Section 35: Evidence on commission
207.Section 35 seeks to clarify the role of commissioner and that of the presiding judge when evidence is being taken on commission, whether this be by way of special measures for vulnerable witnesses or otherwise.
208.Subsections (1) and (2) amend sections 66 and 140 of the 1995 Act which relate respectively to the service of the indictment (in solemn proceedings) and citation of the accused (in summary proceedings). These amendments provide, in each case, that where an accused is charged with committing a sexual offence, the accused must be given notice that s/he must be represented by a lawyer not only at any trial but also in any proceedings where evidence is taken on commission. They further provide that where an accused does not appoint a solicitor the court will appoint one.
209.Subsection (3) amends section 271I of the 1995 Act, which provides for the special measure for vulnerable witnesses of taking evidence by a commissioner.
210.The new section 271I(1A) as inserted provides that commissioner proceedings may take place by live television link. Section 271I(3)(a) of the 1995 Act is also amended by subsection (3) and makes consequential provision about restrictions on where the accused may be during such proceedings.
211.Subsection (3)(c) adds further provision to section 271I, and applies sections 274, 275, 275B (except subsection (2)(b)), 275C, 288C, 288E and 288F of the 1995 Act. Sections 274 and 275 contain certain prohibitions on the leading of evidence, and on questioning, which relates to the sexual history of the complainer in cases of certain sexual offences. In addition, section 275B provides the timescales under which an application regarding leading evidence must be made. Section 275C relates to expert evidence as to subsequent behaviour of the complainer in certain cases. Section 288C, 288E and 288F prohibit the accused from conducting his or her own defence in certain cases. Subsection (3)(c) provides that the protections available to witnesses in court proceedings as set out in the named sections apply equally in commissioner proceedings when used as a special measure in respect of vulnerable witnesses. This subsection also provides that the commissioner shall be a judge or a sheriff. This is so that s/he has the power to rule on questions of admissibility of evidence and whether certain questions may be asked of the witness.
212.Subsection (4) amends section 272 of the 1995 Act in relation to the taking of evidence on commission generally. It provides that the protections set out in sections 274, 275, 275B (except subsection (2)(b)), 275C, and 288C of the 1995 Act apply to commissioner proceedings as they do to trial proceedings. As above, it also provides that the commissioner shall be a judge or a sheriff.
213.Section 275A(1) of the 1995 Act places a duty on the prosecutor to disclose any relevant previous convictions of the accused to the presiding judge where the court allows questioning or evidence which would normally be prohibited in terms of section 274 of the Act. Subsection (5) amends section 275A(1) of the 1995 Act and provides that where a commissioner has allowed evidence or questioning normally prohibited in terms of section 274 the prosecutor is still under a duty to lay any relevant previous convictions before the presiding judge during the course of the actual trial.
214.Subsection (6) amends section 288D of the 1995 Act and provides that the power of the court to appoint a solicitor where an accused is prohibited from conducting his own defence and has failed to appoint a solicitor is extended to ensure that the power to appoint a solicitor to act at proceedings before a commissioner remains with the court.
