VULNERABLE WITNESSES ACT IMPLEMENTATION STEERING
GROUP
SUBORDINATE LEGISLATION SUB-GROUP
VWSL/11/04
RULES OF COURT IN RESPECT OF CHILD WITNESSES IN HIGH
COURT ANDSHERIFF COURTSOLEMN CASES
1. Attached is the first draft of an Act of Adjournal in
respect of the provisions of the Vulnerable Witnesses Act
relating to child witnesses in High Court and Sheriff Solemn
cases prepared by the Lord President's Private Office.
2. Members are invited to offer views on the scope and
content of this draft.
3. Next Steps
SEJD
Victims and Witnesses Unit
November 2004
Scottish Statutory Instruments
HIGH COURT OF JUSTICIARY
SHERIFF COURT
Act of Adjournal (Criminal Procedure Rules Amendment No. )
(Vulnerable Witnesses (Scotland) Act 2004) 2005
Made - - - - 2005
Coming into force - - 2005
The Lord Justice General, the Lord Justice Clerk and the
Lords Commissioners of Justiciary, under and by virtue of the
powers conferred on them by section 305 of the Criminal
Procedure (Scotland) Act 1995 ([1]), and of all other powers
enabling them in that behalf, do hereby enact and declare:
Citation and commencement
1.-(1) This Act of Adjournal may be cited as
the Act of Adjournal (Criminal Procedure Rules Amendment No. )
(Vulnerable Witnesses (Scotland) Act 2004) 2005 and shall come
into force on *********2005.
(2) This Act of Adjournal shall be inserted in the Books of
Adjournal.
Amendment of the Act of Adjournal (Criminal
Procedure Rules) 1996
2.-(1) The Act of Adjournal (Criminal
Procedure Rules) 1996 ( [2]) shall be amended in accordance
with the following sub-paragraphs.
(2) In rule 8.2(2) (notice to accused to appear) after
"section 288C" there shall be inserted "or where it is known by
the prosecutor that the offence is one to which section
288E".
(3) In rule 21.4 (authentication of certain prior statements
of witnesses) after "the first page of" there shall be inserted
"or attached to the device on which the statement has been
recorded".
(4) After rule 21.5 (form of application to introduce
evidence relating to sexual offences) there shall be inserted
the following:-
"
Notice of presumption of identification
21.6-(1) A notice served by the prosecutor
under section 281A(2)(a) of the Act of 1995 (notice of
presumption of identification prior to trial) shall be in Form
21.6-A.
(2) A notice by the accused under section 281A(2)(b) of the
Act of 1995 (notice of challenge of facts in report of
identification) shall be in Form 21.6-B."
(5) For Chapter 22 (evidence of children) there shall be
substituted the following:-
CHAPTER 22
EVIDENCE OF VULNERABLE WITNESSES
Child witness notice
22.1.A notice by a party under section 271A(2) of the Act of 1995
(child witness notice) shall be in Form 22.1.
Procedure on lodging child witness notice
22.2. On receipt of a notice under rule 22.1
(child witness notice) with a certificate of execution of
service the clerk of court shall-
(a) endorse on the notice the time and date on which it was
received; and
(b) place the notice before a Lord Ordinary or, as the case
may be, a sheriff.
Intimation of an order under section 271A
22.3- (1) An order:-
(c) authorising the use of a special measure under section
271A(5)(a);
(d) authorising the taking of evidence with no special
measures under section 271(5)(b);
(e) appointing a child witness notice to be disposed of
at-
(f) the preliminary hearing; or
(g) the first diet; or
(h) fixing a further diet under section 271A(5A)(c) or
(7)(b)(ii) of the Act of 1995 (diet to consider a child witness
notice further); or
(i) under section 271A(9) of the Act of 1995 (order in
relation to special measures after hearing);
may be signed by the clerk of court.
(2) An order mentioned in paragraph (1) shall be intimated
by the clerk of court to all parties, any other person named in
the order and, if an order under paragraph (1)(c) or (d), to
the governor of any institution in which the accused is
detained
Review of arrangements for vulnerable
witnesses
22.4-(1) A written application under section
271D(1)(a) of the Act of 1995 (review of the arrangements for
taking the evidence of a vulnerable witness) shall be by minute
in Form 22.4.
(2) That minute shall be lodged with the clerk of the court
and served on every other party by the minuter.
