Criminal Procedure (Scotland) Act 1995

[F1 Trials involving vulnerable witnesses S

Textual Amendments

F1 Ss. 288E, 288F and preceding cross-heading inserted (1.4.2005, 1.4.2006 and 1.4.2007 for certain purposes and otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 6, 25; S.S.I. 2005/168, art. 2, Sch. (with savings in art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4); S.S.I. 2007/101, art. 2, Sch. (with art. 4); S.S.I. 2008/57, art. 2 (with art. 3)

288E Prohibition of personal conduct of defence in certain cases involving child witnesses under the age of 12 S

F2 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) This section applies to any proceedings (other than proceedings in the [F3 JP court])—

(a) in respect of any offence specified in subsection (3) below, and

(b) in which a child witness who is under the age of 12 on the date of commencement of the proceedings is to give evidence at or for the purposes of [F4 any hearing in the course of the proceedings].

[F5 (2A) The accused is prohibited from conducting his case in person at, or for the purposes of, any hearing at, or for the purposes of, which the child witness is to give evidence.]

(3) The offences referred to in subsection (2)(a) above are—

(a) murder,

(b) culpable homicide,

(c) any offence which—

(i) involves an assault on, or injury or threat of injury to, any person (including any offence involving neglect or ill-treatment of, or other cruelty to, a child), but

(ii) is not an offence to which section 288C of this Act applies,

(d) abduction, and

(e) plagium.

(4) Section 288D of this Act applies in the case of proceedings to which this section applies as it applies in the case of proceedings in respect of a sexual offence to which section 288C of this Act applies [F6 and as if references to a relevant hearing were references to a hearing referred to in subsection (2A) above].

(5) In proceedings to which this section applies, the prosecutor shall, at the same time as intimating to the accused under section 271A(13) of this Act a [F7 vulnerable] witness notice in respect of [F8 the trial], serve on the accused a notice under subsection (6).

(6) A notice under this subsection shall contain intimation to the accused—

[F9 (a) that his case at, or for the purposes of, any hearing in the course of the proceedings at, or for the purposes of, which the child witness is to give evidence may be conducted only by a lawyer,]

(b) that it is therefore in his interests, if he has not already done so, to get the professional assistance of a solicitor, and

(c) that if he does not engage a solicitor for the purposes of [F10 the conduct of his case at or for the purposes of the] [F11 hearing], the court will do so.

(7) A failure to comply with subsection (5) or (6) above does not affect the validity or lawfulness of any [F12 vulnerable] witness notice or any other element of the proceedings against the accused.

F13 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) For the purposes of subsection (2)(b) above, proceedings shall be taken to have commenced when the indictment or, as the case may be, the complaint is served on the accused.

Textual Amendments

F2 S. 288E(1) repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(4)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F3 Words in s. 288E substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(q); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F4 Words in s. 288E(2)(b) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(4)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F5 S. 288E(2A) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(4)(c), 206(1); S.S.I. 2011/178, art. 2, sch.

F6 Words in s. 288E(4) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(4)(d), 206(1); S.S.I. 2011/178, art. 2, sch.

F7 Word in s. 288E(5) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 11(9), 34; S.S.I. 2015/200, art. 2(2), sch. (with arts. 1(3), 4)

F8 Words in s. 288E(5) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 87(10), 206(1); S.S.I. 2011/178, art. 2, sch.

F9 S. 288E(6)(a) substituted for s. 288E(6)(za)(a) (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(4)(e)(i), 206(1); S.S.I. 2011/178, art. 2, sch.

F10 Words in s. 288E(6)(c) inserted (1.4.2005, 1.4.2006 and 1.4.2007 for certain purposes, otherwise 1.4.2008) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 4(3)(b)(ii), 27(1); S.S.I. 2004/405, art. 2(2), Sch. 2 (with savings in arts. 3-5); S.S.I. 2005/168, art. 2, Sch. (with savings in 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. 2008/57, art. 2 (with art. 3)

F11 Word in s. 288E(6)(c) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(4)(e)(ii), 206(1); S.S.I. 2011/178, art. 2, sch.

F12 Word in s. 288E(7) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 11(9), 34; S.S.I. 2015/200, art. 2(2), sch. (with arts. 1(3), 4)

F13 S. 288E(8) repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(4)(f), 206(1); S.S.I. 2011/178, art. 2, sch.

288F Power to prohibit personal conduct of defence in other cases involving vulnerable witnesses S

(1) This section applies in the case of proceedings in respect of any offence, other than proceedings—

(a) in the [F14 JP court] ,

(b) in respect of a sexual offence to which section 288C of this Act applies, or

(c) to which section 288E of this Act applies,

where a vulnerable witness is to give evidence at, or for the purposes of, [F15 any hearing in the course of the proceedings].

(2) If satisfied that it is in the interests of the vulnerable witness to do so, the court may—

(a) on the application of the prosecutor, or

(b) of its own motion,

make an order prohibiting the accused from conducting his [F16 case in person at any hearing at, or for the purposes of, which the vulnerable witness is to give evidence.]

(3) However, the court shall not make an order under subsection (2) above if it considers that—

(a) the order would give rise to a significant risk of prejudice to the fairness of the [F17 hearing] or otherwise to the interests of justice, and

(b) that risk significantly outweighs any risk of prejudice to the interests of the vulnerable witness if the order is not made.

(4) The court may make an order under subsection (2) above [F18 in relation to a hearing after, as well as before, the hearing has commenced.]

[F19 ( 4A ) F20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(5) Section 288D of this Act applies in the case of proceedings in respect of which an order is made under this section as it applies in the case of proceedings in respect of a sexual offence to which section 288C of this Act applies [F21 and as if references to a relevant hearing were references to any hearing in respect of which an order is made under this section].

F22 ( 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F14 Words in s. 288F(1)(a) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(r); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F15 Words in s. 288F(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(5)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F16 Words in s. 288F(2) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(5)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F17 Word in s. 288F(3)(a) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(5)(c), 206(1); S.S.I. 2011/178, art. 2, sch.

F18 Words in s. 288F(4) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(5)(d), 206(1); S.S.I. 2011/178, art. 2, sch.

F19 S. 288F(4A) inserted (1.4.2005, 1.4.2006 and 1.4.2007 for certain purposes and otherwise 1.4.2008) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 4(4), 27(1); S.S.I. 2004/405, art. 2(2), Sch. 2 (with savings in arts. 3-5); S.S.I. 2005/168, art. 2, Sch. (with savings in 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. 2008/57, art. 2 (with art. 3)

F20 S. 288F(4A) repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(5)(e), 206(1); S.S.I. 2011/178, art. 2, sch.

F21 Words in s. 288F(5) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(5)(f), 206(1); S.S.I. 2011/178, art. 2, sch.

F22 S. 288F(6) repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 69(5)(g), 206(1); S.S.I. 2011/178, art. 2, sch.