(1) Where a court has made an order for the forfeiture of an article, the court or any justice may, if satisfied on information on oath—
(a) that there is reasonable cause to believe that the article is to be found in any place or premises; and
(b) that admission to the place or premises has been refused or that a refusal of such admission is apprehended,
issue a warrant of search which may be executed according to law.
(2) In subsection (1), “article” includes animal.
Where an offence is alleged to be committed in any special capacity, as by the holder of a licence, master of a vessel, occupier of a house, or the like, the fact that the accused possesses the qualification necessary to the commission of the offence shall, unless challenged—
(a) in the case of proceedings on indictment, by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of this Act; or
(b) in summary proceedings, by preliminary objection before his plea is recorded,
be held as admitted.
Where the age of any person is specified in an indictment or a complaint, it shall, unless challenged—
(a) in the case of proceedings on indictment by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of this Act; or
(b) in summary proceedings—
(i) by preliminary objection before the plea of the accused is recorded; or
(ii) by objection at such later time as the court may in special circumstances allow,
be held as admitted.
(1) In any trial it shall not be necessary for the accused or for the prosecutor—
(a) to prove any fact which is admitted by the other; or
(b) to prove any document, the terms and application of which are not in dispute between them,
and, without prejudice to paragraph 1 of Schedule 8 to this Act, copies of any documents may, by agreement of the parties, be accepted as equivalent to the originals.
(2) For the purposes of subsection (1) above, any admission or agreement shall be made by lodging with the clerk of court a minute in that behalf signed—
(a) in the case of an admission, by the party making the admission or, if that party is the accused and he is legally represented, by his counsel or solicitor; and
(b) in the case of an agreement, by the prosecutor and the accused or, if he is legally represented, his counsel or solicitor.
(3) Where a minute has been signed and lodged as aforesaid, any facts and documents admitted or agreed thereby shall be deemed to have been duly proved.
(1) Subject to subsection (2) below, the prosecutor and the accused (or each of the accused if more than one) shall each identify any facts which are facts—
(a) which he would, apart from this section, be seeking to prove;
(b) which he considers unlikely to be disputed by the other party (or by any of the other parties); and
(c) in proof of which he does not wish to lead oral evidence,
and shall, without prejudice to section 258 of this Act, take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement.
(2) Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented.
(3) The duty under subsection (1) above applies—
(a) in relation to proceedings on indictment, from the date of service of the indictment until the swearing of the jury or, where intimation is given under section 76 of this Act, the date of that intimation; and
(b) in relation to summary proceedings, from the date on which the accused pleads not guilty until the swearing of the first witness or, where the accused tenders a plea of guilty at any time before the first witness is sworn, the date when he does so.
(4) Without prejudice to subsection (3) above, in relation to proceedings on indictment, the parties to the proceedings shall, in complying with the duty under subsection (1) above, seek to ensure that the facts to be identified, and the steps to be taken in relation to those facts, are identified and taken—
(a) in the case of the High Court, before the preliminary hearing;
(b) in the case of the sheriff court, before the first diet
(5) Without prejudice to subsection (3) above, in relation to summary proceedings, the parties to the proceedings shall, in complying with the duty under subsection (1) above, seek to ensure that the facts to be identified, and the steps to be taken in relation to those facts, are identified and taken before any intermediate diet that is to be held.
(1) This section applies where, in any criminal proceedings, a party (in this section referred to as “the first party”) considers that facts which that party would otherwise be seeking to prove are unlikely to be disputed by the other parties to the proceedings.
(2) Where this section applies, the first party may prepare and sign a statement—
(a) specifying the facts concerned; or
(b) referring to such facts as set out in a document annexed to the statement,
and shall, not less than the relevant period before the relevant diet, serve a copy of the statement and any such document on every other party.
(2ZA) In subsection (2) above, the “relevant period” means—
(a) where the relevant diet for the purpose of that subsection is an intermediate diet in summary proceedings, 7 days;
(b) in any other case, 14 days.
(2A) In subsection (2) above, “the relevant diet” means—
(a) in the case of proceedings in the High Court, the preliminary hearing;
(aa) in summary proceedings in which an intermediate diet is to be held, that diet;
(b) in any other case, the trial diet.
(3) Unless any other party serves on the first party, not more than seven days after the date of service of the copy on him under subsection (2) above or by such later time as the court may in special circumstances allow, a notice that he challenges any fact specified or referred to in the statement, the facts so specified or referred to shall be deemed to have been conclusively proved.
(4) Where a notice is served under subsection (3) above, the facts specified or referred to in the statement shall be deemed to have been conclusively proved only in so far as unchallenged in the notice.
(4A) Where a notice is served under subsection (3) above . . . , the court may, on the application of any party to the proceedings made not less than 48 hours before the relevant diet, direct that any challenge in the notice to any fact is to be disregarded for the purposes of subsection (4) above if the court considers the challenge to be unjustified.
