PART XII Evidence

Special measures for child witnesses and other vulnerable witnesses

F1271AF2Child and deemed vulnerable witnesses

(1)

Where a child witness F3or a deemed vulnerable witness is to give evidence at or for the purposes of F4a hearing in relevant criminal proceedings, the F5... witness is entitled, subject to—

(a)

subsections (2) to (13) below, and

(b)

section 271D of this Act,

to the benefit of one or more of the special measures for the purpose of giving evidence.

(2)

F6Subject to section 271AA, a party citing or intending to cite a child witness F7or a deemed vulnerable witness shall, F8by the required time, lodge with the court a notice (referred to in this Act as a “F9vulnerable witness notice”)—

(a)

specifying the special measure or measures which the party considers to be the most appropriate for the purpose of taking the F10... witness’s evidence, or

(b)

if the party considers that the F10... witness should give evidence without the benefit of any special measure, stating that fact.

(3)

A F11vulnerable witness notice shall contain or be accompanied by—

(a)

a summary of any views expressed for the purposes of section 271E(2)(b) of this Act, and

(b)

such other information as may be prescribed by Act of Adjournal.

F12(3A)

In the case where a vulnerable witness notice under subsection (2)(a) specifies only a standard special F13measure—

(a)

subsection (3)(a) does not apply, and

(b)

subsection (5) has effect as if the words “not earlier than 7 days and” were omitted.

(4)

The court may, on cause shown, allow a F14vulnerable witness notice to be lodged after F15the required time.

F16(4A)

Any party to the proceedings may, not later than 7 days after a vulnerable witness notice has been lodged, lodge with the court a notice (referred to in this section as an “objection notice”) stating—

(a)

an objection to any special measure (other than a standard special measure) specified in the vulnerable witness notice that the party considers to be inappropriate, and

(b)

the reasons for that objection.

(4B)

The court may, on cause shown, allow an objection notice to be lodged after the period referred to in subsection (4A).

(4C)

If an objection notice is lodged in accordance with subsection (4A) or (4B)—

(a)

subsection (5)(a)(ii) does not apply to the vulnerable witness notice, and

(b)

the court must make an order under subsection (5A).

(5)

The court shall, not F17earlier than 7 days and not later than 14 days after a F18vulnerable witness notice has been lodged, consider the notice in the absence of the parties and, subject to F19sections 271B to 271BZB of this Act—

(a)

in the case of a notice under subsection (2)(a) above—

(i)

if a standard special measure is specified in the notice, make an order authorising the use of that measure for the purpose of taking the F20... witness’s evidence, and

(ii)

if any other special measure is specified in the notice and the court is satisfied on the basis of the notice that it is appropriate to do so, make an order authorising the use of the special measure (in addition to any authorised by virtue of an order under sub-paragraph (i) above) for the purpose of taking the F20... witness’s evidence,

(b)

in the case of a notice under subsection (2)(b) above, if—

(i)

the summary of views accompanying the notice under subsection (3)(a) above indicates that the F21... witness has expressed a wish to give evidence without the benefit of any special measure, and

(ii)

the court is satisfied on the basis of the notice that it is appropriate to do so,

make an order authorising the giving of evidence by the F21... witness without the benefit of any special measure, or

(c)

if—

(i)

paragraph (a)(ii) or (b) above would apply but for the fact that the court is not satisfied as mentioned in that paragraph, or

(ii)

in the case of a notice under subsection (2)(b), the summary of views accompanying the notice under subsection (3)(a) above indicates that the F22... witness has not expressed a wish to give evidence without the benefit of any special measure,

make an order F23under subsection (5A) below.

F24(5A)

That order is an order—

(a)

in the case of proceedings in the High Court where the preliminary hearing is yet to be held, appointing the F25vulnerable witness notice to be disposed of at that hearing;

(b)

in the case of proceedings on indictment in the sheriff court where the first diet is yet to be held, appointing the F26vulnerable witness notice to be disposed of at that diet; or

(c)

in any other case, appointing a diet to be held before F27the hearing at which the evidence is to be given and requiring the parties to attend the diet.

