Taking precognitions in children’s hearings proof proceedings and disclosure of evidence by the Reporter

The Scottish Children’s Reporter Administration (SCRA) has published a Practice Direction (number 34) for all reporters entitled “Disclosure of Evidence by Reporters in Children’s Hearing Proof Proceedings”.

In recognition of a child and relevant person’s Article 6 rights to a fair hearing, there is a presumption that Reporters will disclose certain information in proof proceedings.

There is a presumption that the Reporter will disclose information which:

• is likely to form part of the evidence to be led by the Reporter in the proceedings
• would weaken or undermine the evidence that is likely to be led by the Reporter
• would strengthen the case of another party.

Information likely to form part of the evidence to be led by the reporter may include the list of witnesses, any productions and any statements that are available.  SCRA’s Practice Note states that this does not include precognitions although the reporter may disclose a precognition to another party in certain circumstances and subject to certain conditions. Their Practice Note gives further details.

Where the proof is in relation to the alleged commission by the child of offence grounds SCRA’s Practice Note states that there is a strong presumption that the following information should be disclosed to parties by the reporter:

• the “summary of evidence” from the standard prosecution report
• the police witness statements from witnesses on the reporter’s list of witnesses.

The terms used in this guidance have the following meanings:

“Precognition” – a preliminary statement or record of the evidence a person may be expected to give in court which is taken down in writing by a third party.  It is not signed and cannot usually be produced or relied upon in court.

“Statement” – a written record of a person’s account of events given to a police officer or other statutory agency which is signed by the maker and can usually be relied upon in court.

“Report” – a report obtained by SCRA is not considered to be a statement.  In terms of SCRA’s Practice Instruction Note there is a presumption that such a report should be disclosed if it is likely to form part of the evidence to be led by the reporter in the proceedings by way of a production.

This guidance applies whether you are acting for a child or relevant person, instructed by a Safeguarder to act for a child and acting as both a solicitor and a curator ad litem to the child or adult.

Even if you have received disclosure of statements from the reporter, you do not need our prior approval to take precognitions from Reporter’s witnesses considered to be material to your client’s case even where you are using a precognition agent.

We may however query if a witness that you have precognosed was likely to be material to the case at the accounts stage.

You will require our prior approval to take precognitions in the following circumstance:

Where you need to take a precognition from a formal witness and where you have received this statement or an outline of what he/she will be speaking to from SCRA

Formal witnesses are those whose evidence will not be challenged in court, may not add anything to the case or may simply add a link in the case.

You must seek approval for unusual work to take a precognition from a formal witness in any children’s proof.

In such an approval application, you need to:

• produce the statement or outline of their formal evidence obtained from SCRA
• advise us why you consider that it is reasonable to obtain a further precognition
• address us regarding the taking of a joint precognition and/or sharing it with other parties.

Unless prior approval has been sought and granted to take a precognition from a formal witness then we will abate the costs of doing so unless you can show that SCRA refused or were unable to make this evidence available to you within a reasonable timescale.

We expect you to contact SCRA at the outset of proceedings to request statements or an outline of the witnesses’ evidence and follow this up if no response is received.

In cases involving more than one legally represented party (other than the Reporter) you should always consider the sharing of precognitions and/or taking a particular precognition jointly if no conflict of interest exists or is likely to exist in the future.

You should try to avoid taking  multiple precognitions, unless you can demonstrate this is reasonable in the circumstances of the case.

You should always liaise with the solicitors representing other parties to the proceedings the Reporter and/or Safeguarder if necessary, to ensure you do not take multiple precognitions from the same witness unnecessarily, especially where that witness is a child or vulnerable adult.

Where you do require to precognose a witness who has already been precognosed by another party, you do not require our prior approval for this but you should make it clear in your account what steps you took to try to avoid this.

You do not require our prior approval to take a joint precognition where this is appropriate.