(4AA) Where in summary proceedings the relevant diet for the purposes of subsection (4A) above is an intermediate diet, an application under that subsection may be made at (or at any time before) that diet.
(4B) In subsection (4A) above, “the relevant diet” means—
(a) in proceedings in the High Court, the preliminary hearing; . . .
(b) in solemn proceedings in the sheriff court, the first diet.
(c) in summary proceedings—
(i) in which an intermediate diet is to be held, that diet;
(ii) in which such a diet is not to be held, the trial diet.
(4C) In proceedings in the High Court, the Court may, on cause shown, allow an application under subsection (4A) above to be made after the time limit specified in that subsection.
(4D) In summary proceedings, the court may allow an application under subsection (4A) above to be made late if the court is satisfied that a timeous application would not have been practicable.
(5) Subsections (3) and (4) above shall not preclude a party from leading evidence of circumstances relevant to, or other evidence in explanation of, any fact specified or referred to in the statement.
(6) Notwithstanding subsections (3) and (4) above, the court—
(a) may, on the application of any party, where it is satisfied that there are special circumstances; and
(b) shall, on the joint application of all the parties,
direct that the presumptions in those subsections shall not apply in relation to such fact specified or referred to in the statement as is specified in the direction.
(7) An application under subsection (6) above may be made at any time after the commencement of the trial and before the commencement of the prosecutor’s address to the court on the evidence.
(8) Where the court makes a direction under subsection (6) above it shall, unless all the parties otherwise agree, adjourn the trial and may, without prejudice to section 268 of this Act, permit any party to lead evidence as to any such fact as is specified in the direction, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(9) A copy of a statement or a notice required, under this section, to be served on any party shall be served in such manner as may be prescribed by Act of Adjournal; and a written execution purporting to be signed by the person who served such copy or notice together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such service.
259 Exceptions to the rule that hearsay evidence is inadmissible.
(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied—
(a) that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in subsection (2) below;
(b) that evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it;
(c) that the person who made the statement would have been, at the time the statement was made, a competent witness in such proceedings; and
(d) that there is evidence which would entitle a jury properly directed, or in summary proceedings would entitle the judge, to find that the statement was made and that either—
(i) it is contained in a document; or
(ii) a person who gave oral evidence in the proceedings as to the statement has direct personal knowledge of the making of the statement.
(2) The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement—
(a) is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;
(b) is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;
(c) is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;
(d) having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or
(e) is called as a witness and either—
(i) refuses to take the oath or affirmation; or
(ii) having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement refuses to do so,
and in the application of this paragraph to a child, the reference to a witness refusing to take the oath or affirmation or, as the case may be, to having been sworn shall be construed as a reference to a child who has refused to accept an admonition to tell the truth or, having been so admonished, refuses to give evidence as mentioned above.
(3) Evidence of a statement shall not be admissible by virtue of subsection (1) above where the judge is satisfied that the occurrence of any of the circumstances mentioned in paragraphs (a) to (e) of subsection (2) above, by virtue of which the statement would otherwise be admissible, is caused by—
(a) the person in support of whose case the evidence would be given; or
(b) any other person acting on his behalf,
for the purpose of securing that the person who made the statement does not give evidence for the purposes of the proceedings either at all or in connection with the subject matter of the statement.
(4) Where in any proceedings evidence of a statement made by any person is admitted by reference to any of the reasons mentioned in paragraphs (a) to (c) and (e)(i) of subsection (2) above—
(a) any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;
(b) evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and
(c) evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.
(5) Subject to subsection (6) below, where a party intends to apply to have evidence of a statement admitted by virtue of subsection (1) above he shall, by the relevant time, give notice in writing of—
(a) that fact;
(b) the witnesses and productions to be adduced in connection with such evidence; and
(c) such other matters as may be prescribed by Act of Adjournal,
to every other party to the proceedings and, for the purposes of this subsection, such evidence may be led notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(5A) In subsection (5) above, “the relevant time” means—
(a) in the case of proceedings in the High Court—
(i) not less than 7 days before the preliminary hearing; or
(ii) such later time, before the trial diet, as the judge may on cause shown allow;
(b) in any other case, before the trial diet.
(6) A party shall not be required to give notice as mentioned in subsection (5) above where—
(a) the grounds for seeking to have evidence of a statement admitted are as mentioned in paragraph (d) or (e) of subsection (2) above; or
(b) he satisfies the judge that there was good reason for not giving such notice.
(7) If no other party to the proceedings objects to the admission of evidence of a statement by virtue of subsection (1) above, the evidence shall be admitted without the judge requiring to be satisfied as mentioned in that subsection.
