The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 21: WITNESS STATEMENTS
21.1 We have referred at various points in this report to our view that in order to secure the swifter disposal of summary business it is important that the Crown and the defence are able to judge the strength of a case and in particular the evidence that a particular witness might give at trial (see, in particular, chapter 14). Only in this way are both sides able to judge whether to pursue or contest aspects of the complaint and thus avoid unnecessary, or longer than necessary, trials with the attendant cost to the system and to witnesses. In this context a signed witness statement taken as soon as possible after the events witnessed is clearly likely to be particularly valuable.
21.2 Such signed witness statements are not routinely produced for summary cases in Scotland. However, it is normal practice in England and Wales for signed witness statements to be taken by police either at the scene or soon afterwards and for these statements to be made available to the defence and to the court. We have given serious consideration to whether we should recommend that the police in Scotland do likewise.
21.3 ACPOS and other police organisations were firmly of the view that routinely gathering such witness statements would be a very labour intensive process and would not be the best use of police time, particularly in cases which are not likely for one reason or another to result in a trial, e.g. because they are likely to be dealt with by the offer of a fiscal fine. We note there are ongoing discussions on this subject between the police and COPFS and are aware that signed witness statements are sometimes produced in cases prosecuted on indictment. We are sympathetic to the view that requiring police officers to complete more paperwork, especially in cases that are unlikely to proceed to trial, is not a sensible use of resources. Nevertheless, given the potential advantages to be derived from doing so we recommend that for all cases in which a not guilty plea has been tendered and a summary trial has been fixed, full signed witness statements should be prepared by the police, if they have not been prepared earlier.
21.4 We recommend that section 258 of the 1995 Act, which deals with uncontroversial evidence, be clarified to ensure that the Crown and the defence may serve a statement (of the kind referred to in that section) relating to the signed witness statements of witnesses whose evidence is considered unlikely to be disputed. If that statement is not challenged within seven days of service the facts specified are deemed to have been conclusively proved. If signed statements of witnesses were to be included, the absence of a challenge should, we think, lead to the witness statement being admissible and being read to the court as the evidence of the witness concerned.
21.5 We note that the Criminal Justice Act 1967, section 9 (which applies to England and Wales) provides that a written statement by any person shall "be admissible as evidence to the like extent as oral evidence to the like effect by that person", if certain conditions are satisfied. These conditions are that: the statement purports to be signed by the person who made it; the statement contains a declaration by that person to the effect that it is true to the best of his or her knowledge and belief and that he or she made the statement knowing that, if it were tendered in evidence, he or she would be liable to prosecution if he or she wilfully stated in it anything which he or she knew to be false or did not believe to be true. Such a statement which has been admitted in evidence will usually be read aloud in full at the trial but may, if the court so directs, be summarised in open court. We envisage that conditions similar to those would require to be prescribed for Scotland.
21.6 We recommend that witness statements, which have been written by the witness or which have been read over by (or to) the witness and signed by him or her, should be admissible as proof of their contents. That should be so when the evidence has been agreed by the parties as at present, when unchallenged in terms of section 258 of the 1995 Act revised as proposed or, as discussed in the previous chapter, when the court, at the intermediate diet, has directed that such evidence is uncontroversial and that the witness is not required to attend court to give oral evidence. In any of these circumstances it should be competent for the Crown or the defence to read such statements to the court in lieu of oral evidence.
21.7 The Committee realises that treating a signed witness statement as admissible evidence, which may take the place of the oral evidence of that witness, will necessitate an amendment to the law of evidence and a departure from the principles underlying the rules on hearsay and "best evidence". It is well known that the law in this area evolved many years ago as a result of the accusatorial nature of the criminal trial of the 17th and 18th centuries and it is often argued that in many respects these historical rules are no longer justified by present circumstances. 52 That is why, following a review by the Scottish Law Commission, statements in "business documents" were rendered admissible in the 1995 Act. 53 Similarly, the rule against hearsay evidence has virtually been abolished in civil proofs and has been already been qualified in some respects in criminal procedure. 54 The reform suggested by the Committee would simply represent another step in the modernisation of the criminal justice system. 55
21.8 It is certainly arguable that a statement given by a witness shortly after the relevant events is more likely to be an accurate account of those events than his or her oral testimony in the witness box usually at least several months later. There is a risk, of course, that such evidence may have been misinterpreted or manufactured by the person taking the statement. Primarily for this reason, the Scottish Law Commission did not favour making such statements generally admissible as evidence at trial, 56 despite its initial view that the English position should be adopted. 57 In our view, however, a limited judicial discretion in certain circumstances, as recommended in the preceding chapter, to direct that non-contentious statements are admissible, along with the right of the other party to cite the witness to trial, provides sufficient safeguards against this danger. The problem should also be minimised as a result of the requirement that such statements must be signed by the witness who would, in effect, certify that he or she signed it knowing that a false statement would be likely to lead to prosecution. Further, this risk is clearly less significant in modern times, when such statements are taken by trained police officers, than it was at the time of the formulation of the rules, when evidence about what a witness was alleged to have said would normally have come from one of the protagonists to the dispute, in most cases the victim or complainer, who clearly would have had a strong motive to misinterpret or manufacture such evidence.
