288.Section 101 amends Part XII of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). Section 271H of the 1995 Act sets out special measures which may be authorised, under sections 271A, 271C or 271D, in the High Court or sheriff court for the purposes of taking the evidence of a vulnerable witness. Section 101(2) adds the admission of the record of a hearing at which the vulnerable witness gave evidence before a commissioner, in accordance with section 271IA, to the list of special measures which might be authorised.
289.Section 101(3) inserts new section 271IA into the 1995 Act. This sets out the procedure to be followed when the admission of the record of a prior examination of a vulnerable witness is authorised as the special measure by which that witness’s evidence is to be taken by the High Court or sheriff court. Subsections (1) and (2) of the new section provide that, where this special measure is used, the vulnerable witness will not be required to give further evidence in court, and the evidence does not require to be confirmed by a witness. Subsection (3) provides that the prior examination must have taken place before a commissioner either under section 271I of the 1995 Act, in proceedings taking place in the High Court or sheriff court, or under section 95 of the Act, in proceedings taking place in the Sexual Offences Court.
290.Subsections (4) and (5) ensure that, where a vulnerable witness lodges a notice specifying that they intend to give evidence by way of admission of a prior record, the court may allow questioning of the vulnerable witness to take place if the court is satisfied that all of the conditions set out in subsection (5) are met. The conditions are: that there are relevant questions to ask the vulnerable witness, 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 witness which would be created if the questioning were to be allowed. Subsection (6) allows for an application to question the vulnerable witness to be granted either fully or partially. This means that, for example, only certain questions may be permitted, while others would not be permitted.
291.Subsections (7) and (8) make provision for how the questioning is to take place if an application is granted. Subsection (7) requires that the court appoint a judge as commissioner to take the evidence of the vulnerable witness unless an exception set out in subsection (8) is justified. Subsection (8) provides that an exception is justified where the vulnerable witness is under 18 and, having had access to relevant information, wishes to give evidence at the court hearing instead of before a commissioner, and the court considers it would be in the vulnerable witness’s best interest to do so. Alternatively, if the vulnerable witness is aged 18 or over, then an exception is justified if, having had access to relevant information, the vulnerable witness wishes to give evidence at the hearing instead of before a commissioner. Subsection (9) provides that, where questioning of the vulnerable witness takes places before a commissioner, section 271I of the 1995 Act will apply to that hearing. This means that where a vulnerable witness 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 court had made an order for that vulnerable witness to give all of their evidence before a commissioner under section 271I.
Crown Application Part 8 – Special Measures for Vulnerable Witnesses under the 1995 Act Section 101 – vulnerable witnesses under the 1995 Act: admission of the record of a prior examination as evidence in full