Procedure on lodging minute for review
22.5. On receipt of a minute under rule
22.4(1) (minute for review of arrangements for taking
evidence), or on the courts own motion, the court shall make an
order endorsed on the minute or recorded in the minute of
proceedings-
(a) fixing a diet for a hearing of the application or to
hear parties; and
(b) for service of the minute or order with the date on all
parties and to the governor of any institution in which the
accused is detained.
Intimation of the order
22.6. Where an order under section 271D(2) of
the Act of 1995 (order after review of arrangements for taking
evidence) is made at a hearing fixed under rule 22.5 (hearing
to consider application for review) it shall be intimated by
the clerk of court to all parties, and any persons named in the
order.
Prohibition of personal conduct of defence
notice
22.7 In proceedings to which section 288E of
the Act of 1995 (prohibition of personal conduct of defence in
certain cases involving child witnesses under the age of 12)
apply a notice in Form 22.7 shall be served on the accused with
any child witness notice served by the prosecutor unless a
notice in Form 8.2-C has already been served under rule
8.2(2)(notice to appear).
Application to prohibit personal conduct of
defence
22.8-(1) An application under section
288F(2)(a) of the Act of 1995 (to prohibit personal conduct of
defence in cases involving vulnerable witnesses) shall be by
minute in Form 22.8-A.
(2) That minute shall be lodged with the clerk of court and
served on all parties by the minuter.
(3) On receipt of a minute under paragraph (2) or on the
court's own motion the court shall make an order endorsed on
the minute or recorded in the minute of proceedings-
(a) fixing a diet for a hearing of the application or to
hear parties; and
(b) for service of the minute or order with the date on all
parties and to the governor of any institution in which the
accused is detained.
(4) Where an order under section 288F of the Act of 1995
(order prohibiting personal conduct of defence in case
involving a vulnerable witness) is made after the hearing fixed
under paragraph (3), it shall be intimated by the clerk of the
court to all parties and any persons named in the order.
(5) On the making of an order under section 288F the
prosecutor shall serve on the accused a notice in Form 22.8-B
if the accused was not present when the order was made.
Transfer of cases
22.9-(1) Where sections 271J(4) or 271K(3) of
the Act of 1995 (transfer of cases where evidence is by live
television link or with the use of screens) apply the sheriff
may make an order under those sections transferring the case to
another sheriff court in the same sheriffdom.
(2) Where the sheriff makes an order under paragraph (1)
transferring the case to another sheriff court (the "receiving
court") the sheriff clerk shall forthwith transmit the record
copy of the indictment, the minute of proceedings, any
productions and any relevant documents to the clerk of the
receiving court.
Appointment of a commissioner for evidence on
commission by a vulnerable witness
22.10-(1) Where an order under section 271A(5)
or (9) of the Act of 1995 (order in relation to special
measures) appoints a commissioner to take the evidence of a
vulnerable witness the High Court or the sheriff, as the case
may be, shall appoint-
(c) a commissioner to take the evidence of the vulnerable
witness; and
(d) a clerk to assist the commissioner in the carrying out
of his or her duties
and shall dispense with interrogatories.
(2) On the appointment of the commissioner under paragraph
(1) the Clerk of Justiciary or sheriff clerk, as the case may
be, shall send the order under section 271A(5) or (9) of the
Act of 1995 (order for special measure of evidence on
commission) to the commissioner or his or her clerk with any
other relevant documents.
(3) On sending the order to the commissioner or his clerk
under paragraph (2) the Clerk of Justiciary or sheriff clerk,
as the case may be, shall note on the record copy of the
indictment or in the minute of proceedings-
(a) the order and documents sent;
(b) to whom they were sent;
(c) the date on which they were sent.
The commission
22.11-(1) The commissioner shall, on receiving
the order and documents mentioned in rule 22.10 (2) (documents
sent on appointment of commissioner), determine the place and
date of the diet for the examination of the witness to whom the
order of the court relates, and shall give reasonable notice of
those matters to all the parties concerned.
(2) The commissioner may vary or revoke his determination or
adjourn the examination of any witness to such other place, at
such other date and time as he may determine.
(3) If, in the course of the examination of a witness under
this rule, any question arises as to the admissibility of any
evidence, the commissioner shall not determine any such
questions but shall allow the evidence subject to all questions
of competency and relevancy.
