APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Emslie Lord Marnoch	[2012] HCJAC 29 Appeal No: XC829/10 OPINION OF LORD BONOMY in APPEAL AGAINST CONVICTION by "A" Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Paterson, Solicitor Advocate; Paterson Bell

Respondent: MacSporran, A.D.; Crown Agent

21 February 2012

Background

[1] Over recent years there has been an increasing tendency for advocates conducting trials to put the terms of statements previously made by witnesses in the course of the police investigation to these witnesses during examination or cross-examination. This practice has coincided with the extension of the purposes for which reference may be made to witness statements. It is a regular feature of this practice that the purpose is not clearly identified at the outset and that the examination proceeds in a fairly haphazard way.

[2] Since the Evidence (Scotland) Act 1852 it has been possible to examine a witness about the terms of a statement apparently inconsistent with his evidence in court with a view to either eliciting the truth or discrediting him. The current statement of that rule is to be found in section 263(4) the Criminal Procedure (Scotland) Act 1995 ("1995 Act") which is in the following terms:

"(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."

[3] In the event the witness may accept that the statement contains the truth, in which case that becomes part of his evidence. If he does not do so, then the statement, if thereafter spoken to in evidence by the officer who took it, is available to the jury as a possible reason for rejecting the evidence of the witness as untrue or unreliable. Under this rule the statement can never, of itself, be evidence of the truth of its contents.

[4] At common law it was recognised that there were certain circumstances in which a prior statement might fill a gap in the evidence and amount to acceptable evidence of the truth of its contents. It is encountered most frequently in identification evidence, as eg in Muldoon v Herron 1970 JC 30, 1970 SLT 228. A clear statement of that rule is to be found in Jamieson v HM Advocate (No. 2) 1994 SCCR 610 at page 618 where the Lord Justice General (Hope), in delivering the Opinion of the Court, said:

"The Muldoon case dealt with the position of a missing link in evidence of identification. The opinions in that case, including the dissenting opinion by Lord Wheatley, were all directed to the question of identification evidence and the case does not provide direct authority for the direction which was given by the trial judge in this case. But in our opinion the principle upon which the evidence of identification was held to be admissible in that case is of wider application and is not confined to identification evidence. Where a person identifies the alleged culprit to police officers, he is in effect telling them what he saw. He is making a statement to the police officers which is a statement of fact and ought, if possible, to be spoken to by the witness in the witness box. But if he is unable to recollect what he said to the police when he comes to give evidence, the gap in his recollection can be filled by what police said he said to them at the time. This evidence, when taken with the witness's own evidence that he made a true statement at the time to the police, is held to be admissible because there are two primary sources of evidence. One is the evidence of the police officers as to who was in fact identified and the other is the witness's own evidence that he identified the culprit to the police. The consistency between these two pieces of evidence provides the link between them and completes the chain. As Lord Cameron said in Muldoon at p.46, neither of these facts proves identity, but both are elements in the structure of evidence from which identification may be held proved.

In the present case there were two primary sources of evidence. One was the evidence of DC Farman as to what Marianne Robertson said to him in her statement. The other was Marianne Robertson's evidence that she made a statement to the police officer and that what she said to him at the time was true. Her evidence that she had made a statement to the police officer did not go to the length of admitting any of the details of what she may have said to him. She said that she could not remember this, so there was a gap in her evidence. But her evidence that she told the police the truth and that, if she said at the time she saw the appellant hitting Camy it must be true, had the effect, as the trial judge said, of incorporating her statement to the police into her own evidence."

There are four elements necessary before the statement can be treated as evidence of the truth of its contents: the witness must be able to remember giving a statement to the police; the witness must be able to say that the statement was true; the witness must be unable to recollect the events spoken to in the statement; and a police officer must give evidence of recording the statement and its contents. Although there was reference in counsels' submissions in that case to "adoption" that was not part of the ratio.

[5] Then in Section 260 of the 1995 Act a further rule was introduced in the following terms:

"260 Admissibility of prior statements of witnesses.

(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.

(5) A prior statement made by a witness shall not, in any proceedings on indictment, be inadmissible by reason only that it is not included in any list of productions lodged by the parties."

Sub-section (3) makes it clear that this provision addresses a different situation from that exemplified by Jamieson (No. 2). There is no requirement that the witness must be unable to recollect the events spoken to in the statement. In addition there is a requirement that the statement must be in a document and sufficiently authenticated.

[6] Reverting to what I said at the outset, because the reason for resorting to the statement is often unclear when it is first referred to, the examination of witnesses appears at times to be conducted on the basis either that statement-generated evidence can be reviewed at the close of the evidence and a decision then made on the use or uses to which it may be put, or that it can be left to the trial judge to give appropriate directions to the jury on how to treat it. We were referred to an example (Hughes v HM Advocate [2010] HCJAC 84) where an interview was played in full, the jury having transcripts before them. In that situation it may be arguable that different statements from different parts of the interview may be used in a variety of ways. The present case illustrates not only how confusing the evidential picture can become, but also how difficult the task of charging the jury can thus be made.

Circumstances of this Case

[7] The appellant was convicted of assault to severe injury and permanent disfigurement by striking the complainer, on the head with a broken bottle or similar instrument. The complainer unequivocally identified the appellant as the assailant. Although he was referred to his police statement in the course of his evidence, the use made of that particular statement was not an issue in the appeal.

