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Part IV: Some specific issues
16. Crown Precognitions
16.1 The precognition of Crown witnesses in solemn cases is a long-standing practice, regarded as an important part of the Crown's duty to investigate and evaluate both the extent of the evidence and its quality before proceeding with a trial. Crown precognitions have always been treated as confidential and their disclosure will only be ordered by the court where it is necessary in the interests of justice ( Donald v Hart28; Arthur v Lindsay29). It is a well-recognised principle of the Scottish legal system that statements which are in the form of precognitions are not competent evidence. This principle has also been enshrined in statute, currently in the form of section 262 of the Criminal Procedure (Scotland) Act 1995, which provides that for the purposes of sections 259 to 261 of the Act, a "statement" includes (a) any representation, however made or expressed, of fact or opinion; and (b) any part of a statement, but does not include a statement in a precognition other than a precognition on oath.
The Duty of Disclosure
16.2 Notwithstanding the principle regarding the non-disclosure of precognitions, the Crown's duty under McLeod includes a duty to disclose material information elicited through precognition which would not otherwise be apparent to the defence in the course of their ordinary investigation and preparation of the defence case.
16.3 Where, at precognition, the Crown elicits information that could materially assist the defence or undermine the Crown case, the usual current practice is to advise the defence that the witness has materially departed from or expanded on their witness statement and, accordingly, that the defence should precognosce the witness. A copy of the precognition is not usually provided.
16.4 This obligation on the Crown has not changed as a result of the decision in Sinclair that the Crown should routinely disclose the statements of those Crown witnesses that the Crown intends to adduce at trial. This issue was considered in a petition for the recovery of documents in HMA v Fleming30 where the defence sought recovery of precognitions taken by the Crown, arguing, in terms of Sinclair, that the Lord Advocate was no longer the gatekeeper when it came to access to information in his possession and that this extended to precognitions. Lord Brodie accepted that the Crown has an obligation to disclose any material evidence or any information relevant to the defence of an accused person whether or not it was contained in a precognition.
16.5 Lord Brodie then continued:
"I am not inclined to affirm any rule which is to the effect that recovery of a precognition (however precisely it might be defined) can never be ordered by the court or can only be ordered in very special circumstances. However, I do accept that the description of the process described by the Advocate Depute which led to the generation of the material which the Petitioner seeks to recover points away from making such an order. What was said by the Advocate Depute was that precognitions were taken by a Procurator Fiscal Depute with a view to reporting the state of the case to Crown Office prior to a determination as to whether to proceed with a Bill of Advocation. I would regard such a communication as, on the face of it, confidential: Arthur v Lindsay. That the defence have had the opportunity to precognosce all the witnesses identified by the Crown, whose names have been disclosed, is also very relevant."
16.6 I would agree with the above opinion. There is no requirement within Sinclair by which the Crown must routinely disclose precognitions to the defence, and I do not think that routine disclosure of precognitions is necessary to ensure that the accused has a fair trial in terms of Article 6. There remains, however, a duty, as stated in McLeod, to disclose any information elicited during the precognition process that might tend to exculpate the accused. This implies, firstly, that the Crown is obliged to disclose any material elicited during the precognition process that is material evidence that would tend to exculpate the accused; and secondly, that there must be a mechanism by which the defence can apply to the court for disclosure of such material.
16.7 These arrangements are largely in place already. However, I recommend that current practice should be strengthened in one respect: in order to satisfy the obligation to disclose material evidence that would tend to exculpate the accused that has been elicited during the precognition of a witness, it does not seem to me sufficient for the Crown merely to advise the defence that they should precognosce the witness. Instead, it would be appropriate for the Crown to tell the defence what the material evidence is, while not disclosing the actual precognition. Such intimation of material evidence should, insofar as possible, be made in writing.
16.8 I should add that it is recognised that distinguishing between "statements" and "precognitions" for the purposes of advance disclosure can cause difficulties for the Crown. Ambiguity can arise when the Crown ask the police to take an additional statement from a witness after the case has progressed from the "investigation" stage to preparation of the prosecution. I do not think, however, that it would be useful for me to canvass the authorities: it is difficult to say more than that the distinction depends on the precise circumstances. 31 The practical answer is, in my view, that for disclosure purposes, all statements taken by police officers should, prima facie, be treated as "statements" rather than as "precognitions", and so be eligible for disclosure. However, this should be without prejudice to whether it is regarded as a "precognition" for other purposes. For example, disclosure of such a statement would not necessarily imply that it was suitable for use in evidence, which would depend on the facts and circumstances of the individual case.
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