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

Part 7 Sexual Offences Court

Chapter 1 Establishment, jurisdiction and Judges of the Sexual Offences Court

Establishment

69 Sexual Offences Court

(1) There is established a court of law to be known as the Sexual Offences Court.

(2) The Sexual Offences Court consists of—

(a) the Lord Justice General,

(b) the Lord Justice Clerk, and

(c) judges each to be known as a Judge of the Sexual Offences Court.

Jurisdiction and competence

70 Jurisdiction and competence: general

(1) The Sexual Offences Court has jurisdiction and competence to hear and determine cases to such extent as is provided by or under—

(a) this Act, or

(b) any other enactment.

(2) The Sexual Offences Court’s jurisdiction and competence is exercisable, at sittings of the Court, by one or more of—

(a) the Lord Justice General,

(b) the Lord Justice Clerk,

(c) a Judge of the Sexual Offences Court.

(3) The Sexual Offences Court has all such powers as are, under the law of Scotland, inherently possessed by a court of law for the purposes of the discharge of its jurisdiction and competence and giving full effect to its decisions.

(4) Subsection (3) is subject to any provision of this Act or any other enactment that restricts or excludes any power of the Sexual Offences Court in determining or disposing of a case.

71 Jurisdiction: sexual offences

(1) The Sexual Offences Court may try any sexual offence which is triable on indictment in any place in Scotland.

(2) Where an indictment includes at least one sexual offence when the indictment is served, the Sexual Offences Court may try every offence listed on the indictment.

(3) But an indictment in the Sexual Offences Court may not include the offence of—

(a) treason,

(b) breach of duty by magistrates.

(4) In this Part, “sexual offence” means—

(a) an offence listed for the time being in schedule 4,

(b) attempting or conspiring to commit an offence listed for the time being in schedule 4,

(c) aiding, abetting, counselling, procuring or inciting the commission of an offence listed for the time being in schedule 4.

(5) The Scottish Ministers may, by regulations, modify—

(a) the definition in subsection (4),

(b) the list in schedule 4.

Judges of the Sexual Offences Court

72 Judges of the Sexual Offences Court: Lord Commissioners of Justiciary and temporary judges

(1) Each person who—

(a) holds a relevant high judicial office, and

(b) has completed an approved course of training on trauma-informed practice in sexual offence cases,

also holds office as a Judge of the Sexual Offences Court.

(2) A person holding a relevant high judicial office ceases to hold office as a Judge of the Sexual Offences Court if they cease to hold the relevant judicial office.

(3) If a person holding a relevant high judicial office is suspended from that office for any period they are also suspended from office as a Judge of the Sexual Offences Court for the same period.

(4) In this section, “relevant high judicial office” means—

(a) Lord Commissioner of Justiciary,

(b) temporary judge.

(5) In this section and in section 74, “approved course of training” means a training course which is approved by the Lord Justice General for the purpose of appointment to the office of Judge of the Sexual Offences Court.

73 Judges of the Sexual Offences Court: re-employment of former judges

(1) The Judiciary and Courts (Scotland) Act 2008 is amended as follows.

(2) In section 20E—

(a) in subsection (2), at the end, insert “or, provided the individual has completed an approved course of training on trauma-informed practice in sexual offence cases, as a judge of the Sexual Offences Court”,

(b) in subsection (4), for “or the High Court of Justiciary” substitute “, the High Court of Justiciary or the Sexual Offences Court”,

(c) after subsection (5), insert—

“(6) In this section, “approved course of training” means a training course which is approved by the Lord Justice General for the purpose of appointment to the office of Judge of the Sexual Offences Court.”.

74 Appointment of Judges of the Sexual Offences Court

(1) The Lord Justice General may appoint persons holding a relevant judicial office to hold office also as Judges of the Sexual Offences Court.

