Frequently asked questions

FREQUENTLY ASKED QUESTIONS

Here are some frequently asked questions about the VULNERABLE WITNESSES (SCOTLAND) ACT 2004

Who can benefit from the Act's provisions?

Why is the Act being implemented in stages?

Why are people suffering from a mental disorder or who have a physical disability not automatically entitled to benefit from special measures?

Can a combination of special measures be used?

Who will decide if a special measure is appropriate?

How will the rights of the accused be protected?

Why does the Act not allow for the use of intermediaries?

In what circumstances can the special measure of taking evidence by a commissioner be used?

What information will be available for practitioners to understand the provisions within the Vulnerable Witnesses (Scotland) Act 2004?

What information is available for child witnesses and their parents/carers?

What will the Act do?

In criminal cases:

All child witnesses under age 16 will be automatically entitled to special measures.
Child witnesses under 12 in criminal cases involving sexual assault or violence will normally give evidence by means that do not require their personal attendance at court.
The definition of "vulnerable witness" is widened to include anyone whose ability to give evidence may be diminished by reason of fear and distress in connection with giving evidence at the trial. This will enable the court to take into account the wider circumstances of the case such as the nature of the evidence the witness will give and any relationship between the witness and the accused.
An accused who chooses to give evidence may be eligible for special measures in some circumstances.
A notice procedure streamlining the process of deciding on the appropriate special measures for child witnesses will be introduced.
An automatic ban on the accused conducting his/her own case in any case of violent crimes involving child witnesses under 12. In these instances the accused must be legally represented in court.
The court will have discretionary power to prevent the accused conducting his/her case personally in cases other than sexual offences (where there is already an automatic ban) and power to appoint a legal representative for the accused in such cases.
Allows the use of expert evidence to explain a witness's behaviour in certain cases.
Abolish dock identification of the accused where there has been a previous identification by the vulnerable witness.

In civil cases:

Clarifying the law to ensure that special measures can be used in civil proceedings including referral from the Children's Hearings System to the Sheriff Court
Providing protection for children and young people against unfair use of sexual or character history evidence about them in proceedings in the Sheriff Court related to Children's Hearings.

In both criminal and civil cases:

Abolishing the "competence test" whereby currently the evidence of some witnesses such as young children or people with learning difficulties is simply not allowed to be heard.

What are the special measures?

Special measures are -

Use of a live television link in another part of the court building
Use of a screen
The use of a supporter, in conjunction with either of the standard special measures above

Further special measures available on application for either Child Witnesses under the age of 16 or Adult Vulnerable Witnesses are:

Use of a live television link from another part of the court building or other place outwith that building
Greater use of prior statements of vulnerable witnesses as evidence in chief (in criminal cases only)
Taking of evidence by a commissioner
Use of screen
Use of supporter

Who can benefit from the Act's provisions?

Children under 16 are automatically entitled to benefit from standard special measures but may also benefit from the other special measures listed.
Adults who have a mental disorder within the meaning of the Mental Health (care and Treatment) (Scotland) Act 2003
Adults who are in fear or distress in connection with giving evidence at a trial.
Defence witnesses who meet the criteria set out above.
In some cases an accused may benefit from the special measures.

When will the Act be implemented?

It is intended to implement the Act in stages as follows:-

In respect of child witnesses in High Court, Sheriff Court Solemn cases and Children's Hearings court procedure cases from April 2005.
In respect of adult vulnerable witnesses in High Court and Sheriff Court Solemn cases from April 2006.
In respect of child and adult vulnerable witnesses in Sheriff Court summary cases from April 2007 subject to decisions being made on the McInnes Review of summary justice.
In respect of Court of Session and Sheriff Court civil cases from October 2007.

Why is the Act being implemented in stages?

The Act is a very complex piece of legislation which will mean that legal and other practitioners will have to work in a different way than they do at present. Time is needed for those working in the justice system to adjust to new procedures and new ways of working.

Why are people suffering from a mental disorder or who have a physical disability not automatically entitled to benefit from special measures?

Not all people suffering from a mental disorder or who have a physical disability will need to make use of a special measure to help them give their best evidence. Much will depend on the type of evidence they are required to give and the type of case as well as the degree of mental disorder or physical disability. The Act allows for an application to be made by the party calling the witness for a special measure and the court must take account of a number of criteria specified in the Act in deciding whether the application should be granted.

Can a combination of special measures be used?

Yes.

Who will decide if a special measure is appropriate?

The court will decide if a special measure is appropriate taking account of the witness's views and other criteria specified in the Act.

How will the rights of the accused be protected?

The accused may be regarded as a vulnerable witness and benefit from the special measures provided for in the Act
Where screens are used in court the accused must be able to see and hear the witness via a live TV link
Where evidence is being taken from a remote location the accused must be able to see the witness and a panoramic view of the location to ensure that no coaching is taking place. The accused or his/her representative has the right to cross examine witnesses.
Where evidence is being taken on commission the accused must be able to see and hear the proceedings via a live TV link and to be able to communicate with his/her representative. The accused or his/her representative has the right to cross examine witnesses.
Where an accused is prohibited from personally conducting his/her defence at at trial or from precognoscing witnesses he/she must be legally represented.

Why does the Act not allow for the use of intermediaries?

The use of intermediaries is not ruled out. This is being piloted in England and Wales and these pilots are being monitored and evaluated over the next year. Consideration will be given to the outcome of the evaluation of these pilots before any decision is taken about the use of intermediaries in the Scottish justice system.

The Vulnerable witnesses Act makes provision for new special measures to be added through a statutory instrument.

In what circumstances can the special measure of taking evidence by a commissioner be used?

From 2 July 2007 child witnesses and adult vulnerable witnesses can give their evidence by a commissioner in any criminal case to be heard in the High Court or in Sheriff Court solemn proceedings. In the case of child witnesses this also applies in Sheriff Court summary proceedings

In children's hearing court proceedings a child witness can give their evidence by a commissioner othern than where restrictions on evidence in certain cases involving sexual abuse apply. This will also apply to adult vulnerable witnesses from 1 April 2006.

What information is available for practitioners to understand the provisions within the Vulnerable Witnesses (Scotland) Act 2004?

There is an information leaflet which explains the provisions of the Act http://www.scotland.gov.uk/Publications/2005/04/04143522/35266.

There is also a Practitioner Guidance Pack which is intended to promote good practice and consistency in the way the special measures are considered and used http://www.scotland.gov.uk/Publications/2005/06/03104253/42547 The guidance pack complements the material in the Supporting Child Witnesses Guidance Pack and are equally important to use when working with child witnesses.

What information is available for child witnesses and their parents/carers?

There are five booklets 'Being a Witness' for children, young people and their parents/carers in criminal and children's hearing court proceedings. It will be for the person citing the witness to go through the booklets with the child witness and their parents/carers and give them an opportunity to ask any questions they may have.

http://www.scotland.gov.uk/Publications/2005/06/2984605/46120

http://www.scotland.gov.uk/Publications/2005/06/28141320/13224

http://www.scotland.gov.uk/Publications/2005/07/07105526/55283

http://www.scotland.gov.uk/Publications/2005/06/28154343/43454

http://www.scotland.gov.uk/Publications/2005/06/27110833/08419

A CD ROM and DVD for vulnerable witnesses is also available to view which compliment the witness booklets and provides a virtual courtroom tour and shows video clips of how each special measure works.

The Witnesses in Scotland website www.witnessesinscotland.com provides information and a virtual tour for all witnesses.

The Scottish Government

Justice

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