How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask JGM Your Own Question
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11148
Experience:  30 years as a practising solicitor.
Type Your Scots Law Question Here...
JGM is online now
A new question is answered every 9 seconds

I am defending myself in a criminal case (summary trial, sheriff

This answer was rated:

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?
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 and other Scots Law Specialists are ready to help you
Customer: replied 3 years 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?

No, the lawyer would only get legal aid for the whole case, not for citing witnesses in isolation. Although you might be able to get the lawyer to apply for legal advice and assistance to cover this; he would have to check with the legal aid board as to whether this might be covered under that scheme.

The sheriff clerk can't apply to the legal aid board either. You need to either pay privately for this or see a solicitor and apply for legal aid.

If you are on benefits you should qualify anyway so you might be better just to get a lawyer to do the case for you..