(2) The Lord Justice General may appoint a person to the office of Judge of the Sexual Offences Court under this section only if—

(a) the person has completed (whether before this section comes into force or otherwise) an approved course of training on trauma-informed practice in sexual offence cases, and

(b) the Lord Justice General considers the person has the skills and experience necessary to fulfil the office.

(3) Appointment as a Judge of the Sexual Offences Court under this section—

(a) is for a period of 5 years,

(b) does not affect a person’s appointment to the relevant judicial office and the person may continue to act in that capacity.

(4) A person holding office as a Judge of the Sexual Offences Court under this section ceases to hold that office if they cease to hold the relevant judicial office.

(5) If a person holding office as a Judge of the Sexual Offences Court under this section is suspended from the relevant judicial office they are also suspended from office as a Judge of the Sexual Offences Court.

(6) In this section, a “relevant judicial office” means—

(a) sheriff principal,

(b) sheriff.

75 Remuneration and expenses of Judges of the Sexual Offences Court

(1) The Scottish Courts and Tribunals Service (“the SCTS”) may pay to a person appointed under section 74 such remuneration and allowances as the Scottish Ministers may determine.

(2) The Scottish Ministers may determine different amounts of remuneration and different amounts of allowances for—

(a) different persons so appointed, or

(b) different descriptions of persons so appointed.

(3) The SCTS may pay to a person appointed under section 74 such sums as it may determine in respect of expenses reasonably incurred by the person in the performance of, or in connection with, the person’s duties.

(4) The SCTS may—

(a) determine the circumstances in which such sums may be paid, and

(b) determine different circumstances for different persons.

Chapter 2 Organisation of business

President and Vice President of the Sexual Offences Court

76 President and Vice President of the Sexual Offences Court

(1) The Lord Justice General may assume the office of President of the Sexual Offences Court.

(2) If the Lord Justice General does not assume office under subsection (1), then the Lord Justice General must appoint—

(a) the Lord Justice Clerk, or

(b) one of the Judges of the Sexual Offences Court,

to the office of President of the Sexual Offences Court.

(3) The Lord Justice General must appoint—

(a) the Lord Justice Clerk, or

(b) one of the Judges of the Sexual Offences Court,

to the office of Vice President of the Sexual Offences Court.

(4) A person appointed under subsection (2)(b) must hold the office of Lord Commissioner of Justiciary.

(5) A person may not hold the office of President and Vice President of the Sexual Offences Court at the same time.

(6) The President and Vice President—

(a) each hold the respective office for such period as the Lord Justice General may determine,

(b) may at any time resign office—

(i) by giving notice in writing to the Lord Justice General, or

(ii) where the Lord Justice General resigns the office of President of the Sexual Offences Court, by publishing notice of that resignation.

(7) The Lord Justice General may at any time remove the President or Vice President from office.

(8) If a person holding office as President or Vice President is, for any period, suspended from office as—

(a) Lord Justice General,

(b) Lord Justice Clerk,

(c) Lord Commissioner of Justiciary,

(d) temporary judge, or

(e) a relevant judicial office mentioned in section 74(6),

the person is also suspended from office as President or Vice President, as the case may be, for the same period.

77 President and Vice President: incapacity and suspension

(1) Subsection (2) applies during any period when the President of the Sexual Offences Court—

(a) is unable (for any reason) to carry out the functions of the office, or

(b) is suspended from office.

(2) During the period mentioned in subsection (1)—

(a) the functions of the President are to be carried out instead by the Vice President of the Sexual Offences Court, and

(b) anything that falls to be done in relation to the President falls to be done instead in relation to the Vice President.

(3) Subsection (4) applies during any period when both the President and the Vice President of the Sexual Offences Court—

(a) are unable (for any reason) to carry out the functions of the President, or

(b) are suspended from office.

