Office of Public Sector Information
PART 1 continued
(1) Where the special measure to be used is a live television link, the court shall make such arrangements as seem to it appropriate for the vulnerable witness in respect of whom the special measure is to be used to give evidence from a place outside the court-room where the trial is to take place by means of a live television link between that place and the court-room.
(2) The place from which the vulnerable witness gives evidence by means of the link—
(a) may be another part of the court building in which the court-room is located or any other suitable place outwith that building, and
(b) shall be treated, for the purposes of the proceedings at the trial, as part of the court-room whilst the witness is giving evidence.
(3) Any proceedings conducted by means of a live television link by virtue of this section shall be treated as taking place in the presence of the accused.
(4) Where—
(a) the live television link is to be used in proceedings in a sheriff court, but
(b) that court lacks accommodation or equipment necessary for the purpose of receiving such a link,
the sheriff may by order transfer the proceedings to any other sheriff court in the same sheriffdom which has such accommodation or equipment available.
(5) An order may be made under subsection (4) above—
(a) at any stage in the proceedings (whether before or after the commencement of the trial), or
(b) in relation to any part of the proceedings.
(1) Where the special measure to be used is a screen, the screen shall be used to conceal the accused from the sight of the vulnerable witness in respect of whom the special measure is to be used.
(2) However, the court shall make arrangements to ensure that the accused is able to watch and hear the vulnerable witness giving evidence.
(3) Subsections (4) and (5) of section 271J of this Act apply for the purpose of the use of a screen under this section as they apply for the purpose of the use of a live television link under that section but as if—
(a) references to the live television link were references to the screen, and
(b) the reference to receiving such a link were a reference to the use of a screen.
(1) Where the special measure to be used is a supporter, another person (“the supporter”) nominated by or on behalf of the vulnerable witness in respect of whom the special measure is to be used may be present alongside the witness to support the witness while the witness is giving evidence.
(2) Where the person nominated as the supporter is to give evidence at the trial, that person may not act as the supporter at any time before giving evidence.
(3) The supporter shall not prompt or otherwise seek to influence the witness in the course of giving evidence.
(1) This section applies where the special measure to be used in respect of a vulnerable witness is giving evidence in chief in the form of a prior statement.
(2) A statement made by the vulnerable witness which is lodged in evidence for the purposes of this section by or on behalf of the party citing the vulnerable witness shall, subject to subsection (3) below, be admissible as the witness’s evidence in chief, or as part of the witness’s evidence in chief, without the witness being required to adopt or otherwise speak to the statement in giving evidence in court.
(3) Section 260 of this Act shall apply to a statement lodged for the purposes of this section as it applies to a prior statement referred to in that section but as if—
(a) references to a prior statement were references to the statement lodged for the purposes of this section,
(b) in subsection (1), the words “where a witness gives evidence in criminal proceedings” were omitted, and
(c) in subsection (2), paragraph (b) were omitted.
(4) This section does not affect the admissibility of any statement made by any person which is admissible otherwise than by virtue of this section.
(5) In this section, “statement” has the meaning given in section 262(1) of this Act.”.
(2) In section 307(1) (interpretation) of the 1995 Act, there is inserted at the appropriate place in alphabetical order the following definitions—
““child witness” shall be construed in accordance with section 271(1)(a) of this Act;”,
““vulnerable witness” shall be construed in accordance with section 271(1) of this Act;”.
(1) In section 71 (first diet of proceedings on indictment in the sheriff court) of the 1995 Act—
(a) after subsection (1) there is inserted—
“(1A) At a first diet, the court shall also—
(a) ascertain whether subsection (1B) below applies to any person who is to give evidence at or for the purposes of the trial or to the accused, and
(b) if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to the person or, as the case may be, the accused.
(1B) This subsection applies—
(a) to a person who is to give evidence at or for the purposes of the trial if that person is, or is likely to be, a vulnerable witness,
(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or would be likely to be, a vulnerable witness.”,
(b) in subsection (2), after “(1)” there is inserted “and (1A)”, and
(c) in subsection (3), after “(1)” where it first occurs there is inserted “, (1A)”.
(2) In section 73 (procedure at preliminary diets in the High Court) of the 1995 Act—
(a) after subsection (3) there is inserted—
“(3A) At a preliminary diet, the court shall also—
(a) ascertain whether subsection (3B) below applies to any person who is to give evidence at or for the purposes of the trial or to the accused, and
(b) if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to the person or, as the case may be, the accused.
