A proof of evidence (in Scotland, a precognition) is a detailed
summary of the witness's evidence prepared before the hearing and
it can be a useful tool during an examination in chief. You can use
it as an aide-memoire to steer the witness through the examination
in chief. However, unless the witness is an expert (see AH0900),
s/he does not generally read from a proof but this is a matter
which is at the discretion of the Commissioners. There may be some
complex matters of fact, for example, commercial matters, where it
would be unreasonable to expect a witness to rely on his/her memory
and reference to a proof of evidence is desirable. A proof is not
evidence and does not become so by being read out. The evidence of
any fact is the witness's unprompted recollection of that fact.
By contrast, a writing to refresh the memory is a
contemporaneous, or near contemporaneous, account of events or
facts written by the witness while the events or facts described
were still fresh in his/her mind. The most obvious example of this
in a HMRC context are the Notes of Interview which a HMRC Officer
makes after seeing a taxpayer. With the leave of the Commissioners,
before giving evidence, that Officer could refer to those notes to
refresh his/her memory if s/he was appearing as a HMRC witness.
A copy of the notes must be made available to the appellant
who is entitled to cross-examine on them. If s/he does so on any
parts of the notes which the witness did not use to refresh his
memory, then those parts become evidence.
