PART XII Evidence

Special measures for child witnesses and other vulnerable witnesses

F1 271 Vulnerable witnesses: main definitions

(1)

For the purposes of this Act, a person who is giving or is to give evidence at, or for the purposes of, F2a hearing in relevant criminal proceedings is a vulnerable witness if—

(a)

the person is under the F3relevant age on the date of commencement of the proceedings in which F4the hearing is being or to be held (such a vulnerable witness being referred to in this Act as a “child witness”), or

(b)

where the person is not a child witness, there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of—

(i)

mental disorder (within the meaning of section 328 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13)), or

(ii)

fear or distress in connection with giving evidence at F4the hearing.

F5(1A)

In subsection (1)(a), “ the relevant age ” means—

(a)

in the case of a person who is giving or is to give evidence in proceedings for an offence under section 22 of the Criminal Justice (Scotland) Act 2003 (asp 7) (trafficking in prostitution etc. ) or section 4 of the Asylum and Immigration (Treatment of Claimants, etc. ) Act 2004 (c.19) (trafficking people for exploitation), the age of 18, and

(b)

in any other case, the age of 16.

(2)

In determining whether a person is a vulnerable witness by virtue of subsection (1)(b) above, the court shall take into account—

(a)

the nature and circumstances of the alleged offence to which the proceedings relate,

(b)

the nature of the evidence which the person is likely to give,

(c)

the relationship (if any) between the person and the accused,

(d)

the person’s age and maturity,

(e)

any behaviour towards the person on the part of—

(i)

the accused,

(ii)

members of the family or associates of the accused,

(iii)

any other person who is likely to be an accused or a witness in the proceedings, and

(f)

such other matters, including—

(i)

the social and cultural background and ethnic origins of the person,

(ii)

the person’s sexual orientation,

(iii)

the domestic and employment circumstances of the person,

(iv)

any religious beliefs or political opinions of the person, and

(v)

any physical disability or other physical impairment which the person has,

as appear to the court to be relevant.

(3)

For the purposes of subsection (1)(a) above and section 271B(1)(b) below, proceedings shall be taken to have commenced when the indictment or, as the case may be, complaint is served on the accused.

(4)

In subsection (1)(b) above, the reference to the quality of evidence is to its quality in terms of completeness, coherence and accuracy.

(5)

In this section and sections 271A to 271M of this Act—

“ court ” means the High Court or the sheriff court,

F6 “ hearing in relevant criminal proceedings ” means any hearing in the course of any criminal proceedings in the High Court or the sheriff court.

F7 ... F7... F7 ...

(6)

In sections 271A to 271M of this Act, “ special measure ” means any of the special measures set out in, or prescribed under, section 271H below.