Video recording of commission
22.12-(1) On the carrying out of his
commission in accordance with the terms of the order appointing
him, or otherwise on concluding his commission, the
commissioner or his clerk shall return the video recording of
the commission and relevant documents to the Clerk of
Justiciary or sheriff clerk, as the case may be.
(2) On the video recording and any documents being returned
to him, the Clerk of Justiciary or sheriff clerk, as the case
may be, shall-
(a) note-
(e) the documents returned;
(f) by whom they were returned; and
(g) the date on which they were returned;
on the record copy of the indictment or in the minute of
proceedings; and
(b) intimate what he has noted to all parties concerned.
Custody of video recording and documents
22.13-(1) The Clerk of Justiciary or sheriff
clerk, as the case may be, shall, subject to paragraph (2) keep
the video recording and documents referred to in rule 22.12(1)
(video record of evidence on commission) in his custody.
(2) Where the video record of the evidence of a witness is
in the custody of the Clerk of Justiciary or a sheriff clerk,
as the case may be, under this rule and where intimation has
been given to that effect under rule 22.12(2) to all the
parties concerned in the proceedings, the name and address of
that witness and the record of his or her evidence shall be
treated as being within the knowledge of those parties; and no
party shall be required, notwithstanding any enactment to the
contrary-
(a) to include the name of that witness in any list of
witnesses; or
(b) to include the record of his or her evidence in any list
of productions.
Prohibition of reference to evidence without
leave
22.14-(1) No reference shall be made either
directly or indirectly in any proceedings to the evidence or
any part of the evidence of a vulnerable witness whose evidence
has been taken on commission under this Chapter, unless the
party seeking to make such reference has made a motion to the
court to that effect and that motion has been granted.
(2) The terms of any motion made under paragraph (1) and the
grant or refusal of that motion by the court shall be noted by
the clerk of court in the record or minute of proceedings.
(3) On any such motion being granted the judge may direct
the video record of the evidence is to be played to the jury
and the clerk of court shall record that it has been so played
in the record of proceedings.
Application for leave for accused to be present in
the room
22.15-(1) An application in writing under
section 271I(3) of the Act of 1995 (application for leave of
the court for accused to be present in the room during
commission) shall be in Form 22.15.
(2) The application shall be lodged with the clerk of court
and served on every other party by the applicant.
(3) On receipt of an application under paragraph (2) the
clerk of court shall place the application before a judge in
chambers.
(4) On considering the application in the absence of the
parties, or of any person acting on their behalf, the judge
shall-
(a) grant leave as requested; or
(b) fix a diet for a hearing of the application; and
(c) make an order for service of the application with the
date on all parties and to the governor of any institution in
which the accused is detained.
(5) Where an order under section 271I(3) (leave for accused
to be present in the room) is granted is shall be intimated by
the clerk of the court to all parties and to any other persons
named in the order.".
(6) In the appendix-
(a) for Form 8.2-C, there shall be substituted the form set
out in Part 1 of the Schedule to this Act of Adjournal;
(b) for Form 21.4, there shall be substituted the form set
out in Part 2 of the Schedule to this Act of Adjournal;
(c) after Form 21.5, there shall be inserted the forms set
out in Part 3 of the Schedule to this Act of Adjournal;
(d) for Form 22.1, there shall substituted the forms set out
in Part 4 of the Schedule to this Act of Adjournal;
(e) in Form 29.1-A, at the end of paragraph 3 there shall be
inserted the following;-
"[C.D.] is not a witness under section 291(6) of the
Criminal Procedure (Scotland) Act 1995[or as [C.D.] is a
witness under section 291(6) of the Criminal Procedure
(Scotland) Act 1995 warrant is sought to cite the witness to
attend for precognition on oath by the solicitor for the
accused only];
(f) in Form 29.1-B at the end of paragraph (3) there shall
be inserted the following;-
" [C.D.] is not a witness under section 291(6) of the
Criminal Procedure (Scotland) Act 1995 [or as [C.D.] is a
witness under section 291(6) of the Criminal Procedure
(Scotland) Act 1995 warrant is sought to cite the witness to
attend for precognition on oath by the solicitor for the
accused only].
Lord Justice General
I.P.D.
