Victims, Witnesses, and Justice Reform (Scotland) Act 2025

Pre-recording of evidence

94 Pre-recording of evidence

(1) The Sexual Offences Court must enable all of a vulnerable complainer’s evidence to be given in advance of a hearing at which the complainer would otherwise be required to give evidence, unless the Court is satisfied that an exception is justified under subsection (3) or (4).

(2) For the purposes of this section, the Sexual Offences Court enables all of the vulnerable complainer’s evidence to be given in advance of the hearing if it—

(a) makes an order authorising—

(i) the taking of the vulnerable complainer’s evidence by a commissioner in accordance with section 95,

(ii) the admission of the record of a prior examination of the vulnerable complainer as the vulnerable complainer’s evidence in accordance with section 96,

(iii) the giving of evidence in chief by the vulnerable complainer in the form of a statement in accordance with section 97, and

(b) does not authorise—

(i) the giving of any of the vulnerable complainer’s evidence other than in accordance with such order,

(ii) the use of an incompatible special measure for the purpose of taking any of the vulnerable complainer’s evidence.

(3) An exception is justified under this subsection if—

(a) the giving of all of the vulnerable complainer’s evidence in advance of the hearing would give rise to a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice, and

(b) that risk significantly outweighs any risk of prejudice to the interests of the vulnerable complainer if the complainer were to give evidence at the hearing.

(4) An exception is justified under this subsection—

(a) if—

(i) the vulnerable complainer is aged under 18 on the date of commencement of the proceedings in which the hearing is being or is to be held (“the date of commencement”),

(ii) having had access to such relevant information as may be prescribed by Act of Adjournal, the vulnerable complainer expresses a wish to give evidence at the hearing, and

(iii) it would be in the vulnerable complainer’s best interests to give evidence at the hearing, or

(b) if the vulnerable complainer is aged 18 or over on the date of commencement and, having had access to such relevant information as may be prescribed by Act of Adjournal, expresses a wish to give evidence at the hearing.

(5) Section 271A of the 1995 Act applies in relation to a vulnerable complainer giving evidence at, or for the purposes of, a hearing in the Sexual Offences Court as it applies to a child witness or deemed vulnerable witness giving evidence in accordance with subsection (1) of that section.

(6) In this section, “incompatible special measure” means a measure set out in, or prescribed under, section 271H of the 1995 Act which is capable of being used only if the complainer gives evidence at the hearing (whether or not its use would require the complainer to be present in the courtroom).

(7) In this section and in section 95, 96 and 97—

(a) a “complainer” in proceedings is the person against whom the offence to which the proceedings relate is alleged to have been committed,

(b) a complainer is a vulnerable complainer if a sexual offence to which the proceedings relate is alleged to have been committed against that complainer.

(8) In this section and in section 96, a “prior examination” means a hearing at which the vulnerable complainer gave evidence before a commissioner.

95 Taking of evidence by a commissioner

(1) Where an order is made under section 94(2)(a)(i) for the taking of evidence by a commissioner, the Sexual Offences Court must appoint a Judge of the Sexual Offences Court as commissioner to take the evidence of the vulnerable complainer.

(2) When appointing a commissioner under subsection (1), the Sexual Offences Court must fix a date for proceedings before the commissioner.

(3) Proceedings before a commissioner appointed under subsection (1) must, if the Sexual Offences Court so directs when authorising such proceedings or if it so directs at the vulnerable witness ground rules hearing, take place by means of a live television link between the place where the commissioner is taking, and the place from which the vulnerable complainer is giving, evidence.

(4) An audio-visual recording must be made of proceedings before a commissioner.

(5) An accused—

(a) may not, except by leave of the Sexual Offences Court on special cause shown, be present—

(i) in the room where the proceedings are taking place,

(ii) if the proceedings are taking place by means of a live television link, in the same room as the vulnerable complainer, but

(b) is entitled to watch and hear the proceedings by such means as the Sexual Offences Court considers appropriate.

(6) The recording of the proceedings made in accordance with subsection (4) is to be received in evidence without being sworn to by witnesses.

(7) Subsection (8) applies where a vulnerable complainer is to give evidence at or for the purposes of a hearing in the Sexual Offences Court.

(8) It is not necessary for an indictment to have been served before—

(a) a party may lodge a vulnerable witness notice under section 271A(2) of the 1995 Act (as it applies in relation to a vulnerable complainer giving evidence at or for the purposes of a hearing in the Sexual Offences Court by virtue of section 94(5)) which specifies the giving of the vulnerable complainer’s evidence by commissioner as the special measure or one of the special measures which the party considers to be the most appropriate for the purpose of taking the vulnerable complainer’s evidence in advance,

(b) the Sexual Offences Court may make an order under section 94(2)(a)(i), whether on its own or in combination with any other order,

(c) a court may appoint a commissioner under subsection (1),

(d) proceedings may take place before the commissioner appointed under subsection (1).

(9) Subject to subsection (10), sections 274, 275, 275B (except subsection (2)(b)), 275C, 288E and 288F of the 1995 Act apply in relation to proceedings before a commissioner in the Sexual Offences Court as they apply (by virtue of section 91(1)) in relation to a trial in the Sexual Offences Court.