(8) For the purposes of the determination of any matter upon which the judge is required to be satisfied under subsection (1) above—
(a) except to the extent that any other party to the proceedings challenges them and insists in such challenge, it shall be presumed that the circumstances are as stated by the party seeking to introduce evidence of the statement; and
(b) where such a challenge is insisted in, the judge shall determine the matter on the balance of probabilities, and he may draw any reasonable inference—
(i) from the circumstances in which the statement was made or otherwise came into being; or
(ii) from any other circumstances, including, where the statement is contained in a document, the form and contents of the document.
(9) Where evidence of a statement has been admitted by virtue of subsection (1) above on the application of one party to the proceedings, without prejudice to anything in any enactment or rule of law, the judge may permit any party to lead additional evidence of such description as the judge may specify, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(10) Any reference in subsections (5), (6) and (9) above to evidence shall include a reference to evidence led in connection with any determination required to be made for the purposes of subsection (1) above.
260 Admissibility of prior statements of witnesses.
(1) Subject to the following provisions of this section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings.
(2) A prior statement shall not be admissible under this section unless—
(a) the statement is contained in a document;
(b) the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence; and
(c) at the time the statement was made, the person who made it would have been a competent witness in the proceedings.
(3) For the purposes of this section, any reference to a prior statement is a reference to a prior statement which, but for the provisions of this section, would not be admissible as evidence of any matter stated in it.
(4) Subsections (2) and (3) above do not apply to a prior statement—
(a) contained in a precognition on oath; or
(b) made in other proceedings, whether criminal or civil and whether taking place in the United Kingdom or elsewhere,
and, for the purposes of this section, any such statement shall not be admissible unless it is sufficiently authenticated.
(5) A prior statement made by a witness shall not, in any proceedings on indictment, be inadmissible by reason only that it is not included in any list of productions lodged by the parties.
(1) Subject to the following provisions of this section, nothing in sections 259 and 260 of this Act shall apply to a statement made by the accused.
(2) Evidence of a statement made by an accused shall be admissible by virtue of the said section 259 at the instance of another accused in the same proceedings as evidence in relation to that other accused.
(3) For the purposes of subsection (2) above, the first mentioned accused shall be deemed—
(a) where he does not give evidence in the proceedings, to be a witness refusing to give evidence in connection with the subject matter of the statement as mentioned in paragraph (e) of subsection (2) of the said section 259; and
(b) to have been, at the time the statement was made, a competent witness in the proceedings.
(4) Evidence of a statement shall not be admissible as mentioned in subsection (2) above unless the accused at whose instance it is sought to be admitted has given notice of his intention to do so as mentioned in subsection (5) of the said section 259; but subsection (6) of that section shall not apply in the case of notice required to be given by virtue of this subsection.
(1) Evidence of a statement to which this subsection applies is not inadmissible as evidence of any fact contained in the statement on account of the evidence's being hearsay.
(2) Subsection (1) applies to a statement made by the accused in the course of the accused's being questioned (whether as a suspect or not) by a constable, or another official, investigating an offence.
(3) Subsection (1) does not affect the issue of whether evidence of a statement made by one accused is admissible as evidence in relation to another accused.
Evidence of a statement made by a person in response to questioning carried out in accordance with authorisation granted under section 35 of the Criminal Justice (Scotland) Act 2016 is not inadmissible on account of the statement's being made after the person has been charged with an offence.
(1) Subsection (2) applies where—
(a) a witness is giving evidence in criminal proceedings,
(b) the witness has made a prior statement,
(c) the prosecutor has seen or has been given an opportunity to see the statement, and
(d) the accused (or a solicitor or advocate acting on behalf of the accused in the proceedings) has seen or has been given an opportunity to see the statement.
(2) The court may allow the witness to refer to the statement while the witness is giving evidence.
(1) For the purposes of sections 259 to 261A of this Act, a “statement” includes—
(a) any representation, however made or expressed, of fact or opinion; and
(b) any part of a statement,
but does not include a statement in a precognition other than a precognition on oath.
(2) For the purposes of the said sections 259 to 261A a statement is contained in a document where the person who makes it—
(a) makes the statement in the document personally;
(b) makes a statement which is, with or without his knowledge, embodied in a document by whatever means or by any person who has direct personal knowledge of the making of the statement; or
(c) approves a document as embodying the statement.
(3) In the said sections 259 to 261A—
“criminal proceedings” include (other than in section 261A) any hearing by the sheriff of an application made by virtue of section 93(2)(a) or 94(2)(a) of the Children’s Hearings (Scotland) Act 2011 (asp 1) to determine whether a ground is established, in so far as the application relates to the commission of an offence by the child, or for a review of such a determination;
“document” includes, in addition to a document in writing—
any map, plan, graph or drawing;
any photograph;
any disc, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
any film, negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom;
“film” includes a microfilm;
“made” includes (other than in section 261A) allegedly made.