[8] The attack took place against the background of a drugs deal. The complainer was to meet the appellant and his friends "B", "C" and "D" by arrangement, to supply them with drugs. The appellant did not give evidence; the complainer and the other three did. The sheriff stated in his report:

"... so this was a case in which credibility and reliability of the evidence of these four witnesses in relation to the assault which was said to have taken place immediately after the drugs transaction was an important aspect of this case."

The appellant incriminated "B" and the tenor of the cross-examination of the witnesses was to the effect that the assault had been committed by "B" and not by the appellant. It was accepted that the complainer had been assaulted. The issue was whether the Crown had proved that the appellant was the assailant. The evidence of "D" does not appear to have been of any consequence. Corroboration of the complainer's identification of the appellant could be found only in the evidence of "C" and/or "B". Both were referred to their statements in examination-in-chief and cross-examination.

[9] Apart from the usual directions about assessing credibility and reliability, the trial judge gave the following directions about the significance of the statements put to the witnesses:

"There is one final legal direction which I have to give you. Again it is a matter that is specific to this case because you heard the evidence of two civilian witnesses who were also asked not only about what they said in court but about what they said to police officers in statements beforehand. Sorry, three because "Mr M" was also in this position. So "Mr M" but perhaps more significantly the evidence of "C" and "B" included being asked about statements made to the police and you will recall that portions of those statements were read out to them. Now you will understand that where a crime is alleged police are involved long before the courts are and they interview witnesses, take statements from them. That has happened in this case and in each case you have heard that the statements were read over to the witnesses. The witnesses accepted that that happened and in each case the witnesses initialled the statement as being correct and accurate and when they came to give their evidence in this court the Advocate Depute asked them if they had made the statement and each case here they said they had and then asked them if they had been telling the police the truth when they made those statements and in each case they said they had and that puts them in a position where as a matter of law they have adopted the statement which they made to the police and what that means for you is that under our law where evidence is, where the content of a police statement is adopted by a witness, that content of the police statement is available for your consideration as evidence in the case along with what they said in court. So the portions of the police statement which were put to them and which they accepted as having been made and having been truthful are pieces of evidence which you can accept along with the evidence that they gave in court."

At a later stage in his charge, when reviewing the evidence of "C" and after dealing with the evidence of the complainer, the trial judge said this:

"And if you do consider him (the complainer) to be credible and reliable in that connection then you will look at the rest of the evidence, the evidence of "C" what she said to you in court, what she said in her police statement, the impression that she gave you about her general credibility and reliability to see if within her evidence there is support for the evidence of "Mr M". She did not see the assault. She was speaking to what happened up to the point before the men disappeared from her view but she had some evidence, as you will recall, to give you in relation to the issue of the weapon."

In reviewing the evidence of "B" the trial judge said:

"You will then look also at the evidence at "B". Again what he said to you in court and what he said to the police and adopted in court as his police statement, adopted into his evidence. You will have to consider his evidence carefully. He said things on occasion which he then withdrew. He came and went in his evidence as to what happened. He said his recollection was very poor. Sometimes he remembered things which he hadn't previously remembered and then he went back on them again."

[10] The trial judge has confirmed in his report that in giving these directions he understood that he was applying the rule in section 260. He did so after giving serious consideration to omitting all reference to the police statements from his charge "since the content of the portions put to the witnesses did not, in my view, add anything to the evidence before the jury". The trial judge further explained in his report that it was for reasons of completeness that he gave the jury "the simple and standard explanation which related to any portions of these statements which the witnesses adopted". Earlier in his report he explained his reason for doing so as follows:

"They were both difficult witnesses, clearly reluctant for their own reasons, and because of that the Advocate depute did at stages in their evidence require to direct their attention to the terms of their police statements. Because that was done I decided, after consideration, to make reference to that area of law in my charge to the jury but I recall that I considered not doing so in this case because the issue of what they had said to the police was, in fact, inconsequential since in this case there were no material points put to them from the police statements which were not fully covered in the parole evidence which they gave in the trial."

Misdirection

[11] In the circumstances of this case it is difficult to understand why any direction under section 260, or for that matter under the principle in Jamieson (No. 2), was thought to be appropriate. I consider that the trial judge's first inclination was the correct one, and that the jury should have been directed that the evidence of each witness was what that witness was able to recollect in the witness box, including what they had been prompted to remember by reference to their statements. That was, in my opinion, the only significance the evidence in this case warranted attaching to either of the witness statements. Be that as it may, we have to address the direction that was given, which Mr Paterson for the appellant submitted was a misdirection, firstly, because the witnesses had not adopted their statements, and secondly, because, in any event, whether they had adopted their statements was a matter of fact for the jury to determine and not a matter of law for the trial judge.