(10) In the application of those sections in relation to proceedings before a commissioner in the Sexual Offences Court—

(a) the commissioner acting in the proceedings is to perform the functions of the court as provided for in those sections,

(b) references in those sections—

(i) except section 275(3)(c) and (7)(c), to a trial or a trial diet,

(ii) except sections 275(3)(e) and 288F(2), (3), and (4), to the court

are to be read accordingly.

96 Admission of the record of a prior examination of vulnerable complainer as evidence

(1) This section applies where an order is made under section 94(2)(a)(ii) for the admission of the record of a prior examination of the vulnerable complainer as the vulnerable complainer’s evidence in full.

(2) A record of a prior examination which is lodged in evidence by or on behalf of the prosecution in accordance with this section is admissible as the vulnerable complainer’s evidence without the vulnerable complainer being required to adopt or otherwise speak to the record in giving evidence in the Sexual Offences Court.

(3) The record of the prior examination is to be received in evidence without being sworn to by witnesses.

(4) The prior examination must have taken place before a commissioner—

(a) in the course of proceedings other than the proceedings to which the order relates, and

(b) under—

(i) section 271I of the 1995 Act, in respect of prior proceedings in the High Court of Justiciary or the sheriff court, or

(ii) section 95 of this Act, in respect of prior proceedings in the Sexual Offences Court.

(5) Subsection (6) applies where a vulnerable witness notice is lodged under section 271A(2) of the 1995 Act specifying admission of the record of a prior examination as evidence in accordance with this section as the special measure by which the vulnerable complainer’s evidence is to be given.

(6) Where this subsection applies, the Sexual Offences Court may, on application by a party to the proceedings, allow questioning of the vulnerable complainer to take place only if satisfied that—

(a) there are questions relevant to the proceedings which were not put to the vulnerable complainer, and could not reasonably have been expected to have been put to the vulnerable complainer, in the course of the prior examination,

(b) to refuse the application would give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise to the interests of justice, and

(c) that risk would significantly outweigh any risk of prejudice to the interests of the vulnerable complainer if the application were granted.

(7) An application to allow questioning of the vulnerable complainer under subsection (6) may be granted in whole or in part.

(8) Where an application to allow questioning of the vulnerable complainer is granted under subsection (6), the Sexual Offences Court must, unless satisfied that an exception is justified under section 94(4)—

(a) appoint a Judge of the Sexual Offences Court as commissioner to take the evidence of the vulnerable complainer,

(b) fix a date for proceedings before the commissioner.

(9) Section 95 (other than subsections (1) and (2)) applies to proceedings before a commissioner under subsection (8) as it applies where an order is made under section 94(2)(a)(i) for the taking of evidence by a commissioner.

97 Giving evidence in the form of a prior statement

(1) This section applies where an order is made under section 94(2)(a)(iii) for the giving of evidence by the vulnerable complainer in the form of a statement made in advance of a hearing (“a vulnerable complainer’s prior statement”).

(2) A vulnerable complainer’s prior statement which is lodged in evidence by or on behalf of the prosecution in accordance with this section is admissible as the vulnerable complainer’s evidence in chief, or as part of the vulnerable complainer’s evidence in chief, without the vulnerable complainer being required to adopt or otherwise speak to the statement in giving evidence in the Sexual Offences Court.

(3) Subject to subsection (4) a vulnerable complainer’s prior statement—

(a) is admissible as evidence of any matter stated in it of which direct oral evidence by the vulnerable complainer would be admissible if given in the course of proceedings,

(b) does not require to be included in any list of productions lodged by the prosecutor.

(4) A vulnerable complainer’s prior statement is not admissible under this section unless—

(a) the statement is contained in a document,

(b) at the time the statement was made, the vulnerable complainer would have been a competent witness in the proceedings.

(5) Subsection (4) does not apply to a vulnerable complainer’s prior statement which is sufficiently authenticated and—

(a) is contained in a precognition on oath, or

(b) was made in other proceedings, whether criminal or civil and whether taking place in the United Kingdom or elsewhere.

(6) This section does not affect the admissibility of any statement made by any person which is admissible otherwise than by virtue of this section.

(7) For the purposes of this section—

(a) a “statement” includes—

(i) any representation, however made or expressed, of fact or opinion,

(ii) any part of a statement,

but does not include a statement in a precognition other than a precognition on oath.

(b) a statement is contained in a document where the person who makes it—

(i) makes the statement in the document personally,

(ii) makes a statement which is, with or without the person’s knowledge, recorded in a document by a person who has direct personal knowledge of the making of the statement, or

(iii) approves a document as embodying the statement,

(c) “document” includes, in addition to a document in writing—

(i) any map, plan, graph or drawing,

(ii) any photograph,

(iii) any disc, tape, sound track or other device in which sounds or other data (other than visual images) are recorded so as to be capable of being reproduced,

(iv) any film (including microfilm), negative, tape, disc or other device in which one or more visual images are recorded so as to be capable of being reproduced.