PART XII

Evidence

Special measures for child witnesses and other vulnerable witnesses

Child witnesses in certain solemn cases: modifications of section 271D
271BZC
1
In a case to which section 271BZA applies, section 271D applies with the following modifications.
2
Section 271D has effect as if—
a
subsections (3A) to (3C) were omitted,
b
subsection (4A) were omitted, and
c
the following subsections were inserted after subsection (4A)—
4B
Subsections (2) to (4) are subject to subsections (4C) to (4H).
4C
Unless the hearing has already commenced when the court commences its review or 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—
a
revoke the earlier order, or
b
vary it in such a way that it no longer satisfies the requirements set out in section 271BZA(4)(a)(i), (ii) and (iii).
4D
An order made by the court under this section must have the effect of authorising the use of the special measure of taking of evidence by a commissioner in accordance with section 271I if—
a
that is requested by any party to the proceedings, and
b
the earlier order authorises only the special measure of giving evidence in chief in the form of a prior statement in accordance with section 271M.
4E
However, an order made by the court under this section need not have the effect described in subsection (4D) if—
a
the hearing has already commenced when the court commences its review, or
b
the court is satisfied that an exception is justified under section 271BZA(7) or (8).
4F
Even if the hearing has already commenced when the court commences its review or the court is satisfied that an exception is justified under section 271BZA(7) or (8), an order made 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 (4G) or (4H) applies.
4G
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.
4H
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)