[12] The Advocate depute conceded that, having regard to the language used by Watt, it could not be said that she had adopted her statement. Indeed the position of the Crown at the trial had been to rely upon her parole evidence of her actual recollection. Her statement had been referred to initially as a prior inconsistent statement in terms of section 263(4) of the 1995 Act with a view to ultimately securing her agreement that that statement represented the truth of the matter. In the result, however, although the witness accepted that she had made the statement and that she was doing her best to tell the truth, she gave contradictory evidence in court, which she said was based on her present recollection. He further conceded that, if there were two conflicting accounts of events, one contained in a statement given to the police around the time of the events and the other based on present recollection, it was for the jury to decide whether the former was the evidence of the witness, based on the application of the rule in section 260, in light of appropriate directions by the trial judge. While the reference to the statement of "B" had proceeded along similar lines, in the submission of the Advocate depute the result was different. He had adopted the part of his statement upon which the Crown sought to found, viz reference to the appellant striking the complainer. Since the direction was accurate in regard to that crucial matter, it could not be said to be a misdirection even though it was not entirely accurate in relation to all the parts of the statement. The Advocate depute relied upon Niblock v HM Advocate [2010] HCJAC 21, 2010 SCCR 337 and the Opinion of the Lord Justice Clerk for the correct approach, albeit the issue of whether the statement was adopted and how that should be determined was not addressed in detail in that case.

[13] I consider that, whatever else, the Advocate depute's second concession was well made. Where a witness, as here in the case of "C", uses language which could be construed as amounting to adoption of a statement made on a previous occasion but also contradicts the content of the statement in a material way by claiming to have a different recollection, it is not for the trial judge to resolve that conflict. That is a matter for the jury. I express no concluded view on whether the language used by the witness "C" could have amounted to adoption of her statement in terms of section 260. However, assuming that it could, her reference in her statement to the appellant alone having a bottle, and to the appellant alone being out of sight up the lane where the assault took place, was inconsistent with her evidence in court to the effect that both the appellant and "B" had bottles and there was a point around the time of the attack when "B" was out of her sight in the lane. She explained that she had been lying about the bottles to protect "B" who was her boyfriend.

[14] In my opinion the trial judge went too far when he directed the jury that, where a witness initialled the statement given to the police as being correct and accurate, and then in court told the Advocate depute that when the statement was made the witness had been telling the police the truth, the witness had, as a matter of law, adopted the statement made to police as her evidence. There was no reference made there or later in the charge to the fact that she claimed at the trial to have a different recollection. The final sentence of that part of the judge's direction to the effect that "the portions of the police statement which were put ... and ... accepted as having been made and having been truthful are pieces of evidence which you can accept along with the evidence that they gave in court" was inadequate in its context to make it clear to the jury that what they ultimately had to determine was the import of her evidence as a whole. An important consideration in that would be the repeated assertion of the witness that she had a better recollection at the time of the trial than when she gave the statement because of the effect of drugs.

[15] I also consider that the jury were misled in the same way as to the significance of the statement of "B". Although in cross-examination he gave a clear account of his recollection of the appellant attacking the complainer as he had said in his statement, and departed from his earlier vacillation on the matter, there were other elements to his evidence in relation to which there remained a conflict between what was said in his statement and what he claimed to be able to recollect, in particular about whether he or the appellant was wearing a jacket which had the complainer's blood on it.

Miscarriage of Justice
[16] Having conceded that there was a misdirection, the Advocate depute maintained that that had not given rise to a miscarriage of justice. His position was that the verdict must be predicated on the acceptance by the jury of the evidence of "B" to the effect that he did not assault the complainer and that the appellant did, and the rejection by the jury of other evidence, including forensic science evidence, incriminating "B". "B" was the only eye witness to the actual assault. However, the Advocate depute did accept that even without the evidence of "B" there would still have been sufficient evidence for conviction. The eye witness evidence of the complainer was corroborated by "C's" evidence, in her statement, of the appellant having a weapon, going up the lane where she heard a scuffle taking place, and thereafter running from that locus, while "B" remained in her sight and did not enter the lane. On the other hand the trial judge was clearly of the view that the evidence of "B" was of far greater significance than that of "C".

[17] While I recognise that there is some force in the Advocate depute's submission that the jury are likely to have accepted significant parts of the evidence of "B"it remains possible that they did not, since there was sufficient evidence without his. It is also possible that they did so because of support they found for his account in the statement of "C". In that state of uncertainty, I consider that there is a realistic possibility that the jury, if properly directed, would have returned a different verdict. I also regard it as of some significance that, as Mr Paterson pointed out, the jury were not specifically directed, in relation to the evidence of either of these witnesses that, insofar as the statements put to the witnesses were not adopted and were inconsistent with evidence given by the witnesses in court, they could be used in assessing the credibility and reliability of the evidence the witnesses gave in court. I am accordingly satisfied that the misdirection in question has given rise to a miscarriage of justice. I would, therefore, quash the conviction.

Postscript

[18] There are a number of points to be noted in light of this case. The most fundamental is that each of the rules discussed above involves reliance on an exception to the normal evidential rule that hearsay is inadmissible. As was pointed out by the Lord Justice Clerk in Niblock v HM Advocate at para 15, such departure plainly requires a specific direction as to the purpose of the Crown's reliance on the statement and as to its evidential significance. That would normally, but not always, require reference to the evidence of a police officer about taking the statement and its contents. Counsel were unable to say whether that had happened in this case.

[19] Where, as here, the statement is to be put to the witness as a prior inconsistent one, section 263(4) prescribes a clear formula for addressing the issue. That involves examining the witness 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." When the witness first gives evidence different from that in his statement, it is not appropriate to challenge that by simply inviting him to read his statement and react as happened here. The dangers of such a haphazard approach are obvious, not least that the statement becomes the script of answers to a series of leading questions.

