VULNERABLE WITNESSES ACT IMPLEMENTATION
STEERING GROUP
SUBORDINATE LEGISLATION SUB-GROUP
VWSL/13/04
INSTRUCTIONS TO OSSE FOR COMMENCEMENT
ORDER
In the absence of any comments on the draft instructions
to OSSE in respect of a Commencement Order for the first
phase of the Act, these have now been issued. A copy is
attached for information.
SEJD
Victims and Witnesses Unit
November 2004
John St Clair
OSSE
G-D
Victoria Quay
VULNERABLE WITNESSES (SCOTLAND) ACT 2004
1. I am writing to instruct OSSE on the
production of a Commencement Order in respect of the
Vulnerable Witnesses (Scotland) Act 2004 (the Act) which
will be implemented on a phased basis.
2. The Vulnerable Witnesses Act received Royal
assent on 14 April 2004. It assumes that all children
under the age of 16 are vulnerable witnesses, extends the
range of adults who can be classed as vulnerable witnesses
to include those whose ability to give evidence would be
diminished through fear and distress. It formalises
existing special measures, introduces new ones and contains
other provisions aimed at making it easier for witnesses to
give their best evidence.
3. The Act which amends the Sheriff Courts
(Scotland) Act 1971, the Court of Session Act 1988, the
Children (Scotland) Act 1995, the Criminal Procedure
(Scotland) Act 1995 and the Criminal Justice (Scotland) Act
2003 has itself been amended by the Criminal Procedure
(Amendment) (Scotland) Act 2004 principally to take account
of the new system of preliminary hearings in the High
Court.
4 We wish to implement all sections of the Act
as they relate to child witnesses in High Court and Sheriff
Solemn cases and Children's Hearings court procedures in
relation to establishment of grounds of referral to
Children's Hearings from 1 April 2005.
5 That includes Part 1 section 1 " The Special
Measures" relating to "taking evidence by a commissioner"
which we may wish to drop prior to the intended date of
commencement if we are not satisfied that there is an
adequate infrastructure on the ground to enable this
special measure to be operated effectively.
6. The Commencement Order will need to contain
savings provisions in respect of the sections of Criminal
Procedure Act 1995 which are amended by the Act in so far
as (a) the amendments relate to adult vulnerable witnesses
in High Court and Sheriff Solemn cases and (b) as they
relate to child and adult vulnerable witnesses in Sheriff
Summary cases. Savings provisions will also be required in
relation to child and vulnerable adult witnesses in respect
of the Court of Session act 1988 and the Sheriff Courts
(Scotland) Act 1971 in so far as they cover civil
proceedings other than Children's Hearings court procedures
in relation to the establishment of grounds of referral to
children's Hearings in respect of child witnesses.
7. The sections of the Act to be commenced from
1 April 2005 are set out in the attached table.
W JMOORE
SEJD
Victims and Witnesses Unit
October 2004
Criminal Procedure Act 1995 -
Amendments resulting from Vulnerable
Witnesses Act 2004 | | |
| | |
2004 Act | 1995 Act | Section |
| | |
Part 1 | | |
Section 1 | Vulnerable witnesses: main
definitions | 271(1)(a) 271(3) |
| Child witnesses | 271A all 271B all |
| Review of arrangements for vulnerable
witnesses | 271D all in respect of child
witnesses |
| The accused | 271F (2), (5), (6), (7),(8) |
| Saving provision | 271G in respect of child witnesses |
| The special measures | 271H all - in respect of child witnesses
but 271H(1)(a) may have to be dropped |
| Taking evidence by a commissioner | 271I all - in respect of child
witnesses(may have to be dropped) |
| Live television link | 271J all - in respect of child
witnesses |
| Screens | 271K all - in respect of child
witnesses |
| Supporters | 271L all - in respect of child
witnesses |
| Giving evidence in the form of a prior
statement | 271M all - in respect of child
witnesses |
| | |
Section 2(1) | Consideration before the trial of
matters relating to vulnerable
witnesses | 71 all - in respect of child
witnesses |
Section 2(2) | | 73 all - in respect of child witnesses
taking account of Criminal procedure
(Amendment ) Act 2004 |
Section 2(3) | Consideration of matters relating to
vulnerable witnesses where no preliminary
diet is ordered | 73A all - in respect of child witnesses
taking account of the Criminal Procedure
(Amendment) Act 2004 |
Criminal Procedure Act 1995 -
Amendments resulting from Vulnerable
Witnesses Act 2004 | | |
2004 Act | 1995 Act | Section |
Section 2(4) | | 74 all - in respect of child witnesses
taking account of the Criminal Procedure
(Amendment) Act 2004 |
| | |
Section 4 | Evidence of identification prior to
trial | 281A all - in respect of child
witnesses |
| | |
Section 5 | Expert evidence as to subsequent
behaviour of complainer in certain
cases | 275C all - in respect of child
witnesses |
| | |
Section 6 | Prohibition of personal conduct of
defence cases involving vulnerable
witnesses | 288E all - taking account of criminal
Procedure (Amendment) Act 2004 |
| | 288F all - in respect of child witnesses
taking account of Criminal
Procedure(Amendment) Act 2004 |
Section 7(1) | Special pre-trial proceedings for
ascertaining whether accused has engaged a
solicitor | 71 all in respect of child witnesses
taking account of the Criminal Procedure
(Amendment) Act 2004 |
Section 7(2) | | 71A repealed by the Criminal
Procedure(Amendment) Act 2004 |
Section 7(3) | | 72A all - in respect of child witnesses
taking account of the Criminal Procedure
(Amendment)Act 2004 |
| | |
Section 8 | Prohibition of precognition by accused
in person of child witnesses under 12 in
cases to which section 288E applies | 291(5) all |
| | |
Part 3 | | |
Section 24 | Abolition of the competence test for
witnesses in criminal and civil
proceedings | All - in respect of child witnesses
(all witnesses?) |
Criminal Justice (Scotland) Act 2003 amendments resulting
from the Vulnerable Witnesses Act
2004 | | |
| | |
2004 Act | 2003 Act | Section |
| | |
Part 1 | | |
Section 3 | Evidence of vulnerable witnesses at
proofs in relation to victim statements | 15A all - in respect of child
witnesses |
| | |
| | |
Children (Scotland) Act 1995 amendments resulting
from the Vulnerable Witnesses act
2004 | | |
| | |
2004 Act | 1995 Act | Section |
| | |
Part 2 | | |
Section 23 | Establishment of grounds of referral to
children's hearings: restriction of
evidence | 68A |
| | 68B |
| | |
| | |
Sheriff Courts (Scotland) Act 1971 amendments resulting
from the Vulnerable Witnesses Act
2004 | | |
| | |
2004 Act | 1971 Act | Section |
| | |
Part 2 | | |
Section 14(2) | Procedure in connection with Orders
under sections 12 and 13 | 32(1) in respect of Children's hearings
Court procedures |
| | |