(4) Nothing in the said sections 259 to 261A shall prejudice the admissibility of a statement made by a person other than in the course of giving oral evidence in court which is admissible otherwise than by virtue of those sections.
(1) In any trial, it shall be competent for the party against whom a witness is produced and sworn in causa to examine such witness both in cross and in causa.
(2) The judge may, on the motion of either party, on cause shown order that the examination of a witness for that party (“the first witness”) shall be interrupted to permit the examination of another witness for that party.
(3) Where the judge makes an order under subsection (2) above he shall, after the examination of the other witness, permit the recall of the first witness.
(4) In a trial, a witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in the trial; and evidence may be led in the trial to prove that the witness made the different statement on the occasion specified.
(5) In any trial, on the motion of either party, the presiding judge may permit a witness who has been examined to be recalled.
264 Spouse or civil partner of accused a compellable witness
(1) The spouse or civil partner of an accused is a competent and compellable witness for the prosecution, the accused or any co-accused in the proceedings against the accused.
(2) Subsection (1) is, if the spouse or civil partner is a co-accused in the proceedings, subject to any enactment or rule of law by virtue of which an accused need not (by reason of being an accused) give evidence in the proceedings.
(3) Subsection (1) displaces any other rule of law that would (but for that subsection) prevent or restrict, by reference to the relationship, the giving of evidence by the spouse or civil partner of an accused.
265 Witnesses not excluded for conviction, interest, relationship, etc.
(1) Every person adduced as a witness who is not otherwise by law disqualified from giving evidence, shall be admissible as a witness, and no objection to the admissibility of a witness shall be competent on the ground of—
(a) conviction of or punishment for an offence;
(b) interest;
(c) agency or partial counsel;
(d) the absence of due citation to attend; or
(e) his having been precognosced subsequently to the date of citation.
(2) Where any person who is or has been an agent of the accused is adduced and examined as a witness for the accused, it shall not be competent for the accused to object, on the ground of confidentiality, to any question proposed to be put to such witness on matter pertinent to the issue of the guilt of the accused.
(3) No objection to the admissibility of a witness shall be competent on the ground that he or she is the father, mother, son, daughter, brother or sister, by consanguinity or affinity, or uncle, aunt, nephew or niece, by consanguinity of any party adducing the witness in any trial.
(4) It shall not be competent for any witness to decline to be examined and give evidence on the ground of any relationship mentioned in subsection (3) above.
(1) Subject to subsections (2) to (8) below, the accused shall be a competent witness for the defence at every stage of the case, whether the accused is on trial alone or along with a co-accused.
(2) The accused shall not be called as a witness in pursuance of this section except upon his own application or in accordance with subsection (9) or (10) below.
(3) An accused who gives evidence on his own behalf in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged.
(4) An accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless—
(a) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or
(b) the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establishing the accused’s good character or impugning the character of the complainer, or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution or of the complainer; or
(c) the accused has given evidence against any other person charged in the same proceedings.
(5) In a case to which paragraph (b) of subsection (4) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that subsection only if the court, on the application of the prosecutor, permits him to do so.
(5A) Nothing in subsections (4) and (5) above shall prevent the accused from being asked, or from being required to answer, any question tending to show that he has been convicted of an offence other than that with which he is charged if his conviction for that other offence has been disclosed to the jury, or is to be taken into consideration by the judge, under section 275A(2) of this Act.
(6) An application under subsection (5) above in proceedings on indictment shall be made in the course of the trial but in the absence of the jury.
(7) In subsection (4) above, references to the complainer include references to a victim who is deceased.
(8) Every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.
(9) The accused may—
(a) with the consent of a co-accused, call that other accused as a witness on the accused’s behalf; or
(b) ask a co-accused any question in cross-examination if that co-accused gives evidence,
but he may not do both in relation to the same co-accused.
(10) The prosecutor or the accused may call as a witness a co-accused who has pleaded guilty to or been acquitted of all charges against him which remain before the court (whether or not, in a case where the co-accused has pleaded guilty to any charge, he has been sentenced) or in respect of whom the diet has been deserted; and the party calling such co-accused as a witness shall not require to give notice thereof, but the court may grant any other party such adjournment or postponement of the trial as may seem just.
(11) Where, in any trial, the accused is to be called as a witness he shall be so called as the first witness for the defence unless the court, on cause shown, otherwise directs.
(1) The court may, on an application by any party to the proceedings, permit a witness to be in court during the proceedings or any part of the proceedings before he has given evidence if it appears to the court that the presence of the witness would not be contrary to the interests of justice.
(2) Without prejudice to subsection (1) above, where a witness has, without the permission of the court and without the consent of the parties to the proceedings, been present in court during the proceedings, the court may, in its discretion, admit the witness, where it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent, and that the witness has not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his examination.