Edinburgh
2005
SCHEDULE
Part 1
Rule 8.2(2)
Paragraph 2(2)
FORM 8.2-C
Form of notice to accused to appear under section
66(6) of the Criminal Procedure (Scotland) Act 1995 where
the charge in the indictment is of committing a sexual
offence to which section 288C or an offence to which
section 288E of the Criminal Procedure (Scotland) Act 1995
applies.
IMPORTANT NOTICE
(CITATION)
Court Reference………………………………….
Prosecution Reference: ………………………
TO: (name) (date of birth) (address)
A criminal case is being brought against
you
A document has been prepared which sets out the criminal
charges against you.
That document (the "indictment") is attached to this
notice.
YOU MUST APPEAR at
(place)
High Court of Justiciary (address) on
(date) at
(time) for a preliminary hearing [or at
(place) Sheriff Court (address) on
(date) at
(time) for a first diet
and on
(date) at
(time) for a trial diet] at which you will be
required to answer the criminal charges against you in the
indictment.
Because you are being charged with at least one sexual
offence or a serious offence where a witness is under the age
of twelve years old-
(1) if you are tried for the offence, your defence may be
conducted only by a lawyer;
(2) it is therefore in your interests, if you have not
already done so, to get the professional assistance of a
solicitor;
(3) if you do not engage a solicitor for the purposes of
your defence at the preliminary hearing or the trial, the court
will do so.
IF YOU DO NOT ATTEND THE COURT, A WARRANT MAY BE
ISSUED FOR YOUR ARREST
(Signed)
Prosecutor
(Name, address, e-mail address and telephone number)
(Place and date)
Part 2
Rule 21.4
Paragraph 2(3)
FORM 21.4
Form of certificate of authentication relating to a
prior statement for the purposes of section 260(4) of the
Criminal Procedure (Scotland) Act 1995
Prosecution reference…………..
Court reference…………………
I, (insert name and designation of person authenticating),
HEREBY CERTIFY THAT this document [or the attached document],
comprising [this and] the following (insert number) pages [or
(insert number) hours, (insert number) minutes and (insert
number) seconds of recorded time] is a full and accurate record
of evidence given by (insert name and designation of person who
gave the prior statement and brief details of the nature, place
and date of the proceedings during which the statement was
made).
(Signed)
(Date)
Part 3
Rule 21.6(1)
Paragraph 2(4)
FORM 21.6-A
Form of notice of report of identification of
accused prior to the trial under section 281A of the
Criminal Procedure (Scotland) Act 1995
IN THE HIGH COURT OF JUSTICIARY
[or IN THE SHERIFF COURT
AT (place)]
NOTICE OF REPORT OF IDENTIFICATION PRIOR TO TRIAL
by
HER MAJESTY'S ADVOCATE [or THE PROCURATOR FISCAL,
(place)]
in
HER MAJESTY'S ADVOCATE [or THE PROCURATOR FISCAL,
(place)]
against
(Insert name(s) of accused)
Prosecution reference……………………
Court reference…………………………..
To: (name and address of accused)
TAKE NOTICE:
(1) That a report stating the facts of an identification of
[insert name of accused identified] in an identification parade
or other identification procedure by a witness, and the name of
that witness, has been lodged by the prosecutor as a production
in advance of trial under section 281A of Criminal Procedure
(Scotland) Act 1995. The prosecutor intends to rely on a
presumption that the person named in the report as having been
identified by the witness is the person of the same name who
appears in answer to the indictment.
(2) That if you do not challenge [any of ] the fact[s] in
the report within seven days of the date of service of this
notice it shall be presumed under section 281A of the
above-mentioned Act that the person named in the report as
being identified by the witness is the person who appears in
answer to the indictment[or complaint].
Served on (date) by me by (state method of service).
(Signed)
Prosecutor
(Name, address, e-mail address and telephone number)
(Place and date)
Rule 21.6(2)
FORM 21.6-B
Form of notice of challenge under section 281A(2)
of the Criminal Procedure (Scotland) Act 1995
NOTICE OF CHALLENGE OF FACTS
under section 281A(2) of the Criminal Procedure (Scotland)
Act 1995
by
[A.B.] (address)
[or Prisoner in the Prison of (place)]
in
HER MAJESTY'S ADVOCATE [or THE PROCURATOR FISCAL,
(place)]
against
(Insert name(s) of accused)
Prosecution reference…………….
