness, and no objection to the admissibility of a witness shall be competent on the ground of—
(a) conviction of or punishment for an offence;
(b) interest;
(c) agency or partial counsel;
(d) the absence of due citation to attend; or
(e) his having been precognosced subsequently to the date of citation.
(2) Where any person who is or has been an agent of the accused is adduced and examined as a witness for the accused, it shall not be competent for the accused to object, on the ground of confidentiality, to any question proposed to be put to such witness on matter pertinent to the issue of the guilt of the accused.
(3) No objection to the admissibility of a witness shall be competent on the ground that he or she is the father, mother, son, daughter, brother or sister, by consanguinity or affinity, or uncle, aunt, nephew or niece, by consanguinity of any party adducing the witness in any trial.
(4) It shall not be competent for any witness to decline to be examined and give evidence on the ground of any relationship mentioned in subsection (3) above.
(1) Subject to subsections (2) to (8) below, the accused shall be a competent witness for the defence at every stage of the case, whether the accused is on trial alone or along with a co-accused.
(2) The accused shall not be called as a witness in pursuance of this section except upon his own application or in accordance with subsection (9) or (10) below.
(3) An accused who gives evidence on his own behalf in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged.
(4) An accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless—
(a) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or
(b) the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establishing the accused’s good character or impugning the character of the complainer, or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution or of the complainer; or
(c) the accused has given evidence against any other person charged in the same proceedings.
(5) In a case to which paragraph (b) of subsection (4) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that subsection only if the court, on the application of the prosecutor, permits him to do so.
(6) An application under subsection (5) above in proceedings on indictment shall be made in the course of the trial but in the absence of the jury.
(7) In subsection (4) above, references to the complainer include references to a victim who is deceased.
(8) Every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.
(9) The accused may—
(a) with the consent of a co-accused, call that other accused as a witness on the accused’s behalf; or
(b) ask a co-accused any question in cross-examination if that co-accused gives evidence,
but he may not do both in relation to the same co-accused.
(10) The prosecutor or the accused may call as a witness a co-accused who has pleaded guilty to or been acquitted of all charges against him which remain before the court (whether or not, in a case where the co-accused has pleaded guilty to any charge, he has been sentenced) or in respect of whom the diet has been deserted; and the party calling such co-accused as a witness shall not require to give notice thereof, but the court may grant any other party such adjournment or postponement of the trial as may seem just.
(11) Where, in any trial, the accused is to be called as a witness he shall be so called as the first witness for the defence unless the court, on cause shown, otherwise directs.
(1) The court may, on an application by any party to the proceedings, permit a witness to be in court during the proceedings or any part of the proceedings before he has given evidence if it appears to the court that the presence of the witness would not be contrary to the interests of justice.
(2) Without prejudice to subsection (1) above, where a witness has, without the permission of the court and without the consent of the parties to the proceedings, been present in court during the proceedings, the court may, in its discretion, admit the witness, where it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent, and that the witness has not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his examination.
(1) Subject to subsection (2) below, the judge may, on a motion of the prosecutor or the accused made—
(a) in proceedings on indictment, at any time before the commencement of the speeches to the jury;
(b) in summary proceedings, at any time before the prosecutor proceeds to address the judge on the evidence,
permit him to lead additional evidence.
(2) Permission shall only be granted under subsection (1) above where the judge—
(a) considers that the additional evidence is prima facie material; and
(b) accepts that at the commencement of the trial either—
(i) the additional evidence was not available and could not reasonably have been made available; or
(ii) the materiality of such additional evidence could not reasonably have been foreseen by the party.
(3) The judge may permit the additional evidence to be led notwithstanding that—
(a) in proceedings on indictment, a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given; or
(b) in any case, a witness must be recalled.
(4) The judge may, when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.
(5) In this section “the commencement of the trial” means—
(a) in proceedings on indictment, the time when the jury is sworn; and
(b) in summary proceedings, the time when the first witness for the prosecution is sworn.
(1) The judge may, on a motion of the prosecutor made at the relevant time, permit the prosecutor to lead additional evidence for the purpose of—
(a) contradicting evidence given by any defence witness which could not reasonably have been anticipated by the prosecutor; or
(b) providing such proof as is mentioned in section 263(4) of this Act.
(2) The judge may permit the additional evidence to be led notwithstanding that—
(a) in proceedings on indictment, a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given; or
(b) in any case, a witness must be recalled.
(3) The judge may when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.
(4) In subsection (1) above, “the relevant time” means—
(a) in proceedings on indictment, after the close of the defence evidence and before the commencement of the speeches to the jury; and
(b) in summary proceedings, after the close of the defence evidence and before the prosecutor proceeds to address the judge on the evidence.
(1) This section applies where—
(a) evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused’s good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer; or
(b) the nature or conduct of the defence is such as to tend to establish the accused’s good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.
(2) Where this section applies the court may, without prejudice to section 268 of this Act, on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character, notwithstanding that, in proceedings on indictment, a witness or production concerned is not included in any list lodged by the prosecutor and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(3) In proceedings on indictment, an application under subsection (2) above shall be made in the course of the trial but in the absence of the jury.
(4) In subsection (1) above, references to the complainer include references to a victim who is deceased.
(1) Subject to subsections (7) and (8) below, where a child has been cited to give evidence in a trial the court may appoint a commissioner to take the evidence of the child if—
(a) in solemn proceedings, at any time before the oath is administered to the jury;
(b) in summary proceedings, at any time before the first witness is sworn;
(c) in exceptional circumstances in either solemn or summary proceedings, during the course of the trial,
application is made to the court in that regard; but to be so appointed a person must be, and for a period of at least five years have been, a member of the Faculty of Advocates or a solicitor.
(2) Proceedings before a commissioner appointed under subsection (1) above shall be recorded by video recorder.
(3) An accused shall not, except by leave of the commissioner, be present in the room where such proceedings are taking place but shall be entitled by such means as seem suitable to the commissioner to watch and hear the proceedings.
(4) Subsections (2) to (6), (8) and (9) of section 272 of this Act shall apply to an application under subsection (1) above and evidence taken by a commissioner appointed under that subsection as those subsections apply to an application under subsection (1) of that section and evidence taken by a commissioner appointed on such an application.
(5) Subject to subsections (7) and (8) below, where a child has been or is likely to be cited to give evidence in a trial, the court may, on an application being made to it, authorise the giving of evidence by the child by means of a live television link.
(6) Subject to subsections (7) and (8) below, where a child has been or is likely to be cited to give evidence in a trial, the court may, on application being made to it, authorise the use of a screen to conceal the accused from the sight of the child while the child is present to give evidence; but arrangements shall be made to ensure that the accused is able to watch and hear as the evidence is given by the child.
(7) The court may grant an application under subsection (1), (5) or (6) above only on cause shown having regard in particular to—
(a) the possible effect on the child if required to give evidence, no such application having been granted;
(b) whether it is likely that the child would be better able to give evidence if such application were granted; and
(c) the views of the child.
Criminal Procedure (Scotland) Act 1995