263.Sections 92 to 97 set out procedural rules which will apply in the Sexual Offences Court in addition to the procedure set out in the 1995 Act. Section 91(1) means that, where these provisions conflict with anything in the 1995 Act, these provisions will take precedence.
264.Section 92 provides that an accused person may not conduct their own case at a hearing, or for the purposes of a hearing, if a witness will be giving evidence at that hearing. This means that an accused person will require to instruct a solicitor to conduct their case at such hearings, and for the purposes of such hearings.
265.Subsections (2) to (5) make provision for the appointment by the Sexual Offences Court of a solicitor to represent the accused person at such hearings. The Court is required to appoint a solicitor where the Court becomes aware that the accused person has not instructed one to appear at a hearing where a witness will be giving evidence, or to act for the accused person for the purposes of such a hearing, if the Court does not believe that the accused intends to do so. Subsection (5) ensures that if a solicitor is appointed by the Court to act for an accused person, the accused person is not able to dismiss the solicitor. If the Court determines that the solicitor is not able to act upon the instructions of the accused person, or act in that person’s best interests, for example due to a conflict of interest, the Court may replace the solicitor with another solicitor.
266.Section 93 provides for the modification of the 1995 Act in respect of its application to proceedings in the Sexual Offences Court. Paragraph (a) of subsection (2) inserts a new section 271AZA into the 1995 Act, which will apply in respect of such proceedings. Section 271AZA provides for a particular type of hearing, to be known as a vulnerable witness ground rules hearing, to take place where a vulnerable witness, as defined in section 271 of the 1995 Act as modified, is to give evidence at any hearing in the Sexual Offences Court. The hearing may, under existing Court Rules, be amalgamated with another hearing, to allow for efficiency. The hearing will allow a Judge of the Sexual Offences Court to determine how evidence is to be given and make any orders necessary to put measures in place to protect the wellbeing of the witness.
267.Paragraph (b) of subsection (2) modifies section 271I of the 1995 Act. This section provides for ground rules hearings (as distinct from vulnerable witness ground rules hearings, provided for in new section 271AZA) to take place when a court makes an order for a vulnerable witness to give evidence by way of a commissioner. The modifications in paragraph (b) remove references to ground rules hearings from section 271I of the 1995 Act in relation to proceedings in the Sexual Offences Court, because a vulnerable witness ground rules hearing will take place by virtue of section 271AZA when a vulnerable witness will be giving evidence, so provision for a further ground rules hearing under section 271I is not required.
268.Section 94 provides that the Sexual Offences Court must ensure that all vulnerable complainers who give evidence to the Court are able to do so in advance of the relevant hearing. A definition of “complainer” is provided in subsection (7)(a), as being the person against whom the offence to which the proceedings relate is alleged to have been committed. Paragraph (b) of subsection (7) sets out that a complainer is a vulnerable complainer if the offence which is alleged to have been committed against them is a sexual offence.
269.Subsection (2) sets out what the Sexual Offences Court must do in order to ensure that a vulnerable complainer’s evidence can be given in advance. The Court must authorise either the vulnerable complainer’s evidence being taken by a commissioner, in accordance with section 95, the admission of the record of a prior examination of the vulnerable complainer as the vulnerable complainer’s evidence in accordance with section 96, or the vulnerable complainer’s evidence in chief being taken by a statement in accordance with section 97. The definition of “prior examination” in subsection (8) provides that it is a hearing where the vulnerable complainer gave evidence before a commissioner. In addition to making an order authorising one of these measures, the Sexual Offences Court must not, under paragraph (b) of subsection (2), authorise the giving of evidence in such a way, or the use of such a measure, as would mean that there was a question over whether all of the vulnerable complainer’s evidence could in fact be given in advance by way of the measure authorised.
270.Subsections (3) and (4) set out the circumstances in which the Court may decide not to comply with the rule in subsection (1). Subsection (3) provides an exception where the vulnerable complainer giving evidence in advance would give rise to a significant risk of prejudice to the fairness of the hearing or to the interests of justice, and that risk outweighs the risk of prejudice to the vulnerable complainer if that complainer were to give evidence in person. Subsection (4) provides an exception where the vulnerable complainer, having had access to information to help them make the decision, as prescribed by act of adjournal, wishes to give evidence at the hearing. If the vulnerable complainer is aged under 18, the exception only applies if the Sexual Offences Court considers it would be in the vulnerable complainer’s best interests to do so.
271.Subsection (5) applies section 271A of the 1995 Act in relation to a vulnerable complainer giving evidence in the Sexual Offences Court. Section 271A sets out various administrative matters around the giving of evidence by a vulnerable witness generally, such as a requirement to notify the court specifying which measure for giving evidence is considered appropriate and allowing other parties to object to such measures.
272.Section 95 sets out the detail around what will happen when the Sexual Offences Court makes an order under section 94 for a vulnerable complainer to give evidence by way of a commissioner. The Sexual Offences Court is to set a date for proceedings before the commissioner at the same time as appointing the commissioner and can direct that those proceedings must take place by way of a live television link between the commissioner and the vulnerable complainer.
