- Latest available (Revised)
- Point in Time (07/04/2020)
- Original (As enacted)
Version Superseded: 30/09/2021
Point in time view as at 07/04/2020.
Criminal Procedure (Scotland) Act 1995, Cross Heading: Hearsay is up to date with all changes known to be in force on or before 12 September 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Changes and effects yet to be applied by the editorial team are only applicable when viewing the latest version or prospective version of legislation. They are therefore not accessible when viewing legislation as at a specific point in time. To view the ‘Changes to Legislation’ information for this provision return to the latest version view using the options provided in the ‘What Version’ box above.
(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 [F1subsection (2)] [F1subsection (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) [F3or 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) [F4or 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, [F5by 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
F1Words 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))
F2S. 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))
F3Words 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))
F4Words 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))
F5Words 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)
F6S. 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)
F7S. 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)
C1Ss. 259-261 excluded (1.4.1996) by 1995 c. 40, ss. 3, 7(2), Sch. 3 Pt. II para. 14
(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.
[F8(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.]
Textual Amendments
F8S. 260(5) inserted (4.10.2004) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 23, 27(1); S.S.I. 2004/405, art. 2, Sch. 1 (subject to savings in arts. 3-5)
Modifications etc. (not altering text)
C2Ss. 259-261 excluded (1.4.1996) by 1995 c. 40, ss. 3, 7(2), Sch. 3 Pt. II para. 14
C3S. 260(2)(c) modified (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 84, 206(1); S.S.I. 2011/178, art. 2, sch.
(1)Subject to the following provisions of this section, nothing in sections 259 and 260 of this Act shall apply to a statement made by the accused.
(2)Evidence of a statement made by an accused shall be admissible by virtue of the said section 259 at the instance of another accused in the same proceedings as evidence in relation to that other accused.
(3)For the purposes of subsection (2) above, the first mentioned accused shall be deemed—
(a)where he does not give evidence in the proceedings, to be a witness refusing to give evidence in connection with the subject matter of the statement as mentioned in paragraph (e) of subsection (2) of the said section 259; and
(b)to have been, at the time the statement was made, a competent witness in the proceedings.
(4)Evidence of a statement shall not be admissible as mentioned in subsection (2) above unless the accused at whose instance it is sought to be admitted has given notice of his intention to do so as mentioned in subsection (5) of the said section 259; but subsection (6) of that section shall not apply in the case of notice required to be given by virtue of this subsection.
Textual Amendments
F9S. 261 title substituted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 109(2), 117(2); S.S.I. 2017/345, art. 3, sch. (with art. 9)
Modifications etc. (not altering text)
C4Ss. 259-261 excluded (1.4.1996) by 1995 c. 40, ss. 3, 7(2), Sch. 3 Pt. II para. 14
(1)Evidence of a statement to which this subsection applies is not inadmissible as evidence of any fact contained in the statement on account of the evidence's being hearsay.
(2)Subsection (1) applies to a statement made by the accused in the course of the accused's being questioned (whether as a suspect or not) by a constable, or another official, investigating an offence.
(3)Subsection (1) does not affect the issue of whether evidence of a statement made by one accused is admissible as evidence in relation to another accused.]
Textual Amendments
F10S. 261ZA inserted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 109(1), 117(2); S.S.I. 2017/345, art. 3, sch. (with art. 9)
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Point in Time: This becomes available after navigating to view revised legislation as it stood at a certain point in time via Advanced Features > Show Timeline of Changes or via a point in time advanced search.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.