(1) This Act shall be sufficient warrant for the citation of witnesses for precognition by the prosecutor, whether or not any person has been charged with the offence in relation to which the precognition is taken.
(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) Such citation shall be in the form prescribed by Act of Adjournal or as nearly as may be in such form.
(3) A witness who, having been duly cited—
(a) fails without reasonable excuse, after receiving at least 48 hours notice, to attend for precognition by a prosecutor at the time and place mentioned in the citation served on him; or
(b) refuses when so cited to give information within his knowledge regarding any matter relative to the commission of the offence in relation to which the precognition is taken,
shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale or to a term of imprisonment not exceeding 21 days.
267B Order requiring accused to participate in identification procedure
(1) The court may, on an application by the prosecutor in any proceedings, make an order requiring the accused person to participate in an identification parade or other identification procedure.
(2) The application may be made at any time after the proceedings have been commenced.
(3) The court—
(a) shall (if the accused is present) allow the accused to make representations in relation to the application;
(b) may, if it considers it appropriate to do so (where the accused is not present), fix a hearing for the purpose of allowing the accused to make such representations.
(4) Where an order is made under subsection (1) above, the clerk of court shall (if the accused is not present) have notice of the order effected as respects the accused without delay.
(5) Notice under subsection (4) above shall (in relation to any proceedings) be effected in the same manner as citation under section 141 of this Act.
(6) It is sufficient evidence that notice has been effected under subsection (5) above if there is produced a written execution—
(a) in the form prescribed by Act of Adjournal or as nearly as may be in such form; and
(b) signed by the person who effected notice.
(7) In relation to notice effected by means of registered post or the recorded delivery service, the relevant post office receipt requires to be produced along with the execution mentioned in subsection (6) above.
(8) A person who, having been given due notice of an order made under subsection (1) above, without reasonable excuse fails to comply with the order is—
(a) guilty of an offence; and
(b) liable on summary conviction to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 12 months or to both.
(9) For the purpose of subsection (5) above, section 141 of this Act is to be read with such modifications as are necessary for its application in the circumstances.
(10) In this section, “the court” means—
(a) in the case of proceedings in the High Court, a single judge of that Court;
(b) in any other case, any court with jurisdiction in relation to the proceedings.
(1) Subject to subsection (2) below, the judge may, on a motion of the prosecutor or the accused made—
(a) in proceedings on indictment, at any time before the commencement of the speeches to the jury;
(b) in summary proceedings, at any time before the prosecutor proceeds to address the judge on the evidence,
permit him to lead additional evidence.
(2) Permission shall only be granted under subsection (1) above where the judge—
(a) considers that the additional evidence is prima facie material; and
(b) accepts that at the commencement of the trial either—
(i) the additional evidence was not available and could not reasonably have been made available; or
(ii) the materiality of such additional evidence could not reasonably have been foreseen by the party.
(3) The judge may permit the additional evidence to be led notwithstanding that—
(a) in proceedings on indictment, a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given; or
(b) in any case, a witness must be recalled.
(4) The judge may, when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.
(5) In this section “the commencement of the trial” means—
(a) in proceedings on indictment, the time when the jury is sworn; and
(b) in summary proceedings, the time when the first witness for the prosecution is sworn.
(1) The judge may, on a motion of the prosecutor made at the relevant time, permit the prosecutor to lead additional evidence for the purpose of—
(a) contradicting evidence given by any defence witness which could not reasonably have been anticipated by the prosecutor; or
(b) providing such proof as is mentioned in section 263(4) of this Act.
(2) The judge may permit the additional evidence to be led notwithstanding that—
(a) in proceedings on indictment, a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given; or
(b) in any case, a witness must be recalled.
(3) The judge may when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.
(4) In subsection (1) above, “the relevant time” means—
(a) in proceedings on indictment, after the close of the defence evidence and before the commencement of the speeches to the jury; and
(b) in summary proceedings, after the close of the defence evidence and before the prosecutor proceeds to address the judge on the evidence.
270 Evidence of criminal record and character of accused.
(1) This section applies where—
(a) evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused’s good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer; or
(b) the nature or conduct of the defence is such as to tend to establish the accused’s good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.
(2) Where this section applies the court may, without prejudice to section 268 of this Act, on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character, notwithstanding that, in proceedings on indictment, a witness or production concerned is not included in any list lodged by the prosecutor and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(3) In proceedings on indictment, an application under subsection (2) above shall be made in the course of the trial but in the absence of the jury.
(4) In subsection (1) above, references to the complainer include references to a victim who is deceased.
