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

101 Vulnerable witnesses under the 1995 Act: admission of the record of a prior examination as evidence in full

(1) The 1995 Act is amended as follows.

(2) In section 271H(1) (the special measures), after paragraph (a), insert—

“(aa) the admission of the record of a hearing at which the vulnerable witness gave evidence before a commissioner (“a prior examination”) in accordance with section 271IA,”.

(3) After section 271I, insert—

“271IA Admission of the record of a prior examination as evidence

(1) Where the special measure to be used is the admission of the record of a prior examination, a record of a prior examination which is lodged in evidence by or on behalf of a party to the proceedings in accordance with this section is admissible as the vulnerable witness’s evidence without the vulnerable witness being required to adopt or otherwise speak to the record in giving evidence in court.

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

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

(a) in the course of proceedings other than the proceedings in respect of which the special measure has been authorised, and

(b) under—

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

(ii) section 95 of the Victims, Witnesses, and Justice Reform (Scotland) Act 2025, in respect of prior proceedings in the Sexual Offences Court.

(4) Subsection (5) applies where—

(a) a vulnerable witness notice is lodged under section 271A(2) specifying admission of the record of a prior examination as evidence in accordance with this section as the special measure by which the evidence of the vulnerable witness is to be given,

(b) a vulnerable witness application is made under section 271C(2) and the court makes an order under section 271C(5)(a) or (7) authorising admission of the record of a prior examination as evidence in accordance with this section as the special measure by which the evidence of the vulnerable witness is to be given, or

(c) the court makes an order under section 271D(2)(b) authorising admission of the record of a prior examination as evidence in accordance with this section as the special measure by which the evidence of the vulnerable witness is to be given.

(5) Where this subsection applies, the court may, on application by a party to the proceedings, allow questioning of the vulnerable witness to take place only if satisfied that—

(a) there are questions relevant to the proceedings which were not put to the vulnerable witness, and could not reasonably have been expected to have been put to the vulnerable witness, 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 witness if the application were granted.

(6) An application to allow questioning of the vulnerable witness under subsection (5) may be granted in whole or in part.

(7) Where an application to allow questioning of the vulnerable witness is granted under subsection (5), the court must, unless satisfied that an exception is justified under subsection (8), appoint a commissioner to take the evidence of the vulnerable witness in respect of whom the special measure is to be used.

(8) An exception is justified under this subsection—

(a) if—

(i) the vulnerable witness 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 witness expresses a wish to give evidence at the hearing, and

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

(b) if the vulnerable witness 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.

(9) Section 271I (other than subsections (1) and (4A)) applies to proceedings before a commissioner under subsection (7) as it applies where the special measure to be used is taking of evidence by a commissioner.

(10) In this section, “vulnerable witness” includes witnesses in respect of whom the court has made an order under section 271C(5)(a) or (7) or 271D(2)(b) authorising the use of special measures for the purpose of taking the witness’s evidence.”.