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VWSL/01A/05
-----Original Message-----
From:Frances.Roberts@scra.gsx.gov.uk [mailto:Frances.Roberts@scra.gsx.gov.uk]
Sent: 02 February 2005 15:35
To: McKeand G (Glynis)
Cc: Moore WJ (Bill)
Subject: Act of Sederunt : Vulnerable Witness (S) Act 2004
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Hello Glynis thanks for all yours and Helen's hard work on these Rules. Can I just clarify below some points raised in your memo of 26 January ahead of tomorrow's meeting, since it might save time later.
- Under Comments, No. 5 (7) - "other parties to the proceedings" needs to include "and any safeguarder appointed by the court" because the latter may be appointed but not choose to become a party. A safeguarder who is not a party will still have involement in the court case - s/he will instead provide a report for the court; or s/he may choose to enter proceedings at a later date. The contents of a CWN and the issues raised by it will be relevant to the safeguarder's proper exercise of his functions and the CWN should therefore be intimated to him.
- Unless 3.67 is amended, possibly along the lines I suggested, then it's not clear when the CWN may be lodged. What was wrong with "as soon as reasonably practicable"? ( I don't mean to sound belligerent I 'm just interested!)
- 3.69(1)(b) would be better with "and/or" at the end to provide the sheriff with as much flexibility in his response as possible. It may only require a bit more information to make up his mind to authorise. We don't want to force him into a hearing where none needed.
- Your 6.3(c) - good point.
- re 6.3(d) - this need for warrant to cite witnesses and havers is borne of long experience of using similar measures via existing rules (eg making an application to exclude an relevant person when child giving evidence will in 50% of cases require eg a psychologists report or the psychologist himself, or a senior social worker to support the application. There's no reason to think this will be any different. )
- re 6.4 Draft rule 3.70 I think this needs some surgery.
- re6.10 © - we probably don't need this. The under 12 provisions in Part 1 are not relevant to Part 2. It may have been included because of the presumption that a child over 12 is sufficiently mature to form a view, (but the sheriff can probably do the sums himself)
- ( I'd been hoping to take out the "considered" /" it is felt that"/ "sought" type words in order to make the specification of the measures more robust. Inclusion of these words make the applicant sound diffident when he or she can be confident that a standard measure will be automatically authorised. But appreciate you don't want to tinker too much at this stage)
In general it would have been helpful for the Forms to have followed more the existing styles in the 1997 Rules where the sheriff endorses the order on a part of the form submitted by the applicant. It may be too late for that.
- re 6.12 there definitely needs to be somewhere for the applicant to state what new measures they seek, whatever form of words is chosen.
Regards
Frances
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