Criminal Procedure (Scotland) Act 1995

[F1 271BZA Child witnesses in certain solemn cases: special measures S

(1) This section applies where a child witness, other than the accused, is to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings which are—

(a) solemn proceedings, and

(b) in respect of an offence listed in subsection (2).

(2) The offences are—

(a) murder,

(b) culpable homicide,

(c) assault to the danger of life,

(d) abduction,

(e) plagium,

(f) a sexual offence to which section 288C applies,

[F2 (fa) an offence under any of sections 140 to 142 and 152 to 154 of the Health and Care Act 2022 (offences relating to virginity testing and hymenoplasty)],

(g) an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018,

(h) an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016,

(i) an offence that would have fallen within paragraph (h) if section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 had been in force when the offence was allegedly committed,

(j) an offence of human trafficking (see section 1 of the Human Trafficking and Exploitation (Scotland) Act 2015),

(k) an offence under section 4 of the Human Trafficking and Exploitation (Scotland) Act 2015 (slavery, servitude and forced or compulsory labour),

(l) an offence under section 1 of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 (offence of female genital mutilation),

(m) an offence under section 3 of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 (aiding and abetting female genital mutilation),

(n) an attempt to commit an offence mentioned in any of paragraphs (a) to (m).

(3) The court must enable all of the child witness's evidence to be given in advance of the hearing unless the court is satisfied that an exception is justified under subsection (7) or (8).

(4) For the purposes of this section, the court enables all of the child witness's evidence to be given in advance of the hearing if—

(a) the court makes an order under section 271A which satisfies the following requirements—

(i) it authorises the use of one or both of the special measures listed in subsection (5) for the purpose of taking all of the child witness's evidence,

(ii) it does not authorise the use of an incompatible special measure for the purpose of taking any of the child witness's evidence, and

(iii) it does not authorise the giving of any of the child witness's evidence without the benefit of any special measure, and

(b) the court, if it commences a review under section 271D before the hearing has commenced, does not make an order under that section which—

(i) revokes the order made under section 271A, or

(ii) varies it in such a way that it no longer satisfies the requirements set out in paragraph (a)(i), (ii) and (iii).

(5) The special measures mentioned in subsection (4)(a)(i) are—

(a) taking of evidence by a commissioner in accordance with section 271I,

(b) giving evidence in chief in the form of a prior statement in accordance with section 271M.

(6) In this section, “incompatible special measure” means a special measure which is capable of being used only if the child witness gives evidence at the hearing (whether or not its use would require the child witness to be present in the courtroom).

(7) An exception is justified if—

(a) the giving of all of the child witness's evidence in advance of the hearing would give rise to a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice, and

(b) that risk significantly outweighs any risk of prejudice to the interests of the child witness if the child witness were to give evidence at the hearing.

(8) An exception is justified if—

(a) the child witness is aged 12 or over on the date of commencement of the proceedings in which the hearing is being or is to be held,

(b) the child witness expresses a wish to give evidence at the hearing, and

(c) it would be in the child witness's best interests to give evidence at the hearing.

(9) The Scottish Ministers may by regulations—

(a) modify subsection (2),

(b) remove the condition set out in subsection (1)(b) and the list of offences in subsection (2).

(10) Regulations under subsection (9) are subject to the affirmative procedure.]

Textual Amendments

F1 Ss. 271BZA-271BZC inserted (20.1.2020 for specified purposes) by Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (asp 8), ss. 1(2), 12(2); S.S.I. 2019/392, reg. 2 (with reg. 3)

F2 S. 271BZA(2)(fa) inserted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 16 para. 6; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)