Scottish Court of Session Decisions

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Cite as: [1883] SLR 20_797, [1883] ScotLR 20_797

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SCOTTISH_SLR_Court_of_Session

Page: 797↓

Court of Session Inner House First Division.

Friday, July 13. 1883.

[ Lord Fraser, Ordinary.

20 SLR 797

Tennent

v.

Tennent.

Subject_1Evidence
Subject_2Character of Witness
Subject_3Credibility
Subject_4Divorce.
Facts:

Observed ( per Lord President), in advising an action of divorce for adultery, that the evidence of prostitutes and persons trading in prostitution is not to be rejected in toto though uncorroborated, but that it must be strictly examined.

Headnote:

In the action of divorce at the instance of Mrs Tennent against her husband Charles Tennent, on the ground of adultery, the Lord Ordinary (Fraser) assoilzied the defender. On a reclaiming-note the First Division adhered, and the following observations were made by the Lord President on the character of the evidence.

Judgment:

Lord President—This is an action of divorce at the instance of a wife against her husband, on the ground of adultery, alleged to have been committed in brothels in Edinburgh, and also in London…. The occasions set forth in the condescendence are spoken to by the keeper of the house in which the adultery is said to have been committed; her evidence is supported by that of a prostitute in the house, and is further confirmed by that of her own husband.

This evidence is of course of such a character as to require very strict attention and scrutiny, but I am not able to concur with the views of the Lord Ordinary in regard to this class of evidence, and think it necessary to express my dissent from them somewhat emphatically.

After going over the evidence of these three persons, the Lord Ordinary says—“Now if all this was credible evidence, only one conclusion could be arrived at. But then the evidence is the evidence of prostitutes, and such evidence without corroboration is not credible. Everyone who has had experience in dealing with it knows that

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the evidence of such persons is the least trustworthy that can be presented to a Court of Justice. Other wicked people have some sense of honour that may be appealed to, but as regards prostitutes, they are restrained by no scruples of conscience, and their evidence always reflects the views that have been put into them by the last detective that has precognosced them.” And a little further on he says—“No number of prostitutes will make up one credible witness, so as to outweigh the denial given to them by the person accused. There must be corroboration of some kind.” Now, it appears to me that this would be a very dangerous doctrine to introduce into the practice of the Criminal Courts of this country; if it had ever been acted upon, many crimes would have gone unpunished which have been proved to the satisfaction of judge and jury by very clear evidence indeed. I therefore consider that the Lord Ordinary's doctrine is entirely inconsistent with the practice of the Courts of this country, and one which can never be received. At the same time I fully appreciate the duty there is on the Court, in dealing with evidence of this kind, to examine very carefully, and to give full effect to the considerations arising out of the moral conduct and occupation of the witnesses in considering the weight which is to be attached to their testimony.

[His Lordship then examined the evidence, and arrived at the conclusion that the adultery had not been proved.]

Lords Mure and Shand concurred.

Lord Deas was absent on Circuit.

The Court adhered.

Counsel:

Counsel for Pursuer— Trayner— Graham Murray. Agents— Macandrew, Wright, Ellis, & Blyth, W.S.

Counsel for Defender— D.-F. Macdonald, Q. C.— J. P. B. Robertson— Rhind. Agents— Hagart & Burn Murdoch, W. S.
1883

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