PART XII Evidence
F1Special measures for child witnesses and other vulnerable witnesses
C1C2271CF12F14Vulnerable witness application
1
This section applies where a party citing or intending to cite a person (other than a child witness F24or a deemed vulnerable witness) to give evidence at, or for the purposes of, F13a hearing in relevant criminal proceedings (such a person being referred to in this section as “the witness”) F15and, having carried out an assessment under section 271BA, considers—
a
that the witness is likely to be a vulnerable witness, and
b
that a special measure or combination of special measures ought to be used for the purpose of taking the witness’s evidence.
2
Where this section applies, the party citing or intending to cite the witness shall, F2 by the required time, make an application (referred to as a “ vulnerable witness application ”) to the court for an order authorising the use of one or more of the special measures for the purpose of taking the witness’s evidence.
3
A vulnerable witness application shall—
a
specify the special measure or measures which the party making the application considers to be the most appropriate for the purpose of taking the evidence of the witness to whom the application relates, and
b
contain or be accompanied by—
i
a summary of any views expressed for the purposes of section 271E(2)(b) of this Act, and
ii
such other information as may be prescribed by Act of Adjournal.
4
The court may, on cause shown, allow a vulnerable witness application to be made after the F3the required time.
F224A
Any party to the proceedings may, not later than 7 days after a vulnerable witness application has been lodged, lodge with the court a notice (referred to in this section as “an objection notice”) stating—
a
an objection to any special measure specified in the vulnerable witness application that the party considers to be inappropriate, and
b
the reasons for that objection.
4B
The court may, on cause shown, allow an objection notice to be lodged after the period referred to in subsection (4A).
4C
If an objection notice is lodged in accordance with subsection (4A) or (4B)—
a
subsection (5) does not apply to the vulnerable witness application, and
b
the court must make an order under subsection (5A).
5
The court shall, not F20earlier than 7 days and not later than 14 days after a vulnerable witness application is made to it, consider the application in the absence of the parties and—
a
make an order authorising the use of the special measure or measures specified in the application if satisfied on the basis of the application that—
i
the witness in respect of whom the application is made is a vulnerable witness,
ii
the special measures or measures specified in the application are the most appropriate for the purpose of taking the witness’s evidence, and
iii
it is appropriate to do so after having complied with the duty in subsection (8) below, or
b
if not satisfied as mentioned in paragraph (a) above, F4make an order under subsection (5A) below.
F55A
That order is an order—
a
in the case of proceedings in the High Court where the preliminary hearing is yet to be held, appointing the vulnerable witness application to be disposed of at that hearing,
b
in the case of proceedings on indictment in the sheriff court where the first diet is yet to be held, appointing the vulnerable witness application to be disposed of at that diet, or
c
in any other case, appointing a diet to be held before F21the hearing at which the evidence is to be given and requiring the parties to attend the diet.
6
F86A
Subsection (7) below applies to—
a
a preliminary hearing or first diet so far as the court is, by virtue of an order under subsection (5A)(a) or (b) above disposing of a vulnerable witness application at the hearing or diet, and
b
a diet appointed under subsection (5A)(c) above.
7
At a F7hearing or diet to which this subsection applies, the court may—
a
after giving the parties an opportunity to be heard, and
b
if satisfied that the witness in respect of whom the application is made is a vulnerable witness,
make an order authorising the use of such special measure or measures as the court considers to be the most appropriate for the purpose of taking the witness’s evidence.
8
In deciding whether to make an order under subsection (5)(a) or (7) above, the court shall—
a
have regard to—
i
the possible effect on the witness if required to give evidence without the benefit of any special measure, and
ii
whether it is likely that the witness would be better able to give evidence with the benefit of a special measure, and
b
take into account the matters specified in subsection (2)(a) to (f) of section 271 of this Act.
9
A F9hearing or diet to which subsection (7) above applies may—
a
on the application of the party citing or intending to cite the witness in respect of whom the diet is to be held, or
b
of the court’s own motion,
be held in chambers.
10
11
F1112
In subsections (2) and (4) above, “the required time” means—
a
in the case of proceedings in the High Court, no later than 14 clear days before the preliminary hearing,
b
in the case of proceedings on indictment in the sheriff court, no later than 7 clear days before the first diet,
c
in any other case, no later than 14 clear days before F16the hearing at which the evidence is to be given.
Ss. 271-271M and preceding cross-heading substituted for s. 271 (1.4.2005, 30.11.2005, 1.4.2006. 1.4.2007 and 2.7.2007 for certain purposes and otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 1, 25; S.S.I. 2005/168, art. 2, Sch. (with savings in art. 4); S.S.I. 2005/590, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1)); S.S.I. 2007/101, art. 2, Sch. (with art. 4); S.S.I. 2007/329, art. 2, Sch. (with art. 4); S.S.I. 2008/57, art. 2 (with art. 3)