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

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.