Court referencence………………..
NOTICE IS HEREBY GIVEN that the following fact[s] stated in
the report of identification prior to trial under section
281A(1) of the Criminal Procedure (Scotland) Act 1995 served on
(date) is [or are] challenged by me:-
(here state or refer to the fact(s) challenged)
(Signed)
Accused
[or Legal representative for accused]
(Name, address and e-mail address and telephone number of
solicitor).
Part 4
Rule 22.1
Paragraph 2(5)
FORM 22.1
Form of child witness notice under section 271A(2)
of the Criminal Procedure (Scotland) Act 1995
UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, LORD
JUSTICE CLERK AND LORDS COMMISSIONERS OF JUSTICIARY
[or UNTO THE HONOURABLE THE SHERIFF OF (name of sheriffdom)
AT (place)]
CHILD WITNESS NOTICE
by
HER MAJESTY'S ADVOCATE [or THE PROCURATOR FISCAL,
(place)]
[or [A.B.] (address)
[or Prisoner in the Prison of (place)]
Prosecution reference…………….
Court reference…………………...
HUMBLY SHEWETH:
1. That [A.B.] [, along with (name(s) of co-accused)] has
been indicted on (date of indictment) at the instance of Her
Majesty's Advocate with a preliminary hearing [or a trial diet]
in the High Court of Justiciary sitting at (place) on (date)
[or with a first diet on (date) and a trial diet on (date) in
the sheriff court of (place)] .
2. That [A.B.] is charged with (specify charge)[which is an
offence to which section 288C [or section 288E] applies][or and
an order has been made under section 288F(2)].
3. That the applicant [has cited [or intends to
cite][C.D.](date of birth) as a witness (address)][or [A.B.],
(date of birth), may give evidence].
4. That [C.D.] [or [A.B.]] is a child witness under section
271(1)(a) of the Criminal Procedure (Scotland) Act 1995 [and
was under the age of twelve on the date of commencement of
proceedings].
5. The following special measure[s] is [are] considered the
most appropriate for the purpose of taking the evidence of
[C.D.][or the applicant]:-
(here specify any special measure(s) sought)
[and that the special measure of (here specify special
measure) is a standard special measure under section
271A(14)].
The reason[s] this [these] special measure[s] is [are]
considered the most appropriate is[are] as follows:-
(here specify reason(s) for the special measure(s)
sought).
6. [or Authorisation of the use of no special measures is
considered the most appropriate for the taking of evidence of
[C.D.] [or the applicant] for the following reasons:-
(here specify the reasons for no special measures being
sought).]
7. That [C.D.] [or [A.B.]] [and the parent[s] of [ or
person[s] with parental responsibility for] [C.D.] [or [A.B.]]
have expressed the following view[s] on the special measure[s]
that is [are] considered most appropriate:-
(here set out the view(s) expressed).
8. [That other information considered relevant to this
application is as follows:-
(here set out any other information relevant to the child
witness notice).]
9. That the applicant has intimated a copy of the Notice on
[A.B.] [or the legal representative of [A.B.]][or on the Crown
Agent or the Procurator Fiscal]conform to the execution[s]
attached to this Notice.
MAY IT THEREFORE PLEASE YOUR LORDSHIP[S] TO:
(a) authorise the special measure[s] sought; and [or
(b) authorise the giving of evidence without the benefit of
special measures]; [or
(c) appoint that the [or part of the] Child Witness Notice
will be considered further at the preliminary hearing [or the
first diet] [or a diet fixed before the trial diet [and appoint
this diet to be held in chambers]];
(d) or to do otherwise as to your Lordship[s] shall seem
proper;
(e) to require the clerk of court to intimate the order to
(specify).
ACCORDING TO JUSTICE, etc.
(Signed)
[A.B.]
[or Legal representative of A.B.]
[or Prosecutor]
(Address, e-mail address and telephone number of agent)
Rule 22.4
FORM 22.4
Form of application for review of arrangements for
taking evidence under section 271D of the Criminal
Procedure (Scotland) Act 1995
UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, LORD
JUSTICE CLERK AND LORDS COMMISSIONERS OF JUSTICIARY
[or UNTO THE HONOURABLE SHERIFF OF (name of sheriffdom) AT
(place)]
MINUTE
by
HER MAJESTY'S ADVOCATE [or THE PROCURATOR FISCAL,
(place)]
[or [A.B.] (address)]
[or Prisoner in Prison of (Place)]
in
HER MAJESTY'S ADVOCATE [or THE PROCURATOR FISCAL,
(place)]
against
[A.B.] (address)
[or Prisoner in Prison of (Place)]
Prosecution reference………………..