(4) During the period mentioned in subsection (3), subsection (2) does not apply and—

(a) the Lord Justice General may undertake to carry out the functions of the President, if the Lord Justice General is not the President,

(b) if the Lord Justice General does not undertake to carry out the functions of the President under paragraph (a), the Lord Justice General must direct that the functions of the President are to be carried out instead by—

(i) the Lord Justice Clerk, if the Lord Justice Clerk is not the President or Vice President, or

(ii) such Judge of the Sexual Offences Court (other than the President or Vice President) as the Lord Justice General may appoint to act in place of the President, and

(c) anything that falls to be done in relation to the President falls to be done instead in relation to the person carrying out the functions of the President in accordance with this subsection.

Disposal of business

78 President’s responsibility for efficient disposal of business

(1) The President of the Sexual Offences Court is responsible for ensuring the efficient disposal of business in the Sexual Offences Court.

(2) The President must make such arrangements as appear necessary or expedient for the purpose of carrying out the responsibility imposed by subsection (1).

(3) In particular, the President may provide for the allocation of business among the Judges of the Sexual Offences Court.

(4) In carrying out the responsibility imposed by subsection (1), the President must have regard to the desirability of doing so in a way that accords with trauma-informed practice.

(5) In carrying out the responsibility imposed by subsection (1), the President may give a direction of an administrative character to—

(a) a Judge of the Sexual Offences Court,

(b) a member of staff of the Scottish Courts and Tribunals Service.

(6) A person who receives a direction under subsection (5) must comply with the direction.

(7) This section is subject to section 2(2)(a) and (2A) of the Judiciary and Courts (Scotland) Act 2008.

Sittings

79 Sittings of the Sexual Offences Court

(1) More than one sitting of the Sexual Offences Court may take place at the same time, and at different places.

(2) Sittings of the Sexual Offences Court may be held at any place in Scotland.

(3) The President of the Sexual Offences Court may by order prescribe—

(a) the number of sittings of the Sexual Offences Court that are to be held at each place at which they may be held, and

(b) the days on which, and the times at which, those sittings are to be held.

(4) Before making an order under subsection (3), the President must consult—

(a) the Lord Justice General, if the Lord Justice General is not the President,

(b) the Lord Advocate.

(5) The President must publish notice of the matters prescribed by an order under subsection (3) in such manner as the President thinks appropriate in order to bring those matters to the attention of persons having an interest in them.

(6) Subsection (3) is subject to section 2(2)(a) and (2A) of the Judiciary and Courts (Scotland) Act 2008.

(7) In addition to those prescribed by order under subsection (3), the Sexual Offences Court must hold such further sittings as the Lord Advocate may require.

Transfer of cases

80 Transfer of cases to the Sexual Offences Court

(1) The 1995 Act is amended as follows.

(2) After section 288BZA, insert—

“Transfer of cases to the Sexual Offences Court

288BZB Transfer of cases to the Sexual Offences Court

(1) This section applies when an accused person has been cited to attend a diet of—

(a) the sheriff court on indictment, or

(b) the High Court of Justiciary.

(2) In this section, the “relevant court” means the High Court of Justiciary or the sheriff court which the accused person has been cited to attend.

(3) On an application under subsection (4), the relevant court may, on cause shown, make an order for the transfer of the proceedings to the Sexual Offences Court and for adjournment to a diet of that Court (“a transfer order”).

(4) An application may be made to the relevant court for a transfer order—

(a) by the prosecutor,

(b) jointly by the prosecutor and the accused.

(5) Where an application is made—

(a) by the prosecutor under subsection (4)(a),

(b) jointly by the prosecutor and the accused under subsection (4)(b), and there is another accused in the case who is not party to the application,

the relevant court must, before making a transfer order, give the accused, or the accused who is not party to the application, as the case may be, an opportunity to make representations about the application, whether orally or in writing.

(6) An application under subsection (4) may be made—

(a) at any time in the period beginning with the day on which the accused is served with an indictment and ending on the day on which the trial diet is first appointed,

(b) on cause shown, at any time in the period beginning with the day after the period mentioned in paragraph (a) expires and ending on the day before the trial diet commences.

