Article

16 January 06

Vulnerable witnesses' commissioner hitch

How a lacuna in the Vulnerable Witnesses (Scotland) Act 2004 is affecting the introduction of taking the evidence of child witnesses by commissioner


A lacuna detected in the Vulnerable Witnesses (Scotland) Act 2004 has resulted in the special measure of taking evidence of child witnesses by commissioner being introduced for the time being in cases other than those involving a sexual element or certain cases where the child is under 12.

In the course of preparing guidance on the procedure, planned to be implemented at the end of November, it emerged that the taking of evidence before a commissioner under the Act could not be regarded as an integral part of a trial or children’s hearing court proceedings.

The Executive has been advised that the effect is that if evidence is taken by a commissioner, the restrictions in section 274 of the Criminal Procedure (Scotland) Act 1995 and section 68A of the Children (Scotland) Act 1995 on evidence in certain cases involving sexual abuse do not apply; and the accused would be permitted to conduct his own defence in cases involving sexual offences, child witnesses under 12 or vulnerable witnesses, falling within sections 288C, 288E and 288F respectively of the Criminal Procedure Act.

Ministers therefore decided to commence this special measure with the exclusion of such cases and have given a commitment to remedying this through suitable legislative vehicles.

The guidance issued on taking evidence by a commissioner can be obtained from www.scotland.gov.uk/Publications/2005/06/03104253/part9. The Act of Adjournal (Criminal Procedure Rules Amendment No 6) (Vulnerable Witnesses (Scotland) Act 2004) (Evidence on Commission) 2005 sets out the rules for taking evidence from a vulnerable witness by a commissioner.

Phase 2 roadshows

The Society, in conjunction with the Scottish Executive, has organised a series of roadshows to ensure that solicitors, both defending and prosecuting, are fully prepared for the introduction of phase 2 of the Act in April 2006 and can provide the necessary support for people as they go through the court system. Phase 1 focused on child witnesses in criminal court proceedings and children’s hearings; phase 2 extends the special measures to those adults who are identified as vulnerable.

The roadshows, which tour throughout February and March, are also open to non-solicitors involved in court proceedings, including police, psychologists, social workers and others working in witness support services. For dates and locations see the Update advertisement on page 19.

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