Report and Recommendations - Scottish Government

with the complainer’s consent. By this time the court had gained the benefitof a definitive statement from the House of Lords 10 on the English law ofevidence on how to treat a “mixed statement”. The court in Morrison adoptedthat term to mean statements which are “capable of being both incriminatoryand exculpatory” 11 and it appears to have stuck ever since. The Crownconceded, and the court agreed, that Hendry: (i) had been wrongly decided;(ii) was difficult to understand; and (iii) was unworkable in practice. Itsprinciples were, it was held, obviously unfair. The court treated a “mixedstatement” as a “qualified admission” capable of being used as proof of fact,whether led either by the Crown or by the accused in the absence of anobjection. But the court remained of the view that an exculpatory statementwas inadmissible as proof of fact 12 although it could be adduced in evidence,again if led by the Crown or otherwise without objection 13 :“for the limited purpose of proving that the statement was made, andof the attitude or reaction of the accused at the time when it was madewhich is part of the general picture which the jury have to consider”.An accused could competently lead evidence of a mixed statement or a whollyexculpatory statement if he had given evidence 14 and his credibility orreliability were challenged. The court cautioned against the English approachof a judge commenting adversely upon the situation where the accused had nottestified but had adduced evidence of a mixed or exculpatory statement.10 R v Sharp [1988] 1 WLR 711 LJC (Ross) at 30712 at 31213 at 31314 or, presumably, if the court were assured that he was to do so. It is not clear if this is the onlycircumstance in which it can be led304