(7) The relevant court may consider an application under subsection (4) at a first diet (in the case of proceedings in the sheriff court) or the preliminary hearing (in the case of proceedings in the High Court).

(8) At a first diet or preliminary hearing, as the case may be, the relevant court may ask the prosecutor and the accused any question in connection with any matter which is relevant to an application under subsection (4).

(9) Section 74 applies to a decision—

(a) to make a transfer order under this section,

(b) not to make such an order,

whether or not such decision was made at a first diet (in the case of proceedings in the sheriff court) or a preliminary hearing (in the case of proceedings in the High Court).

(10) Where a transfer order is made under this section, the first diet (in the case of proceedings in the sheriff court) or preliminary hearing (in the case of proceedings in the High Court) is to be treated as the preliminary hearing of the Sexual Offences Court for the purpose of section 65.”.

81 Transfer of cases from the Sexual Offences Court

(1) This section applies when an accused person has been cited to attend a diet of the Sexual Offences Court.

(2) On an application under subsection (3), the Sexual Offences Court may, on cause shown, make an order for the transfer of the proceedings to the High Court of Justiciary or a sheriff court with jurisdiction to hear the case, as specified in the application, and for an adjournment to a diet of that court (“a transfer order”).

(3) An application may be made to the Sexual Offences Court for a transfer order—

(a) by the prosecutor,

(b) jointly by the prosecutor and the accused.

(4) Where an application is made—

(a) by the prosecutor under subsection (3)(a),

(b) jointly by the prosecutor and the accused under subsection (3)(b), and there is another accused in the case who is not party to the application,

the Sexual Offences Court must, before making a transfer order, give the accused, or the accused who is not party to the application, as the case may be, an opportunity to make representations about the application, whether orally or in writing.

(5) An application under subsection (3) may be made—

(a) at any time in the period beginning with the day on which the accused is served with an indictment and ending on the day on which the trial diet is first appointed,

(b) on cause shown, at any time in the period beginning with the day after the period mentioned in paragraph (a) expires and ending on the day before the trial diet commences.

(6) The Sexual Offences Court may consider an application under subsection (3) at a preliminary hearing.

(7) At a preliminary hearing the Sexual Offences Court may ask the prosecutor and the accused any question in connection with any matter which is relevant to an application under subsection (3).

(8) Section 74 of the 1995 Act applies to a decision—

(a) to make a transfer order under this section,

(b) not to make such an order,

whether or not such decision was made at a preliminary hearing.

(9) Where a transfer order is made under this section, the preliminary hearing of the Sexual Offences Court is to be treated, for the purposes of section 65 of the 1995 Act, as—

(a) the first diet of the sheriff court (in the case of transfer to the sheriff court), or

(b) the preliminary hearing of the High Court (in the case of transfer to the High Court).

(10) In this section—

• “first diet” is to be construed in accordance with section 66(6)(a) of the 1995 Act,

• “preliminary hearing” is to be construed in accordance with section 66(6)(b) of that Act.

Rights of audience

82 Rights of audience: solicitors

(1) Subject to subsections (2) and (7), a solicitor has a right of audience in the Sexual Offences Court only if the solicitor meets the requirement set out in subsection (4).

(2) Where an indictment in the Sexual Offences Court includes one or more offence mentioned in subsection (3), then a solicitor has a right of audience in respect of that indictment only if, in addition to meeting the requirement set out in subsection (4), the solicitor has a right of audience in the High Court of Justiciary under section 25A of the Solicitors (Scotland) Act 1980.

(3) The offences are—

(a) the offence of—

(i) murder,

(ii) attempted murder,

(iii) rape,

(iv) attempted rape,

(b) an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018 where the alleged course of behaviour includes behaviour which would amount to an offence under section 1 of the Sexual Offences (Scotland) Act 2009,

(c) an offence in relation to which the minimum sentence which may be imposed (whether by virtue of enactment or otherwise) is a period of imprisonment of at least 5 years,

(d) an offence in relation to which the accused is being retried as a result of an application by the Lord Advocate under section 4(3)(b) of the Double Jeopardy (Scotland) Act 2011.

