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Act 8, 1994 (VIII) – Act anent the Practice – Supplement to Chapter on Discipline. 24th May 1994.

The General Assembly instruct that there be added to the chapter of “The Practice” on Discipline the following

SUPPLEMENT TO CHAPTER ON DISCIPLINE

Evidence of Persons unable to attend a Church Court

A witness whose evidence is deemed likely to be material may not be able to attend the Church Court dealing with a case of discipline. Inability to attend may be due to illness, old age, or great distance – eg residence overseas. Where illness is the cause of non-attendance, medical certification is required.

Where inability to attend is due to distance, evidence may be taken on Commission.

The relevant Court appoints a responsible person as its Commissioner to take the evidence of the witness in writing (possibly also with a tape-recording of the proceedings). This Commissioner is resident in the locality of the witness. Where distance precludes parties from being present at the Commission and so having opportunity to question and cross question the witness, the following procedure is adopted.

1. A list of numbered questions is prepared on behalf of the party who wishes the witness interviewed.

2. This list is then submitted to the other party who prepares cross-questions to be put to the witness on his behalf. The preparation of this list of cross-questions cannot be postponed until the answers to the first list have been lodged.

3. The list of cross-questions is then submitted to the first party and both parties try to agree the terms of both documents.

4. The lists are then submitted to the clerk of the Court concerned and parties are duly cited to appear before the Court for the adjustment, if necessary, of the documents submitted and for their approval.

5. The documents are then passed on to the appointed Commissioner who duly meets with the witness in a formal manner. At this meeting the Commissioner reads the questions separately to the witness and his replies to each question are numbered and recorded. The Commissioner may put further questions to the witness and require him to make such additions and explanations as he thinks necessary.

6. The document recording the witness’s answers and explanations should be read over by him or to him and duly signed by him.

7. The documents are then returned to the clerk of the Court which authorised the Commission.

The foregoing is the best procedure which has been devised especially where the witness resides outside the United Kingdom. But these procedures, although satisfactory for obtaining certain types of evidence are a very inadequate and sometimes wholly unsuccessful expedient for testing the evidence of a witness whose credibility and reliability are likely to be serious issues. For interviewing a witness who though at a distance is within the United Kingdom a different procedure may therefore be adopted. This procedure dispenses with the preparation of written lists of questions and cross-questions and adopts what is called an “open Commission”.

In an open Commission, the Commissioner effectively holds court at the location of the witness and parties attend and put questions as they would normally do and the Commissioner records the questions and answers in writing as given in the course of examination, cross-examination and re-examination, possibly with the support of a tape recording of the proceedings. In his report of the evidence the Commissioner may remark upon the demeanour of the witness and his impressions as to credibility and reliability.

A circumstance to be noted is that at an early stage when proceedings are only being contemplated, a party may seek to obtain immediately the evidence of a witness where the evidence is in danger of being lost. The danger usually arises from the witness’s old age or dangerous sickness, so that he is in danger of early death, or from the fact that he is obliged to go abroad. In that event the evidence is taken to lie in retentis, that is to be held back or laid aside until the proper time arrives for adducing it.