Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
We have already directed that witnesses should testify after havingbeen sworn, and that the preference should be given to those ofhonourable reputation.In like manner, We have ordered that no judge shall in any case readilyaccept the testimony of only one witness; and now We plainly orderthat the evidence of only one witness shall not be taken. Even thoughhe should be distinguished by senatorial rank”.The same constitution appears in the Theodosian Code 18 :“We have previously commanded that before they give their testimony,witnesses shall be bound by the sanctity of an oath, and that greatertrust shall be placed in witnesses of more honourable status.In a similar manner, we sanctioned that no judge should easily allowthe testimony of only one person to be admitted in any case whatever.We now manifestly sanction that the testimony of only one witnessshall not be heard at all, even though such witness should beresplendent with the honour of the glorious Senate”.This corresponds to Hume’s treatment and, in the Civil Law, the requirementis also set in the context of a judicial system which contained many separaterules excluding large categories of persons as witnesses altogether. How thendid Romano-canonical rules of evidence come to continue to permeate Scotscriminal procedure whilst the form of trial in serious criminal cases, by way ofthe verdict of a jury, came from Norman England, where these rules did nothold sway?7.1.8 The early church 19 courts developed as a consequence of the delegation of theBishops’ authority to decide disputes to legally trained officials. Indetermining cases, these officials would have been familiar with the Romano-18 11.39 The Trustworthiness of Witnesses and of Instruments (De Fide Testium et instrumentorum).Interestingly, the testimony of a single Bishop might be in a different category! (see SirmondianConstitution 333)19 consistory244
canonical rule on the need for proof by two or more sworn witnesses 20 . Proofby such methods continued in relation to what might now be categorised ascivil cases. In serious criminal cases, which were dealt with by the secularauthorities, although such proof appears to have been required at one time,there seems to have been a growth, during the 10th to 12th centuries, in trialby ordeal, that is, for example, by hot iron or water. This became a prevalentmethod of proof of guilt itself, rather than purely a method of establishinginnocence in the face of such proof 21 . This may have been an Anglo-Normaninfluence 22 . At all events, the results of an ordeal were regarded as adetermination by God and proof by this method was thought, at least by many,to be stronger than by testimony given under oath. However, it came to berealised that an ordeal was not the most reliable method by which to securesound convictions 23 .7.1.9 In 1215 the Fourth Lateran Council effectively abolished trial by the twoordeals of iron and water 24 by prohibiting the necessary involvement of priestsin the relative rituals 25 . This was followed in Scotland by a statute ofAlexander II in 1230 26 . In future, at least in most systems influenced by theius commune 27 , proof of guilt would revert to the determination of a humanjudge. It was important for any proof to be the equivalent of the judgment ofGod. Certainty, or something very akin to it, was required in order to20 see generally Brundage: Medieval Canon Law p 13221 see generally Bartlett: Trial by Fire and Water p 6922 ibid p 48-4923 see Walker: “Evidence” in Stair Society Vol 20, p 30224 see Bartlett pp 100 et seq for an analysis of the reasons25 trial by battle appears to have survived for some time26 c 6, APS: 400 “of challenge of thyft or of reyflake” abolishing, at least for theft or robbery, theordeals of “dykpot na yrn”27 the general Romano-canonical law applicable, subject to municipal variations, in most ofChristendom245
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We have already directed that witnesses should testify after havingbeen sworn, <strong>and</strong> that the preference should be given to those ofhonourable reputation.In like manner, We have ordered that no judge shall in any case readilyaccept the testimony of only one witness; <strong>and</strong> now We plainly orderthat the evidence of only one witness shall not be taken. Even thoughhe should be distinguished by senatorial rank”.The same constitution appears in the Theodosian Code 18 :“We have previously comm<strong>and</strong>ed that before they give their testimony,witnesses shall be bound by the sanctity of an oath, <strong>and</strong> that greatertrust shall be placed in witnesses of more honourable status.In a similar manner, we sanctioned that no judge should easily allowthe testimony of only one person to be admitted in any case whatever.We now manifestly sanction that the testimony of only one witnessshall not be heard at all, even though such witness should beresplendent with the honour of the glorious Senate”.This corresponds to Hume’s treatment <strong>and</strong>, in the Civil Law, the requirementis also set in the context of a judicial system which contained many separaterules excluding large categories of persons as witnesses altogether. How thendid Romano-canonical rules of evidence come to continue to permeate Scotscriminal procedure whilst the form of trial in serious criminal cases, by way ofthe verdict of a jury, came from Norman Engl<strong>and</strong>, where these rules did nothold sway?7.1.8 The early church 19 courts developed as a consequence of the delegation of theBishops’ authority to decide disputes to legally trained officials. Indetermining cases, these officials would have been familiar with the Romano-18 11.39 The Trustworthiness of Witnesses <strong>and</strong> of Instruments (De Fide Testium et instrumentorum).Interestingly, the testimony of a single Bishop might be in a different category! (see SirmondianConstitution 333)19 consistory244
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