ANNEX: SECTIONS 271 TO 271M OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 AS AMENDED BY THE ACT Version of section 271D as amended by the Act and with the modifications made by sections 271BZC (in cases to which section 271BZA applies)
“Review of arrangements for vulnerable witnesses271D(1)In any case in which a person who is giving or is to give evidence at or for the purposes of a hearing in relevant criminal proceedings (referred to in this section as the “witness”) is or appears to the court to be a vulnerable witness, the court may at any stage in the proceedings (whether before or after the commencement of the hearing or before or after the witness has begun to give evidence)—(a)on the application of any party to the proceedings, or(b)of its own motion,review the current arrangements for taking the witness's evidence and, after giving the parties an opportunity to be heard, make an order under subsection (2) below.(2)The order which may be made under this subsection is—(a)where the current arrangements for taking the witness's evidence include the use of a special measure or combination of special measures authorised by an order under section 271A or 271C of this Act or under this subsection (referred to as the “earlier order”), an order varying or revoking the earlier order, or(b)where the current arrangements for taking the witness's evidence do not include any special measure, an order authorising the use of such special measure or measures as the court considers most appropriate for the purpose of taking the witness's evidence.(3)An order under subsection (2)(a) above varying an earlier order may—(a)add to or substitute for any special measure authorised by the earlier order such other special measure as the court considers most appropriate for the purpose of taking the witness's evidence, or(b)where the earlier order authorises the use of a combination of special measures for that purpose, delete any of the special measures so authorised.(3A)If an earlier order has the effect of enabling all of the witness’s evidence to be given in advance of the hearing, the court may not make an order under subsection (2)(a) varying the earlier order in such a way that it no longer has that effect.(3B)However, the court may vary the earlier order in the way mentioned in subsection (3A) if the hearing has already commenced when the court commences its review or if the court is satisfied—(a)where the witness has expressed a wish to give evidence at the hearing, that it is appropriate for the witness to do so, or(b)in any other case, that—if the court does not vary the earlier order in that way, there would be a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice, andthat risk significantly outweighs any risk of prejudice to the interests of the witness if the court were not to vary the earlier order in that way.(3C)For the purposes of this section, an order has the effect of enabling all of the witness’s evidence to be given in advance of the hearing if—(a)it authorises the use of one or both of these special measures for the purpose of taking all of the witness’s evidence—(i)taking of evidence by a commissioner in accordance with section 271I,(ii)giving evidence in chief in the form of a prior statement in accordance with section 271M,(b)it does not authorise the use of a special measure which is capable of being used only if the witness gives evidence at the hearing (whether or not its use would require the witness to be present in the courtroom). and(c)it does not authorise the giving of any of the witness’s evidence without the benefit of any special measure.(4)The court may make an order under subsection (2)(a) above revoking an earlier order only if satisfied—(a)where the witness has expressed a wish to give or, as the case may be, continue to give evidence without the benefit of any special measure, that it is appropriate for the witness so to give evidence, or(b)in any other case, that—(i)the use, or continued use, of the special measure or measures authorised by the earlier order for the purpose of taking the witness's evidence would give rise to a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice, and(ii)that risk significantly outweighs any risk of prejudice to the interests of the witness if the order is made.(4A)In a case in which a notice has been provided to the clerk of court in accordance with section 271AA(2), this section is to have effect as if the special measure or measures specified in the notice were authorised by an order under section 271A.(4B)Subsections (2) to (4) are subject to subsections (4C) to (4F).(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)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 (4E) or (4F) applies.(4E)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 is present in the courtroom to give evidence.(4F)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.(5)Subsection (8) of section 271C of this Act applies to the making of an order under subsection (2)(b) of this section as it applies to the making of an order under subsection (5)(a) or (7) of that section but as if the references to the witness were to the witness within the meaning of this section.(6)In this section, “current arrangements” means the arrangements in place at the time the review under this section is begun.(6A)In this section, “court” includes a commissioner appointed under section 271I(1).(7)This section is subject to sections 271B to 271BZC section 271B.”
“Vulnerable witnesses: supplementary provision271E(1)Subsection (2) below applies where—(a)a party is considering for the purposes of a vulnerable witness notice, a notice that is to be lodged with the clerk of court under section 271AA or a vulnerable witness application which of the special measures is or are the most appropriate for the purpose of taking the evidence of the person to whom the notice or application relates, or(b)the court is making an order under section 271A(5)(a)(ii) or (b) or (9), 271C or 271D of this Act.(2)The party or, as the case may be, the court shall—(a)have regard to the best interests of the witness, and(b)take account of any views expressed by—(i)the witness (having regard, where the witness is a child witness, to the witness's age and maturity), and(ii)where the witness is a child witness, the witness's parent (except where the parent is the accused).(3)For the purposes of subsection (2)(b) above, where the witness is a child witness—(a)the witness shall be presumed to be of sufficient age and maturity to form a view if aged 12 or older, and(b)in the event that any views expressed by the witness are inconsistent with any views expressed by the witness's parent, the views of the witness shall be given greater weight.(4)In this section—“parent”, in relation to a child witness, means any person having parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995 (c.36) in relation to the child witness,“the witness” means—(a)in the case referred to in subsection (1)(a) above, the person to whom the notice or application relates,(b)in the case referred to in subsection (1)(b) above, the person to whom the order would relate.”
