Scottish Court of Session Decisions

Lord Fraser—I cannot admit this evidence. There seems to be very loose notions afloat as to how far photographs can be used, and this is a good illustration of them. A photograph is secondary evidence, and secondary evidence of the most unreliable character. Two photographs of the same person very often are very different from each other and even the most skilful individual may mistake the photograph of one person for another. It is only as a last resource, and where justice would otherwise be defeated, that the Courts admit this secondary evidence. Indeed, no secondary evidence is ever received if primary evidence can be obtained at reasonable cost and with available means. Wherever a defender or any other person can be compelled to come to Court for identification, the Court will not receive a photograph in place of the original. If a defender, as in this case, refuses to obey the order of the Court to appear for identification, then the course is to apply for a warrant to apprehend the person so failing to appear, and bring him or her to Court. I long ago printed the form of warrant in use in the Consistorial Courts of Scotland upon the matter (Husband and Wife, p. 1166), and such a warrant ought to have been applied for in the present case, and would at once have been granted by. me. In cases where the person sought to be identified is outwith the jurisdiction of the Court, and where its warrants of apprehension cannot reach him, a photograph may then as a matter of necessity be used, and I have, when counsel, been allowed by Judges in such circumstances—but only in such circumstances of necessity—to use a photograph. The wife in the present case is in Glasgow,

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