(6)

Subsection (7) below applies where—

(a)

it appears to the court that a party intends to call a child witness F28or a deemed vulnerable witness to give evidence at or for the purposes of F29a hearing in relevant criminal proceedings,

(b)

the party has not lodged a F30vulnerable witness notice in respect of the F31... witness by the time specified in subsection (2) above F32or lodged a notice with the clerk of court in accordance with section 271AA by the time specified in that section, and

(c)

the court has not allowed a F33vulnerable witness notice in respect of the F34... witness to be lodged after that time under subsection (4) above F35or under section 271AA(5).

(7)

Where this subsection applies, the court shall—

(a)

order the party to lodge a F36vulnerable witness notice in respect of the F37... witness by such time as the court may specify, or

F38(b)

where the court does not so order—

(i)

in the case of proceedings on indictment where this subsection applies at or before the preliminary hearing or, as the case may be, the first diet, at that hearing or diet make an order under subsection (9) below; or

(ii)

in any other case, make an order appointing a diet to be held before F39the hearing at which the evidence is to be given diet and requiring the parties to attend the diet.

(8)

On making an order under subsection F40(5A)(c) or (7)(b)(ii) above, the court may postpone F41the hearing at which the evidence is to be given.

F42(8A)

Subsection (9) below applies to—

(a)

a preliminary hearing or first diet, so far as the court is—

(i)

by virtue of an order under subsection (5A)(a) or (b) above, disposing of a F43vulnerable witness notice at the hearing or diet; or

(ii)

by virtue of subsection (7)(b)(i) above, to make an order under subsection (9) F44... at the hearing or diet; and

(b)

a diet appointed under subsection (5A)(c) or (7)(b)(ii) above.

(9)

F45Subject to section 271B, at a F46hearing or diet to which this subsection applies, the court, after giving the parties an opportunity to be heard—

(a)

in a case where any of the standard special measures has been authorised by an order under subsection (5)(a)(i) above, may make an order authorising the use of such further special measure or measures as it considers appropriate for the purpose of taking the F47... witness’s evidence, and

(b)

in any other case, shall make an order—

(i)

authorising the use of such special measure or measures as the court considers to be the most appropriate for the purpose of taking the F47... witness’s evidence, or

(ii)

that the F47... witness is to give evidence without the benefit of any special measure.

(10)

F48Subject to section 271B, the court may make an order under subsection (9)(b)(ii) above only if satisfied—

(a)

where the F49... witness has expressed a wish to give evidence without the benefit of any special measure, that it is appropriate for the F49... witness so to give evidence, or

(b)

in any other case, that—

(i)

the use of any special measure for the purpose of taking the evidence of the F49... witness would give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice, and

(ii)

that risk significantly outweighs any risk of prejudice to the interests of the F49... witness if the order is made.

(11)

A F50hearing or diet to which subsection (9) above applies may—

(a)

on the application of the party citing or intending to cite the F51... witness in respect of whom the diet is to be held, or

(b)

of the court’s own motion,

be held in chambers.

(12)

A diet F52appointed under subsection (5A)(c) or (7)(b)(ii) above in any case may be conjoined with any other diet to be held before F53the hearing at which the evidence is to be given.

(13)

A party lodging a F54vulnerable witness notice F55or an objection notice shall, at the same time, intimate the notice to the other parties to the proceedings.

F56(13A)

In subsections (2) and (4) above, “the required time” means—

F57(a)

any time before a date has been fixed for one of the following—

(i)

a preliminary hearing in the High Court,

(ii)

a first diet in the sheriff court, or

(iii)

a hearing at which the evidence is to be given, or

(b)

if a date has been fixed—

(i)

for a preliminary hearing in the High Court, no later than 14 clear days before the preliminary hearing,

(ii)

for a first diet in the sheriff court in the case of proceedings on indictment, no later than 7 clear days before the first diet, or

(iii)

in a case in which the proceedings are not to take place in the High Court or on indictment in the sheriff court, for a hearing at which the evidence is to be given, no later than 14 clear days before that hearing.

(14)

In this section F58and section 271AA, references to a standard special measure are to any of the following special measures—

(a)

the use of a live television link in accordance with section 271J of this Act F59...

(b)

the use of a screen in accordance with section 271K of this Act, and

(c)

the use of a supporter in accordance with section 271L of this Act F60...

F61(15)

The Scottish Ministers may, by order subject to the affirmative procedure—

(a)

modify subsection (14),

(b)

in consequence of any modification made under paragraph (a)—

(i)

prescribe the procedure to be followed when standard special measures are used, and

(ii)

so far as is necessary, modify sections 271A to 271M of this Act.