“The accused271F(1)For the purposes of the application of subsection (1) of section 271 of this Act to the accused (where the accused is giving or is to give evidence at or for the purposes of a hearing in relevant criminal proceedings), subsection (2) of that section shall have effect as if—(a)for paragraph (c) there were substituted—“(c)whether the accused is to be legally represented at the hearing and, if not, the accused's entitlement to be so legally represented,”, and(b)for paragraph (e) there were substituted—“(e)any behaviour towards the accused on the part of–(i)any co-accused or any person who is likely to be a co-accused in the proceedings,(ii)any witness or any person who is likely to be a witness in the proceedings, or(iii)members of the family or associates of any of the persons mentioned in sub-paragraphs (i) and (ii) above.”.(2)Where, if the accused were to give evidence at or for the purposes of the hearing , he would be a child witness—(a)section 271A of this Act shall apply in relation to the accused subject to the following modifications—(i)references to a witness shall be read as if they were references to the accused,(ii)references to the party citing or intending to cite a witness shall be read as if they were references to the accused, and(iii)subsection (6) shall have effect as if for paragraph (a) there were substituted—“(a)it appears to the court that the accused, if he were to give evidence at or for the purposes of a hearing in relevant criminal proceedings, would be a child witness,”, and(aa)section 271AA applies in relation to the accused with the following modifications—(i)in subsection (1)(a), the reference to a child witness or a deemed vulnerable witness is to be read as if it were a reference to the accused,(ii)in subsections (1) to (5), references to the party citing or intending to cite the witness are to be read as if they were references to the accused,(iii)in subsections (1)(b), (2)(a) and (4), references to the witness are to be read as if they were references to the accused,(vi)subsection (2) has effect as if for paragraphs (b) and (c) there were substituted—“(b)that the notice is lodged by the accused and that the accused is a child witness,(c)the accused’s age, and”, and(b)section 271B of this Act shall apply in relation to the accused as if—(i)for subsection (1) there were substituted—“(1)This section applies where the accused—(a)if he were to give evidence at or for the purposes of a hearing in relevant criminal proceedings would be a child witness, and(b)is under the age of 12 on the date of commencement of the proceedings.”, and(ii)in subsection (3), references to the child witness were references to the accused.(3)Subsection (4) below applies where the accused—(a)considers that, if he were to give evidence at or for the purposes of a hearing in relevant criminal proceedings, he would be a vulnerable witness other than a child witness, and(b)has not decided to give evidence without the benefit of any special measures.(4)Where this subsection applies, subsections (2) to (11) of section 271C of this Act shall apply in relation to the accused subject to the following modifications—(a)references to the witness shall be read as if they were references to the accused,(b)references to the party citing or intending the cite the witness shall be read as if they were references to the accused, and(c)in subsection (8)(b), the reference to subsection (2)(a) to (f) of section 271 of this Act shall be read as if it were a reference to that subsection as modified by subsection (1) above.(5)Section 271D of this Act shall apply in any case where it appears to the court that the accused, if he were to give evidence at or for the purposes of the hearing, would be a vulnerable witness as it applies in the case referred to in subsection (1) of that section but subject to the following modifications—(a)references to the witness shall be read as if they were references to the accused,(b)references to the party citing or intending to cite the witness shall be read as if they were references to the accused.(6)Where the witness within the meaning of section 271E of this Act is the accused, that section shall have effect in relation to the witness as if—(a)in subsection (1), paragraph (a) were omitted, and(b)in subsection (2), the words “The party or, as the case may be,” were omitted.(7)Section 271M of this Act shall have effect, where the vulnerable witness is the accused, as if the reference in subsection (2) to the party citing the vulnerable witness were a reference to the accused.(8)The following provisions of this Act shall not apply in relation to a vulnerable witness who is the accused—(a)section 271H(1)(c) and (ea),(b)section 271I(3).”
“Saving provision271GNothing in sections 271A to 271F of this Act affects any power or duty which a court has otherwise than by virtue of those sections to make or authorise any special arrangements for taking the evidence of any person.”
