Criminal Procedure (Scotland) Act 1995

[F1 271D Review of arrangements for vulnerable witnesses S

(1) In any case in which a person who is giving or is to give evidence at or for the purposes of [F2 a hearing in relevant criminal proceedings] (referred to in this section as the “witness”) is or appears to the court to be a vulnerable witness, the court may at any stage in the proceedings (whether before or after the commencement of [F3 the hearing] or before or after the witness has begun to give evidence)—

(a) on the application of [F4 any party to the proceedings], or

(b) of its own motion,

review the current arrangements for taking the witness’s evidence and, after giving the parties an opportunity to be heard, make an order under subsection (2) below.

(2) The order which may be made under this subsection is—

(a) where the current arrangements for taking the witness’s evidence include the use of a special measure or combination of special measures authorised by an order under section 271A or 271C of this Act or under this subsection (referred to as the “earlier order”), an order varying or revoking the earlier order, or

(b) where the current arrangements for taking the witness’s evidence do not include any special measure, an order authorising the use of such special measure or measures as the court considers most appropriate for the purpose of taking the witness’s evidence.

(3) An order under subsection (2)(a) above varying an earlier order may—

(a) add to or substitute for any special measure authorised by the earlier order such other special measure as the court considers most appropriate for the purpose of taking the witness’s evidence, or

(b) where the earlier order authorises the use of a combination of special measures for that purpose, delete any of the special measures so authorised.

[F5 (3A) If an earlier order has the effect of enabling all of the witness's evidence to be given in advance of the hearing, the court may not make an order under subsection (2)(a) varying the earlier order in such a way that it no longer has that effect.

(3B) However, the court may vary the earlier order in the way mentioned in subsection (3A) if the hearing has already commenced when the court commences its review or if the court is satisfied—

(a) where the witness has expressed a wish to give evidence at the hearing, that it is appropriate for the witness to do so, or

(b) in any other case, that—

(i) if the court does not vary the earlier order in that way, there would be a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice, and

(ii) that risk significantly outweighs any risk of prejudice to the interests of the witness if the court were not to vary the earlier order in that way.

(3C) For the purposes of this section, an order has the effect of enabling all of the witness's evidence to be given in advance of the hearing if—

(a) it authorises the use of one or both of these special measures for the purpose of taking all of the witness's evidence—

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

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

(b) it does not authorise the use of a special measure which is capable of being used only if the witness gives evidence at the hearing (whether or not its use would require the witness to be present in the courtroom), and

(c) it does not authorise the giving of any of the witness's evidence without the benefit of any special measure.]

(4) The court may make an order under subsection (2)(a) above revoking an earlier order only if satisfied—

(a) where the witness has expressed a wish to give or, as the case may be, continue to give evidence without the benefit of any special measure, that it is appropriate for the witness so to give evidence, or

(b) in any other case, that—

(i) the use, or continued use, of the special measure or measures authorised by the earlier order for the purpose of taking the witness’s evidence would give rise to a significant risk of prejudice to the fairness of [F6 the hearing] or otherwise to the interests of justice, and

(ii) that risk significantly outweighs any risk of prejudice to the interests of the witness if the order is made.

(5) Subsection (8) of section 271C of this Act applies to the making of an order under subsection (2)(b) of this section as it applies to the making of an order under subsection (5)(a) or (7) of that section but as if the references to the witness were to the witness within the meaning of this section.

(6) In this section, “current arrangements” means the arrangements in place at the time the review under this section is begun.

[F7 (6A) In this section, “court” includes a commissioner appointed under section 271I(1).]

[F8 (7) This section is subject to [F9 sections 271B to 271BZC].]]

Textual Amendments

F1 Ss. 271-271M and preceding cross-heading substituted for s. 271 (1.4.2005, 30.11.2005, 1.4.2006. 1.4.2007 and 2.7.2007 for certain purposes, otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 1, 25; S.S.I. 2005/168, art. 2, Sch. (with savings in art. 4); S.S.I. 2005/590, art. 2, Sch. (with 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. 2007/329, art. 2, Sch. (with art. 4); S.S.I. 2008/57, art. 2 (with art. 3)

F2 Words in s. 271D(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 87(6)(a)(i), 206(1); S.S.I. 2011/178, art. 2, sch.

F3 Words in s. 271D(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 87(6)(a)(ii), 206(1); S.S.I. 2011/178, art. 2, sch.

F4 Words in s. 271D(1)(a) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 18, 34; S.S.I. 2015/200, art. 2(2), sch. (with arts. 1(3), 4)

F5 S. 271D(3A)-(3C) inserted (20.1.2020 for specified purposes) by Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (asp 8), ss. 4(2), 12(2); S.S.I. 2019/392, reg. 2

F6 Words in s. 271D(4)(b)(i) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 87(6)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F7 S. 271D(6A) inserted (20.1.2020) by Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (asp 8), ss. 5(8), 12(2); S.S.I. 2019/392, reg. 2

F8 S. 271D(7) added (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 14(3), 34; S.S.I. 2015/200, art. 2(2), sch. (with arts. 1(3), 4)

F9 Words in s. 271D(7) substituted (20.1.2020) by Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (asp 8), ss. 10(3), 12(2); S.S.I. 2019/392, reg. 2

Modifications etc. (not altering text)

C1 Ss. 271-271M applied by Criminal Justice (Scotland) Act 2003 (asp 7), s. 15A (as inserted (1.4.2005, 30.11.2005, 1.4.2006, 1.4.2007 and 2.7.2007 for certain purposes and otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 3, 25; S.S.I. 2005/168, art. 2, Sch. (with savings in art. 4); S.S.I. 2005/590, art. 2, Sch. (with 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. 2007/329, art. 2, Sch. (with art. 4)); S.S.I. 2008/57, art. 2 (with art. 3)

C2 Ss. 271-271M applied (with modifications) (23.12.2015) by The Justice of the Peace Courts (Special Measures) (Scotland) Order 2015 (S.S.I. 2015/447), arts. 1(2), 3 (with art. 1(3))