Probably the one time that most people come into contact with Scottish criminal courts is when they are called to give evidence as a witness. For most this is also an anxious experience as it is a journey into the unknown.

Giving evidence should be a matter of concern to you as it is important that you give your evidence as well as you can. It should not be a frightening or upsetting experience and a few pieces of information should help you find it less daunting.

In the first place, it is nothing like you see on the TV. TV is there to entertain and not to show what it is really like to give evidence. It would be too boring. In my thirty years of practice I have never had some witness break down and confess to having committed the crime that some innocent was charged with. It also has to be remembered that the majority of TV court scenes are taken from English procedure, either in England or the USA. Scottish procedure is very different.

Let us start with the basics. Who can be called to give evidence? The answer is just about anyone. Very few people can refuse to give evidence. One group is spouses who, in general terms, cannot be compelled to give evidence against their husband or wife. Note however that this exemption only applies to lawfully married couples. It does not apply to people living together, no matter for how long or how they view their relationship. Nor does the exemption apply to same sex couples.

Note too that parents do not have the right to choose whether their child should give evidence.

Nor are witnesses limited to those who, for example, gave statements to the police about an incident. I said in my first article in this series that, in general terms, no one is obliged to give a statement to the police. However that does not mean that, if you have refused to give such a statement, you cannot be forced to go to court to give a statement there.

Next, can you refuse to go to court as a witness? Again the short answer is no, even if you are a spouse and would not have to give evidence.

Next, can you refuse to give evidence? Again the short answer is no, unless your evidence falls into that small, very small, category of evidence you do not have to give. Examples of this are, again of the spouse, or of not giving evidence, which showed you had committed a crime.

What happens if I refuse to go to court or, once there, refuse to give evidence? Better have a toothbrush with you, as you will be going to prison. It is not for you to choose whether you will attend or what questions need to be answered. These are matters exclusively for the court to decide and most courts take a very dim view of those who do not cooperate.

In England written statements are taken from, and signed by, witnesses and these written statements can be used in evidence without the need for the witness to go to court at all. This is not the procedure in Scotland. In general terms for evidence to be admitted in Scotland a witness has to go into the witness box and say it. Ours is an oral tradition. This is why you have to turn up and give your evidence in court.

Well it rather looks like you had better cooperate, turn up and be prepared to give evidence after all. Let us therefore look at your evidence.

What evidence can you give? Your evidence is what you saw or heard and any reasonable inferences that can be drawn from that. It is not what someone else told you or said. Such evidence of what you heard someone else say is “hearsay” and not admissible in evidence. The reason for this rule is that if that other evidence is necessary, it should be that other person telling it to the court. The main exception to this is that it is not hearsay to say what the accused said. The accused cannot be compelled to give evidence and thus cannot be compelled to say what you heard him say.

How can I be expected to remember all that happened? You are not. The person who “remembers” everything is probably lying. In the first place you do not go through your day observing, and carefully noting, everything that is going on around you. The driver who says he did not see the cyclist does not mean that the cyclist was invisible, just that he failed to focus on him and take note of his existence. You are bound to miss parts of what was happening and the more that was going on the more likely it is you did not see all that happened.

I remember a lesson well taught on this point. One day in yet another dreary lecture, the door was flung open and someone came in, banging enthusiastically on a big drum, marched past the lecturer and exited by the other door. Very few, not including me, noticed that, while this was going on, the lecturer put a bin over his head. Most of us were too busy watching the main event to notice.

In the second place we are human and do not remember everything.

Does that mean I do not have to worry as any time anyone asks me anything I shall just reply that I cannot remember? Again this course of conduct is likely to require you to bring your toothbrush. You have been brought to court for a reason and that is to give your evidence. If your evidence were not thought to be necessary, you would not be there. As I said in my first article, if we wish to be citizens of this country, we have duties as well as rights. It is your duty to give evidence and our right to demand that you do, and do so properly. Remember too that one day it may be you hoping that others will act properly and be witnesses for you or yours.

In my next article I shall tell you how to prepare yourself to give evidence and how to give evidence.

I shall close this article with another story. My practice deals only with criminal cases. Accordingly when I was called one night by a grandmother to help her daughter whose children were about to be taken from her, I had to say that I could not help as that was a civil matter and I only dealt with criminal ones. I had no answer to her reply that what they were doing to her daughter was criminal!