[20] The rule in section 260 of the 1995 Act and the rule or principle identified in Jamieson (No. 2) appear at first blush to be very similar. However, as I have noted above, section 260(3) provides that section 260 only applies to a statement which, but for the provisions of the section, would not be admissible as evidence of any matter stated in it. Since that provision postdates Jamieson (No. 2), it follows that section 260 provides for different circumstances. The Advocate depute submitted that the essential difference between the two is that resort to section 260 does not require that the witness has no present recollection of events. All that is required is that the statement is contained in a document, the witness indicates in his evidence that the statement was made by him and that he "adopts" it as his evidence, and the witness was at the time of making the statement a competent witness. He pointed to Niblock v HM Advocate as a case in which that distinction was recognised. In the submission of the Advocate depute trials are nowadays conducted on the basis that, if a witness is persuaded in examination to acknowledge making the statement and to have been endeavouring to tell the truth in doing so, that statement, if proved through the evidence of a police officer who took it, is evidence of the truth of its contents even if the witness also claims in his evidence that the statement is a lie. In that situation it is for the jury to decide which version to accept, if any. The issue of adoption is addressed obliquely by asking the witness whether in giving the statement he or she was doing his or her best to tell the truth. That approach is illustrated by Hughes v HM Advocate [2010] HCJAC 84 where the unsatisfactory nature of the evidence was similar to that in the present case, resulting in the witness contradicting herself and appearing to recollect and not recollect matters at different stages in her evidence. It was left to the jury to decide whether she had "adopted" parts of her statement or not, including parts of which she maintained at the trial that she had no recollection and others in relation to which she claimed to have a different recollection. If, as in that case, both circumstances can be dealt with by the same direction, that rather suggests that the principle in Jamieson (No. 2) has been rendered redundant by section 260.

[21] In Sean Stephen Hughes v HM Advocate [2009] HJAC 35, 2009 SLT 325 this Court suggested a rather different interpretation of section 260. While the remarks made were obiter, and Lord Marnoch, in delivering the Opinion of Court, made it clear that then was not the time to attempt an exhaustive exegesis of the section, this appears to be the only case in which the distinction between Jamieson (No. 2) and section 260 has been addressed specifically. The Court noted that the expression "adoption" suggests a considered and deliberate act on the part of the witness and perhaps even an element of formality. The Court went on to suggest that statements containing technical evidence were obvious candidates for treatment under the section and perhaps also statements made to the police with the stated objective that the witness will wish to rely on them when giving evidence. I find that approach persuasive, and I am not persuaded to the view expressed by Lord Emslie by his reference to the Report of the Scottish Law Commission (SLC No. 149). As the Advocate depute recognised, it is difficult to regard the reluctant witness's evidence that, when he gave his statement, he was trying to tell the truth, but now that he is drug free he has a clear recollection that the facts were different from what is contained in the statement, as being evidence amounting to "adoption" of the statement in the ordinary English sense of that word. It may be that a similar thought lay behind the reservations expressed by the Lord Justice Clerk at para 12 of Niblock v HM Advocate as to whether the evidence there amounted to "adoption" by the witness of his statement as his evidence. On the other hand it is understandable that the Crown, which regularly has to cope with vacillating, reluctant and determinedly evasive witnesses, should seek to enlist section 260 as a means of filling any gap in the evidence that would otherwise result from the failure of the witnesses to testify in accordance with the statements they gave in the course of the investigation. What is the correct interpretation of section 260 and indeed whether it covers both the current practice described by the Advocate depute and the circumstances envisaged in Sean Stephen Hughes v HM Advocate is for another day.

[22] However, what is undoubtedly clear, as was said in that case, is that:

"... the starting point in all criminal trials in Scotland remains parole evidence. To put a written statement before a witness for the purpose of leading him in chief is clearly unacceptable and before, therefore, reference is made to any written statement the purpose of doing so should be clear, whether it be a challenge under section 263(4) of the 1995 Act, an intention to invoke Jamieson (No 2) or, as we hope we have just made clear, an invocation of the discrete provisions of section 260."

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Emslie Lord Marnoch	[2012] HCJAC 29 Appeal No: XC829/10 OPINION OF LORD EMSLIE in NOTE OF APPEAL AGAINST CONVICTION by "A" Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Paterson, Solicitor Advocate; Paterson Bell

Respondent: McSporran, A.D.; Crown Agent

21 February 2012

Disposal of the appeal

[23] Along the same lines as have found favour with your Lordship in the chair, I agree that the jury were misdirected in this case regarding the treatment of prior police statements which key witnesses (at times) appeared to endorse and (at times) appeared to dispute. Issues as to the potential "adoption" of such statements by the witnesses concerned were not, as the trial judge suggested in his charge, to be resolved by operation of law. On the contrary, they were matters of fact which should have been left for the jury to determine as part of their evaluation of the whole evidence before them. Especially in a context where the same witnesses gave contrary evidence elsewhere, the sufficiency and reliability of any supposed "adoption" should have been left for the jury to assess in the ordinary way. Equally, the relative weight or significance to be attached to different parts of each witness's evidence were matters properly falling within the province of the jury and not of the trial judge. In my respectful opinion these points require no further elaboration here, having been convincingly made in the recent decision of this court in David Alexander Hughes v HM Advocate 2010 HCJAC 84

