ANNEX: SECTIONS 271 TO 271M OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 AS AMENDED BY THE ACT Version of section 271A as amended by the Act (in cases to which section 271BZA does not apply)
“Child and deemed vulnerable witnesses271A(1)Where a child witness or a deemed vulnerable witness is to give evidence at or for the purposes of a hearing in relevant criminal proceedings, the witness is entitled, subject to—(a)subsections (2) to (13) below, and(b)section 271D of this Act,to the benefit of one or more of the special measures for the purpose of giving evidence.(2)A party Subject to section 271AA, a party citing or intending to cite a child witness or a deemed vulnerable witness shall, by the required time, lodge with the court a notice (referred to in this Act as a “vulnerable witness notice”)—(a)specifying the special measure or measures which the party considers to be the most appropriate for the purpose of taking the witness's evidence, or(b)if the party considers that the witness should give evidence without the benefit of any special measure, stating that fact.(3)A vulnerable witness notice shall contain or be accompanied by—(a)a summary of any views expressed for the purposes of section 271E(2)(b) of this Act, and(b)such other information as may be prescribed by Act of Adjournal.(3A)In the case where a vulnerable witness notice under subsection (2)(a) specifies only a standard special measure—(a)subsection (3)(a) does not apply, and(b)subsection (5) has effect as if the words “not earlier than 7 days and” were omitted. measure, subsection (3)(a) does not apply.(4)The court may, on cause shown, allow a vulnerable witness notice to be lodged after the required time.(4A)Any party to the proceedings may, not later than 7 days after a vulnerable witness notice has been lodged, lodge with the court a notice (referred to in this section as an “objection notice”) stating—(a)an objection to any special measure (other than a standard special measure) specified in the vulnerable witness notice that the party considers to be inappropriate, and(b)the reasons for that objection.(4B)The court may, on cause shown, allow an objection notice to be lodged after the period referred to in subsection (4A).(4C)If an objection notice is lodged in accordance with subsection (4A) or (4B)—(a)subsection (5)(a)(ii) does not apply to the vulnerable witness notice, and(b)the court must make an order under subsection (5A).(5)The court shall, not earlier than 7 days and not later than 14 days after a vulnerable witness notice has been lodged, consider the notice in the absence of the parties and, subject to section 271B sections 271B to 271BZB of this Act—(a)in the case of a notice under subsection (2)(a) above—(i)if a standard special measure is specified in the notice, make an order authorising the use of that measure for the purpose of taking the witness's evidence, and(ii)if any other special measure is specified in the notice and the court is satisfied on the basis of the notice that it is appropriate to do so, make an order authorising the use of the special measure (in addition to any authorised by virtue of an order under sub-paragraph (i) above) for the purpose of taking the witness's evidence,(b)in the case of a notice under subsection (2)(b) above, if—(i)the summary of views accompanying the notice under subsection (3)(a) above indicates that the witness has expressed a wish to give evidence without the benefit of any special measure, and(ii)the court is satisfied on the basis of the notice that it is appropriate to do so,make an order authorising the giving of evidence by the witness without the benefit of any special measure, or(c)if—(i)paragraph (a)(ii) or (b) above would apply but for the fact that the court is not satisfied as mentioned in that paragraph, or(ii)in the case of a notice under subsection (2)(b), the summary of views accompanying the notice under subsection (3)(a) above indicates that the witness has not expressed a wish to give evidence without the benefit of any special measure,make an order under subsection (5A) below.(5A)That order is an order—(a)in the case of proceedings in the High Court where the preliminary hearing is yet to be held, appointing the vulnerable witness notice to be disposed of at that hearing;(b)in the case of proceedings on indictment in the sheriff court where the first diet is yet to be held, appointing the vulnerable witness notice to be disposed of at that diet; or(c)in any other case, appointing a diet to be held before the hearing at which the evidence is to be given and requiring the parties to attend the diet.(6)Subsection (7) below applies where—(a)it appears to the court that a party intends to call a child witness or a deemed vulnerable witness to give evidence at or for the purposes of a hearing in relevant criminal proceedings,(b)the party has not lodged a vulnerable witness notice in respect of the witness by the time specified in subsection (2) above or lodged a notice with the clerk of court in accordance with section 271AA by the time specified in that section, and(c)the court has not allowed a vulnerable witness notice in respect of the witness to be lodged after that time under subsection (4) above or under section 271AA(5).