Section 1 – Evidence of children and other vulnerable witnesses: special measures
7.This section replaces section 271 of the Criminal Procedure (Scotland) Act 1995 with new sections 271 to 271M. These sections define “vulnerable witness” and set out the special measures available to these witnesses and the procedure to be followed in criminal proceedings to enable such measures to be used.
Section 271 – Vulnerable witnesses: main definitions
8.Subsection (1) defines a “vulnerable witness” as being:
a child (i.e. a person under 16 at the time the complaint or indictment is served on the accused); or
an adult witness the quality of whose evidence (as defined in subsection (4)) may be diminished either as a result of a mental disorder (as defined by section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003), or due to fear or distress of the witness associated with giving their evidence.
9.Subsection (2) sets out a range of factors which must be taken into account by the court when it determines whether an adult witness is vulnerable. The court may also take into account any other factors not listed in subsection (2), but which appear to be relevant.
10.Subsection (5) makes it clear that the provisions on vulnerable witnesses apply only to proceedings in the High Court and sheriff court, although the Act confers a power on the Scottish Ministers by order to apply the provisions to proceedings in the district court (see section 10).
Section 271A – Child witnesses
11.Subsection (1) entitles all child witnesses to give their evidence with the help of at least one special measure. Under subsections (2) and (13) the party calling the witness must submit a notice to the court and at the same time intimate it to the other parties at least 14 clear days before the trial, setting out which, if any, special measures the party considers to be the most appropriate. Where a child has expressed a view then details of the child’s view must be included in the notice.
12.The court must consider the child witness notice within 7 days of the notice having been lodged. If the notice specifies a “standard” special measure, then the court must make an order authorising the use of that measure for the child witness giving evidence. Subsection (14) defines “standard” special measures as either the use of a live television link within the court building, or the use of a screen. In either case this can include a supporter as well.
13.If a notice specifies a non “standard” special measure, then in the event that the court is satisfied with the special measure sought the court can make an order granting the use of that measure for the child witness giving evidence. This order can be made in the absence of the parties. Subsections (5) and (9) enable a hearing to be held in cases where the court is not satisfied and the parties are to be given an opportunity to address the court at this hearing. These hearings can be conjoined with an existing diet already set down for the case.
14.In the event that a child witness notice is not lodged in time the court also has power under subsections (6) and (7) to either order such a notice to be lodged or to arrange a diet to be held before the trial.
15.Subsections (5)(b) and (9)(b)(ii) enable the court to order that the child witness is to give evidence without the benefit of any special measure. Subsections (2)(b), (5)(b) and (10) however have the effect that such an order can be made in only two circumstances: if the child has expressed a wish to give evidence without any special measure and the court considers that appropriate, or if the use of a special measure would give rise to a significant risk of prejudice to the trial and that risk significantly outweighs any risk of prejudice to the interests of the child.
16.Subsection (11) provides the court with the power, on its own motion or on the motion of the party calling the vulnerable witness, to hold a hearing on special measures in private (i.e. in chambers or after clearing the court).
Section 271B – Further special provision for child witnesses under the age of 12
17.This section provides a general rule that children under 12 are to give evidence away from the court building in certain cases. These cases (listed in subsection (2)) involve abduction, plagium (theft of a child), and offences of a sexual or violent nature. This means that the special measures that would be appropriate in these cases would either be evidence on commission or a live television link to a remote location.
18.Subsection (3) creates the general rule and sets out two exceptions to it. The first exception is for cases where a child witness chooses to give evidence in court and it is considered appropriate by the court for the child to do so. The second exception would be where taking the child’s evidence outwith the court would give rise to a significant risk of prejudice to the trial and that risk significantly outweighs any risk of prejudice to the interests of the child.
Section 271C – Vulnerable witnesses other than child witnesses
19.This section sets out the requirements associated with an application for special measures to help an adult vulnerable witness give their evidence.
20.Under subsections (2) and (11) the party calling the witness must submit an application to the court and at the same time intimate it to the other parties at least 14 clear days before the trial, setting out which special measures are most appropriate. Where the witness has expressed a view then details of the witness’s view must be included in the application.
21.The court must consider the vulnerable witness application within 7 days of the application having been lodged. In the event that the court is satisfied that the witness is vulnerable and it is appropriate for them to use the special measure sought then the court can make an order granting the use of that measure for the vulnerable witness giving evidence. This order can be made in the absence of the parties. Subsections (5)(b) and (7) enable a hearing to be held in cases where the court is not satisfied and the parties are to be given an opportunity to address the court at this hearing. The court can also postpone the trial diet for this purpose. These hearings can be conjoined with an existing diet already set down for the case.
22.The court in deciding whether to make an order granting the use of a special measure for the witness must also give consideration to a number of factors set out in subsection (8). These factors are:
the possible effect on the witness if they are not allowed to use special measures;
whether there is a chance that they will be more able to give their evidence with special measures than without; and
the list of factors set out in the new section 271(2).
23.Subsection (4) allows the court to accept an application which has been made late.
