PART XIII Miscellaneous
F5Trials involving vulnerable witnesses
288EProhibition of personal conduct of defence in certain cases involving child witnesses under the age of 12
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2
This section applies to any proceedings (other than proceedings in the F1JP 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 F7any hearing in the course of the proceedings.
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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 F9and 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 child witness notice in respect of F10the trial, serve on the accused a notice under subsection (6).
6
A notice under this subsection shall contain intimation to the accused—
F11a
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
7
A failure to comply with subsection (5) or (6) above does not affect the validity or lawfulness of any child witness notice or any other element of the proceedings against the accused.
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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.
288FPower to prohibit personal conduct of defence in other cases involving vulnerable witnesses
1
This section applies in the case of proceedings in respect of any offence, other than proceedings—
a
in the F3JP 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, F14any 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 F15case 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 F16hearing 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 F17in relation to a hearing after, as well as before, the hearing has commenced.
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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 F19 and as if references to a relevant hearing were references to any hearing in respect of which an order is made under this section.
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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)