Precognitions and Statements: Forgetting what you thought you knew.

In Beurskens v HM Advocate [2014] HCJAC 99, the Appeal Court provided an important lesson for criminal lawyers – what you think you know is not always correct.  In this case, the Court considered the use of precognitions in relation to an application under Section 259 of the 1995 Act before deciding that, contrary to the previously-held view, precognitions can sometimes be statements.

As most of you will know, the use of prior statements in criminal trials has, since the advent of disclosure, become a regular feature. For the uninitiated a statement, normally a signed document obtained by the police in the investigation of a crime, can be used in a number of ways: –

  1. As an attack on the credibility or reliability of a witness – on the basis that the statement is inconsistent with the witness’ evidence in court;
  2. As a means of jogging the memory of a forgetful witness; and,
  3. As a substitute for parole evidence where the witness is unable or unwilling to give evidence in court (with leave of the court under Section 259.)

There is one further important purpose for which a statement can be used.  Where a witness, who may be forgetful or uncooperative, gives parole evidence accepting that the statement is both accurate and true the jury may consider that the statement has been adopted by the witness as part of their evidence.

Statements are, therefore, significant in the conduct of criminal trials. Precognitions, on the other hand, were not admissible in the same way. There were a number of reasons for this; that the precognition was obtained after the investigative procedure; it tended to be slanted toward the party which requested the precognition and did not always contain a full recollection of all relevant matters; it was filtered through the mind of another and was often not the words of the witness; and, there may be issues of confidentiality relating to the source of the precognition. Section 262 of the 1995 Act specifically drew a distinct line between precognitions and statements for the purposes of admitting hearsay evidence under Sections 259-263.  Put shortly, statements are admissible in the circumstances set out above.  Precognitions are not.

However, the judgement in Beurskins, delivered by the Lord-Justice Clerk, blurs the distinction between a precognition and statement. There may now be circumstances in which a document, which previously was considered a precognition, falls to be treated as a statement. The Lord Justice-Clerk’s reasoned that the overriding consideration for the admissibility of evidence ought to be fairness.

“Unless the court considers that the jury could not rely on the content of the statement/precognition as accurately recording what the witness actually said, because of the circumstances in which it was taken, it ought to be admitted in evidence for all competent purposes.  Under modern practice, where a signed document is involved, such a document should be available as a “statement” in terms of the 1995 Act, notwithstanding the stage at which it chanced to be recorded and signed.  Where there is such a signature, or indeed where what was said has been recorded electronically, the fact that the process in which the statement was emitted was one of precognition is of less significance than previously, so far as the competency of the statement as evidence is concerned.  Even if what was taken was originally a precognition, it takes on a different character altogether once it is read over to the witness and the witness acknowledges its truth by signing it…” (Lord-Justice Clerk paragraph [28].)

As Lord Marnoch pointed out in his dissenting judgement, this reasoning sits uneasily with the statutory provision contained in Section 262:-

“Moreover, as was pointed out by the court in HM Advocate v McSween, Section 262(1) of the 1995 Act recognises the special status of precognitions, not only for the purpose of excluding their use as hearsay but also in regard to the adoption of statements as part of the sworn testimony of a witness.  The court was further of opinion that the exclusion of their use to discredit a witness had been decided in McNeilie v HM Advocate 1929 JC 53 and had been regarded as settled law by the Thomson Committee (Cmnd 6218) at para 17.05.” (Lord Marnoch paragraph [45].)

In other words, Parliament when it enacted Sections 259-263 of the 1995 Act knew what a precognition was. The Court’s decision in Beurskens moves the goalposts. What was previously considered to be a precognition, indeed what might still be called a precognition, may actually be a statement for the purposes of Section 259-263.

For the practitioner it means at least two things: (1) Crown precognitions are potentially admissible as evidence against an accused person and should be disclosed; and (2) Defence precognitions, especially if read over and signed by the witness may also be admissible.