Section 271D – Review of arrangements for vulnerable witnesses
24.This section enables the court at any time, up to and including when a vulnerable witness is giving evidence in a trial, to review the arrangements for the taking of their evidence. The court may make an order regarding the arrangements at the request of the party who is calling the witness or of its own accord. Such an order may add a special measure, or substitute a special measure in the previous order for another special measure which is considered more appropriate. Where a previous order contains a combination of special measures, the number of measures to be used can be reduced. An order that special measures may no longer be used can only be made in two types of instance. One is where the court is satisfied that it is appropriate to revoke the use of special measures where the witness does not wish to use them. Another is if the court is satisfied that there is a significant risk of prejudice to the fairness of the trial significantly outweighing the risk of prejudice to the witness.
25.Subsection (2)(b) allows the court to make an order for a special measure to be used by a vulnerable witness in circumstances where an order has not previously been made. In making such an order, the court must take into account the factors listed in section 271C(8).
Section 271E – Vulnerable witnesses: supplementary provision
26.Subsections (1) to (3) require the party calling the witness and the court in determining a special measures order to consider the best interests and views of the witness when deciding the special measure most appropriate for the purpose of taking the evidence. With regard to child witnesses the views of the child’s parent are also to be considered unless that person is the accused.
27.This section ensures that children over 12 are presumed to be able to give a view and in the case of children under 12, the age and maturity of the child is to be considered in determining whether they can express a view on the special measures to be used. In the event that the views of the child and the parent differ, then the views of the child are to be given greater weight.
Section 271F – The accused
28.This section sets out the provisions for allowing an accused, if considered to be vulnerable, to give his or her evidence with the use of a special measure. The provisions of sections 271 to 271M will apply to the accused as a vulnerable witness, but with certain modifications.
29.Section 271 is modified for the accused by amending the factors to be taken into account under section 271(2) in determining vulnerability, including the fact that the accused is entitled to or will have legal representation. The accused is also not entitled to use screens as a special measure for the giving of his or her evidence.
30.In most cases it will not be known whether the accused is to give evidence until the last minute. The modifications made by this section ensure that special measures are considered for the accused in advance of the trial but on a contingent basis.
Section 271G – Saving provision
31.This section ensures that the existing common law powers to make or authorise special arrangements for vulnerable witnesses’ evidence are not removed by the new sections 271A to 271F.
Section 271H – The special measures
32.Subsection (1)(a) to (e) lists the special measures that will be available to vulnerable witnesses to help them give their evidence. Subsection 1(f) confers on the Scottish Ministers a power to make provision for other special measures by way of statutory instrument.
Section 271I – Taking of evidence by a commissioner
33.This section enables evidence on commission to be used as a special measure for vulnerable witnesses. The court is empowered to appoint a commissioner to take the evidence of a vulnerable witness in advance of the trial.
34.The accused may only be present with the agreement of the court on special cause shown, but at least must be able to watch and listen by some means while the witness’s evidence is taken e.g. by a live TV link.
Section 271J – Live television link
35.This section allows witnesses to give evidence by live TV link. Subsection (1) imposes a duty on the court to make suitable arrangements for the evidence of a vulnerable witness to be given from outside the court-room by a live television link. Subsection (2) allows for this to happen from either another part of the court building or any suitable place that can be identified away from the court building. Subsection (3) confirms that when a live link is used in these proceedings it will be treated as taking place in the presence of the accused.
36.Subsection (4) allows for the sheriff to transfer a case or part of a case in which it is intended that a live television link be used from a sheriff court that does not have either the suitable accommodation or equipment to another sheriff court within the same sheriffdom that does.
Section 271K – Screens
37.Subsection (1) provides for the use of screens when a vulnerable witness is giving evidence in a criminal trial. The purpose of the screen will be to conceal the accused from the sight of the vulnerable person whilst that witness is giving evidence.
38.Subsection (2) imposes a duty on the court to ensure that the accused is able to see and hear the witness giving evidence e.g. by way of a TV monitor that relays the image of the witness to the accused.
Section 271L – Supporters
39.This section allows for a person to be nominated by a vulnerable witness to accompany the witness whilst they give evidence. A witness may act as a supporter provided that they have already given their evidence. The supporter will not be allowed to prompt the witness while the vulnerable witness is giving their evidence in the case.
Section 271M – Giving evidence in chief in the form of a prior statement
40.Subsections (1) and (2) allow for a previous statement made by a vulnerable witness and which has been reliably recorded on video or in some other way to be used as their main evidence without the need for the witness having to adopt the statement.
41.Section 260 of the Criminal Procedure (Scotland) Act 1995 Act already allows prior statements to be admitted as evidence in criminal proceedings, but subsection (2) of section 260 requires that during the course of the proceedings the witness must confirm in court that the statement was made by him or herself and is adopted as evidence.
42.Subsection (3) of section 271M enables the provisions already contained in section 260 of the 1995 Act to also apply to statements lodged in evidence under this section, by making some minor modifications to section 260, principally to ensure that the witness does not have to adopt the statement.