[24] As regards the subsequent question as to whether a miscarriage of justice may be said to have occurred, I must confess to having a degree of sympathy for the Crown's contention to the effect that, even if correct directions on the matter of "adoption" had been given, this would not necessarily have made any difference to the outcome of the trial. So far as the witness "C" was concerned, her police statement had the appellant alone in possession of a broken bottle, and the appellant alone going briefly into the lane where the complainer was assaulted. At the trial, if I understand her evidence correctly, she was at pains to say, on oath, that both the appellant and the incriminee "B" had broken bottles, and both briefly entered the lane. This was consistent with the evidence of the complainer, who indicated that both men had been present when the appellant struck him in the face. It was also consistent with certain clothing allegedly worn by "B" having become contaminated with the complainer's blood, and it is perhaps for this reason that, at the trial, the Crown relied heavily on what "C" actually said in court. Even if, after proper directions, the jury had concluded that the earlier statement was not truly adopted, they would still have had before them evidence, consistent with that of the complainer, whereby the appellant was one of two men who briefly entered the lane with broken bottles at the time when the complainer was assaulted.

[25] For his part, "B" was clearly an unsatisfactory witness who prevaricated throughout his evidence and claimed to remember little or nothing of what had happened. On the other hand, he repeatedly denied any responsibility for the complainer's injuries, and maintained that it was the appellant who had carried out the attack. This coincided with what he had said earlier to the police, and so even if the jury had received different directions on adoption they would have been left with essentially the same evidence from this witness. The only real discrepancies between "B's" statement and his evidence in court related to the circumstances in which he had worn the jacket which became bloodstained.

[26] Having said all that, however, I acknowledge the reasoning which has led your Lordships to a conclusion in the appellant's favour. In particular, I accept that there is room for doubt as to the likely verdict if, in the end, the jury had rejected any supposed "adoption" and proceeded solely on the evidence as given by the two key witnesses at the trial. In such circumstances, the different accounts previously given to the police might have reflected adversely on their credibility and reliability. In turn, that might have affected the majority verdict which was returned, and on the whole matter I am persuaded that I should concur with your Lordships in sustaining this appeal.

Other matters

[27] As regards your Lordships' observations on other matters which were only briefly canvassed at the hearing of the appeal, I regret that in my view there is room for argument as to the proper interpretation of the common law and statutory rules under which witnesses' prior statements are routinely deployed in criminal trials in Scotland.

[28] As regards section 263(4) of the 1995 Act, I would respectfully agree with your Lordship in the chair (at paragraphs [2] and [3] above) that this provision, like its statutory predecessors, permits a witness to be examined about the terms of a statement apparently inconsistent with his evidence in court "... with a view to either eliciting the truth or discrediting him" (emphasis added). On any view the prior statement is available as a check on the credibility and/or reliability of such direct evidence as may have been given from the witness box. If, however, the witness is at some point prepared to agree (i) that the statement in question was in fact made, and (ii) that it was the truth as then perceived, then there would seem to be no obstacle to the statement then being treated as part of the witness's substantive evidence in court. Precise terminology is not, I think, of critical importance here. The prior statement may be said to be "adopted" (cf. counsel's submission in Jamieson (No. 2) at p.616D/E; Renton and Brown, Criminal Procedure, 6^th ed., at paras 24-138 and 24‑142, describing the situation in the same case; and the report of the trial judge in Lyttle v HM Advocate 2003 SCCR 713, recorded at para 24). Alternatively the concept of "incorporation" may be used, (cf. the opinion of the court in Jamieson (No. 2) at p.618F/G). The point is simply that, with an appropriate degree of endorsement by the witness concerned, the prior statement may become "... evidence the jury is entitled to take into account" (cf. the opinion of the court in Lyttle at paras 26 and 27).

[29] Like your Lordship in the chair, however, I deprecate the (regrettably common) practice whereby prosecutors, in evidence-in-chief, seek to take a witness more or less directly to what he or she may have said to others in the past. The absolute minimum requirement for reliance on section 263(4) of the 1995 Act is that the witness should already have given evidence to some identifiable effect in court. Thereafter, the value of the statutory provision is that it renders admissible any evidence of a prior statement, whether verbal or written, which differs from what the witness has already said in the witness box. At the very least, evidence properly accessed from third parties under the second limb of section 263(4) is admissible hearsay because the statute says so. But at the initial stage of a prior inconsistent statement being raised with the witness concerned, no issue of hearsay arises. What the witness may say is first-hand primary evidence as to what he or she did or did not do, or said or did not say, at some prior date. With respect to the observations in Lord Marnoch's concluding paragraph, this is "... parole evidence given under oath from the witness box". And if the witness accepts, when asked, that a given statement was in fact made, or (perhaps in the case of a police statement signed on every page) that it must have been made, then there is to my mind no need for the making of the statement to be otherwise established by evidence from a police officer or any other recipient. The evidence of the witness alone may, in other words, be sufficient to establish both the making and the terms of the statement concerned.

