Report and Recommendations - Scottish Government

fact on the other. This is especially so where directions relating to differentparts of a mixed statement are given 42 .7.4.14 The direction given to juries by some judges, in accordance with the case law,that a statement cannot be used to prove fact but is “part of the general picturewhich the jury have to consider” might be said to be both baffling andmeaningless. In relation to wholly exculpatory statements, it is not entirelyclear when they are actually admissible in practice, other than when theaccused gives evidence and his/her credibility and reliability is challenged. Itwould seem that, following old judicial declaration cases, they can be used atleast to bolster the credibility or reliability of witnesses who have givenevidence in support of an accused’s position. How this would actually operatein practice is not always clear.7.4.15 There is therefore a strong case to be made that the current law, which makes adistinction between incriminatory, exculpatory and mixed statements, shouldbe clarified so that no distinction is drawn between them in terms ofadmissibility. One approach would be to provide that all statements, whichare made by accused persons after the crime, should be admissible in evidencefor all generally competent purposes, including proof of fact. That, however,could, as already commented, result in the creation of carefully preparedstatements being read over to credible third parties for reiteration in court, thuspresenting an account incapable of being tested by cross-examination orcourtroom impression. This danger would exist also if, in a structured42 R v Duncan (1981) 73 Cr App Rep 359, Lane CJ at 365310