185.Section 18 of the 2004 Act lists the special measures for vulnerable witnesses that are available to the court in the case of child witnesses and other vulnerable witnesses under sections 12 and 13 of the 2004 Act. Sections 22B to 22D of the 2004 Act (which will be inserted into that Act by section 4(5) of the Children (Scotland) Act 2020 when it is brought into force) make provision for a new special measure for vulnerable witnesses to be available to the court in certain proceedings. That new special measure is prohibiting one or more of the parties to the proceedings from personally conducting the case. This would mean, for example, that a person being sued for historic child abuse, say, might be prohibited from defending the case in person, and so could not personally cross-examine the person who alleges they were abused. Instead, the person being sued would need to be represented by a lawyer.
186.This prohibition is available to the court only in the case of relevant proceedings to which section 11A of the 2004 Act applies, or in the case of proceedings to which section 11B applied before it was amended by section 58 of this Act (being proceedings, other than relevant proceedings, in which the court is considering making an order under section 11(1) of the Children (Scotland) Act 1995).
187.Section 59 amends the 2004 Act so that this special measure will be available in the case of all proceedings. To achieve this, section 59(2) amends section 18(1) of the 2004 Act to add reference to the special measure of prohibiting one or more of the parties to the proceedings from personally conducting the case. As a consequence, section 59(3) amends section 22B of the 2004 Act to ensure it will operate in relation to all civil proceedings and in relation to child witnesses as well as other vulnerable witnesses by repealing section 22B(2), which otherwise limits the application of section 22B to certain proceedings only. A new version of section 22B(1) is inserted in place of the existing version and section 22B(3) is repealed as the matter it deals with is now dealt with in the new subsection (1).
188.Finally, section 59(4) amends section 22D of the 2004 Act to replace the current reference to proceedings other than relevant proceedings in relation to which the court is considering making an order under section 11(1) of the Children (Scotland) Act 1995, with a reference to civil proceedings other than relevant proceedings. The effect of this is that the presumption in favour of applying the special measure of prohibiting a party to the proceedings from personally conducting the case applies in a wider range of proceedings.
Crown Application Vulnerable witnesses Section 59 – prohibition on personal conduct of case