(4) The requirement is that the solicitor has completed (whether before this section comes into force or otherwise) an approved course of training on trauma-informed practice in sexual offence cases.

(5) The Council of the Law Society of Scotland must keep, and make publicly available, a record of the solicitors who have a right of audience in the Sexual Offences Court in accordance with this section.

(6) In this section and section 83, an “approved course of training” means a training course which is approved by the Lord Justice General for the purpose of acquiring rights of audience in the Sexual Offences Court.

(7) Nothing in this section affects the right of a prosecutor to appear in the Sexual Offences Court by virtue of a commission from the Lord Advocate.

(8) The Scottish Ministers may, by regulations, modify the list in subsection (3) so as to—

(a) add an offence or description of an offence,

(b) remove an entry listed in it,

(c) amend an entry listed in it.

(9) Before making regulations under subsection (8), the Scottish Ministers must consult—

(a) the Lord Justice General,

(b) the Scottish Courts and Tribunals Service,

(c) the Scottish Legal Aid Board,

(d) the Law Society of Scotland,

(e) the Faculty of Advocates,

(f) such persons providing victim support services as the Scottish Ministers consider appropriate.

(10) In this section and in section 85, “victim support services” has the meaning given by section 3D(5) of the Victims and Witnesses (Scotland) Act 2014.

83 Rights of audience: advocates

(1) Subject to subsection (4), an advocate has a right of audience in the Sexual Offences Court only if the advocate meets the requirement set out in subsection (2).

(2) The requirement is that the advocate has completed (whether before this section comes into force or otherwise) an approved course of training on trauma-informed practice in sexual offence cases.

(3) The Faculty of Advocates must keep a record of the advocates who have a right of audience in the Sexual Offences Court in accordance with this section.

(4) Nothing in this section affects the right of a prosecutor to appear in the Sexual Offences Court by virtue of a commission from the Lord Advocate.

84 Statement of training requirement for prosecutors

(1) The Lord Advocate must make available to the public a statement setting out any training on trauma-informed practice in sexual offence cases which prosecutors will be required to complete in order to conduct proceedings in the Sexual Offences Court.

(2) The Lord Advocate may from time to time revise the statement.

(3) In this section and in sections 82 and 83, “prosecutor” means Lord Advocate, Solicitor General, Crown Counsel or procurator fiscal (and any person duly authorised to represent or act for them).

85 Rights of audience: review

(1) The Scottish Ministers must, as soon as reasonably practicable following the expiry of the review period—

(a) carry out a review in relation to legal representation in the Sexual Offences Court including, in particular, in relation to—

(i) rights of audience,

(ii) legal representation of accused persons, and

(iii) the provision of legal aid to accused persons, including the granting of sanction for counsel,

(b) publish a report setting out the findings of the review, and

(c) lay a copy of the report before the Scottish Parliament.

(2) In carrying out the review, the Scottish Ministers must consult—

(a) the Lord Justice General,

(b) the Scottish Courts and Tribunals Service,

(c) the Scottish Legal Aid Board,

(d) the Law Society of Scotland,

(e) the Faculty of Advocates,

(f) such persons providing victim support services as the Scottish Ministers consider appropriate.

(3) In this section, “review period” means the period of 5 years beginning with the day on which this Part comes fully into force.

Chapter 3 Administration

Clerks

86 Clerk of the Sexual Offences Court

(1) The Scottish Courts and Tribunals Service must appoint a person who holds, or has previously held, a relevant office to hold office as Clerk of the Sexual Offences Court.

(2) A person's appointment as Clerk of the Sexual Offences Court does not affect the person's appointment to the relevant office.

(3) A person's appointment as Clerk of the Sexual Offences Court—

(a) lasts for such period, and

(b) is on such other terms and conditions,

as the Scottish Courts and Tribunals Service may determine.