[30] On the other hand, if a witness denies having made a particular statement in the past, or claims not to recall whether things were said or not, then the second limb of section 263(4) ― perhaps in tandem with section 269(1)(b) ― permits a police officer or other recipient to give evidence in due course as to what was actually said. Even there, the recipient's evidence of fact is primary evidence and not hearsay, as was noted by the Lord Justice Clerk (Grant) in Muldoon at p.36 and by the Lord Justice General (Hope) in Jamieson(No. 2) at p.618E.

[31] In most cases, the real issue is not whether certain things were previously said, but whether or not the witness is prepared to accept that they were true. Sometimes a co-operative witness will agree without qualification that something previously said was true, or was the truth as then perceived, and in such circumstances I do not understand your Lordships to dispute that, quantum valeat, the witness can be said to have adopted or incorporated or endorsed the prior statement as part of his or her evidence in court. To my mind there is no reason why similar considerations should not apply where the witness's formulation is that, at the material time, he or she "must have been telling the truth" (as in Jamieson (No. 2), or was "doing their best to tell the truth", or "trying to tell the truth". If a witness in the witness box were to volunteer any of these things in support of current oral testimony at the trial itself, then that would simply form part of the wider evidential picture for the jury to assess. Logically it should not matter that the same level of endorsement is applied to things which a witness acknowledges having said in the past.

[32] Importantly there is no need for adoption, incorporation or endorsement to come in place of any other evidence given by the witness in court, nor for the statement in question to represent the witness's whole evidence on a given topic. Following incorporation, a prior statement forms only part of the witness's evidence, and it is by no means uncommon that other parts may be to a different effect. In every case, as it seems to me, it is for the jury to assess whether the degree of endorsement of a prior statement has been sufficient, and if satisfied on that score to judge the relative weight which the statement truly deserves. In the hypothetical situation figured by your Lordship in the chair at para [21], for example, a jury might very well disbelieve the witness's assertion of clearer memory by the date of the trial, and set greater store by what they regard as an acknowledgement, elsewhere in his evidence, of the truth of a different account given to the police much nearer the time. As recognised in the case of David Anderson Hughes in 2010, the point is simply that these are questions of fact within the province of the jury, and in my view it is not for the court to dictate whether the acknowledgement or the assertion (or neither of them) should be accepted or relied on.

[33] In such circumstances the jury need only be directed on two things, namely (i) that if they think that at some point any witness's prior statement has been sufficiently acknowledged as representing the truth, then its contents become part of that witness's substantive evidence which it is open to them to accept or reject; and (ii) that failing such adoption or incorporation the only value of a witness's prior statement is as a check or comparison to help the jury decide on the credibility and reliability of whatever direct evidence has actually been given from the witness box. With great respect to those who have suggested otherwise in the past, the intentions of the party eliciting details of a prior statement would seem to be of no relevance by this stage of a trial: it is the resulting evidence which the jury will have to assess, and on which appropriate directions may be required.

[34] So far as the decision in Jamieson (No. 2) is concerned, I have for my part always seen it as confirming the breadth of the principle under which a witness's prior statement may become part of his or her substantive evidence in court. Admittedly, that case actually concerned the position of a witness who professed to remember nothing, while at the same time bearing to accept that particular things, if said to the police in the past, "... must have been the truth". As it seems to me, however, there is nothing in the opinion of the court to limit the underlying principle to that narrow circumstance. If "incorporation" can be achieved by a witness claiming not to remember what she had previously said to the police, it would be wholly illogical to exclude it in the case of someone whose memory as to the making and terms of a prior statement remains clear. In Jamieson (No. 2), under reference to the previous case of McClure v McLeod 1987 SCCR 274, the appellant's position was that there would have been no problem if the witness in question had been prepared to agree that particular things were in fact said to the police at the time.

[35] With these considerations in mind, I regret that I am unable to support (a) the last two "requirements" for incorporation as listed by your Lordship in the chair in the penultimate sentence of paragraph [4]; or (b) the suggestion in paragraph [11] that in this case "... the evidence of each witness was what that witness was able to recollect in the witness box, including what they had been prompted to remember by reference to their statements".

[36] Turning to section 260 of the 1995 Act, subsections (1) and (2) ex facie bear to legitimise the adoption of virtually any prior statement so long as it is contained in a document. The phrase "contained in" shows that any part of a document may be covered, and section 260(4) confirms that, in general, authentication is not required. As defined in section 262(1), the term "statement" includes (a) any representation, however made or expressed, of fact or opinion, and (b) any part of a statement, except as may be contained in a precognition. By virtue of section 262(3), moreover, a "document" need not be in writing, but additionally includes graphic representations and both visual and sound recordings.

[37] Judging by the terms of section 260(3), these provisions were collectively designed to supplement the pre-existing law rather than supersede it. A significant feature, however, is that, only one year after the important ruling in Jamieson (No. 2), very similar terminology was used by the parliamentary draughtsman in subsection (2). With the greatest of respect to the court which decided the earlier case of Sean Stephen Hughes (2009 SLT 325), I am inclined to wonder why, as between 1994 and 1995, that terminology should suddenly have acquired a new and markedly restricted meaning. Parliament might, for example, simply have been concerned at the prospect of Jamieson (No. 2) being interpreted too narrowly, and as restricting the potential for "adoption" to cases of genuine amnesia alone. There might equally have been a desire to facilitate recourse to witnesses' prior consistent statements, the general inadmissibility of which had recently been affirmed in Coyle v HM Advocate 1994 SLT 1333, in parallel with the inconsistent statements already accessible under section 263(4). In any event it strikes me that the simplest, and perhaps most plausible, reading of section 260 is that it was designed to relax any supposed limitation on the "adoption" principle quoad any prior statement contained in a document as defined in section 262. Such a reading would ensure, not only a worthwhile link between witness and statement, but also the ready ascertainment of what was actually said.