“The special measures271H(1)The special measures which may be authorised to be used under section 271A, 271C or 271D of this Act for the purpose of taking the evidence of a vulnerable witness are—(a)taking of evidence by a commissioner in accordance with section 271I of this Act,(b)use of a live television link in accordance with section 271J of this Act,(c)use of a screen in accordance with section 271K of this Act,(d)use of a supporter in accordance with section 271L of this Act,(e)giving evidence in chief in the form of a prior statement in accordance with section 271M of this Act, and(ea)excluding the public during the taking of the evidence in accordance with section 271HB of this Act.(1A)The Scottish Ministers may, by order subject to the affirmative procedure—(a)modify subsection (1),(b)in consequence of any modification made under paragraph (a)—(i)prescribe the procedure to be followed when special measures are used, and(ii)so far as is necessary, modify sections 271A to 271M of this Act.(3)Provision may be made by Act of Adjournal regulating, so far as not regulated by sections 271I to 271M of this Act, the use in any proceedings of any special measure authorised to be used by virtue of section 271A, 271C or 271D of this Act.”
“Temporary additional special measures271HA(1)The Scottish Ministers may, by order subject to the affirmative procedure, specify additional measures which for the time being are to be treated as special measures listed in section 271H(1).(2)An order under subsection (1) may make different provision for different courts or descriptions of court or different proceedings or types of proceedings.(3)An order under subsection (1) must specify—(a)the area in which the additional measures may be used,(b)the period during which the additional measures may be used, and(c)the procedure to be followed when the additional measures are used.”
“Excluding the public while taking evidence271HB(1)This section applies where the special measure to be used in respect of a vulnerable witness is excluding the public during the taking of the evidence of the vulnerable witness.(2)The court may direct that all or any persons other than those mentioned in subsection (3) are excluded from the court during the taking of the evidence.(3)The persons are—(a)members or officers of the court,(b)parties to the case before the court, their counsel or solicitors or persons otherwise directly concerned in the case,(c)bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings,(d)such other persons as the court may specially authorise to be present.”
“Taking of evidence by a commissioner271I(1)Where the special measure to be used is taking of evidence by a commissioner, the court shall appoint a commissioner to take the evidence of the vulnerable witness in respect of whom the special measure is to be used.(1ZA)A court which appoints a commissioner under subsection (1) must—(a)fix a date for the proceedings before the commissioner, and(b)fix a date for a hearing (to be known as a “ground rules hearing”) for the purpose of preparing for the proceedings.(1ZB)The ground rules hearing is to be presided over by—(a)a judge of the court which appointed the commissioner if—(i)the court directs that the ground rules hearing be conjoined with another hearing or diet that is to be held before the date of the proceedings to which the ground rules hearing relates and that hearing or diet is presided over by a judge, or(ii)it is not reasonably practicable for the ground rules hearing to be presided over by the commissioner appointed to preside over the proceedings to which the ground rules hearing relates, or(b)in any other case, the commissioner appointed to preside over the proceedings to which the ground rules hearing relates.(1ZC)In cases where a judge presides over a ground rules hearing in accordance with subsection (1ZB)(a), references to the commissioner in subsection (1ZD) are to be read as references to the judge.(1ZD)The commissioner presiding over a ground rules hearing must—(a)ascertain the length of time the parties expect to take for examination-in-chief and cross-examination, including any breaks that may be required,(b)to the extent that the commissioner considers it appropriate to do so, decide on the form and wording of the questions that are to be asked of the vulnerable witness,(c)if the commissioner considers it appropriate to do so, authorise the use of a supporter at the proceedings, in accordance with section 271L,(d)if the commissioner considers that there are steps that could reasonably be taken to enable the vulnerable witness to participate more effectively in the proceedings, direct that those steps be taken,(e)subject to section 72(8) which applies in relation to the commissioner as it applies in relation to the court, dispose of any application that—(i)has been made under section 275(1) or 288F(2), and(ii)has not yet been disposed of by the court,(f)consider whether the proceedings should take place on the date fixed by the court and postpone the proceedings if the commissioner considers that it is in the interests of justice to do so having regard to all the circumstances, including—(i)whether the parties are likely to be ready for the proceedings to take place on the date fixed by the court and if not, the reasons for that,(ii)any views expressed by the parties on whether the proceedings should be postponed, and(iii)whether postponement is in the interests of the vulnerable witness, and(g)consider and, if appropriate, make a decision on, any other matter that the commissioner considers could be usefully dealt with before the proceedings take place.(1A)Proceedings before a commissioner appointed under subsection (1) above shall, if the court so directed when authorising such proceedings or it was so directed at the ground rules hearing, take place by means of a live television link between the place where the commissioner is taking, and the place from which the witness is giving, evidence.(2)Proceedings before a commissioner appointed under subsection (1) above shall be recorded by video recorder.