(1) For the purposes of this Act, a person who is giving or is to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings is a vulnerable witness if—
(a) the person is under the age of 18 on the date of commencement of the proceedings in which the hearing is being or is to be held,
(b) 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), or
(ii) fear or distress in connection with giving evidence at the hearing,
(c) the offence is alleged to have been committed against the person in proceedings for—
(i) an offence listed in any of paragraphs 36 to 59ZL of Schedule 3 to the Sexual Offences Act 2003,
(ii) an offence under section 22 of the Criminal Justice (Scotland) Act 2003 (traffic in prostitution etc.),
(iii) an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (trafficking people for exploitation),
(iiia) an offence of human trafficking (see section 1 of the Human Trafficking and Exploitation (Scotland) Act 2015),
(iv) an offence the commission of which involves domestic abuse, or
(v) an offence of stalking, or
(d) there is considered to be a significant risk of harm to the person by reason only of the fact that the person is giving or is to give evidence in the proceedings.
(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1AA) The Scottish Ministers may by order subject to the affirmative procedure modify subsection (1)(c).
(2) In determining whether a person is a vulnerable witness by virtue of subsection (1)(b) or (d) 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) , section 271B(1)(b) and sections 271BZA to 271BZC, proceedings shall be taken to have commenced—
(a) where it is relevant to a court's consideration of whether to authorise the use of the special measure of taking evidence by commissioner (on its own or in combination with any other special measure) and the accused has appeared on petition, on the date when the accused appeared on petition, or
(b) in any other case, on the date 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.
(4A) In determining whether a person is a vulnerable witness under subsection (1)(b) or (d), the court must—
(a) have regard to the best interests of the witness, and
(b) take account of any views expressed by the witness.
(5) In this section and sections 271A to 271M of this Act—
“child witness” means a vulnerable witness referred to in subsection (1)(a),
“deemed vulnerable witness” means a vulnerable witness referred to in subsection (1)(c),
“court” means the High Court or the sheriff court,
“hearing in relevant criminal proceedings” means any hearing in the course of any criminal proceedings in the High Court or the sheriff court.
...
(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.
(1) Where a child witness or a deemed vulnerable witness is to give evidence at or for the purposes of a hearing in relevant criminal proceedings, the ... witness is entitled, subject to—
(a) subsections (2) to (13) below, and
(b) section 271D of this Act,
to the benefit of one or more of the special measures for the purpose of giving evidence.
(2) Subject to section 271AA, a party citing or intending to cite a child witness or a deemed vulnerable witness shall, by the required time, lodge with the court a notice (referred to in this Act as a “vulnerable witness notice”)—
(a) specifying the special measure or measures which the party considers to be the most appropriate for the purpose of taking the ... witness’s evidence, or
(b) if the party considers that the ... witness should give evidence without the benefit of any special measure, stating that fact.
(3) A vulnerable witness notice shall contain or be accompanied by—
(a) a summary of any views expressed for the purposes of section 271E(2)(b) of this Act, and
(b) such other information as may be prescribed by Act of Adjournal.
(3A) In the case where a vulnerable witness notice under subsection (2)(a) specifies only a standard special measure—
(a) subsection (3)(a) does not apply, and
(b) subsection (5) has effect as if the words “not earlier than 7 days and” were omitted.
(4) The court may, on cause shown, allow a vulnerable witness notice to be lodged after the required time.
(4A) Any party to the proceedings may, not later than 7 days after a vulnerable witness notice has been lodged, lodge with the court a notice (referred to in this section as an “objection notice”) stating—
(a) an objection to any special measure (other than a standard special measure) specified in the vulnerable witness notice that the party considers to be inappropriate, and
(b) the reasons for that objection.
(4B) The court may, on cause shown, allow an objection notice to be lodged after the period referred to in subsection (4A).
(4C) If an objection notice is lodged in accordance with subsection (4A) or (4B)—
(a) subsection (5)(a)(ii) does not apply to the vulnerable witness notice, and
(b) the court must make an order under subsection (5A).
(5) The court shall, not earlier than 7 days and not later than 14 days after a vulnerable witness notice has been lodged, consider the notice in the absence of the parties and, subject to sections 271B to 271BZB of this Act—
(a) in the case of a notice under subsection (2)(a) above—
(i) if a standard special measure is specified in the notice, make an order authorising the use of that measure for the purpose of taking the ... witness’s evidence, and
(ii) if any other special measure is specified in the notice and the court is satisfied on the basis of the notice that it is appropriate to do so, make an order authorising the use of the special measure (in addition to any authorised by virtue of an order under sub-paragraph (i) above) for the purpose of taking the ... witness’s evidence,
(b) in the case of a notice under subsection (2)(b) above, if—
(i) the summary of views accompanying the notice under subsection (3)(a) above indicates that the ... witness has expressed a wish to give evidence without the benefit of any special measure, and
(ii) the court is satisfied on the basis of the notice that it is appropriate to do so,
make an order authorising the giving of evidence by the ... witness without the benefit of any special measure, or
(c) if—
(i) paragraph (a)(ii) or (b) above would apply but for the fact that the court is not satisfied as mentioned in that paragraph, or
(ii) in the case of a notice under subsection (2)(b), the summary of views accompanying the notice under subsection (3)(a) above indicates that the ... witness has not expressed a wish to give evidence without the benefit of any special measure,
make an order under subsection (5A) below.
