Lecture 11: Admissibility, Collateral Evidence, and the Best Evidence Rule in Scots Criminal Law

Flashcards covering Lecture 11 on criminal evidence in Scotland, focusing on admissibility, collateral evidence, complainer sexual history under the Criminal Procedure (Scotland) Act 1995, and the best evidence rule.

Admissibility

The legal concept determining whether a particular adminicle (piece) of evidence that a party wishes to present in court may be presented (admissible) or excluded from court (inadmissible).

Adminicle

A piece or item of evidence presented by a party in court.

Admissibility Decisions (Role of the Judge)

Decisions regarding whether evidence is admissible are questions of law and are strictly determined by the judge.

Relationship Between Relevancy and Admissibility

In theory, all irrelevant evidence is inadmissible; however, in practice, if there is no objection or the judge does not exclude it, irrelevant evidence is heard in court.

Collateral Evidence

Evidence concerning secondary or subsidiary issues that have only an indirect bearing on the matter at hand, excluded to avoid wasting substantial court time and confusing the jury.

A v B (1895) 22 R 402

The authority establishing that it is better to sacrifice uncertain solutions to collateral issues than to spend time and confuse the jury with matters having only an indirect bearing on the issue.

CJM (No 2) v HM Advocate (2013 SLT 380)

A case (also cited as M v HM Advocate (No 2)) ruling that evidence of a previous false sexual assault complaint was irrelevant and collateral due to a lack of connection in time, circumstance, and place, and because exploring it would cause an unnecessary 'trial within a trial'.

Sexual Offences (Procedure and Evidence) (Scotland) Act 2002

Legislation that inserted sections 274 and 275 into the Criminal Procedure (Scotland) Act 1995 to regulate and restrict the leading of evidence regarding a complainer's sexual history or character.

Section 274 of the Criminal Procedure (Scotland) Act 1995

The statutory provision placing general restrictions on admitting evidence or allowing questions showing that a complainer is not of good character, has engaged in non-charge sexual behaviour, or has engaged in certain non-sexual behaviour/predispositions concerning credibility or consent.

Section 275 of the Criminal Procedure (Scotland) Act 1995

The statutory exception mechanism allowing the court, upon application, to admit complainer sexual history evidence if it relates to specific occurrences/facts, is relevant to guilt, and its significant probative value outweighs prejudice to the proper administration of justice.

Proper Administration of Justice (s 275(2)(b)(i))

A statutory concept under section 275 of the 1995 Act that expressly includes the appropriate protection of a complainer's dignity and privacy.

Common Law Priority Rule (Sexual History Evidence)

The principle that statutory provisions cannot make admissible any evidence that is inadmissible at common law; if evidence is collateral and inadmissible at common law, it is excluded without engaging sections 274 and 275.

LL v HM Advocate 2018 JC 182

A leading precedent setting out the modern common law approach to determining the admissibility of sexual history evidence prior to statutory consideration.

Best Evidence Rule

A legal rule requiring the presentation of primary evidence of the best quality rather than secondary evidence, insisted upon only where non-production causes material prejudice and production is neither inconvenient nor impractical.

Material Prejudice Test

The primary test under the best evidence rule, requiring that the absence of primary evidence cause fairly serious or significant disadvantage to the accused before the rule is enforced.

Anderson v Laverock 1976 JC 9

A poaching case where fish were destroyed rather than produced in court; despite production being impractical or inconvenient, the conviction was quashed because the accused suffered prejudice by being denied the chance to examine the fish.

McKellar v Normand 1992 SCCR 393

A reset case where the failure to produce a stolen bed, blanket, and labels at trial did not cause prejudice to the accused, meaning the conviction stood.

Nocher v Smith 1978 SLT (Notes) 32

A case ruling that while production of a valid search warrant at trial is desirable, its non-production is not per se fatal to police testimony regarding drugs found, as it caused no prejudice.

PF Inverness v James Barton [2026] SC INV 71

A case where screenshots of a mobile phone were permitted as evidence, holding that it was common sense to produce them as screenshots and caused no prejudice to the accused.