Her Majesty's Advocate v. R M [2009] ScotHC HCJ_05 (28 October 2009)

Her Majesty's Advocate v. R M [2009] ScotHC HCJ_05 (28 October 2009)

The requirements of Section 272(3) of the Criminal Procedure (Scotland) Act 1995 are satisfied: the witnesses are unable to attend court due to infirmity, their evidence is necessary for proper adjudication, and taking evidence on commission with oral cross-examination does not cause unfairness to the respondent. Alternative methods such as live television link are not practicable given current resources, and the statutory duty to provide such links does not extend to the witnesses' homes in this context.

Citation
[2009] ScotHC HCJ_05
Parties
Petitioner: Her Majesty's Advocate; Respondent: Robert Markward
Jurisdiction
Scotland
Judgment Date
28 October 2009
Procedural Posture
Criminal / Application for Evidence on Commission Prior to Trial
Outcome
application granted
Legal Topics
Taking Evidence on Commission, Vulnerable Witnesses, Fair Trial, Special Measures for Evidence
Criminal Law Criminal Procedure Taking Evidence on Commission Vulnerable Witnesses Fair Trial Special Measures for Evidence

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Parties

Her Majesty's Advocate

Petitioner

Robert Markward

Respondent

Procedural Posture

Criminal / Application for Evidence on Commission Prior to Trial

Legal Issues

  1. 1 Whether evidence of five elderly and infirm witnesses can be taken on commission under Section 272 of the Criminal Procedure (Scotland) Act 1995
  2. 2 Whether taking evidence on commission would cause unfairness to the accused under Section 272(3)(b)
  3. 3 Whether alternative methods (e.g., live television link) are required or practicable

Ratio Decidendi

The requirements of Section 272(3) of the Criminal Procedure (Scotland) Act 1995 are satisfied: the witnesses are unable to attend court due to infirmity, their evidence is necessary for proper adjudication, and taking evidence on commission with oral cross-examination does not cause unfairness to the respondent. Alternative methods such as live television link are not practicable given current resources, and the statutory duty to provide such links does not extend to the witnesses' homes in this context.

Court Disposition

application granted

Orders

  • Application to take evidence of five witnesses on commission is granted.