(5A) That order is an order—
(a) in the case of proceedings in the High Court where the preliminary hearing is yet to be held, appointing the vulnerable witness notice to be disposed of at that hearing;
(b) in the case of proceedings on indictment in the sheriff court where the first diet is yet to be held, appointing the vulnerable witness notice to be disposed of at that diet; or
(c) in any other case, appointing a diet to be held before the hearing at which the evidence is to be given and requiring the parties to attend the diet.
(6) Subsection (7) below applies where—
(a) it appears to the court that a party intends to call a child witness or a deemed vulnerable witness to give evidence at or for the purposes of a hearing in relevant criminal proceedings,
(b) the party has not lodged a vulnerable witness notice in respect of the ... witness by the time specified in subsection (2) above or lodged a notice with the clerk of court in accordance with section 271AA by the time specified in that section, and
(c) the court has not allowed a vulnerable witness notice in respect of the ... witness to be lodged after that time under subsection (4) above or under section 271AA(5).
(7) Where this subsection applies, the court shall—
(a) order the party to lodge a vulnerable witness notice in respect of the ... witness by such time as the court may specify, or
(b) where the court does not so order—
(i) in the case of proceedings on indictment where this subsection applies at or before the preliminary hearing or, as the case may be, the first diet, at that hearing or diet make an order under subsection (9) below; or
(ii) in any other case, make an order appointing a diet to be held before the hearing at which the evidence is to be given diet and requiring the parties to attend the diet.
(8) On making an order under subsection (5A)(c) or (7)(b)(ii) above, the court may postpone the hearing at which the evidence is to be given.
(8A) Subsection (9) below applies to—
(a) a preliminary hearing or first diet, so far as the court is—
(i) by virtue of an order under subsection (5A)(a) or (b) above, disposing of a vulnerable witness notice at the hearing or diet; or
(ii) by virtue of subsection (7)(b)(i) above, to make an order under subsection (9) ... at the hearing or diet; and
(b) a diet appointed under subsection (5A)(c) or (7)(b)(ii) above.
(9) Subject to section 271B, at a hearing or diet to which this subsection applies, the court, after giving the parties an opportunity to be heard—
(a) in a case where any of the standard special measures has been authorised by an order under subsection (5)(a)(i) above, may make an order authorising the use of such further special measure or measures as it considers appropriate for the purpose of taking the ... witness’s evidence, and
(b) in any other case, shall make an order—
(i) authorising the use of such special measure or measures as the court considers to be the most appropriate for the purpose of taking the ... witness’s evidence, or
(ii) that the ... witness is to give evidence without the benefit of any special measure.
(10) Subject to section 271B, the court may make an order under subsection (9)(b)(ii) above only if satisfied—
(a) where the ... witness has expressed a wish 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 of any special measure for the purpose of taking the evidence of the ... witness would give rise to a significant risk of prejudice to the fairness of the trial 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.
(11) A hearing or diet to which subsection (9) above applies may—
(a) on the application of the party citing or intending to cite the ... witness in respect of whom the diet is to be held, or
(b) of the court’s own motion,
be held in chambers.
(12) A diet appointed under subsection (5A)(c) or (7)(b)(ii) above in any case may be conjoined with any other diet to be held before the hearing at which the evidence is to be given.
(13) A party lodging a vulnerable witness notice or an objection notice shall, at the same time, intimate the notice to the other parties to the proceedings.
(13A) In subsections (2) and (4) above, “the required time” means—
(a) any time before a date has been fixed for one of the following—
(i) a preliminary hearing in the High Court,
(ii) a first diet in the sheriff court, or
(iii) a hearing at which the evidence is to be given, or
(b) if a date has been fixed—
(i) for a preliminary hearing in the High Court, no later than 14 clear days before the preliminary hearing,
(ii) for a first diet in the sheriff court in the case of proceedings on indictment, no later than 7 clear days before the first diet, or
(iii) in a case in which the proceedings are not to take place in the High Court or on indictment in the sheriff court, for a hearing at which the evidence is to be given, no later than 14 clear days before that hearing.
(14) In this section and section 271AA, references to a standard special measure are to any of the following special measures—
(a) the use of a live television link in accordance with section 271J of this Act ...
(b) the use of a screen in accordance with section 271K of this Act, and
(c) the use of a supporter in accordance with section 271L of this Act ...
(15) The Scottish Ministers may, by order subject to the affirmative procedure—
(a) modify subsection (14),
(b) in consequence of any modification made under paragraph (a)—
(i) prescribe the procedure to be followed when standard special measures are used, and
(ii) so far as is necessary, modify sections 271A to 271M of this Act.
