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Hearsay, discretion and the ECHR

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Abstract

Discusses the implications of the High Court ruling in N v HM Advocate where in a trial for offences of shameless indecency and incest, the Crown had sought to rely on the tape recorded evidence of one of the complainants, who had given evidence against the accused in a previous trial that was deserted and was unfit to give evidence by the time of the second trial. Considers whether the Criminal Procedure (Scotland) Act 1995 s.259 on the use of hearsay evidence applied and, if it did, whether the trial judge had any discretion to exclude the evidence where the conditions of s.259 were met. Examines whether a discretion should exist under s.259 and whether admission of the tape recording in the instant case violated the accused's right to a fair trial under the European Convention on Human Rights 1950 Art.6.

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