Taking evidence on commission by way of interrogatories, little used in practice until recently, has undergone a revival due to the legislation on vulnerable witnesses

Some commissions have nothing to do with the recovery of documents. Instead, they are a means of obtaining the evidence of witnesses. There are two types, the open commission and the commission on interrogatories.

In the former, the commission is effectively a proof with the commissioner acting as judge or sheriff. The witness is examined by the parties or their agents and the scope of the examination, cross-examination and re-examination is circumscribed by the written pleadings.

Common law legacy

Historically, the evidence of witnesses generally was taken by commission on interrogatories, not by proof. MacSporran and Young state that “From early times practice in the Court of Session was to grant commissions in the form of adjusted interrogatories”: Commission and Diligence, para 9.75. Modern practice distinguishes between interrogatories and cross-interrogatories. These are two lists of written questions, drafted and adjusted by the party seeking the evidence and his or her antagonist respectively, and then approved by the court in advance of the commission. The commissioner is told what to ask the witness, the commissioner does so and the answers are noted. Although there is some flexibility – for example, the commissioner is normally allowed to ask additional questions to clarify matters arising – the court exercises quite tight control.

The Sheriff Courts (Scotland) Act 1853 and the Evidence (Scotland) Act 1866 introduced a general requirement that witnesses’ evidence be taken by proof rather than by commission. But this was stated to be without prejudice to the court’s ability to allow evidence to be taken on commission, in accordance with existing practice, to accommodate exceptional circumstances. This remains so. These could be, for instance, where witnesses are unable to attend court due to age, illness or infirmity, or reside beyond the jurisdiction of the court or are about to emigrate. The court still has this largely discretionary power to allow evidence to be taken, by either type of commission, open or on interrogatories.

Provision for the vulnerable

Until recently, disfavour was shown towards the taking of evidence by the latter form of commission. “The practice of taking evidence in this form has often received judicial disapproval and tends only to be employed in relation to witnesses who are resident abroad and whose evidence is in short compass”: Commission and Diligence, para 9.18. However, that textbook predates by a decade legislation which has brought about a reversal of fortune in this mechanism for taking evidence.

The categories of exception noted above have been supplemented as a result of the Vulnerable Witnesses (Scotland) Act 2004, as amended by the Victims and Witnesses (Scotland) Act 2014. These modern statutes are creative, whereas the Victorian legislation preserved conventional practice for a few specified situations. Also, the logistics of the traditional and the statutory methods are governed by separate chapters in the rules of court. The most significant difference between the Court of Session and the sheriff court is that in the former a commission will be on interrogatories unless the court directs otherwise, whereas in the latter court the converse applies: RCS, rules 35.11(10) and 35A.11(6); OCR, rules 28.10(5) and 45.11(3).

Vulnerable witnesses and special measures are creatures of the 2004 and 2014 legislation. Part 1 of the 2004 Act amends the Criminal Procedure (Scotland) Act 1995 to add new sections, whereas part 2, which concerns civil procedure, stands alone. The provisions defining these terms mirror each other, and create special measures. One of these is taking evidence on commission. However, this is not merely the conventional method already described but a statutory mechanism. Within part 2, special measures are defined by s 18. These include taking evidence by commission in accordance with s 19. That section provides that a video recording must be made and received in evidence. There is an analogous provision (s 271I of the 1995 Act) concerning criminal procedure.

Given the level of micromanagement in this Act, it is a little surprising that s 19 fails to differentiate between open commissions and those on interrogatories. It is merely left as a matter of inference or implication that both types are available. However, the court rules appear to indicate that a judge does not have an unfettered choice over which is deployed. RCS, rule 35A.11(6) allows the court “on the motion of any party and on cause shown, [to] dispense with interrogatories”. It is not explicitly permitted ex proprio motu. In the equivalent ordinary cause rule, 45.11(3), the decision is simply made “on cause shown”. This election is competent in civil procedure only. By contrast, in criminal cases all commissions under the 2004 Act are open: the court will “dispense with interrogatories” (Renton and Brown, para 24-143.5.1).

