Scottish Court of Session Decisions

Lord President—It appears to me that this is a question on the interpretation of section 3 of the Statute 16 and 17 Vict. cap. 20. That is a remedial statute, and its object is to provide for the admission of evidence which formerly was not competent at common law. That is the leading enactment of the clause. There is therefore in the clause an empowering or permitting enactment, but there is also an exception, on the construction of which this question depends. But the ordinary rule of construction of such a statute is that the leading enactment shall be construed literally, and that the construction of the exception shall rather be strict.

The leading enactment is—“It shall be competent to adduce and examine as a witness in any action or proceeding in Scotland any party to such action or proceeding, or the husband or wife of any party, whether he or she shall be individually named in the record or proceeding or not.” These words are very comprehensive. The exception is—“But nothing herein contained shall render any person, or the husband or wife of any person, [who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, his wife or her husband, excepting in so far as the same may be at present competent by the law and practice of Scotland,” &c. Now, here there are two, and only two, particular kinds of proceedings specially meant, namely, criminal proceedings in which the person is charged with an “indictable offence,” and proceedings in which the offence is “punishable on summary conviction.” In every other class of proceeding the party is allowed to give evidence for himself. I think therefore that this evidence is not within the exception.

In one sense this is undoubtedly a criminal proceeding, but it is also one in which civil interests are often largely concerned, and therefore it is often called a quasi-criminal proceeding. If the nature of the interdict is so plain that the proof of a fact is conclusive evidence of the charge that it has been broken, such a civil interest does not emerge, but sometimes civil interests of great importance are concerned. I remember a case in which such a question having arisen the Court saw that the judgment on the complaint would decide the extent of a right in salmon-fishing. We therefore adjusted, and sent an issue to a jury, preparatory to the decision of the petition and complaint.

I think that there is good reason for holding that evidence in such a case as this was not in the contemplation of the Legislature when it excepted only two kinds of proceedings. These two classes are well known to our law, and do not correspond with the proceeding now before us.

Lord Deas, Lord Mure, and Lord Shand concurred.