(1) On 6^th September 1999 the witness Vassallo was examined before a Magistrate in Malta in execution of a Letter of Request from the Lord Advocate under s.3 of the Criminal Justice (International Co-operation) Act 1990. During the course of Vassallo's examination in chief in this trial, the Advocate Depute sought, for the purposes of s. 263(4) of the Criminal Procedure (Scotland) Act 1995, to put to him the transcript of his evidence before the Magistrate. Objection was taken by counsel for the second accused.

(2) The ground of objection was that the examination in Malta constituted the taking of a precognition, and it is well established that a precognition other than a precognition on oath cannot be used for the purposes of s. 263(4) - see Kerr v. H.M.A. 1958 J.C. 14; Coll Petr. 1977 J.C.29. This examination did not however constitute a precognition on oath because although the witness was on oath, the transcript was not a verbatim record of the questions and answers, and the transcript was not signed by the witness. Having regard to the stage of the present proceedings at which this examination was carried out, it was quite clearly a precognition, and it did not constitute an exception to the rule that precognitions cannot be used for the purposes of s.263(4). If the Crown had sought to equiparate this procedure with precognition on oath, it would have been open to them in the Letter of Request to ask that the proceedings be transcribed verbatim, and that the transcript be read over to and signed by the witness. This was not done.

(3) The Advocate Depute in reply accepted that the transcript was not a verbatim record of the questions and answers. The procedure was that questions were asked by a representative of the Attorney General of Malta and answered by the witness. At the end of each topic, the Magistrate dictated in the first person format what he understood the witness' evidence to be, the witness having the opportunity to make any corrections. While this procedure was not in all respects what would be required of a precognition on oath under Scottish procedure, it nevertheless came close to it, and avoided the dangers inherent in ordinary precognitions which were identified in Kerr. As was accepted in Kerr, even if a statement is taken at a late stage, it will depend on the circumstances whether or not it is protected. The circumstances here are such that the transcript can be relied upon as an accurate, albeit not verbatim, account of what was said, and therefore it is legitimate to use it for the purposes of s.263(4).

(4) In our opinion the transcript may validly be used for the purposes of s.263(4). The nature of the objection to the use of precognitions for this purpose is clearly set out by Lord Justice Clerk Thomson in Kerr at p.19.

At p.20, having said that in the end of the day the question resolves itself into one of fairness, he adds:

(5) In Coll, the particular characteristics of a precognition on oath which set it apart from an ordinary precognition were set out in the opinion of the Court. There were first set out the ways in which a statement may be made.

(6) It is then said that in relation to the first category, Kerr makes it clear that a precognition cannot be used, and the passage from Kerr relating to the filtering process by an optimistic precognoscer is quoted. The Court then says:

(7) What we have to consider in this case is a procedure which is carried out in a foreign jurisdiction under foreign rules of procedure, and in our view it is not appropriate to try to categorise that procedure as being a precognition or not a precognition. What we have to consider is whether or not the procedure is of such a nature that it possesses the necessary safeguards to prevent the use of the proceeds of that procedure being regarded as unfair. In that connection we have regard to the fact that the examination was conducted under oath. The examination was conducted in the presence of a legally qualified Magistrate. While the transcript is not a verbatim record, the wording is that of the Magistrate who can certainly not be regarded as being a precognoscer indulging in wishful thinking. The wording used was dictated in the presence of the witness who had the opportunity of correcting anything said, and perusal of the record indicates at least one instance of where the witness may have availed himself of that opportunity. These are powerful indications that the procedure was fair. On the other hand, it has to be accepted that the transcript does not disclose whether the questioning was by way of leading questions, or of course whether the Magistrate accurately narrated the exact meaning of the questions and answers. It is however to be noted that it is one of the features of Scottish procedure that at the investigative stage statements taken by police officers which could be said to suffer from similar defects are admissible for the purpose with which we are concerned. This tends to reinforce the view apparently taken by the Court in Coll that the principal objection to precognitions is the risk of bias or partiality on the part of the taker of the statement who is by that stage of the proceedings trying to build up a case against the accused. Having considered the whole circumstances of the way in which this examination was conducted and the transcript produced, we are satisfied that it cannot be said that it would be in any way unfair to have the witness' recollection tested by reference to the transcript. The objection cannot therefore be upheld.

(8) We should note that the Advocate Depute presented an argument to the effect that if the witness had not been present in Court, the transcript could have been put in evidence under the provisions of s.3(9) of the 1990 Act, and that being so it could a fortiori be used for the more limited purpose of s.263. We are far from satisfied however that the considerations to be taken into account for the purposes of s.3(9) are the same as those to be taken into account for the purposes of s.263, and accordingly in reaching our decision we have not had regard to this argument.