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This is the original version (as it was originally enacted).
(1)This section applies only where proceedings in respect of an offence are to be taken, or are likely to be taken, in a prescribed court or class of court.
(2)In so far as is reasonably practicable, a natural person against whom a prescribed offence has been (or appears to have been) perpetrated is—
(a)after a decision has been taken to bring proceedings in respect of that offence; or
(b)if a procurator fiscal so determines, before any such decision has been taken,
to be afforded an opportunity to make a statement (to be known as a “victim statement”) as to the way in which, and degree to which, that offence (or apparent offence) has affected and as the case may be continues to affect, that person; but this subsection is subject to subsection (6).
(3)Where a person who has made a victim statement by virtue of subsection (2) (or that subsection and subsection (6)) so requests and sentence may yet fall to be imposed in respect of the offence (or apparent offence), that person is to be afforded an opportunity to make a statement supplementary to, or in amplification of, the victim statement.
(4)A copy of any—
(a)victim statement made; or
(b)statement made by virtue of subsection (3) in relation to a victim statement,
is, if the accused tenders a plea of guilty to, or is found guilty of, the offence in question, to be provided forthwith to the accused by the prosecutor.
(5)A prosecutor must—
(a)in solemn proceedings, when moving for sentence as respects an offence; and
(b)in summary proceedings, when a plea of guilty is tendered in respect of, or the accused is convicted of, an offence,
lay before the court any victim statement which relates (whether in whole or in part) to the offence in question, and the court must in determining sentence have regard to so much of—
(i)that statement; and
(ii)any statement made by virtue of subsection (3) in relation to that statement,
as it considers to be relevant to that offence.
(a)because a person has died no such opportunity as is mentioned in subsection (2) can be afforded that person then subsections (2) and (3) apply as if the references in them to the person and to how the offence (or apparent offence) affected, or continues to affect, the person—
(i)were references to any or all of the four qualifying persons highest listed in subsection (10) and to how the offence (or apparent offence) affected, or continues to affect, the maker of the statement; and
(ii)without prejudice to sub-paragraph (i), where the person died a child (that is to say not having attained the age of sixteen years), included references to any other person who, immediately before the offence (or apparent offence) was perpetrated, cared for the child (that expression being construed in accordance with the definition of “person who cares for” in section 2(28) of the Regulation of Care (Scotland) Act 2001 (asp 8)) and to how the offence (or apparent offence) affected, or continues to affect, that other person; or
(b)a person who (but for this paragraph and other than by virtue of paragraph (a)) would be afforded such an opportunity as is so mentioned is—
(i)incapable, by reason of mental disorder or inability to communicate, of making a victim statement, subsections (2) and (3) apply as if the person to be afforded an opportunity were not the incapable person but the qualifying person highest listed in subsection (10); or
(ii)a child who has not attained the age of fourteen years, those subsections apply as if the person to be afforded an opportunity were not that person but such other person as is mentioned in paragraph (a)(ii),
and as if the other references in those subsections to a person continued to be to the incapable person or as the case may be to the child.
(7)For the purposes of subsection (6)(b)(i), inability to communicate by reason only of a lack or deficiency in a faculty of communication is to be disregarded if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise).
(8)In subsection (6), “qualifying person” means a person whose relationship to the victim is listed in subsection (10), who is neither incapable as mentioned in sub-paragraph (i) of paragraph (b) of subsection (6) nor a child such as is mentioned in sub-paragraph (ii) of that paragraph and who is not a person referred to by subsection (9).
(9)This subsection refers to a person accused of, or reasonably suspected of being the perpetrator of, or of having been implicated in, the offence (or apparent offence) in question.
(10)The list is—
(c)son or daughter or any person in relation to whom the victim has or had parental responsibilities or rights vested by, under or by virtue of the Children (Scotland) Act 1995 (c. 36);
(d)father or mother or any person in whom parental responsibilities or rights are or were vested by, under or by virtue of that Act in relation to the victim;
(e)brother or sister;
(h)uncle or aunt;
(i)nephew or niece,
and the elder of any two persons described in any one of paragraphs (a) to (i) is to be taken to be the higher listed person, regardless of sex.
(11)In subsection (10)(b), “cohabitee” means a person, whether or not of the same sex as the victim, who has lived with the victim, as if in a married relationship, for at least six months and was so living immediately before the offence (or apparent offence) was perpetrated.
(12)The Scottish Ministers may by order (either or both)—
(a)amend subsection (6)(b)(ii) by substituting for the age for the time being specified there such other age as they think fit;
(b)amend the list in subsection (10).
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Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills
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