273.Subsection (4) provides that the proceedings must be recorded – and subsection (6) provides that such recording constitutes evidence without being sworn to by a witness. Subsection (5) provides that the accused may not be present in the room where the proceedings are taking place, or in the room from which the vulnerable complainer is giving evidence by television link. The Sexual Offences Court may authorise an exception to this prohibition, but only if the accused demonstrates special cause. The accused may, however, watch and hear the proceedings in a manner that the Sexual Offences Court determines.
274.Subsections (7) and (8) make provision for a vulnerable witness to pre-record their evidence before a commissioner, in accordance with the rest of section 95, before an indictment has been served on an accused person, meaning that the evidence can be taken at an earlier point in time.
275.Subsection (9) applies various sections of the 1995 Act to proceedings before a commissioner in the Sexual Offences Court, subject to the modifications in subsection (10). These provisions are of an administrative nature.
276.Section 96 sets out the detail around what will happen when the Sexual Offences Court makes an order under section 94 for the record of a prior examination of a vulnerable complainer to be taken by the Sexual Offences Court as the entirety of the vulnerable complainer’s evidence. The definition of “prior examination”, in section 94(8), also applies here.
277.Subsection (2) provides that where a record of a prior examination is lodged by the prosecution in accordance with section 96, it is to be taken by the Sexual Offences Court as the vulnerable complainer’s evidence, and the vulnerable complainer does not require to speak or be questioned in court about their evidence. This is subject to subsection (6).
278.Subsection (3) provides that the record of a prior examination does not need to be affirmed by witnesses in order to be admissible. Subsection (4) sets out more detail about what evidence can be admitted as a prior examination. It clarifies that only evidence that was previously given before a commissioner in separate court proceedings can be admitted this way. If those separate proceedings were in the High Court of Justiciary or the sheriff court, then the evidence must have been given under section 271I of the Criminal Procedure (Scotland) Act 1995 in order to be admissible under this section. If the separate proceedings took place in the Sexual Offences Court, then the evidence must have been given under section 95 of the Act in order to be admissible under this section.
279.Subsections (5) and (6) provide that, where a vulnerable complainer lodges a notice specifying that they intend to give evidence by way of admission of a prior record, the Sexual Offences Court may allow questioning of the vulnerable complainer to take place if the Sexual Offences Court is satisfied that all of the conditions set out in subsection (6) are met. The conditions are: that there are relevant questions to ask the vulnerable complainer, which were not asked in the prior examination and which could not reasonably have been expected to have been asked in the prior examination; that not allowing the questioning would create a significant risk of prejudice to the fairness of the trial or to the interests of justice; and that the risk of prejudice to fairness would significantly outweigh the risk of prejudice to the interests of the vulnerable complainer which would be created if the questioning were to be allowed.
280.Subsection (7) allows for an application to question the vulnerable complainer to be granted either fully or partially. This means that, for example, only certain questions may be permitted, while others would not be permitted. Subsections (8) and (9) makes provision for how the questioning is to take place if an application is granted. Subsection (8) requires that the Sexual Offences Court appoint a Judge of that court as commissioner and set a date for the hearing at which the questioning will take place. Subsection (9) provides that section 95 will apply to that hearing. This means that where a vulnerable complainer who has given their evidence by way of the admission of a record of a prior examination is to be questioned, it will be done before a commissioner in the same way as if the Sexual Offences Court had made an order under section 94 for that vulnerable complainer to give all of their evidence before a commissioner under section 95.
281.Section 97 sets out the detail around what will happen when the Sexual Offences Court makes an order under section 94 for a vulnerable complainer to give evidence by prior statement. A definition of “statement” is contained in subsection (7), and includes any representation of fact or opinion, however that is expressed. It also includes statements made in a precognition on oath, but not in a precognition which is not made on oath.
282.Subsection (2) provides that a statement is admissible as the vulnerable complainer’s evidence in chief, in whole or in part, without any further input to the Sexual Offences Court being required from the complainer. Subsection (3) makes further provision for the admissibility of the statement, subject to subsection (4), which requires that the statement be contained in a document, and that the vulnerable complainer would have been deemed a competent witness at the time the statement was made. Subsection (5) provides that the requirements of subsection (4) do not apply when the statement is sufficiently authenticated and was either contained in a precognition on oath or was made in court proceedings. A definition of “document” is contained in subsection (7), and includes documents in writing, maps, plans, graphs, drawings, photographs, and audio or visual recordings. Subsection (7) also explains that a statement is contained in a document if the person who made the statement made it personally, or if the statement is recorded in the document by a person with direct personal knowledge of the making of the statement.
Crown Application Part 7 – Sexual Offences Court Prohibition on personal conduct of defence, etc. Section 92, 93, 94, 95, 96 and 97 – prohibition on personal conduct of defence, vulnerable witnesses, ground rules hearings, pre-recording of evidence, taking evidence by commissioner and giving evidence in the form of a prior statement