(4) In this section, a “relevant office” means—

(a) Accountant of Court,

(b) Principal Clerk of Session,

(c) other Clerk or officer of the Court of Session,

(d) Principal Clerk of Justiciary,

(e) Depute, Assistant or other Clerk in the Justiciary Office of the High Court of Justiciary,

(f) sheriff clerk,

(g) sheriff clerk depute.

87 Deputy Clerks of the Sexual Offences Court

(1) The Scottish Courts and Tribunals Service may appoint persons to be Deputy Clerks of the Sexual Offences Court.

(2) The number of Deputy Clerks is for the Scottish Courts and Tribunals Service to determine.

(3) A person's appointment as Deputy Clerk—

(a) lasts for such period, and

(b) is on such other terms and conditions,

as the Scottish Courts and Tribunals Service may determine.

(4) A person may hold office as a Deputy Clerk of the Sexual Offences Court at the same time as holding office as clerk, or deputy or assistant clerk, of another court.

88 Clerk and Deputy Clerks: further provisions

(1) A person may be appointed as Clerk of the Sexual Offences Court under section 86(1), or Deputy Clerk of the Sexual Offences Court under section 87(1), only if they have completed (whether before this section comes into force or otherwise) an approved course of training on trauma-informed practice in sexual offence cases.

(2) The Clerk and Deputy Clerks of the Sexual Offences Court are also members of staff of the Scottish Courts and Tribunals Service.

(3) Accordingly, a reference in any enactment to the staff of the Scottish Courts and Tribunals Service includes, except where the context requires otherwise, a reference to the Clerk and Deputy Clerks of the Sexual Offences Court.

(4) The Clerk of the Sexual Offences Court may, with the consent of the Scottish Courts and Tribunals Service, delegate the carrying out of any of the Clerk's functions to—

(a) a Deputy Clerk of the Sexual Offences Court, or

(b) any other member of staff of the Scottish Courts and Tribunals Service.

(5) Subsection (6) applies in relation to any period during which—

(a) the office of Clerk of the Sexual Offences Court is vacant, or

(b) the holder of that office is for any reason unable to carry out the functions of the office.

(6) The Scottish Courts and Tribunals Service may make arrangements for the functions of the Clerk of the Sexual Offences Court to be carried out during the period referred to in subsection (5) by—

(a) a Deputy Clerk of the Sexual Offences Court, or

(b) any other member of staff of the Scottish Courts and Tribunals Service.

(7) The Scottish Courts and Tribunals Service may give such instructions to the Clerk of the Sexual Offences Court, or a person carrying out the Clerk's functions under subsection (6), as it considers necessary for the purposes of this Act, and the Clerk or, as the case may be, such person must comply with any such instructions.

(8) In this section, “approved course of training” means a training course which is approved by the Lord Justice General for the purpose of appointment to the office of Clerk or Deputy Clerk of the Sexual Offences Court.

Sexual Offences Court records

89 Sexual Offences Court records

(1) The Public Records (Scotland) Act 1937 is amended as follows.

(2) After section 1 (High Court and Court of Session records), insert—

“1ZA Sexual Offences Court records

(1) The records of the Sexual Offences Court are to be transmitted to the Keeper at such times, and subject to such conditions, as may be prescribed by act of adjournal.

(2) An act of adjournal under subsection (1) may—

(a) fix different times and conditions of transmission for different descriptions or records,

(b) make provision for—

(i) re-transmission of records to the Sexual Offences Court or the High Court of Justiciary when necessary for the purposes of proceedings in either court,

(ii) the return to the Keeper of records re-transmitted under sub-paragraph (i) as soon as they are no longer required for such purposes.

(3) Before making an act of adjournal under subsection (1), the High Court must consult the Keeper.”.

