Section 259 Hearsay: No Mandatory Psychiatric Report and Deference to the Trial Judge’s Finding of Witness Unfitness

Introduction

This appeal in the Scottish High Court of Justiciary (Appeal Court) concerned the admissibility of hearsay evidence under section 259 of the Criminal Procedure (Scotland) Act 1995 in a summary prosecution for domestic abuse under section 1 of the Domestic Abuse (Scotland) Act 2018, aggravated by bail.

The appellant had been convicted at Edinburgh Sheriff Court of a course of abusive behaviour against the complainer (a partner or ex-partner). The Crown’s case included (i) direct testimony from the complainer’s children and neighbours and (ii) hearsay: statements the complainer made to a police officer. The hearsay was admitted after the sheriff upheld a renewed section 259 application on the basis that the complainer was, due to mental and physical health conditions, unfit or unable to give evidence in any competent manner, even with special measures.

The Sheriff Appeal Court (SAC) held the sheriff had erred in admitting the hearsay but refused the appeal on the basis there was no miscarriage of justice. Before the High Court, the appellant argued that once the section 259 safeguards were not met, a miscarriage necessarily followed (or at least could not safely be excluded). The Crown argued section 259 was satisfied; and, in any event, the remaining evidence supported the conviction.

Note: The judgment text itself states that this opinion contained an error and was superseded by the opinion dated 31 July 2026, [2026] HCJAC 33. The commentary below addresses the reasoning appearing in the provided text ([2026] HCJAC 30).

Summary of the Judgment

  1. The court held that the SAC was wrong to conclude the sheriff erred: on the material before the sheriff, she was entitled to find on the balance of probabilities that the complainer was unfit or unable to give evidence in any competent manner, including with special measures; therefore section 259 was satisfied and the hearsay was admissible.
  2. The court emphasised that section 259 does not impose a categorical requirement for a psychiatrist/consultant report: credible medical evidence may come from a GP and a community mental health nurse.
  3. The court reaffirmed that where the section 259 conditions are met, the judge has no discretion to refuse admission (citing N v HM Advocate 2003 JC 140).
  4. The appeal was refused. The court also stated that even if the hearsay had been wrongly admitted, it would still have refused the appeal because the sheriff’s acceptance of the other credible and reliable evidence meant a conviction followed in any event; wrongful admission/exclusion of evidence does not automatically constitute a miscarriage of justice.

Analysis

1) The statutory framework: section 259 and the trial judge’s gatekeeping role

The decision is anchored in the structure of section 259. The court highlighted:

  • The judge must be “satisfied” of the conditions in section 259(1), including (a) that the maker will not give evidence for a reason in section 259(2), notably section 259(2)(a): “dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner”.
  • Under section 259(8), where challenged, the judge determines relevant matters on the balance of probabilities.
  • The court framed section 259 as imposing a duty to make a finding in fact about unfitness/unavailability; the sheriff therefore needed “suitable medical evidence” explaining why the witness could not give evidence competently, including with available special measures.

2) Special measures and “other competent manner”: the role of commission evidence

A major factual/legal pivot was whether alternatives to hearsay—especially evidence by commissioner—had been properly considered. The SAC criticised the Crown for not exploring familiarisation visits, commission in a familiar place, and other arrangements.

The High Court’s approach was more pragmatic:

  • It relied on the sheriff’s recorded understanding that the GP had been informed of a range of special measures, including evidence by commissioner, screens, a supporter, and remote live link (para [32]).
  • It placed weight on section 271I(3) (and practice notes) confirming that an accused is ordinarily not physically present at a commission and is entitled to watch and hear by suitable means (paras [28]–[29]).
  • It rejected the appellant’s late reliance on the possibility that an accused might waive the right to view a commission: even if possible, no such concession had been made before the sheriff (para [32]).

On the facts, the High Court read the GP’s second letter as explicitly engaging with the idea that the complainer would still be seen (including “projected via screen” and “in another building or more remotely”), and as concluding special measures would not offset the risk (paras [11]–[13], [33]).

3) Medical evidence and “on soul and conscience”: no rigid hierarchy of experts

The SAC had been critical of the evidential basis: lack of clarity on formal diagnosis, the community nurse letter not being “on soul and conscience,” and the GP’s opinion being less apt than a specialist’s opinion. The High Court disagreed in emphatic terms:

  • No statutory requirement exists in section 259 for a consultant psychiatrist (or any particular category of medical expert) (para [35]).
  • The key is whether the evidence is capable of being accepted and is sufficient to satisfy the sheriff on the balance of probabilities that the witness is unfit/unable to give evidence “in any competent manner” (paras [36]–[37]).
  • In this case, the combination of the community mental health nurse’s observations and the GP’s longitudinal knowledge and “on soul and conscience” letter provided a sufficient basis (paras [33], [37]).

The court also treated the GP’s discussion of triggers and likely deterioration as legitimate material for the unfitness assessment, rather than an impermissible factor.

