Children (Scotland) Act 1995

Valid from 01/04/2005

[F1 68A Restrictions on evidence in certain cases involving sexual abuse S

(1) This section applies in relation to—

(a) an application under section 65(7) or (9) of this Act in which the ground of referral to be established is a condition mentioned in—

(i) paragraph (b) of subsection (2) of section 52 of this Act where that condition is alleged to be satisfied by reference to sexual behaviour engaged in by any person,

(ii) paragraph (d), (e) or (f) of that subsection where that condition is alleged to be satisfied by reference to a relevant offence, or

(iii) paragraph (g) of that subsection, or

(b) an application under section 85 of this Act for a review of a finding that any such ground of referral is established.

(2) In hearing the application, the sheriff shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the child who is the subject of the application or any other witness giving evidence at the hearing (such child or other witness being referred to in this section and section 68B of this Act as “the witness”)—

(a) is not of good character (whether in relation to sexual matters or otherwise),

(b) has, at any time, engaged in sexual behaviour not forming part of the subject matter of the ground of referral,

(c) has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the ground of referral), engaged in such behaviour, not being sexual behaviour, as might found the inference that the witness is not a credible or reliable witness, or

(d) has, at any time, been subject to any such condition or predisposition as might found the inference referred to in paragraph (c) above.

(3) In subsection (1)(a)(ii) above, “relevant offence” means—

(a) an offence mentioned in paragraph 1 or 4 of Schedule 1 (offences against children under the age of 17 to which special provisions apply) to the Criminal Procedure (Scotland) Act 1995 (c. 46), or

(b) any other offence mentioned in that Schedule where there is a substantial sexual element in the alleged commission of the offence.

(4) In subsection (2)(b) and (c) above—

(a) “the subject matter of the ground of referral” means—

(i) in the case of an application in which the ground of referral to be established is the condition referred to in paragraph (a)(i) of subsection (1) above, the sexual behaviour referred to in that paragraph,

(ii) in the case of any other application, the acts or behaviour constituting the offence by reference to which the ground of referral is alleged to be established, and

(b) the reference to engaging in sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature.]

Textual Amendments

F1 Ss. 68A, 68B inserted (S.) (1.4.2005) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 23, 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4)