MT v DT [2000] ScotCS 283 (10 November 2000)

MT v DT [2000] ScotCS 283 (10 November 2000)

Section 2(1)(b) of the Civil Evidence (Scotland) Act 1988 does not require a competence test for the maker of a hearsay statement; hearsay evidence is admissible unless direct oral evidence by the maker would be inadmissible for reasons other than incompetence as a witness. The previous practice of requiring a child to be brought to court to test competence before admitting hearsay evidence is incorrect.

Citation
[2000] ScotCS 283
Parties
Pursuer and Appellant: M. T.; Defender and Respondent: D. T.
Jurisdiction
Scotland
Judgment Date
10 November 2000
Procedural Posture
Appeal From Sheriffdom (family/contact Proceedings) / Opinion of the Inner House, Court of Session
Outcome
Appeal dismissed; the sheriff's approach to admissibility of hearsay evidence was correct in law.
Legal Topics
Hearsay Evidence, Competence of Child Witnesses, Interpretation of Civil Evidence (scotland) Act 1988 S.2(1)(b)
Civil Procedure Family Law Evidence Hearsay Evidence Competence of Child Witnesses Interpretation of Civil Evidence (scotland) Act 1988 S.2(1)(b)

Case Brief

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Parties

M. T.

Pursuer and Appellant

D. T.

Defender and Respondent

Procedural Posture

Appeal From Sheriffdom (family/contact Proceedings) / Opinion of the Inner House, Court of Session

Legal Issues

  1. 1 Whether Section 2(1)(b) of the Civil Evidence (Scotland) Act 1988 requires a competence test for the maker of a hearsay statement, and if so, at what time the test applies; Whether hearsay evidence of statements by a child is admissible if the child would not be a competent witness.

Ratio Decidendi

Section 2(1)(b) of the Civil Evidence (Scotland) Act 1988 does not require a competence test for the maker of a hearsay statement; hearsay evidence is admissible unless direct oral evidence by the maker would be inadmissible for reasons other than incompetence as a witness. The previous practice of requiring a child to be brought to court to test competence before admitting hearsay evidence is incorrect.

Court Disposition

Appeal dismissed; the sheriff's approach to admissibility of hearsay evidence was correct in law.

Orders

  • Hearsay evidence of the child's statements is admissible under Section 2(1)(b) of the 1988 Act.
  • No requirement to test the competence of the child as a witness before admitting hearsay evidence.