(3B) This subsection applies—
(a) to a person who is to give evidence at or for the purposes of the trial if that person is, or is likely to be, a vulnerable witness,
(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or would be likely to be, a vulnerable witness.”, and
(b) in subsection (4), for “under subsection (3)” there is substitute “or consider under subsection (3) or (3A)”.
(3) After section 73 of the 1995 Act there is inserted—
(1) Where, in a case which is to be tried in the High Court, no preliminary diet is ordered, the court shall, at the trial diet before the first witness is sworn—
(a) ascertain whether subsection (2) below applies to any person who is to give evidence at or for the purposes of the trial or to the accused, and
(b) if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to the person or, as the case may be, to the accused.
(2) This subsection applies—
(a) to a person who is to give evidence at or for the purposes of the trial if that person is, or is likely to be, a vulnerable witness,
(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or would be likely to be, a vulnerable witness.
(3) At the trial diet, the court may ask the prosecutor and the accused any question in connection with any matter which it is required to ascertain or consider under subsection (1) above.”.
(4) In section 74 (appeals in connection with preliminary diets) of the 1995 Act, in subsection (2), after paragraph (a) there is inserted—
“(aa) may not be taken against a decision taken by virtue of—
(i) in the case of a first diet, section 71(1A),
(ii) in the case of a preliminary diet, section 73(3A),
of this Act;”.
(5) In section 148 (intermediate diet in summary proceedings) of the 1995 Act—
(a) after subsection (1) there is inserted—
“(1A) At an intermediate diet in summary proceedings in the sheriff court, the court shall also—
(a) ascertain whether subsection (1B) below applies to any person who is to give evidence at or for the purposes of the trial or to the accused, and
(b) if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to person or, as the case may be, the accused.
(1B) This subsection applies—
(a) to a person who is to give evidence at or for the purposes of the trial if that person is, or is likely to be, a vulnerable witness,
(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or would be likely to be, a vulnerable witness.”, and
(b) in subsection (4), at the end there is inserted “or for the purpose of ascertaining or considering any matter mentioned in subsection (1A) above”.
After section 15 of the Criminal Justice (Scotland) Act 2003 (asp 7) there is inserted—
(1) Sections 271 to 271M of the 1995 Act (which make provision as to the use of special measures for taking the evidence of vulnerable witnesses) apply in relation to a person who is giving or is to give evidence at or for the purposes of any proof ordered in relation to—
(a) a victim statement made by virtue of subsection (2) (or by virtue of that subsection and subsection (6)) of section 14 of this Act, or
(b) a statement made by virtue of subsection (3) of that section in relation to such a victim statement,
as they apply to a person who is giving or is to give evidence at, or for the purposes of, a trial.
(2) For that purpose, any reference in those sections to the trial or trial diet is to be read as a reference to the proof.
(3) Where—
(a) any person who is giving or is to give evidence at any proof ordered in relation to any such statement as is mentioned in subsection (1) above gave evidence at or for the purposes of any trial in respect of the offence to which the statement relates, and
(b) a special measure or combination of special measures was used by virtue of sections 271A, 271C or 271D of the 1995 Act for the purpose of taking the person’s evidence at the trial,
that special measure or, as the case may be, combination of special measures is to be treated as having been authorised, by virtue of the same section of the 1995 Act, to be used for the purpose of taking the person’s evidence at or for the purposes of the proof.
(4) Subsection (3) above does not affect the operation, by virtue of subsection (1) above, of section 271D of the 1995 Act.”.
After section 281 of the 1995 Act there is inserted—
(1) Where in a trial the prosecutor lodges as a production a report naming—
(a) a person identified in an identification parade or other identification procedure by a witness, and
(b) that witness,
it shall be presumed, subject to subsection (2) below, that the person named in the report as having been identified by the witness is the person of the same name who appears in answer to the indictment or complaint.
(2) That presumption shall not apply—
(a) unless the prosecutor has, not less than 14 clear days before the trial, served on the accused a copy of the report and a notice that he intends to rely on the presumption, or
(b) if the accused—
(i) not more than 7 days after the date of service of the copy of the report, or
(ii) by such later time as the court may in special circumstances allow,
has served notice on the prosecutor that he intends to challenge the facts stated in the report.”.
