Criminal Procedure (Scotland) Act 1975

346 Accused and spouse competent witnesses for defence. S

[F1 (1)] The accused . . . F2 shall be [F3 a competent witness] for the defence at every stage of the case, whether the accused is on trial alone or along with a co-accused:

Provided that—

(a) the accused shall not be called as a witness in pursuance of this section except upon his own application [F4 or in accordance with subsection (2) or (3) below];

(b) the failure of the accused . . . F2 to give evidence shall not be commented upon by the prosecution;

(c), (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F5

(e) the accused who gives evidence on his own behalf in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged;

(f) the accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless—

(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or

(ii) the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establish the accused’s good character, or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution; or

(iii) the accused has given evidence against any other person charged [F6 in the same proceedings];

(g) every person called as a witness in pursuance of this section . . . F2 shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.

[F7 (2) The accused may—

(a) with the consent of a co-accused, call that other accused as a witness on the accused’s behalf; or

(b) ask a co-accused any question in cross-examination if that co-accused gives evidence,

but he may not do both in relation to the same co-accused.

(3) The prosecutor or the accused may call as a witness a co-accused who has pleaded guilty to [F8 or been acquitted of] all charges against him which remain before the court (whether or not [F9 in a case where the co-accused has pleaded guilty to any charge,] he has been sentenced) [F10 or in respect of whom the diet has been deserted]; and the party calling such co-accused as a witness shall not require to give notice thereof, but the court may grant any other party such adjournment or postponement of the trial as may seem just.]

Textual Amendments

F1 S. 338(2)–(4) inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 17, Sch. 6 para. 1

F2 Words substituted by virtue of Criminal Procedure (Scotland) 1975 (c. 21, SIF 39:1), s. 289G

F3 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 7 para. 56

F4 Words in s. 338(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 120; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F5 S. 346(1) proviso paras. (c)(d) repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 8

F6 Words in s. 339 substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 121; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F7 S. 346(2)(3) added by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 28(c), Sch. 6 para. 1

F8 Words in s. 79(1) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 31; S.I 1996/517, arts. 3(2), 4-6, Sch. 2

F9 S. 80 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 4 para. 9, Sch. 6 para. 1

F10 Words in s. 80(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 32; S.I 1996/517, arts. 3(2), 4-6, Sch. 2