Court reference………………………
HUMBLY SHEWETH:
1. That [A.B.][, along with (names of co-accused)] has been
indicted at the instance of Her Majesty's Advocate.
2. That [C.D.] is a witness who is to give evidence at, or
for the purposes of, [or [A.B.] may give evidence at] the
trial. That [C.D.] [or [A.B.]] is a vulnerable witness under
section 271 (1) of the Criminal Procedure (Scotland) Act
1995.
3. That the current arrangements for taking the evidence of
[C.D.][or [A.B.]] are (here specify current arrangements).
4. That the current arrangements should be reviewed as (here
specify reason(s) for review).
5. That an order should be made to (here specify the order
sought).
6. That a copy of this Minute has been duly intimated
conform to the execution[s] attached to this Minute.
MAY IT THEREFORE PLEASE YOUR LORDSHIP[S]
(a) to fix a diet for hearing this application and to order
intimation of this application and the diet to all parties;
(b) thereafter, after hearing all the parties, to make an
order (specify);
(c) or to do otherwise as to your Lordship[s] shall seem
proper;
(d) to require the clerk of court to intimate the order to
(specify).
IN RESPECT WHEREOF
(Signed)
[Prosecutor]
[or [A.B.]
[or Legal representative of [A.B.]]
(Name, address, e-mail address, telephone number of
agent)
(Place and date).
Rule 22.7
FORM 22.7
Form of notice of prohibition of personal conduct
of defence in certain cases involving child witnesses under
the age of twelve under section 288E of the Criminal
Procedure (Scotland) Act 1995
IMPORTANT NOTICE
HER MAJESTY'S ADVOCATE [or THE PROCURATOR FISCAL,
(place)]
against
[A.B.] (address)
[or Prisoner in the Prison of (place)]
Prosecution reference……………………….
Court reference………………………………
To: (name)(date of birth)(address)
You have been charged with at least one serious offence in
which a child witness under the age of twelve is to give
evidence at or for the purposes of the trial, therefore-
(1) if you are tried for the offence, your defence may be
conducted only by a lawyer;
(2) it is therefore in your interests, if you have not
already done so, to get the professional assistance of a
solicitor;
(3) if you do not engage a solicitor for the purpose of your
defence at the preliminary hearing [or first diet] or the
trial, the court will do so.
(Signed)
Prosecutor
(Name, address, e-mail address, and telephone number)
(Place and date)
Rule 22.8(1)
FORM 22.8-A
Form of minute to prohibit the personal conduct of
defence by the accused under section 288F of the Criminal
Procedure (Scotland) Act 1995
UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, LORD
JUSTICE CLERK AND LORDS COMMISSIONERS OF JUSTICIARY
[or UNTO THE HOURABLE THE SHERIFF OF (name of sheriffdom) AT
(place)]
MINUTE
by
HER MAJESTY'S ADVOCATE [or THE PROCURATOR FISCAL,
(place)]
in
HER MAJESTY'S ADVOCATE [or THE PROCURATOR FISCAL
(place)]
against
[A.B.] (address)
[or Prisoner in the Prison of (place)]
Prosecution reference…………………
Court reference………………………..
HUMBLY SHEWETH:
1. That [A.B] [, along with (name(s) of co-accused)] has
been indicted at the instance of Her Majesty's Advocate in the
High Court of Justiciary [or in the sheriff court] at (place)
and a diet of (specify) has been fixed for (date).
2. That [C.D.] is a witness who is to give evidence at, or
for the purposes of, [or [A.B.] may give evidence at] the
trial. That [C.D.] [or [A.B.]] is a vulnerable witness under
section 271(1) of the Criminal Procedure (Scotland) Act 1995 as
(here state the reasons the witness is a vulnerable
witness).
3. That the Minuter applies for an order prohibiting [A.B.]
from conducting his [or her] defence in person at the trial and
in any victim statement proof relating to any offence to which
the trial relates for the following reasons:-
(here state reasons).
