(This note is not part of the Order)
This Commencement Order brings into force various provisions of the Vulnerable Witnesses (Scotland) Act 2004 (“the Act”). Part 1 of the Act amended 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.
Previous commencement orders (the Vulnerable Witnesses (Scotland) Act 2004 (Commencement) Order 2005 (S.S.I. 2005/168), the Vulnerable Witnesses (Scotland) Act 2004 (Commencement No. 2, Savings and Transitional Provisions) Order 2005 (S.S.I. 2005/590) and the Vulnerable Witnesses (Scotland) Act 2004 (Commencement No. 3, Savings and Transitional Provisions) Order 2006 (S.S.I. 2006/59)) brought into force the special measures available to children and adult vulnerable witnesses in solemn criminal proceedings in the High Court and sheriff courts, subject to certain reservations in respect of taking evidence by a commissioner. The same package of measures was brought into force in respect of such witnesses in children’s hearings, though only in respect of proceedings in the sheriff court in relation to appeals under section 51 of the Children (Scotland) Act 1995 and applications under sections 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). The special measures under the Act are now brought into force with regard to child witnesses in summary criminal proceedings in the sheriff court. Children are defined in the 1995 Act as persons under 16 years old.
The special measure of taking evidence by a commissioner is brought into force in respect of child witnesses in summary proceedings in the sheriff court 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.
Sections 6, 8 and 9 make further changes to the 1995 Act procedures.