PART XII

Evidence

Special measures for child witnesses and other vulnerable witnesses

Child witnesses in certain solemn cases: modifications of section 271A
271BZB
1
In a case to which section 271BZA applies, section 271A applies with the following modifications.
2
References to a standard special measure are to be read as references to any of the following special measures (and subsection (14) is to be read accordingly)—
a
taking of evidence by a commissioner in accordance with section 271I,
b
use of a supporter in accordance with section 271L,
c
giving evidence in chief in the form of a prior statement in accordance with section 271M.
3
Section 271A(2) has effect as if—
a
the words “Subject to section 271AA,” were omitted,
b
the words “or a deemed vulnerable witness” were omitted.
4
Section 271A has effect as if the following subsection were inserted after subsection (2)—
2A
A vulnerable witness notice must—
a
state that section 271BZA applies, and
b
explain why the party considers that an exception is justified under section 271BZA(7) or (8) if the notice—
i
does not specify one or both of the special measures listed in section 271BZA(5) for the purpose of taking all of the child witness's evidence,
ii
specifies an incompatible special measure (as defined in section 271BZA(6)) for the purpose of taking any of the child witness's evidence, or
iii
states that the party considers that the child witness should give any of the child witness's evidence without the benefit of any special measure.
.
5
Section 271A has effect as if the following subsections were inserted after subsection (10)—
10A
Subsections (5), (9) and (10) are subject to subsections (10B) to (10F).
10B
Where the court is considering a notice in accordance with subsection (5) and the notice does not specify one or both of the special measures mentioned in section 271BZA(5) for the purpose of taking all of the child witness's evidence, the court may nonetheless make an order which has the effect of authorising the use of one or both of those special measures for that purpose.
10C
Unless the court is satisfied that an exception is justified under section 271BZA(7) or (8), an order made by the court under this section—
a
must authorise the use of one or more of the special measures mentioned in section 271BZA(5) for the purpose of taking all of the child witness's evidence,
b
must not authorise the use of an incompatible special measure (as defined in section 271BZA(6)) for the purpose of taking any of the child witness's evidence, and
c
must not authorise the giving of any of the child witness's evidence without the benefit of any special measure.
10D
Even if the court is satisfied that an exception is justified under section 271BZA(7) or (8), an order made by the court under this section must not have the effect of requiring the child witness to be present in the courtroom to give evidence unless the court is satisfied that subsection (10E) or (10F) applies.
10E
This subsection applies if—
a
the giving of evidence by the child witness in some way other than by being present in the courtroom for that purpose 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 child witness if the child witness were to be present in the courtroom to give evidence.
10F
This subsection applies if—
a
the child witness is aged 12 or over on the date of commencement of the proceedings in which the hearing is being held or is to be held,
b
the child witness expresses a wish to be present in the courtroom to give evidence, and
c
it would be in the child witness's best interests to be present in the courtroom to give evidence.
.
Ss. 271-271M and preceding cross-heading substituted for s. 271 (1.4.2005, 30.11.2005, 1.4.2006. 1.4.2007 and 2.7.2007 for certain purposes and otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 1, 25; S.S.I. 2005/168, art. 2, Sch. (with savings in art. 4); S.S.I. 2005/590, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1)); S.S.I. 2007/101, art. 2, Sch. (with art. 4); S.S.I. 2007/329, art. 2, Sch. (with art. 4); S.S.I. 2008/57, art. 2 (with art. 3)
Ss. 271BZA-271BZC inserted (20.1.2020 for specified purposes) by Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (asp 8), ss. 1(2), 12(2); S.S.I. 2019/392, reg. 2 (with reg. 3)