In this article I shall tell you how to help yourself so that you can give evidence if called as a witness.

The secret, as in most things, is to prepare. There will be too much pressure upon you once you are in the witness box to try to work out things then. Do it in advance and it will be much easier.

In the last article I explained that you could be called to give evidence even if you did not give, or even refused to give, a statement to the police about the incident. In that article I also explained what evidence you could be expected to give.

The first problem we all have is trying to remember what happened, particularly when the court case is long after the event. Trials can be months or even years after the incident and we have to come up with some method to help us remember.

The first, and least used, way is to make a note of what happened and keep that as an aide memoire to refer to. There are rules about these notes. They must be your notes and you must make them at the time of the incident. The idea of this is the events were fresh in your mind when you noted them and are therefore more likely to be accurate than if they were noted some time later. "At the time" is not a rigid definition but a requirement that they be written as soon as possible after the event. Please do not later "tidy" up the notes as by so doing they lose their spontaneity and you may not be able to refer to them.

The next step is not to do what comes naturally. Do not discuss your evidence with others. Each of us will view the same incident in different ways and remember different aspects of it. Remember my story of the big drum. If you discuss your evidence with others, your memory of it will invariably become confused with their versions.

In summary, make your notes of the incident at the time, put them away safely and get on with your life. You should not worry about whether or not you may be called to give evidence. The vast majority of cases are dealt with without anyone giving evidence.

PRECOGNITION

This is a stage before you go to court and may determine whether you have to give evidence at all. You may be asked for a "precognition" by either the Procurator Fiscal, or a defence solicitor or by both. Precognition simply means that a statement will be taken from you about the evidence you are able to give.

In our procedure evidence is what is said in court. Statements, whether to the police, the fiscal or defence are not evidence. They are used simply to let the lawyers know what questions to ask you so that you can give your evidence.

Except in the more serious cases, which are to be heard before a judge and jury, it is unlikely that you will be precognosced by the fiscal. In these serious cases you may be precognosced by the fiscal. In other cases the fiscal does not need to see you as he has the statement you made to the police and this will usually be enough for his purposes.

However this is not the same for the defence. The statement you gave to the police does not get passed to the defence. All the defence get is a list of names and addresses of potential crown witnesses. Without obtaining a precognition from you, the defence lawyer has no idea what your evidence may be.

Everyone is innocent in the eyes of the Law unless, and until, the Crown can prove him, or her, guilty. An accused is entitled to know that the Crown can prove their case. My experience is that many accused do not themselves know what happened for a great variety of reasons.

Unlike the fiscal, the accused and his lawyer do not know what the evidence is as witness statements are not passed to them. Hence, as the law stands at present, there are but two ways to find out. One is by precognition and the other is by insisting the witness gives evidence in court.

The Procurator Fiscal may precognosce whom he chooses, and any attempt to refuse to be precognosced by him is a criminal offence. It is not the same for the defence who have no right to insist you give a statement. If the case is important enough the defence can apply to the court to have you brought before the Sheriff to be precognosced on oath, but this step is rarely taken. More usually we have to rely on witnesses understanding the result of refusing to be precognosced.

First of all, as your evidence is unknown, it cannot be agreed. You will have to give up your time and give evidence in court.

Secondly, the solicitor is not able to advise his client that the Crown can prove the case and the matter will have to go to trial. The result is that you will have to give up your time and give evidence in court.

Thirdly, you will face a challenge on your evidence in court as it will be strongly suggested you are not interested in justice but only in getting your biased version of events put forward. Why else did you refuse to give a statement to the defence? The statement taken from you is for the use of the lawyer, not the accused. The Law Society's Code of Conduct does not permit a solicitor to give a copy of a precognition to the accused.

Hence by refusing to be precognosced, you almost guarantee that you, and the other witnesses, will need to give evidence in court and that you will not have an easy time in the witness box.

Please co-operate when defence agents ask for a precognition. We are only doing our job and some day you may want us to do it for you.

Next month I will give you some tips on the third step in preparing yourself and giving evidence.

For my tail piece, I leave you with a question. Is the phrase "a criminal lawyer" a tautology?