[38] Of some significance in this context is the fact that, in common with the related definitions, section 260 had its origins in the Scottish Law Commission's 'Report on Hearsay Evidence in Criminal Proceedings' published in 1995 (SLC No. 149). Part VII of that report makes it clear that, in recommending legislation in these terms, the Commission did not necessarily have in mind anything more formal than the sort of "adoption" which had been approved in Jamieson (No. 2). On the contrary, the avowed intention was simply to relax those rules of evidence which, sometimes arbitrarily, led to different results in comparable cases, and to encourage greater reliance on what was seen as "the principle" in Jamieson (No. 2). The substance of the Commission's draft bill was thereupon enacted as sections 17, 18 and 20 of the Criminal Justice (Scotland) Act 1995, with much of section 19 (concerning prior statements by a co-accused) being added during the passage of the legislation through Parliament. These provisions then re-emerged, later in the same year, as sections 259 to 262 of the present Act. The immediate predecessor of section 260 was section 18 of the earlier statute.

[39] The tenor of the Commission's approach may, I think, be seen from the following quoted excerpts:

"... in this Report we shall recommend that the ratio of Jamieson v HM Advocate (No. 2) should be embodied in legislation as to the admissibility of prior statements contained in documents [para 7.8]

In the Discussion Paper we noted that it might seem anomalous that the prior statement of a witness might be admissible as evidence of fact if it related to a prior identification of an accused under certain circumstances, but could not be evidence of fact if it dealt with other matters. We suggested that there was no reason in principle why a prior inconsistent statement should be admissible as evidence of fact in some circumstances but not in others ... [para 7.10]

... if a witness finds it difficult to give evidence in court ― whether because his or her memory of events is no longer accurate, or because he or she is under considerable stress due to the grossly unpleasant or embarrassing nature of the evidence, or for any other reason ― a prior statement by him or her should be admissible provided that, as in Jamieson v HM Advocate (No. 2) the witness accepts that he or she made a statement and adopts it as his or her evidence. The kinds of statements to which our recommendation refers are statements which are contained in documents. Here ..., we think, difficulties would be removed and information which is of sufficient importance to be worthy of consideration by the jury would be clearly admissible. [para 7.15].

In each case the effect of our recommendations is that the prior statement would be no more than an admissible item of evidence for the jury's consideration. The witness could be examined and cross-examined as to the truth of its contents and the circumstances in which it was made, and contradictory evidence could be led about the matters dealt with in the statement. [para 7.16].

Our recommendations are intended only to widen the range of statements which are admissible as evidence of matters contained in them: they are not intended to render inadmissible any prior statements which are admissible under the present law ... [para 7.17].

We intend that our recommendations should apply to either a part or the whole of a prior statement, and that 'statement' should have the same meaning as in Part V. ... Our object, as we have said, is to modify the extent to which the hearsay rule prohibits the admission of relevant evidence. [para 7.20].

The rule recently laid down by the High Court in Jamieson (No. 2), to which we have already referred, assists a witness who has made a prior statement concerning a matter about which he is required to give evidence. If at the trial he is unable to give evidence about the subject matter of the statement but is able to say that what he then said was the truth, he thereby incorporates the statement into his testimony, and evidence of what he then said may be led. We consider this to be a most welcome development of the law. [para 7.41].

The giving of evidence should not be a test of memory, and still less should it be a cause of acute emotional distress, if that can be prevented by rational means. It is equally important that where a witness cannot give evidence for such reasons, the jury should not be denied access to an account of what the witness would agree that he said on a previous occasion. [para 7.42].

We do not seek to modify in any way the ratio of Jamieson. As we have already indicated, we intend that in the event of the implementation of our recommendations in this Report any evidence which is admissible under the present law should continue to be admissible. All that we propose to do here is to encourage resort to the principle of Jamieson when a witness's prior statement is contained in a document. ... [para 7.43].

... A requirement that the record of the statement should be absolutely accurate and complete would impose an impracticably high standard even in the context of evidence in criminal cases, where the law imposes exacting standards in the proof of guilt. The witness's statement in the policeman's notebook is not usually a verbatim record of exactly what was said: the statement is usually elicited, at least in part, by questions put to the witness by the officer, and what the witness says may be to some extent repetitive or irrelevant. The officer, however, writes down the substance of what the witness has to say, excluding any questions of his own and any repetitious or irrelevant matter. We do not think that such a statement, conscientiously taken by a responsible officer from an honest witness, should be excluded because it does not 'accurately and completely' record everything the witness said. [para 7.46].