After section 275B of the 1995 Act there is inserted—
(1) This section applies in the case of proceedings in respect of any offence to which section 288C of this Act applies.
(2) Expert psychological or psychiatric evidence relating to any subsequent behaviour or statement of the complainer is admissible for the purpose of rebutting any inference adverse to the complainer’s credibility or reliability as a witness which might otherwise be drawn from the behaviour or statement.
(3) In subsection (2) above—
“complainer” means the person against whom the offence to which the proceedings relate is alleged to have been committed,
“subsequent behaviour or statement” means any behaviour or statement subsequent to, and not forming part of the acts constituting, the offence to which the proceedings relate and which is not otherwise relevant to any fact in issue at the trial.
(4) This section does not affect the admissibility of any evidence which is admissible otherwise than by virtue of this section.”.
After section 288D of the 1995 Act there is inserted—
(1) In proceedings to which this section applies, the accused is prohibited from conducting his defence in person at the trial and in any victim statement proof relating to any offence to which the trial relates.
(2) This section applies to any proceedings (other than proceedings in the district court)—
(a) in respect of any offence specified in subsection (3) below, and
(b) in which a child witness who is under the age of 12 on the date of commencement of the proceedings is to give evidence at or for the purposes of the trial.
(3) The offences referred to in subsection (2)(a) above are—
(a) murder,
(b) culpable homicide,
(c) any offence which—
(i) involves an assault on, or injury or threat of injury to, any person (including any offence involving neglect or ill-treatment of, or other cruelty to, a child), but
(ii) is not an offence to which section 288C of this Act applies,
(d) abduction, and
(e) plagium.
(4) Section 288D of this Act applies in the case of proceedings to which this section applies as it applies in the case of proceedings in respect of a sexual offence to which section 288C of this Act applies.
(5) In proceedings to which this section applies, the prosecutor shall, at the same time as intimating to the accused under section 271A(13) of this Act a child witness notice in respect of a child witness referred to in subsection (2)(b) above, serve on the accused a notice under subsection (6).
(6) A notice under this subsection shall contain intimation to the accused—
(a) that if he is tried for the offence, his defence may be conducted only by a lawyer,
(b) that it is therefore in his interests, if he has not already done so, to get the professional assistance of a solicitor, and
(c) that if he does not engage a solicitor for the purposes of his defence at the trial, the court will do so.
(7) A failure to comply with subsection (5) or (6) above does not affect the validity or lawfulness of any child witness notice or any other element of the proceedings against the accused.
(8) In subsection (1) above, “victim statement proof” means any proof ordered in relation to—
(a) a victim statement made by virtue of subsection (2) (or by virtue of that subsection and subsection (6)) of section 14 of the Criminal Justice (Scotland) Act 2003 (asp 7), or
(b) a statement made by virtue of subsection (3) of that section in relation to such a victim statement.
(9) For the purposes of subsection (2)(b) above, proceedings shall be taken to have commenced when the indictment or, as the case may be, the complaint is served on the accused.
(1) This section applies in the case of proceedings in respect of any offence, other than proceedings—
(a) in the district court,
(b) in respect of a sexual offence to which section 288C of this Act applies, or
(c) to which section 288E of this Act applies,
where a vulnerable witness is to give evidence at, or for the purposes of, the trial.
(2) If satisfied that it is in the interests of the vulnerable witness to do so, the court may—
(a) on the application of the prosecutor, or
(b) of its own motion,
make an order prohibiting the accused from conducting his defence in person at the trial and in any victim statement proof relating to any offence to which the trial relates.
(3) However, the court shall not make an order under subsection (2) above if it considers that—
(a) the order would give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice, and
(b) that risk significantly outweighs any risk of prejudice to the interests of the vulnerable witness if the order is not made.
(4) The court may make an order under subsection (2) above after, as well as before, proceedings at the trial have commenced.
(5) Section 288D of this Act applies in the case of proceedings in respect of which an order is made under this section as it applies in the case of proceedings in respect of a sexual offence to which section 288C of this Act applies.