(7)Where this subsection applies, the court shall—(a)order the party to lodge a vulnerable witness notice in respect of the witness by such time as the court may specify, or(b)where the court does not so order—(i)in the case of proceedings on indictment where this subsection applies at or before the preliminary hearing or, as the case may be, the first diet, at that hearing or diet make an order under subsection (9) below; or(ii)in any other case, make an order appointing a diet to be held before the hearing at which the evidence is to be given and requiring the parties to attend the diet.(8)On making an order under subsection (5A)(c) or (7)(b)(ii) above, the court may postpone the hearing at which the evidence is to be given.(8A)Subsection (9) below applies to—(a)a preliminary hearing or first diet, so far as the court is—(i)by virtue of an order under subsection (5A)(a) or (b) above, disposing of a vulnerable witness notice at the hearing or diet; or(ii)by virtue of subsection (7)(b)(i) above, to make an order under subsection (9) at the hearing or diet; and(b)a diet appointed under subsection (5A)(c) or (7)(b)(ii) above.(9)At Subject to section 271B, at a hearing or diet to which this subsection applies, the court, after giving the parties an opportunity to be heard—(a)in a case where any of the standard special measures has been authorised by an order under subsection (5)(a)(i) above, may make an order authorising the use of such further special measure or measures as it considers appropriate for the purpose of taking the witness's evidence, and(b)in any other case, shall make an order—(i)authorising the use of such special measure or measures as the court considers to be the most appropriate for the purpose of taking the witness's evidence, or(ii)that the witness is to give evidence without the benefit of any special measure.(10)The court Subject to section 271B, the court may make an order under subsection (9)(b)(ii) above only if satisfied—(a)where the witness has expressed a wish 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 of any special measure for the purpose of taking the evidence of the witness would give rise to a significant risk of prejudice to the fairness of the hearing at which the evidence is to be given 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.(11)A hearing or diet to which subsection (9) above applies may—(a)on the application of the party citing or intending to cite the witness in respect of whom the diet is to be held, or(b)of the court's own motion,be held in chambers.(12)A diet appointed under subsection (5A)(c) or (7)(b)(ii) above in any case may be conjoined with any other diet to be held before the hearing at which the evidence is to be given.(13)A party lodging a vulnerable witness notice or an objection notice shall, at the same time, intimate the notice to the other parties to the proceedings.(13A)In subsections (2) and (4) above, “the required time” means—(a)any time before a date has been fixed for one of the following—(i)a preliminary hearing in the High Court,(ii)a first diet in the sheriff court, or(iii)a hearing at which the evidence is to be given, or(b)if a date has been fixed—(i)for a preliminary hearing in the High Court, no later than 14 clear days before the preliminary hearing,(ii)for a first diet in the sheriff court in the case of proceedings on indictment, no later than 7 clear days before the first diet, or(iii)in a case in which the proceedings are not to take place in the High Court or on indictment in the sheriff court, for a hearing at which the evidence is to be given, no later than 14 clear days before that hearing.(a)in the case of proceedings in the High Court, no later than 14 clear days before the preliminary hearing;(b)in the case of proceedings on indictment in the sheriff court, no later than 7 clear days before the first diet;(c)in any other case, no later than 14 clear days before [ the hearing at which the evidence is to be given.(14)In this section and section 271AA, references to a standard special measure are to any of the following special measures—(a)the use of a live television link in accordance with section 271J of this Act,(b)the use of a screen in accordance with section 271K of this Act, and(c)the use of a supporter in accordance with section 271L of this Act.(15)The Scottish Ministers may, by order subject to the affirmative procedure—(a)modify subsection (14),(b)in consequence of any modification made under paragraph (a)—(i)prescribe the procedure to be followed when standard special measures are used, and(ii)so far as is necessary, modify sections 271A to 271M of this Act.”