(3)An accused—(a)shall not, except by leave of the court on special cause shown, be present—(i)in the room where such proceedings are taking place; or(ii)if such proceedings are taking place by means of a live television link, in the same room as the witness, but(b)is entitled by such means as seem suitable to the court to watch and hear the proceedings.(4)The recording of the proceedings made in pursuance of subsection (2) above shall be received in evidence without being sworn to by witnesses.(4A)It is not necessary (in solemn cases) for an indictment to have been served before—(a)a party may lodge a vulnerable witness notice which specifies the special measure of taking evidence by commissioner as the special measure or one of the special measures which the party considers to be the most appropriate for the purpose of taking the witness’s evidence,(b)a court may make an order authorising the use of the special measure of taking evidence by commissioner, whether on its own or in combination with any other special measure specified in the same vulnerable witness notice,(c)a court may appoint a commissioner under subsection (1), or(d)proceedings may take place before a commissioner appointed under subsection (1).(5)Sections—(a)274;(b)275;(c)275B except subsection (2)(b);(d)(e)(f)288E; and(g)288F,of this Act apply in relation to proceedings before a commissioner appointed under subsection (1) above as they apply in relation to a trial.(6)In the application of those sections in relation to such proceedings—(a)the commissioner acting in the proceedings is to perform the functions of the court as provided for in those sections;(b)references—(i)in those sections, except section 275(3)(c) and (7)(c), to a trial or a trial diet;(ii)in those sections, except sections 275(3)(e) and 288F(2), (3) and (4), to the court,shall be read accordingly;(c)the reference in section 275B(1) to 14 days shall be read as a reference to 7 days.(7)In a case where it falls to the court to appoint a commissioner under subsection (1) above, the commissioner shall be a person described in subsection (8) below.(8)The persons are—(a)where the proceedings before the commissioner are for the purposes of a trial which the court (when it appoints the commissioner) expects will be in the High Court, a judge of the High Court; or(b)in any other case, a sheriff.”
“Live television link271J(1)Where the special measure to be used is a live television link, the court shall make such arrangements as seem to it appropriate for the vulnerable witness in respect of whom the special measure is to be used to give evidence from a place outside the court-room where the hearing is to take place by means of a live television link between that place and the court-room.(2)The place from which the vulnerable witness gives evidence by means of the link—(a)may be another part of the court building in which the court-room is located or any other suitable place outwith that building, and(b)shall be treated, for the purposes of the proceedings at the hearing, as part of the court-room whilst the witness is giving evidence.(3)Any proceedings conducted by means of a live television link by virtue of this section shall be treated as taking place in the presence of the accused.(4)Where—(a)the live television link is to be used in proceedings in a sheriff court, but(b)that court lacks accommodation or equipment necessary for the purpose of receiving such a link,the sheriff may by order transfer the proceedings to any other sheriff court in the same sheriffdom which has such accommodation or equipment available.(5)An order may be made under subsection (4) above—(a)at any stage in the proceedings (whether before or after the commencement of the hearing), or(b)in relation to any part of the proceedings.”
“Screens271K(1)Where the special measure to be used is a screen, the screen shall be used to conceal the accused from the sight of the vulnerable witness in respect of whom the special measure is to be used.(2)However, the court shall make arrangements to ensure that the accused is able to watch and hear the vulnerable witness giving evidence.(3)Subsections (4) and (5) of section 271J of this Act apply for the purpose of the use of a screen under this section as they apply for the purpose of the use of a live television link under that section but as if—(a)references to the live television link were references to the screen, and(b)the reference to receiving such a link were a reference to the use of a screen.”
“Supporters271L(1)Where the special measure to be used is a supporter, another person (“the supporter”) nominated by or on behalf of the vulnerable witness in respect of whom the special measure is to be used may be present alongside the witness to support the witness while the witness is giving evidence.(2)Where the person nominated as the supporter is to give evidence at that or any other hearing in the proceedings, that person may not act as the supporter at any time before giving evidence.(3)The supporter shall not prompt or otherwise seek to influence the witness in the course of giving evidence.”
“Giving evidence in chief in the form of a prior statement271M(1)This section applies where the special measure to be used in respect of a vulnerable witness is giving evidence in chief in the form of a prior statement.(2)A statement made by the vulnerable witness which is lodged in evidence for the purposes of this section by or on behalf of the party citing the vulnerable witness shall, subject to subsection (3) below, be admissible as the witness's evidence in chief, or as part of the witness's evidence in chief, without the witness being required to adopt or otherwise speak to the statement in giving evidence in court.(3)Section 260 of this Act shall apply to a statement lodged for the purposes of this section as it applies to a prior statement referred to in that section but as if—(a)references to a prior statement were references to the statement lodged for the purposes of this section,(b)in subsection (1), the words “where a witness gives evidence in criminal proceedings” were omitted, and(c)in subsection (2), paragraph (b) were omitted.(4)This section does not affect the admissibility of any statement made by any person which is admissible otherwise than by virtue of this section.(5)In this section, “statement” has the meaning given in section 262(1) of this Act.”