The Scottish Government

Background

Contents of this Section

Introduction and Background

Research

The Vulnerable Witnesses (Scotland) Act 2004

The Criminal Procedure ( SCOTLAND) Act 1995 As Amended by Criminal Procedure (AMENDMENT) (SCOTLAND ) Act 2004 (asp5)AND The Vulnerable Witnesses ( SCOTLAND) Act (asp3)

Act of Adjournal (Criminal Procedure Rules Amendment) (Vulnerable Witnesses (Scotland) Act 2004) 2006

The Vulnerable Witnesses (Scotland) Act 2004 (Commencement No. 3, Savings and Transitional Provisions) Order 2006

Vital Voices continues a programme of work on the law of evidence started by the Scottish Office with the issue in November 1998 of a Consultative Document on vulnerable and intimidated witnesses in criminal and civil cases, entitled Towards a Just Conclusion.

The introduction of the Sexual Offences (Procedure and Evidence) (Scotland) Bill was the first step towards fulfilling the commitments in it. Now an Act, it:

• prevents accused in rape and other sexual offence cases from personally cross-examining complainers
• requires such accused to be legally represented for the whole trial;
• requires the court to appoint a solicitor for such an accused if he fails to do so himself;
• prevents such an accused from personally taking a statement from a complainer;
• requires such an accused to give prior notice of any defence of consent;
• strengthens existing provisions restricting the extent to which evidence can be led regarding the character or sexual history of a complainer;
• creates a legal presumption in favour of disclosure of previous sexual offence convictions of accused, following successful application to lead sexual history/character evidence about complainer.

The next phase of work, was to look in detail at how the treatment of vulnerable and intimidated witnesses could be improved more generally by changes in the law of evidence and court procedures.

To help us assess this we commissioned a piece of research and carried out a consultation exercise.

On 1 May 2002, we issued the consultation paper "VITAL VOICES - Helping Vulnerable Witnesses Give Evidence". This paper considered possible changes to the law of evidence and related aspects of court procedure, directed at providing specific help to vulnerable witnesses. In particular it asked consultees to consider who could be vulnerable, what special measures should be available to help them give their evidence, and in which proceedings these should be extended to.

We received 76 responses and a report analysing the responses to the consultation exercise was published at the end of 2002.

The majority of consultees were in favour of changes to the current law on the categories of persons who should be able to use special measures when giving evidence, the types of special measures used and the availability of these measures in other types of proceedings.

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To help us assess the need for change we commissioned a piece of research following on from the consultation exercise. We were in regular contact with the Home Office, looking at the progress they were making implementing their special measures following the "Speaking up for Justice" report and the Youth Justice and Criminal Evidence Act 1999 .

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The Vulnerable Witnesses (Scotland) Act 2004 takes account of the responses to the consultation and research.

In short, the Act:

• makes more people eligible for various special measures (such as screens, live television link, having a supporter sit by them), commissioning evidence and giving evidence in the form of a prior statement
• gives children an automatic entitlement to special measures
• makes more special measures available
• extends many of these provisions to other proceedings, such as summary proceedings,civil proceedings and proceedings arising from children's referrals.

You can read about the policy behind the Act in more detail on the Scottish Parliament website.

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