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 Instruction Note for all reporters entitled “Disclosure of Evidence by Reporters in Children’s Hearings 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 to be 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.

You do not need our prior approval to take precognitions from Reporter’s witnesses considered to be material to your client’s case if:

• You are advised by SCRA that they will not be in a position to make statements of material witnesses on their witness list available to you within a reasonable timescale.
• They do not intend to make these statements available to you at any time.

The exception to this is if the taking of these precognitions could involve unusually large expenditure and cost in excess of £2000.

You also require to satisfy us that you have made sufficient and reasonable attempts to obtain these statements from SCRA.  In this respect we expect you to contact SCRA at the outset of proceedings to request statements and if no response is received to make contact again with them to follow this up.  It is open to us to query this at the accounts stage and we may seek to confirm the position with SCRA.

If you have received disclosure from SCRA

If you do have statements of material witnesses from SCRA, it is still open to you to take precognitions from some or all of these witnesses without our prior approval if you consider that taking a further precognition would be reasonable, necessary and material to your client’s case.  We may query this with you and, if appropriate SCRA, at the accounts stage.  Please also note that this does not apply to taking precognitions from certain witnesses detailed in the section below entitled “prior approval necessary” where we always need to grant prior approval to take statements.

It should also be noted that it is always open to you to seek our prior consent to take the precognition in question by applying for sanction for unusual work.  In such a circumstance you will require to produce the statement that has been made available to you from SCRA and provide sufficient information to support the taking of a further precognition.

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

• Police precognitions in offence statement of grounds proofs where SCRA have disclosed the statements to you.

In such a sanction application, you will require to:

• Produce the police statements obtained from SCRA.
• Advise us why you consider that it is reasonable and necessary 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 police officers then we will abate these costs. However, if you can show that SCRA refused or were unable to make the statements available to you within a reasonable timescale we may not abate.  We expect you to contact SCRA at the outset of proceedings to request these police statements and follow this up if no response is received.

• 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 sanction for unusual work to take a precognition from a formal witness in any S101 proof.

In such a sanction application, you will require to:

• Produce the statement or outline of their formal evidence obtained from SCRA.
• Advise us why you consider that it is reasonable and necessary 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.  You should not take multiple precognitions unless this is considered to be absolutely essential and can be shown to be in the best interests of the child who is the subject of the proceedings or your client if he/she is not the subject child.

You should always liaise with solicitors representing other parties to the proceedings the relevant persons, and the Reporter 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.