Section 259 CPSA 1995: GP and Community Mental Health Nurse Evidence Can Suffice to Prove Witness “Unfit” Despite Special Measures

1. Introduction

In [2026] HCJAC 33 (an opinion superseding [2026] HCJAC 30), the Appeal Court of the Scottish High Court of Justiciary considered the admissibility of hearsay under section 259 of the Criminal Procedure (Scotland) Act 1995 in a summary prosecution for domestic abuse contrary to section 1 of the Domestic Abuse (Scotland) Act 2018.

The appellant challenged his conviction on the basis that the complainer’s statements to a police officer had been admitted as hearsay when the statutory conditions were not met, and that this error resulted in a miscarriage of justice. The Sheriff Appeal Court (SAC) accepted there had been error, but held there was no miscarriage of justice. The appellant appealed that disposal under section 194ZB(1).

2. Summary of the Judgment

  • The court held the sheriff was entitled to find that the complainer was, by reason of mental and physical condition, “unfit or unable to give evidence in any competent manner” for the purposes of section 259(2)(a), including with special measures (paras [31]–[37]).
  • The court held the SAC had wrongly imposed evidential requirements not found in section 259 (paras [34]–[35]).
  • It reaffirmed that where the section 259 conditions are satisfied, the court has no discretion to refuse admission of the hearsay (para [31], citing N v HM Advocate 2003 JC 140).
  • The appeal was refused. There was no miscarriage of justice (paras [38]–[39]). Even on the hypothesis that the hearsay should have been excluded, the sheriff’s acceptance of the other credible and reliable evidence meant conviction would still have followed (para [39]).

3. Analysis

3.1 Precedents Cited and Their Role

(a) The common law hearsay rule and its framing

The court restated the orthodox description of the common law prohibition on hearsay by reference to Morrison v HM Advocate 1990 JC 299 (Full Bench) and its approval in McCutcheon v HM Advocate 2002 SLT 27 (Full Bench) (para [26]). This served to situate section 259 as a statutory set of exceptions to a long-standing exclusionary rule.

The court also noted common law exceptions (res gestae, historic “dying utterance” type material now absorbed into section 259) and highlighted a newer common law exception recognised after Lord Advocate's References (Nos 2 and 3 of 2023) [2024] HCJAC 43, 2025 JC 200: statements made de recenti (para [26]). That observation underscores that section 259 operates alongside, not to the exclusion of, remaining common law routes to admissibility.

(b) Section 259’s purpose and limits: Glass v HM Advocate [2018] HCJAC 70, 2019 JC 17

The court distinguished Glass (paras [30]–[31]). In Glass, the section 259 route was not apt where the witness’s difficulty was event-specific memory loss and there existed a competent method to adduce evidence by inviting the witness to adopt the statement. Here, by contrast, the issue was not mere forgetfulness but a broader inability to give evidence in any competent manner because of mental/physical condition, including the risk of triggering severe symptoms.

(c) Mandatory admission once conditions are met: N v HM Advocate 2003 JC 140

A central doctrinal point was reaffirmed: if the judge is satisfied that section 259(1) conditions are met, the hearsay is admissible and the judge has no discretion to refuse it (para [31], citing N v HM Advocate at [20]–[24]; and Renton & Brown’s Criminal Procedure). This matters because it frames the admissibility question as a fact-finding exercise under the statutory test, not a free-standing fairness discretion.

(d) The court’s treatment of “proper medical evidence”: Inglis v PF Edinburgh

The Crown relied on Inglis v PF Edinburgh, 27 August 2019, unreported for the proposition that a section 259 application should be supported by “proper medical evidence” (para [21]). The Appeal Court did not reject that proposition, but clarified what “proper” means in statutory terms: evidence capable of satisfying the sheriff on the balance of probabilities that the witness is unfit/unable in any competent manner (paras [36]–[37]), without importing rigid requirements (such as a psychiatrist’s report) not found in the statute (para [35]).

(e) Special measures and commission practice

The court referred to section 271I(3) and to practice notes governing commission procedure (High Court of Justiciary Practice Note No 1 of 2024; Criminal Courts Practice Note No 1 of 2026) (para [28]). This was used to address—contextually—the appellant’s submission that it might have been possible to waive the accused’s entitlement to watch a commission hearing; the court noted this was not advanced before the sheriff (para [32]).

