Vulnerable Witnesses (Scotland) Act 2004

[F122AGiving evidence in chief in the form of a prior statementS

This section has no associated Explanatory Notes

(1)This section applies to proceedings in relation to—

(a)an application made by virtue of section 93 or 94 of the 2011 Act to determine whether the ground mentioned in section 67(2)(j) of that Act is established, or

(b)an application under section 110 of that Act for review of a finding that the ground mentioned in section 67(2)(j) of that Act is established.

(2)The special measures which may be authorised by virtue of section 12 or 13 for the purpose of taking the evidence of a vulnerable witness at a hearing to consider such an application include (in addition to those listed in section 18(1)) the giving of evidence in chief in the form of a prior statement in accordance with subsections (3) to (10).

(3)Where that special measure is to be used, a statement made by the vulnerable witness (a “prior statement”) may be lodged in evidence for the purposes of this section by or on behalf of the party citing the vulnerable witness.

(4)A prior statement is admissible as the witness's evidence in chief, or as part of the witness's evidence in chief, without the witness being required to adopt or otherwise speak to the statement in giving evidence.

(5)A prior statement is admissible as evidence of any matter stated in it of which direct oral evidence by the vulnerable witness would be admissible if given at the hearing.

(6)A prior statement is admissible under this section only if—

(a)it is contained in a document, and

(b)at the time the statement was made, the vulnerable witness would have been a competent witness for the purposes of the hearing.

(7)Subsection (6) does not apply to a prior statement—

(a)contained in a precognition on oath, or

(b)made in other proceedings (whether criminal or civil and whether taking place in the United Kingdom or elsewhere).

(8)A prior statement of a type mentioned in subsection (7) is not admissible for the purposes of this section unless it is authenticated in such manner as may be prescribed by regulations made by statutory instrument by the Scottish Ministers.

(9)This section does not affect the admissibility of any statement made by any person which is admissible otherwise than by virtue of this section.

(10)In this section—

  • “document” has the meaning given by section 262(3) of the Criminal Procedure (Scotland) Act 1995 (c.46),

  • “statement”—

    (a)

    includes—

    (i)

    any representation, however made or expressed, of fact or opinion, and

    (ii)

    any part of a statement, but

    (b)

    does not include a statement in a precognition other than a precognition on oath.

(11)For the purposes of this section, a statement is contained in a document where the person who makes it—

(a)makes the statement in the document personally,

(b)makes a statement which is, with or without the person's knowledge, embodied in a document by whatever means or by any person who has direct personal knowledge of the making of the statement, or

(c)approves a document as embodying the statement.

(12)A statutory instrument containing regulations under subsection (8) is subject to annulment in pursuance of a resolution of the Scottish Parliament.]

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