The second (recommended condition) is that the witness must acknowledge that he made the statement and must adopt it as his evidence. This condition is intended to reflect the principle in Jamieson ... We do not think it should be necessary, however, for him to indicate that the particular contents of the statement are true. If he were able to confirm that the whole of its contents were true, that would be most satisfactory. But a witness who had forgotten some of the facts recorded in the statement would be unable to swear that these facts were true. All that he could say was that when he gave the statement he was telling the truth and that he accepts, or has no reason to doubt, that the statement in the document is a record of what he said. It seems to us to be only sensible that a witness in that position should be entitled to adopt the statement as his evidence, that is, to say in effect that he incorporates the contents of the statement in his evidence. ... [para 7.47]."

[40] For present purposes, as noted by your Lordship in the chair at para [21], it is unnecessary to consider whether the liberal approach discussed above can be reconciled with the remarks which were made ― apparently without reference to the Commission's report ― in the case of Sean Stephen Hughes in 2009. For my own part I would not wish to endorse an unduly restrictive interpretation of section 260, but beyond making that point I am content for the issues arising to be reserved for reconsideration at some future date.

[41] My overall inclination is to favour a broad and flexible approach, not only to the decision in Jamieson (No. 2), but also to sections 260 and 263 of the Act. Where, as is all too often the case, reluctant witnesses go to extreme lengths in an attempt to avoid disclosing what they know, there is in my view every reason why jurors, familiar with human nature, should be entitled to attach weight to what such witnesses may, however briefly, be prepared to accept having said at a time when they were (again on their own admission) doing their best to tell the truth. In some cases that may be the closest a witness comes to an account consistent with his or her oath, and in my judgment it would be a matter of real concern if, on unnecessarily restrictive grounds, the scope for allowing juries to assess, and perhaps accept, flashes of what may be the real truth were to be cut down to any degree. It must, in the end, be for the jury to determine whether a prior statement has been sufficiently "adopted" so as to become part of the substantive evidence in the case.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Emslie Lord Marnoch	[2012] HCJAC 29 Appeal No: XC829/10 OPINION OF LORD MARNOCH in NOTE OF APPEAL AGAINST CONVICTION by "A" Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Paterson, Solicitor Advocate; Paterson Bell

Respondent: McSporran, A.D.; Crown Agent

[42] I agree that this appeal should be allowed on the basis of misdirection by the trial judge on the matter of how the jury should have approached the references made in the course of the evidence to prior statements made by witnesses to the police.

[43] In this connection, however, I do not consider that in the circumstances of this case, as described by the trial judge, there was any room whatsoever for recourse to the provisions of section 260 of the Criminal Procedure (Scotland) Act 1995. For my part, I adhere to what was said by this court (Lord Eassie, Lord Mackay of Drumadoon and myself) in Sean Stephen Hughes v HM Advocate 2009 SLT 325 where, after pointing out that section 260 was clearly dealing with circumstances quite different from those envisaged in Jamieson v HM Advocate (No. 2), the following passage appears in paras. [12] and [13]:-

"Now is not the time to attempt an exhaustive exegesis, but the concept of 'adoption' at least suggests a considered and deliberate act on the part of the witness and perhaps even an element of formality. It is, after all, apparent from section 260(2)(a) that the statement in question must be contained in a document and, as became manifest in the present case, the meaning of 'adoption' is not, without further explanation, readily apparent to a lay witness. Statements containing technical evidence are obvious candidates for treatment under this section and perhaps, also, statements made to the police with the stated objective that the witness will wish to rely on them when giving evidence. But further experience will doubtless throw up other possible applications.

Before parting with this case we take the opportunity of emphasising yet again that the starting point in all criminal trials in Scotland remains parole evidence. To put a written statement before a witness for the purpose of leading him in chief is clearly unacceptable and before, therefore, reference is made to any written statement the purpose of doing so should be clear, whether it be a challenge under section 263(4) of the 1995 Act, an intention to invoke Jamieson (No 2) or, as we hope we have just made clear, an invocation of the discrete provisions of section 260."

[44] As to what is meant by "adoption" I do not at this point wish to add anything substantively to what was said in Hughes. Suffice to say, however, that, whatever may be its precise ambit within the context of section 260, it cannot, in my opinion, mean anything less than an unambiguous acceptance by the witness that the statement in question can be taken to be his evidence given under oath from the witness box. This, I believe, was what was meant by the Lord Justice Clerk when, at para. [12] of his opinion in Niblock v HM Advocate, he referred to one of the preconditions of section 260 being the "outright adoption of his [the witness'] police statement". Nor, in my opinion, is there anything in the Scottish Law Commission's Report referred to by Lord Emslie which clearly indicates the possibility of any different approach. The Commission does certainly examine various ways in which "adoption" may be effected but I take leave to doubt that it was at any point contemplated that the contents of a prior statement could be regarded as "adopted" where the truth or accuracy of such contents is disputed by the witness in the witness box. This is not to say, however, that the type of evidence described by Lord Emslie could not be admissible in the course of questioning initiated under section 263(4) of the 1995 Act. Anything a witness says in that situation becomes, quite simply, a part of his evidence which the jury can accept or reject. But, for my part, I see that process as being quite distinct from that of "adoption" as discussed in Jamieson (No. 2) cit. sup.

[45] In short, if, as I think, parole evidence given under oath from the witness box does remain central to our system of criminal justice, it will not do, least of all for reasons of expediency, to introduce what is truly "hearsay" by giving to "adoption" some extended or artificial meaning which, most particularly in the context of evidence led in a criminal trial, it, in my opinion, simply will not bear.