Differences and omissions

These two species of commission are hugely different in practice and in how they have the potential to affect a vulnerable witness. In an open commission, cross-examination can be as robust as in a proof. It can be put to the witness that he or she is hopelessly unreliable or a shameless liar or both. The oral evidence can be probed, tested and challenged. This simply does not occur in a commission on interrogatories. The parties or their agents have a passive role, observers rather than participants. Indeed, they do not require to attend at all.

In a commission on interrogatories the witness is not faced by a questioner who is an agent for the opponent of the party calling him or her. In other words, the witness is not exposed to interrogation by the representative of a hostile party. Such a commission is therefore likely to be less traumatic for the witness. Where a party litigant is involved, the ordeal of an open commission is likely to be exacerbated. Certainly, in the writer’s experience, a witness will encounter less anxiety at a commission on interrogatories than at an open one.
One of the factors that may justify the procedure conventionally is that it saves the expense of the attendance of parties’ representatives: Henderson v Henderson 1953 SLT 270. Nevertheless, and leaving aside the welfare of the witness, it is always preferable to have litigants or agents present: issues may arise unexpectedly where they might wish to request the commissioner to ask additional questions of the witness.

Alas, the rules of both the Court of Session and the sheriff court are somewhat incomplete in regulating the attendance or representation of parties at conventional commissions. The position is clear regarding open commissions – parties are entitled to be both “present and represented”: RCS, rule 35.13(2); OCR, rule 28.12(2). But the rules are silent regarding commissions on interrogatories, both conventional and statutory.

Section 19(3) of the 2004 Act states that a party must not be present at any special measure commission except by leave of the court. Where, in the Court of Session, an open commission has been so assigned, a party’s entitlement is only to be represented: RCS, rule 35A.13(2). By contrast, OCR, rule 45.13 states nothing about representation. Given that an open commission cannot go ahead without at least one agent or litigant being present to question the witness, this is a peculiar omission.

Recent illustrations

Recent case law on the point is interesting. GM v MB 2016 SLT (Sh Ct) 279 was a family action in the sheriff court for interdict, residence and removal of parental rights and responsibilities. There were three children, all cited as witnesses. The mother (defender) was unrepresented. In considering special measures under the 2004 Act, Sheriff Turnbull (as he then was) considered it reasonable to anticipate that the children would be asked about alleged incidents of abuse at which they were said to have been present, their views about residence and about the effect on their welfare of the defender’s behaviour and conduct. As regards deprivation of her parental rights and responsibilities, “to permit a party litigant to examine (or cross examine) a child witness on such matters has the potential to be extremely distressing for the child in question”.

The sheriff observed that “In relation to criminal cases, Parliament’s view is that there are certain classes of case in which vulnerable witnesses should not be examined by accused persons. No broadly equivalent provision exists in civil cases in relation to party litigants, leaving it to the court to resolve what can be an extremely difficult issue.”

He considered the criticisms made and drawbacks identified in the various cases concerned with commissions on interrogatories. However, on the motion of the pursuer’s agent he appointed evidence to be taken by that method, rather than by an open commission, since “permitting a party litigant to appear at and conduct that [open] commission would, in many respects, be tantamount to dispensing with special measures”. The sheriff appointed himself as commissioner. Incidentally, under criminal procedure the commissioner must be a judge, sheriff or justice of the peace, depending on the forum concerned (Renton and Brown, above).

The case identified another possible benefit (other than in relation to expense, as in Henderson, above), flowing from the absence of parties’ agents from the commission: “The pursuer’s solicitor and the third party minuter [also a solicitor] need not be present at the commission. In my view the fewer people present the easier it will be for the children to give their evidence”.

In JS and CS v The Children’s Reporter [2016] CSIH 74 the Inner House considered special measures and, in particular, the appointment of a commissioner under s 19 of the 2004 Act. Lord Brodie observed: “The process of cross-examination can be further controlled with a view to reducing stress on the witness and avoiding inappropriate questioning by not dispensing with interrogatories. Mrs [Janys] Scott [QC, senior counsel for one of the parents] commended a recent decision by Sheriff Turnbull, as he then was, in which that course had been adopted.”

The 2004 legislation has quite properly rehabilitated a hitherto much maligned form of recovering evidence, one especially relevant where party litigants may be involved.

The Author
Andrew Stevenson is a solicitor advocate with Hennessy Bowie, Glasgow. He has acted as commissioner for many years and during 2017 he has held commissions of both types mentioned in this article.
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