HM Advocate v Malloy & Anor [2012] ScotHC HCJ_124 (11 September 2011)

HM Advocate v Malloy & Anor [2012] ScotHC HCJ_124 (11 September 2011)

Section 259 of the Criminal Procedure (Scotland) Act 1995 has abrogated and replaced the common law exceptions relating to the admissibility of hearsay statements by deceased persons. Such evidence is now admissible only under the statutory scheme and subject to its safeguards, including notice requirements. Section 262(4) preserves only those hearsay exceptions not covered by section 259.

Citation
[2012] ScotHC HCJ_124
Parties
Prosecutor: Her Majesty's Advocate; Defendant: Anthony Malloy; Defendant: Laura Stewart
Jurisdiction
Scotland
Judgment Date
11 September 2011
Procedural Posture
Criminal / Interlocutory Ruling During Trial
Outcome
Objection to admissibility of hearsay evidence at common law sustained; statutory procedure under section 259 must be followed.
Legal Topics
Hearsay Evidence, Statutory Interpretation, Admissibility of Statements by Deceased Persons
Criminal Law Evidence Hearsay Evidence Statutory Interpretation Admissibility of Statements by Deceased Persons

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Parties

Her Majesty's Advocate

Prosecutor

Anthony Malloy

Defendant

Laura Stewart

Defendant

Procedural Posture

Criminal / Interlocutory Ruling During Trial

Legal Issues

  1. 1 Whether section 259 of the Criminal Procedure (Scotland) Act 1995 supersedes the common law exception allowing hearsay evidence of statements by deceased persons
  2. 2 Proper construction of section 262(4) of the 1995 Act

Ratio Decidendi

Section 259 of the Criminal Procedure (Scotland) Act 1995 has abrogated and replaced the common law exceptions relating to the admissibility of hearsay statements by deceased persons. Such evidence is now admissible only under the statutory scheme and subject to its safeguards, including notice requirements. Section 262(4) preserves only those hearsay exceptions not covered by section 259.

Court Disposition

Objection to admissibility of hearsay evidence at common law sustained; statutory procedure under section 259 must be followed.

Orders

  • Evidence of a deceased person's statement is admissible only by virtue of section 259 and not at common law.
  • Objection by defence (Stewart) upheld.