4. That the offence in the indictment is not one to which
sections 288C or 288E of the Criminal Procedure (Scotland) Act
1995 applies.
5. That a copy of this Minute has been duly intimated
conform to the execution[s] attached to this Minute.
MAY IT THEREFORE PLEASE YOUR LORDSHIP[S]:
(a) to fix a diet for hearing this application and to order
intimation of this application and the diet to all the
parties.
(b) thereafter, on being satisfied in terms of section
288F(3) of the Criminal Procedure (Scotland) Act 1995, to make
an order prohibiting [A.B.] from conducting his[or her] defence
in person at the trial and in any victim statement proof;
(c) or to do otherwise as to your Lordship[s] shall seem
proper;
(d) to require the clerk of court to intimate the order to
(specify).
IN RESPECT WHEREOF
(Signed)
Prosecutor
(Name, address, e-mail address, telephone number)
(Place and date).
Rule 22.8(5)
FORM 22.8-B
Form of notice to accused where an order granted
prohibiting the personal conduct of defence by the accused
under section 288F of the Criminal Procedure (Scotland) Act 1995
Prosecution reference……………………
Court reference…………………………..
To: (name and address of accused)
You have been charged with an offence where a witness, who
is to give evidence at, or for the purposes of, the trial, is
[or you are] a vulnerable witness under section 271 (1) of the
Criminal Procedure (Scotland) Act 1995.
On (date) at the High Court of Justiciary [or in the sheriff
court] at (place) an order was made under section 288F(2) of
that Act prohibiting you from personally conducting your
defence to this charge.
TAKE NOTICE THAT-
(1) if you are tried for the offence, your defence may be
conducted only by a lawyer;
(2) it is therefore in your interests, if you have not
already done so, to get the professional assistance of a
solicitor;
(3) if you do not engage a solicitor for the purposes of
your defence at the preliminary hearing [or first diet] or the
trial, the court will do so.
(Signed)
Prosecutor
(Name, address, e-mail address and telephone number)
(Place and date)
Rule 22.15
FORM 22.15
Form of application for leave for accused to be
present in room during a commission under section 271I(3)
of the Criminal Procedure (Scotland) Act 1995
UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, LORD
JUSTICE CLERK AND THE LORDS COMMISSIONERS OF JUSTICIARY
[or UNTO THE HONOURABLE THE SHERIFF OF (name of sheriffdom)
AT (place)]
APPLICATION FOR LEAVE TO BE PRESENT AT COMMISSION
under section 271I(3) of the Criminal Procedure (Scotland)
Act 1995
by
[A.B.] (address)
[or Prisoner in the Prison of (place)]
Prosecution reference…………………….
Court reference…………………………..
HUMBLY SHEWETH:
1. That [A.B.][,along with (name(s) of co-accused)] has been
indicted at the instance of Her Majesty's Advocate in the High
Court of Justiciary [or in the sheriff court] at (place) and a
diet of (specify) has been fixed for (date).
2. That on (date) an order was made to allow the evidence of
[C.D.] to be taken on commission as [C.D.] is a vulnerable
witness under section 271(1) of the Criminal Procedure
(Scotland) Act 1995.
3. That [A.B.] seeks leave of the court to be present in the
room during the proceedings before the commissioner
appointed.
4. That [A.B.] can show special cause for leave to be
granted as follows;-
(here state reasons that show special cause).
5. That a copy of this application has been duly intimated
conform to the execution(s) attached to this application.
MAY IT THEREFORE PLEASE YOUR LORDSHIP[S]:
(a) to grant leave under section 271I(3) for [A.B.] to be
present in the room during the commission;
(b) [or to fix a diet for hearing this application and to
order intimation of the diet to all parties;]
(c) or to do otherwise as to your Lordship[s] shall seem
proper;
(d) to require the clerk of court to intimate the order to
(specify).
IN RESPECT WHEREOF
(Signed)
[A.B.]
[or Legal representative of [A.B.]]
(Name, address, e-mail address, telephone number of
agent)
(Place and date)
EXPLANATORY NOTE
(This note is not part of the Act of Adjournal)
The Lords Commissioners of Justiciary have made an Act of
Adjournal amending the Criminal
( [1]) 1995 c.46.
(
[2]) S.I. 1996/513, last amended by S.S.I.
2004/.