90 Sexual Offences Court records: authentication and electronic form

(1) A record of the Sexual Offences Court is authenticated by being signed by—

(a) a Judge of the Sexual Offences Court, or

(b) the Clerk of the Sexual Offences Court.

(2) A record authenticated in accordance with subsection (1), or a certified copy of such a record or of an extract of such a record, is sufficient evidence of the facts recorded in the record.

(3) The Sexual Offences Court may keep (and produce) records in electronic form.

(4) For the purposes of this section, a reference to a record or a copy of a record being signed or, as the case may be, certified, includes a reference to the record or copy being authenticated by means of—

(a) an electronic signature, or

(b) such other means of authentication as may be specified for that purpose by act of adjournal.

(5) Before making an act of adjournal under subsection (4)(b), the High Court of Justiciary must consult the Keeper of the Records of Scotland.

(6) In this section—

• “certified copy” means a copy certified by the Clerk of the Sexual Offences Court as a true copy,

• “electronic signature” is to be construed in accordance with section 7(2) of the Electronic Communications Act 2000, but includes a version of an electronic signature which is reproduced on a paper document,

• “record” means any interlocutor, decree, minute or other document by which the proceedings and decisions of the Sexual Offences Court are recorded.

Chapter 4 Procedure

Procedure

91 Sexual Offences Court procedure

(1) The provisions of the 1995 Act apply to proceedings in the Sexual Offences Court as though the proceedings were taking place in the High Court of Justiciary (and references are to be construed accordingly) except where and to the extent that the provisions of the 1995 Act are inconsistent with provision made by or under this Act.

(2) The Scottish Ministers may, by regulations, make further provision for the procedure which applies to proceedings in the Sexual Offences Court for the purpose of ensuring the proper functioning of the Court.

(3) Before making regulations under subsection (2), the Scottish Ministers must consult the Lord Justice General.

(4) Regulations under subsection (2) may modify any enactment (including this Act).

(5) The High Court may by act of adjournal make any incidental, supplementary, consequential, transitional, transitory or saving provision it considers appropriate, including modifying any enactment (including this Act), for the purposes of, in connection with or for giving full effect to this Part and any provision made under it.

(6) Subsection (5) is without prejudice to section 305 of the 1995 Act.

Prohibition on personal conduct of defence

92 Prohibition on personal conduct of defence

(1) An accused is prohibited from conducting their own case in person at, or for the purposes of, any hearing in the course of proceedings in the Sexual Offences Court at which a witness is to give evidence.

(2) If, at any point in the proceedings, the Sexual Offences Court—

(a) ascertains that an accused does not have a solicitor to conduct the accused’s case at, or for the purposes of, any hearing at which a witness is to give evidence, and

(b) is not satisfied that the accused intends to engage a solicitor to do so,

the Court must appoint a solicitor to conduct the accused’s case.

(3) The Sexual Offences Court may only appoint a solicitor who has a right of audience in the Court in accordance with section 82.

(4) An appointed solicitor—

(a) is to ascertain and act upon the instructions of the accused,

(b) in the event that the accused gives no instructions, or gives instructions that are inadequate or perverse, is to act in the accused’s best interests,

(c) is not obliged to comply with any instruction by the accused to dismiss counsel.

(5) An appointed solicitor—

(a) may not be dismissed by the accused,

(b) may be relieved from the appointment by the Sexual Offences Court if the Court is satisfied that the solicitor is no longer able to act upon the accused’s instructions or in the accused’s best interests, and the Court must appoint another solicitor to conduct the accused’s case.

Ground rules hearings

93 Ground rules hearings

(1) In its application to proceedings in the Sexual Offences Court, the 1995 Act is modified in accordance with this section.

(2) Part 12 of the 1995 Act has effect as if—

(a) after section 271A, there were inserted—

“271AZA Vulnerable witness ground rules hearings

(1) Where a vulnerable witness is to give evidence at or for the purposes of any hearing in the course of proceedings in the Sexual Offences Court, the Court must fix a date of a hearing (to be known as a “vulnerable witness ground rules hearing”) for the purpose of preparing for the trial diet.