4) Appellate restraint: the SAC read in “evidential barriers” not found in the statute

A doctrinal point emerges: the High Court criticised the SAC for effectively imposing extra-statutory evidential thresholds and for interfering with a finding the sheriff was entitled to make (para [35]). This positions the trial judge’s section 259 determination—once properly directed—as a fact-sensitive assessment that appellate courts should not overturn merely because they would have demanded more.

5) Miscarriage of justice: wrongful admission/exclusion is not automatically fatal

The appellant argued that because section 259’s safeguards were not met (as the SAC found), the trial was necessarily unfair. The High Court rejected that “automatic miscarriage” framing. It reiterated that the impact of wrongful admission/exclusion depends on circumstances, and stated that even on the hypothesis that hearsay was inadmissible, the conviction would still stand because:

  • the sheriff found the non-hearsay witnesses credible and reliable; and
  • given acceptance of that evidence, conviction followed regardless of hearsay (paras [39]).

Precedents Cited (and how they were used)

Morrison v HM Advocate 1990 JC 299 and McCutcheon v HM Advocate 2002 SLT 27
Cited to restate the common law prohibition on hearsay as a baseline definition: statements not made by a (living) person while giving oral evidence are generally inadmissible (para [26]). The court used these authorities to set context for section 259 as a statutory exception framework.
Lord Advocate's References (Nos 2 and 3 of 2023) [2024] HCJAC 43, 2025 JC 200
Mentioned as establishing a further common law exception: statements made de recenti (para [26]). This situates section 259 within a broader evidential landscape that includes both statutory and developing common law exceptions.
Inglis v PF Edinburgh, 27 August 2019, unreported
Relied on in submissions (Crown) as authority that section 259 applications should be supported by “proper medical evidence” vouching unfitness (para [21]). The High Court did not treat Inglis as imposing strict formal requirements beyond the statutory test, instead focusing on the sufficiency of evidence in context.
Glass v HM Advocate [2018] HCJAC 70, 2019 JC 17
Used to explain limits of section 259: it is aimed at witnesses who cannot give evidence as a generality because of mental condition, not those who have simply forgotten a particular event, where other competent means (adoption of statement) may exist (para [30]). The case also supported the proposition (in submissions) that the court must be satisfied there are no other measures by which the witness’s evidence can be taken (para [21]).
N v HM Advocate 2003 JC 140
Central to the High Court’s holding that once section 259’s statutory conditions are met, the judge has no discretion to refuse hearsay admission (para [31]). This is important because it frames the admissibility decision as rule-based rather than a free-ranging fairness discretion.

Impact

  • Lower courts: The decision supports a practical approach to section 259 applications where credible medical evidence is available from clinicians who know the witness (including a GP and community mental health nurse), without insisting on specialist psychiatric reports as a prerequisite.
  • Special measures analysis: It underlines that the “any other competent manner” inquiry is concrete and fact-based. Where a medical opinion addresses the witness’s likely inability to participate even with screens, remote links, or commission evidence, a sheriff may be entitled to find unfitness.
  • Appellate review: The judgment signals restraint in overturning a sheriff’s section 259 fact-finding, warning against reading extra requirements into the statute.
  • Miscarriage of justice doctrine: It reinforces that evidential error does not automatically quash a conviction; courts will examine whether the verdict was inevitable on admissible evidence and on the trial judge’s credibility findings.

Complex Concepts Simplified

  • Hearsay: a statement repeated in court to prove the truth of what it asserts, where the original speaker is not giving that evidence in court.
  • Section 259: a statutory gateway allowing certain hearsay statements to be used when the maker cannot give evidence for specified reasons (including medical unfitness), provided other safeguards are met.
  • “Unfit or unable to give evidence in any competent manner”: not just “unwilling” or “anxious”; it denotes an inability, due to bodily or mental condition, to give evidence in a legally acceptable way even with adaptations.
  • Special measures / evidence by commissioner: procedures to help vulnerable witnesses give evidence (e.g., screens, live links, or pre-trial taking of evidence by a commissioner). Section 271I(3) generally prevents an accused from being in the same room as the witness at a commission, while preserving a right to watch/hear remotely.
  • “On soul and conscience”: a formal declaration by a professional that the stated opinion is given solemnly and conscientiously; relevant to weight and reliability, but not a substitute for meeting the statutory test.
  • Miscarriage of justice: an appellate conclusion that a conviction is unsafe or unfair in law; it is not presumed from every procedural or evidential error.

Conclusion

The High Court refused the appeal and clarified the operation of section 259 in three key ways: (i) the sheriff’s task is a balance-of-probabilities fact-finding exercise on unfitness, informed by sufficient medical material addressing special measures; (ii) section 259 does not require a particular tier of medical expert evidence, and appellate courts should not impose extra-statutory evidential hurdles; and (iii) even where an evidential error occurs, a miscarriage of justice is not automatic—courts will examine the overall evidential basis for the conviction and the trial judge’s credibility findings.