(6) In subsection (2) above, “victim statement proof” means any proof ordered in relation to—
(a) a victim statement made by virtue of subsection (2) (or by virtue of that subsection and subsection (6)) of section 14 of the Criminal Justice (Scotland) Act 2003 (asp 7), or
(b) a statement made by virtue of subsection (3) of that section in relation to such a victim statement.”.
(1) In section 71 (first diet) of the 1995 Act—
(a) in subsection (A1)—
(i) after “diet” there is inserted “in proceedings to which subsection (B1) below applies”,
(ii) the words from “where” to “applies” are repealed, and
(iii) for “he” substitute “the accused”,
(b) after that subsection there is inserted—
“(B1) This subsection applies to proceedings—
(a) in which the accused is charged with a sexual offence to which section 288C of this Act applies,
(b) to which section 288E of this Act applies, or
(c) in which an order under section 288F(2) of this Act has been made before the trial diet.”,
(c) in subsection (5A), for paragraph (a) there is substituted—
“(a) the proceedings in which the first diet is being held are proceedings to which subsection (B1) above applies;”.
(2) In section 71A (further pre-trial diet in sheriff court solemn proceedings: dismissal or withdrawal of solicitor representing accused in case of sexual offence) of the 1995 Act, in subsection (1)(a), for the words “charged with a sexual offence to which section 288C” there is substituted “in proceedings to which subsection (B1) of section 71”.
(3) In section 72A (pre-trial diet in High Court proceedings: inquiry about legal representation of accused in cases of sexual offences) of the 1995 Act—
(a) in subsection (1), for the words from the beginning to “Act” there is substituted “In proceedings to which this section”,
(b) after that subsection there is inserted—
“(1A) This section applies to proceedings in the High Court—
(a) in which the accused is charged with a sexual offence to which section 288C of this Act applies,
(b) to which section 288E of this Act applies, or
(c) in which an order under section 288F(2) of this Act has been made before the trial diet.”.
In section 291 (precognition on oath of defence witnesses) of the 1995 Act, after subsection (5) there is inserted—
“(6) A warrant is not to be granted under this section for the citation for precognition by the accused in person of any child under the age of 12 on the relevant date where the offence in relation to which the child is alleged to be a witness is one specified in section 288E(3) of this Act.
(7) In subsection (6) above, “the relevant date” means—
(a) where an indictment or complaint in respect of the offence has been served on the accused at the time of the application, the date on which the indictment or complaint was so served, or
(b) where an indictment or complaint in respect of the offence has not been so served, the date on which the application under subsection (1) above is made.”.
After section 148A of the 1995 Act there is inserted—
(1) Where, in any summary proceedings in the sheriff court, no intermediate diet is fixed, the court shall, at the trial diet before the first witness is sworn—
(a) ascertain whether subsection (2) below applies to any person who is to give evidence at or for the purposes of the trial or to the accused and, if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to the person or, as the case may be, the accused, and
(b) if—
(i) section 288E of this Act applies to the proceedings, or
(ii) an order under section 288F(2) has been made in the proceedings,
ascertain whether or not the accused has engaged a solicitor for the purposes of his defence at the trial.
(2) This subsection applies—
(a) to a person who is to give evidence at or for the purposes of the trial if that person is, or is likely to be, a vulnerable witness,
(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or be likely to be, a vulnerable witness.
(3) Where, following inquiries for the purposes of subsection (1)(b) above, it appears to the court that the accused has not engaged a solicitor for the purposes of his defence at the trial, the court may adjourn the trial diet for a period of not more than 48 hours and ordain the accused then to attend.
(4) At the trial diet, the court may ask the prosecutor and the accused any question in connection with any matter which it is required to ascertain or consider under subsection (1) above.”.
After section 288F of the 1995 Act (as inserted by section 6 of this Act) there is inserted—
(1) The Scottish Ministers may by order made by statutory instrument provide for any of sections—
(a) 271 to 271M,
(b) 288E, and
(c) 288F,
of this Act to apply, subject to such modifications (if any) as may be specified in the order, to proceedings in the district court.
(2) An order under subsection (1) may—
(a) make such incidental, supplemental, consequential, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,
(b) make different provision for different district courts or descriptions of district court or different proceedings or types of proceedings,
(c) modify any enactment.
(3) An order under this section shall not be made unless a draft of the statutory instrument containing the order has been laid before, and approved by resolution of, the Scottish Parliament.”.
Vulnerable Witnesses (Scotland) Act 2004