§ Lord McCluskeyasked Her Majesty's Government:
Whether they will (a) specify "the difficulties which are currently experienced in Scotland", being the difficulties which the Lord Advocate referred to in a letter to Profesor I. D. Willock published in Scolag in January 1983, as making it desirable to extend to Scotland the provisions of Clause 53 of the Police and Criminal Evidence Bill; and (b) whether they will indicate where such difficulties are reported, referred to, narrated, listed or documented in such a manner that they may be studied and assessed.
§ Lord Mackay of ClashfernThe difficultes referred to are the problems which public prosecutors in Scotland have experienced in proving routinely recorded evidence when the maker of the record has died or cannot be found, and when, even if the witness is available, he cannot reasonably be expected to remember the making of the record in question. These difficulties can arise in a considerable variety of circumstances, as, for instance, when injuries sustained by an assault victim are recorded in hospital records and the doctor concerned has left the country, or when the compiler of a record of social security payments has no recollection of an individual case. These difficulties are exacerbated where the routine332WA record is made by a number of persons, such as a series of DHSS officials dealing with the various stages of the making of benefit payments, and the absence of any of these persons or his lack of recollection of the circumstances of what will have been only one of a number of very similar cases makes it impossible to render the record admissible as the basis for a successful prosecution.
Difficulties of this kind are mentioned in Sheriff I. D. Macphail's Research Paper on the Law of Evidence in Scotland (paragraphs 12.04 and 12.14). (That paper was published by the Scottish Law Commission but it is, of course, made clear in the Foreword that the views which Sheriff Macphail expresses do not necessarily represent the views of the Commission.)