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

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.