Criminal Procedure (Scotland) Act 1995

259 Exceptions to the rule that hearsay evidence is inadmissible. S

(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied—

(a) that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in [F1 subsection (2)] [F1 subsection (2) or (2A)] below;

(b) that evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it;

(c) that the person who made the statement would have been, at the time the statement was made, a competent witness in such proceedings; and

(d) that there is evidence which would entitle a jury properly directed, or in summary proceedings would entitle the judge, to find that the statement was made and that either—

(i) it is contained in a document; or

(ii) a person who gave oral evidence in the proceedings as to the statement has direct personal knowledge of the making of the statement.

(2) The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement—

(a) is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;

(b) is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;

(c) is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;

(d) having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or

(e) is called as a witness and either—

(i) refuses to take the oath or affirmation; or

(ii) having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement refuses to do so,

and in the application of this paragraph to a child, the reference to a witness refusing to take the oath or affirmation or, as the case may be, to having been sworn shall be construed as a reference to a child who has refused to accept an admonition to tell the truth or, having been so admonished, refuses to give evidence as mentioned above.

[F2 (2A) The reasons referred to in paragraph (a) of subsection (1) also include that—

(a) to have the person who made the statement physically attend the trial would give rise to a particular risk—

(i) to the person's wellbeing attributable to coronavirus, or

(ii) of transmitting coronavirus to others, and

(b) it is not reasonably practicable for the person to give the evidence in any other competent manner.]

(3) Evidence of a statement shall not be admissible by virtue of subsection (1) above where the judge is satisfied that the occurrence of any of the circumstances mentioned in paragraphs (a) to (e) of subsection (2) [F3 or in subsection (2A)] above, by virtue of which the statement would otherwise be admissible, is caused by—

(a) the person in support of whose case the evidence would be given; or

(b) any other person acting on his behalf,

for the purpose of securing that the person who made the statement does not give evidence for the purposes of the proceedings either at all or in connection with the subject matter of the statement.

(4) Where in any proceedings evidence of a statement made by any person is admitted by reference to any of the reasons mentioned in paragraphs (a) to (c) and (e)(i) of subsection (2) [F4 or in subsection (2A)] above—

(a) any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;

(b) evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and

(c) evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.

(5) Subject to subsection (6) below, where a party intends to apply to have evidence of a statement admitted by virtue of subsection (1) above he shall, [F5 by the relevant time], give notice in writing of—

(a) that fact;

(b) the witnesses and productions to be adduced in connection with such evidence; and

(c) such other matters as may be prescribed by Act of Adjournal,

to every other party to the proceedings and, for the purposes of this subsection, such evidence may be led notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.

[F6 (5A) In subsection (5) above, “the relevant time” means—

(a) in the case of proceedings in the High Court—

(i) not less than 7 days before the preliminary hearing; or

(ii) such later time, before the trial diet, as the judge may on cause shown allow;

(b) in any other case, before the trial diet.]

(6) A party shall not be required to give notice as mentioned in subsection (5) above where—

(a) the grounds for seeking to have evidence of a statement admitted are as mentioned in paragraph (d) or (e) of subsection (2) above; or

(b) he satisfies the judge that there was good reason for not giving such notice.

(7) If no other party to the proceedings objects to the admission of evidence of a statement by virtue of subsection (1) above, the evidence shall be admitted without the judge requiring to be satisfied as mentioned in that subsection.

(8) For the purposes of the determination of any matter upon which the judge is required to be satisfied under subsection (1) above—

(a) except to the extent that any other party to the proceedings challenges them and insists in such challenge, it shall be presumed that the circumstances are as stated by the party seeking to introduce evidence of the statement; and

(b) where such a challenge is insisted in, the judge shall determine the matter on the balance of probabilities, and he may draw any reasonable inference—

(i) from the circumstances in which the statement was made or otherwise came into being; or

(ii) from any other circumstances, including, where the statement is contained in a document, the form and contents of the document.

(9) Where evidence of a statement has been admitted by virtue of subsection (1) above on the application of one party to the proceedings, without prejudice to anything in any enactment or rule of law, the judge may permit any party to lead additional evidence of such description as the judge may specify, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.

(10) Any reference in subsections (5), (6) and (9) above to evidence shall include a reference to evidence led in connection with any determination required to be made for the purposes of subsection (1) above.

[F7 (11) In subsection (2A), “coronavirus” has the meaning given by section 1 of the Coronavirus (Scotland) Act 2020.]

Textual Amendments

F1 Words in s. 259(1)(a) substituted (temp.) (7.4.2020) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 4 para. 11(2)(a) (with ss. 11-13) (which affecting provision expires (30.9.2021 at the end of the day) by virtue of Coronavirus (Extension and Expiry) (Scotland) Act 2021 (asp 19), ss. 2(1)(4)(a), 11(2) (with savings in S.S.I. 2021/280, regs. 1, 2))

F2 S. 259(2A) inserted (temp.) (7.4.2020) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 4 para. 11(2)(b) (with ss. 11-13) (which affecting provision expires (30.9.2021 at the end of the day) by virtue of Coronavirus (Extension and Expiry) (Scotland) Act 2021 (asp 19), ss. 2(1)(4)(a), 11(2) (with savings in S.S.I. 2021/280, regs. 1, 2))

F3 Words in s. 259(3) inserted (temp.) (7.4.2020) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 4 para. 11(2)(c) (with ss. 11-13) (which affecting provision expires (30.9.2021 at the end of the day) by virtue of Coronavirus (Extension and Expiry) (Scotland) Act 2021 (asp 19), ss. 2(1)(4)(a), 11(2) (with savings in S.S.I. 2021/280, regs. 1, 2))

F4 Words in s. 259(4) inserted (temp.) (7.4.2020) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 4 para. 11(2)(d) (with ss. 11-13) (which affecting provision expires (30.9.2021 at the end of the day) by virtue of Coronavirus (Extension and Expiry) (Scotland) Act 2021 (asp 19), ss. 2(1)(4)(a), 11(2) (with savings in S.S.I. 2021/280, regs. 1, 2))

F5 Words in s. 259(5) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 42(a); S.S.I. 2004/405, art. 2, Sch. 1 (with savings in arts. 3-5)

F6 S. 259(5A) inserted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 42(b); S.S.I. 2004/405, art. 2, Sch. 1 (with savings in arts. 3-5)

F7 S. 259(11) inserted (temp.) (7.4.2020) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 4 para. 11(2)(e) (with ss. 11-13) (which affecting provision expires (30.9.2021 at the end of the day) by virtue of Coronavirus (Extension and Expiry) (Scotland) Act 2021 (asp 19), ss. 2(1)(4)(a), 11(2) (with savings in S.S.I. 2021/280, regs. 1, 2))

Modifications etc. (not altering text)

C1 Ss. 259-261 excluded (1.4.1996) by 1995 c. 40, ss. 3, 7(2), Sch. 3 Pt. II para. 14