(2) The Judge of the Sexual Offences Court presiding over the vulnerable witness ground rules hearing must—

(a) ascertain how the vulnerable witness’s evidence is to be taken,

(b) make such order, if any, under—

(i) section 271A, 271C or 271D,

(ii) section 94(2) of the Victims, Witnesses, and Justice Reform (Scotland) Act 2025,

as the Sexual Offences Court considers appropriate,

(c) ascertain the length of time the parties expect to take for examination-in-chief and cross-examination, including any breaks that may be required,

(d) to the extent that the Judge considers it appropriate to do so, decide on the form and wording of the questions that are to be asked of the vulnerable witness,

(e) if the Judge considers it appropriate to do so, authorise the use of a supporter at the hearing at which the vulnerable witness is to give evidence,

(f) if the Judge considers that there are steps that could reasonably be taken to enable the vulnerable witness to participate more effectively in the hearing at which the vulnerable witness is to evidence, direct that those steps be taken,

(g) subject to section 72(8), dispose of any application that—

(i) has been made under section 275(1), and

(ii) has not yet been disposed of by the Court,

(h) consider whether the hearing at which the vulnerable witness is to give evidence should take place on the date fixed by the Court and postpone the hearing if the Judge considers that it is in the interests of justice to do so having regard to all the circumstances, including—

(i) the way in which the vulnerable witness’s evidence is to be taken,

(ii) whether the parties are likely to be ready for the hearing to take place on the date fixed by the Court and if not, the reasons for that,

(iii) any views expressed by the parties on whether the hearing should be postponed, and

(iv) whether postponement is in the interests of the vulnerable witness, and

(i) consider and, if appropriate, make a decision on, any other matter that the Judge considers could be usefully dealt with before the hearing at which the vulnerable witness is to give evidence takes place.

(3) Reference in subsection (1) to a vulnerable witness includes a witness in respect of whom an order has been made under section 271C(5)(a) or (7).”,

(b) in section 271I—

(i) in subsection (1ZA), paragraph (b) were omitted,

(ii) subsections (1ZB), (1ZC) and (1ZD) were omitted,

(iii) in subsection (1A), for “ground rules hearing” there were substituted “vulnerable witness ground rules hearing”,

(iv) in subsection (7), for “person described in subsection (8) below.” there were substituted “Judge of the Sexual Offences Court.”,

(v) subsection (8) were omitted.

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.

Art and part and aiding and abetting

98 Statutory offences: art and part and aiding and abetting

(1) The Sexual Offences Court may convict an accused person of a contravention of any enactment notwithstanding that the person was guilty of such contravention as art and part only.

(2) For the purposes of the Sexual Offences Court, a person who aids, abets, counsels, procures or incites any other person to commit an offence against the provisions of any enactment commits an offence and is liable on conviction, unless the enactment otherwise requires, to the same punishment as if the person had committed the offence against the provisions of the enactment.

Sentencing

99 Sentencing power of the Sexual Offences Court

The Sexual Offences Court may impose on a person that it convicts of an offence any sentence which the High Court of Justiciary would be entitled to impose on the person in respect of the offence for which the person has been convicted.

Double jeopardy

100 Exception to rule against double jeopardy in the Sexual Offences Court: new evidence

(1) The Double Jeopardy (Scotland) Act 2011 is amended as follows.

(2) In section 4 (new evidence)—

(a) in subsection (1), after “High Court” insert “or the Sexual Offences Court”,

(b) in subsection (3)(b)(ii), after “High Court” insert “or, as the case may be, the Sexual Offences Court”.

(3) In section 9(2) (plea in bar of trial: nullity of previous trial)—

(a) before paragraph (a) insert—

“(za) the Sexual Offences Court,”,

(b) in the closing words, before “sheriff” insert “Judge of the Sexual Offences Court,”.