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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7511
Experience:  28 years as a practising solicitor.
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I am defending myself in a criminal case (summary trial, sheriff

Resolved Question:

I am defending myself in a criminal case (summary trial, sheriff court) and cannot cite witnesses for my defence because I do not have 'caution' (pronounced kay-shun).

I brought the matter up at the intermediary and the sheriff told me that obtaining witnesses is my responsibility so he can't help.

The Procurator Fiscal will only cite prosecution witnesses and refuses to cite any defence witnesses.

The clerk of the court can't cite witnesses and says I must use sheriffs officers to do it...but the sheriffs officers won't cite witnesses for me because I don't have 'caution'.

Human rights Article 6 says I have the right to defend myself and I have the right to a fair trial. But how can you have a fair trial if you cannot cite witnesses for your defence?

Not having 'caution' prevents me from obtaining and examining witnesses under the same conditions as the prosecution so it would appear Scots law is discriminating against me and breaching article 6 just because I have chosen to defend myself.

Anyone come across this unusual situation before?
Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
Thank you for your question.

Caution is to ensure that the witnesses will be paid their expenses but very few insurers will issue a bond of caution in a criminal case.

The best way to do it is to consign funds in the hands of the sheriff clerk or alternatively ask a solicitor to cite the witnesses after you have lodged sufficient funds to cover the citation costs and witness expenses with him.

Unfortunately it is not anyone's human right to be able to call witnesses to court without underwriting their expenses.

The reason it applies to you when you represent yourself is that a solicitor has a professional obligation to obtain funds either from his client or from the legal aid board to pay a witness his expenses. That obligation does not apply to a party accused therefore the court has to be satisfied that the costs will be covered.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7511
Experience: 28 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.

Yes, I see.


 


Consigning funds to the sheriff clerk and having him cite witnesses would therefore seem to be the best way forward for me.


 


I'm currently receiving benefits (Job Seekers Allowance) so depositing large funds would be out of the question sadly.


 


Can the sheriff clerk make an application for the funds from the legal aid board on my behalf or can legal aid only be applied for by a lawyer?


 


I can't really see any lawyer being willing to fill out legal aid forms and securing funds from SLAB to then just pass on the funds/'caution' to the sheriff clerk. I would imagine if the lawyer isn't getting the job defending he's unlikely to want to be involved?

Expert:  JGM replied 1 year ago.
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