Charge sheets

Published on Saturday 9 September 2006 01:08

Q I have discovered that one of my ancestors was a criminal. I have found references to certain documents but I'm not sure I understand what they refer to - for example, what is a precognition, what can I expect to find in the trial papers and will I find a transcript of the trial?

P Goody (Nova Scotia, Canada)

A A precognition is the written report of the evidence of witnesses to a crime, put together to help prepare the case against the accused. Precognitions for more serious crimes are preserved among the Lord Advocate's or Crown Office records held by the National Archives of Scotland (NAS). Hardly any survive before 1812. Those for the period prior to 1900 are referenced AD14, and from 1901, AD15. You should be aware, however, that there is a 75-year restricted access period on precognitions and also on High Court of Justiciary trial papers.

What you find within precognition papers varies from case to case, but as well as the statements of the witnesses there is usually the declaration of the accused. You will normally find a copy of the printed indictment setting out the charges against the accused, and there can also be details of any previous convictions and a list of witnesses in the case. In some precognitions you will find the accused's full designation, occupation, age and address.

It is a common misconception that the trial papers for a case will include a transcript of the trial. In fact very few trial transcripts have been preserved among the High Court records held by the National Archives of Scotland (NAS ref: JC36) and those few which have survived tend to be for high-profile cases where the sentence passed down was death. It is therefore highly unlikely that you will find a transcript of your ancestor's trial. What you will find among the actual trial papers (NAS ref: JC26) will again differ from case to case. Sometimes all that you will find is a copy of the printed indictment, a copy of the declaration made by the accused and an extract conviction - not much more than you would find in the precognition.

Q Can you explain the purpose and duties of cautioners, mentioned in a pre-marriage agreement in Scots law?

D Begg (by e-mail)

A A person who is described in a Scottish legal document as a "cautioner" is someone who stood as surety or as a guarantor for the main named party, also sometimes referred to as the debtor. In this context the debt for which the cautioner stood as surety needn't be a financial one, but it could also be to guarantee the performance of an act, the delivery of goods, or for the performance of the duties of an office.