Legal Definitions - precognition

In Scots law, precognition refers to a formal process where lawyers gather information from potential witnesses before a case goes to trial. This involves interviewing individuals who may have knowledge relevant to the facts of the case, often to assess the strength of the evidence and determine if there is enough material to proceed. The term also refers to the written record of the statement provided by a prospective witness during this preliminary examination.

Here are some examples to illustrate the concept of precognition:

• Criminal Case - Assault: Imagine a situation where an individual is accused of assault in a public park. Before deciding whether to proceed with a full prosecution, the Procurator Fiscal (Scotland's public prosecutor) will arrange for precognitions. This involves interviewing the alleged victim, any bystanders who witnessed the incident, and potentially the arresting police officers. Each interview aims to gather a detailed account of what happened. The written statements taken from these individuals, summarizing their expected testimony, are then referred to as the precognitions. This process helps the prosecutor determine if there is sufficient and credible evidence to bring the case to court.

• Civil Case - Road Traffic Accident: Suppose a driver is involved in a car accident and wishes to claim compensation for damages and injuries. Their solicitor will conduct precognitions with the client, any passengers in their car, and independent witnesses who saw the collision occur. The solicitor might also precognosce a mechanic who inspected the vehicle damage or a medical professional regarding the client's injuries. The detailed written records of these interviews, outlining what each person can testify to, are the precognitions. These documents are crucial for the solicitor to build their case, understand the evidence available, and assess the likelihood of success before initiating formal court proceedings.

• Civil Case - Employment Dispute: Consider a former employee who believes they were unfairly dismissed from their job and decides to pursue a claim against their previous employer. Their legal team would conduct precognitions with the former employee, any colleagues who might have witnessed relevant events leading up to the dismissal, and potentially human resources personnel. For example, a colleague might be precognosced to confirm a pattern of discriminatory behavior. The resulting written statements, detailing the accounts of these individuals, are the precognitions. This allows the legal team to gather all pertinent facts, identify key witnesses, and understand the strength of their client's claim before presenting it to an employment tribunal or court.