Scottish Court of Session Decisions

The Lord Ordinary ( Trayner) allowed the photograph to be used, reserving the objection till the conclusion of the evidence.

“ Opinion.—I entertain no doubt upon this question. The rule I understand to be that when the Court has pronounced an order appointing a defender to appear for identification, and the defender being cited on that order fails to appear, then a photograph of the defender may be used for purposes of identification— Forbes v. Forbes, 21 D. 145. Such a defender cannot object that the use of a photograph in such circumstances is inadmissible, being only secondary evidence, because that defender has, himself or herself, rendered it necessary to resort to secondary evidence by refusing to obey the orders of Court. I confess to some surprise at hearing the opinion of Lord Eraser, which the counsel for the defender quoted ( Grieve v. Grieve, May 22, 1885, 12 R. 964), because this matter of identification by a photograph was a subject of conversation between his Lordship and myself on more than one occasion, in the course of which he never suggested that before using a photograph it was necessary (where a defender ordered to appear had failed to do so) to resort to the apprehension of the defender or letters of second diligence, nor that a photograph could only be used when personal attendance could not thus be enforced. On the contrary, I understood Lord Fraser to hold the view I have stated as my understanding of the rule upon this subject.

Without discussing this matter, I may perhaps say that the course which, upon the authority of Lord Fraser's decision, the defender's counsel maintains to be settled would at the least be a very inconvenient one. Letters of second diligence or warrant to apprehend cannot be obtained until, on the case being called for proof, it is ascertained that the defender has not appeared for identification in obedience to the order of Court. To apply for letters of second diligence at that stage would necessarily involve the postponement of the proof, which would again involve the discharge of all the witnesses in attendance, and entail on the pursuer an expense and inconvenience which should not be imposed upon him if it can be avoided.

“As regards the merits of this case, I think that the pursuer has established his averments, and I shall therefore pronounce decree of divorce.”

Decree of divorce was pronounced.