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[1] Over recent years there has been an increasing tendency for advocates conducting trials to put the terms of statements previously made by witnesses in the course of the police investigation to these witnesses during examination or cross-examination. This practice has coincided with the extension of the purposes for which reference may be made to witness statements. It is a regular feature of this practice that the purpose is not clearly identified at the outset and that the examination proceeds in a fairly haphazard way.
[2] Since the Evidence ( Scotland ) Act 1852 it has been possible to examine a witness about the terms of a statement apparently inconsistent with his evidence in court with a view to either eliciting the truth or discrediting him. The current statement of that rule is to be found in section 263(4) the Criminal Procedure ( Scotland ) Act 1995 ("1995 Act") which is in the following terms:
"(4) In a trial, a witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in the trial; and evidence may be led in the trial to prove that the witness made the different statement on the occasion specified."
[3] In the event the witness may accept that the statement contains the truth, in which case that becomes part of his evidence. If he does not do so, then the statement, if thereafter spoken to in evidence by the officer who took it, is available to the jury as a possible reason for rejecting the evidence of the witness as untrue or unreliable. Under this rule the statement can never, of itself, be evidence of the truth of its contents.
[4] At common law it was recognised that there were certain circumstances in which a prior statement might fill a gap in the evidence and amount to acceptable evidence of the truth of its contents. It is encountered most frequently in identification evidence, as eg in Muldoon v Herron 1970 JC 30 , 1970 SLT 228. A clear statement of that rule is to be found in Jamieson v HM Advocate (No. 2) 1994 SCCR 610 at page 618 where the Lord Justice General (Hope), in delivering the Opinion of the Court, said:
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Common Room
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