The Vulnerable Witnesses (Scotland) Act 2004 (Commencement No. 2, Saving and Transitional Provisions) Order 2005

Explanatory Note

(This note is not part of the Order)

This Commencement Order brings into force for certain purposes the special measure of taking evidence by a commissioner as part of the first phase of the implementation of the Vulnerable Witnesses (Scotland) Act 2004 (“the Act”). Part I of the Act amends the procedures in the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) as regards special measures for hearing the evidence of children and other vulnerable witnesses.

The new regime introduced by the Act is applied in the first phase to trials on indictment in the High Court and sheriff court (i.e. solemn criminal proceedings involving trial by judge and jury). Secondly the new regime is confined to children defined as persons under 16 years old. The intention is that as regards criminal trials, these procedures will in a subsequent phase be extended to all criminal trials in these courts, and there is power in the Act to extend them to the District Courts. It is also the intention to extend the regime to all vulnerable witnesses (i.e. not confined to children).

A previous Commencement Order (the Vulnerable Witnesses (Scotland) Act 2004 (Commencement) Order 2005 (S.S.I. 2005/168)) (“the 2005 Order”) brought into force all the special measures available to children in criminal proceedings under the Act other than the taking of evidence by a commissioner. The purposes for which the special measure of taking evidence by a commissioner are now brought into force are for child witnesses in solemn proceedings in the High Court and sheriff courts, other than proceedings in which, at the time the court is considering the child witness notice under section 271A(5) or 271A(9) of the 1995 Act, or is reviewing the current arrangements for taking a child witness’s evidence under section 271D(1) of the 1995 Act–

(i) the accused is charged with a sexual offence to which section 288C of the 1995 Act applies (rape, sodomy, etc., or other offences containing a substantial sexual element in respect of which the court has made an order under section 288C(4));

(ii) a child witness under 12 is to give evidence at or for the purposes of the trial and the accused is charged with an offence listed in section 288E(3) of the 1995 Act (murder, culpable homicide, etc); or

(iii) the court has made an order under section 288F of the 1995 Act prohibiting the accused from conducting his own defence in person at the trial and any victim statement proof relating to any offence to which the trial relates.

Part 2 of the 2004 Act provides for special measures in civil cases. The 2005 Order commenced all the special measures available under the Act, with the exception of taking evidence by a commissioner, but only in relation to certain children’s hearings court proceedings in the sheriff court (which in Scotland are classed as civil proceedings) and only in respect of child witnesses. In addition to commencing all special measures for child witnesses (other than taking evidence by a commissioner in respect of applications made under sections 65(7) and 65(9) of Part II of the Children (Scotland) Act 1995, this Commencement Order also brings into force the special measure of taking evidence on commission in relation to children’s hearings, but only in respect of child witnesses for the limited purpose of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51 of that Act and applications under section 65(7), 65(9) or 85 of that Act, other than applications to which section 68A of that Act applies (restrictions on evidence in certain cases involving sexual abuse).