21.9 It might be objected that this reform would offend against the principle that all testimony should be subjected to cross examination in order to test its truth and accuracy (and, hence, Article 6(3)(d) of the ECHR) but, as explained in the previous chapter (paras 20.28 - 20.29), it will always be open to either side, in practice usually the defence, to cite the witness for trial. To recap, if the prosecution claim that the evidence of a particular witness is uncontroversial but the defence disagree, it will be for the judge at the intermediate diet to determine whether the evidence is indeed uncontroversial. The fact that the judge plays an active part in this process should also help allay the concerns of the Scottish Law Commission, who clearly did not envisage this possibility because of their adherence to a model of judicial passivity, 58 which we do not favour (see chapter 26 on the role of the bench). If the judge rules in favour of the prosecution, the signed statement of the witness will be admissible as proof of its contents as part of the prosecution case but it will still be open to the defence to cite that witness to trial. In such an event, the statement of the witness remains admissible and will form part of the prosecution case and, if the witness departs from its terms in his or her oral testimony when being examined by the defence, it will be for the court to weigh up both accounts and determine where the truth of the matter lies.
21.10 As we have already described in relation to the conduct of intermediate diets, copies of signed witness statements should be made available to the defence 7 days in advance of the intermediate diet, where the accused is in custody, and 14 days in advance where the accused is at liberty. The timetables in sections 258, 280 and 281 of the Act, which allow notices of uncontroversial or routine evidence to be served up to 14 days before the trial diet, should be amended to reflect this new timetable and the emphasis now placed on resolving evidential issues at the intermediate diet.
21.11 Many defence solicitors to whom we spoke, while supportive of the proposal to produce signed witness statements, told us that they would wish to retain the right to precognosce witnesses. We recognise that, certainly at the outset of any new arrangements, there will continue to be a wish to test the accuracy of witness statements as a guide to the evidence which that witness might give. However, in the longer term, we would hope that the need for precognition of witnesses on behalf of the Crown and each of the accused in a particular case would greatly diminish. We were told that many witnesses find precognition to be an uncomfortable part of the process, especially when they are approached separately on behalf of one or more accused as well as the Crown. We do not have any specific recommendations to make on the multiple precognition of witnesses.
We recommend that for all cases in which a summary trial has been fixed full signed witness statements should be prepared by the police.
We recommend that section 258 of the 1995 Act be clarified to confirm that the Crown and the defence may serve a signed statement (of the kind referred to in that section) relating to the signed witness statements of witnesses whose evidence is considered unlikely to be disputed and that unchallenged witness statements should be the evidence of the witnesses concerned.
We recommend that similar provision be made to deal with other types of non-contentious evidence; for example, the provisions for routine evidence in sections 280 and 281 of the 1995 Act.
We recommend that the time limits in sections 258, 280, 281, etc. for the service of a notice of uncontroversial evidence or routine evidence of 14 days before trial be changed to 7 days before the intermediate diet where the accused is in custody and 14 days where he or she is not.
We recommend that conditions be prescribed which, if satisfied, would make a signed witness statement potentially admissible in evidence.
We recommend that a statement made by a witness to a police officer which is recorded verbatim and read over to the witness and signed by him or her should be admissible in court without being spoken to by a witness where it is agreed between the parties that the statement shall be the evidence of that witness, where such a statement has not been challenged under section 258 procedure revised as proposed, or where, having heard both parties, the court has directed at the intermediate diet that the statement shall be admissible evidence in the case. Such statements should be read aloud to the court in the course of a trial as admissible evidence of the facts to which the witness attests.