Vulnerable witnesses and special measures

Legislation on vulnerable witnesses changes

First it was:

• Criminal Procedure (Scotland) Act 1995 s 271(1)

This was then amended by:

• Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019

What amendment has the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 made

• child witnesses in certain solemn cases to give evidence in advance of the hearing

• evidence to be taken by commissioner

• use of prior statements

Who is a vulnerable witness?

A person who falls into one of the following categories:

• A child witness (person under 18 on the commencement of the proceedings in which the trial is being or to be held)

• A person who is not a child witness, but in respect of whom “there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of”

  (a) mental disorder or

  (b) “fear and distress in connection with giving evidence at the trial”;

• a “deemed vulnerable witness”

  (a person who is alleged to have been the victim of one of a list of specified offences, which include certain sexual offences, offences of trafficking, domestic abuse, or stalking);

• a person in respect of whom “there is considered to be a significant risk of harm to the person by reason only of the fact that the person is giving or is to give evidence in the proceedings”

Can the accused be a vulnerable witness

Yes

What special measures are available for vulnerable witnesses?

The following are available to the court in respect of vulnerable witnesses:

• Taking of evidence by a commissioner (video recorded for use in proceedings);

• Giving evidence by a live T.V. link;

• Using a screen (accused sees witness but not vice versa);

• Using a supporter (moral support but cannot provide input);

• Giving evidence in chief in the form of a prior statement;

• Excluding the public during the taking of the evidence

What the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 says in terms of child witnesses

In certain serious cases a child witness (unless they are the accused) should give evidence in advance of the trial, either by evidence taken by the commissioner and/or by giving evidence in chief in the form of prior statement

Evidence in chief

Is that in response to initial questions from the party who calls the witness - the witness is still liable to cross-examination and, possibly, further questions by the party who calls him.

The court can authorise the use of another special measure for these purposes.