3.2 Legal Reasoning

(a) The statutory task: fact-finding on balance of probabilities

Section 259(8) requires the judge to determine disputed admissibility matters on the balance of probabilities (para [31]). The court emphasised that section 259 imposes a duty on the sheriff to make findings in fact on whether the witness is unfit/unable in any competent manner, including considering special measures (paras [31]–[33]).

(b) What evidence is “enough” for section 259(2)(a)?

The SAC had criticised the quality and type of medical evidence (absence of formal diagnosis; the nurse letter not on “soul and conscience”; suggestion that PTSD triggers should “ordinarily” be spoken to by a specialist; lack of familiarisation; lack of consideration of commission at a familiar place) (para [15]).

The Appeal Court rejected that approach as adding “evidential barriers” not present in the statute (para [35]) and held:

  • Section 259 does not require a particular category of medical expert (para [35]).
  • Evidence from a GP who knew the witness well, supplemented by a community mental health nurse letter, can be sufficient (paras [35]–[37]).
  • The key question is whether the material is capable of being accepted and satisfies the sheriff that the witness cannot give evidence in any competent manner, including under special measures (paras [36]–[37]).

(c) Reading the medical evidence in its procedural context

A significant feature was the court’s insistence that the GP’s second letter should be read in the context of the prosecutor’s submission that special measures—including commission and remote link—had been explained to the GP (para [32]). On that reading, the GP’s opinion was treated as addressing special measures directly (paras [33]–[34]).

(d) Miscarriage of justice: not automatic

The court endorsed the SAC’s ultimate conclusion (no miscarriage), and went further: even if hearsay had been wrongly admitted or excluded, that would not automatically result in a miscarriage; the effect depends on the case (para [39]). Here, the sheriff’s acceptance of other witnesses as credible and reliable meant conviction would have followed in any event (para [39]).

3.3 Impact

  • Lowering the risk of over-formalism in section 259 applications: The decision signals that courts should not require a psychiatrist/consultant report as a de facto prerequisite; the statute’s test is functional and evidential, not status-based (para [35]).
  • Contextual assessment of special measures: A sheriff may take into account what special measures were explained to the medical professional and read the medical opinion accordingly (para [32]).
  • Clear reaffirmation of “no discretion” once satisfied: This strengthens predictability—if section 259 is met, admissibility follows (para [31]).
  • Appeal strategy on miscarriage: The court’s para [39] underlines that appellants must demonstrate materiality; showing an evidential error may be insufficient where the fact-finder’s acceptance of other evidence would compel the same result.

4. Complex Concepts Simplified

  • Hearsay: Using a statement made outside court to prove the truth of what it asserts. It is generally inadmissible at common law (para [26]) unless an exception applies.
  • Section 259 CPSA 1995: A statutory exception permitting certain hearsay where the maker will not give evidence for specified reasons (including being “unfit or unable” by bodily/mental condition), and other safeguards are met (para [27]).
  • “Unfit or unable to give evidence in any competent manner”: Not limited to physical incapacity; it can include serious mental health-related incapacity. The judge decides on balance of probabilities using the available evidence (paras [31], [36]–[37]).
  • Special measures / evidence by commissioner: Procedural accommodations (e.g., screen, supporter, live TV link, commission) designed to help vulnerable witnesses give evidence. Section 259 should not be used if a witness can give evidence competently using these measures, but this is a factual question for the judge (paras [31]–[33]).
  • “On soul and conscience”: A formal declaration that the author honestly believes the contents are true—often used to support procedural applications; helpful but not, in itself, a substitute for meeting the statutory test.
  • Miscarriage of justice: Not every evidential error leads to reversal; the appeal court assesses whether the error mattered to the outcome (para [39]).

5. Conclusion

[2026] HCJAC 33 clarifies that section 259 does not impose rigid evidential hierarchies (such as requiring a psychiatrist’s report) and that a sheriff may be entitled to find a witness “unfit or unable” based on suitably reasoned evidence from a GP (especially one with long involvement) supported by community mental health nursing information, where special measures have been considered. The court also re-emphasises that once the statutory conditions are met, admission of the hearsay is mandatory, and that evidential errors do not automatically amount to a miscarriage of justice.