(1) This section applies where—
(a) a child witness or a deemed vulnerable witness is to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings, and
(b) the party citing or intending to cite the witness considers that it is most appropriate for the witness to give evidence with the benefit of—
(i) one or more standard special measures, and
(ii) no other special measure.
(2) The party must, by the required time, lodge with the clerk of court a notice specifying—
(a) the standard special measure or measures that the party considers to be the most appropriate for the purpose of taking the witness's evidence,
(b) whether the witness is a child witness or a deemed vulnerable witness,
(c) if the witness is a child witness, the witness's age, and
(d) such other information as may be prescribed by Act of Adjournal.
(3) The party lodging a notice with the clerk of court under subsection (2) must, at the same time, intimate the notice to the other parties to the proceedings.
(4) If the party lodges a notice with the clerk of court by the required time, the witness is entitled to the benefit of the standard special measure or measures specified in the notice as if the use of that measure or measures were authorised by an order made by the court under section 271A(5)(a).
(5) If the party does not lodge a notice with the clerk of court by the required time, the court may, on cause shown, allow the party to lodge a vulnerable witness notice in accordance with section 271A (despite its being lodged later than the deadline for lodging a vulnerable witness notice).
(6) In this section, the “required time” means—
(a) any time before a date has been fixed for one of the following—
(i) a preliminary hearing in the High Court,
(ii) a first diet in the sheriff court, or
(iii) a hearing at which the evidence is to be given, or
(b) if a date has been fixed—
(i) for a preliminary hearing in the High Court, no later than 14 clear days before the preliminary hearing,
(ii) for a first diet in the sheriff court in the case of proceedings on indictment, no later than 7 clear days before the first diet, or
(iii) in a case in which the proceedings are not to take place in the High Court or on indictment in the sheriff court, for a hearing at which the evidence is to be given, no later than 14 clear days before that hearing.
(7) This section does not apply in a case to which section 271B or 271BZA applies.
271B Further special provision for child witnesses under the age of 12
(1) This section applies where a child witness—
(a) is to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings in respect of any offence specified in subsection (2) below, and
(b) is under the age of 12 on the date of commencement of the proceedings in which the hearing is being or to be held.
(2) The offences referred to in subsection (1)(a) above are—
(a) murder,
(b) culpable homicide,
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) any offence which involves an assault on, or injury or a threat of injury to, any person (including any offence involving neglect or ill-treatment of, or other cruelty to, a child),
(e) abduction, ...
(f) plagium.
(g) an offence to which section 288C applies (certain sexual offending),
(h) an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018,
(i) an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.
(3) Subsection (4) applies if the child witness expresses a wish to be present in the court-room for the purpose of giving evidence.
(4) The court must make an order under section 271A or, as the case may be, 271D which has the effect of requiring the child witness to be present in the court-room for the purpose of giving evidence unless the court considers that it would not be appropriate for the child witness to be present there for that purpose.
(4A) Where the court is required to make an order having the effect mentioned in subsection (4), an order made by the court under section 271A(5)(a) may authorise the use of a special measure or measures other than those specified in the vulnerable witness notice if that would result in the order having the effect mentioned in subsection (4).
(5) Subsection (6) applies if the child witness—
(a) does not express a wish to be present in the court-room for the purpose of giving evidence, or
(b) expresses a wish to give evidence in some other way.
(6) The court may not make an order under section 271A or 271D having the effect mentioned in subsection (4) unless the court considers that—
(a) the giving of evidence by the child witness in some way other than by being present in the court-room for that purpose would give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice, and
(b) that risk significantly outweighs any risk of prejudice to the interests of the child witness if the order were to be made.
(7) This section does not apply in a case to which section 271BZA applies.
271BZA Child witnesses in certain solemn cases: special measures
(1) This section applies where a child witness, other than the accused, is to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings which are—
(a) solemn proceedings, and
(b) in respect of an offence listed in subsection (2).
(2) The offences are—
(a) murder,
(b) culpable homicide,
(c) assault to the danger of life,
(d) abduction,
(e) plagium,
(f) a sexual offence to which section 288C applies,
(fa) an offence under any of sections 140 to 142 and 152 to 154 of the Health and Care Act 2022 (offences relating to virginity testing and hymenoplasty),
(g) an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018,
(h) an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016,
(i) an offence that would have fallen within paragraph (h) if section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 had been in force when the offence was allegedly committed,
(j) an offence of human trafficking (see section 1 of the Human Trafficking and Exploitation (Scotland) Act 2015),
(k) an offence under section 4 of the Human Trafficking and Exploitation (Scotland) Act 2015 (slavery, servitude and forced or compulsory labour),
(l) an offence under section 1 of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 (offence of female genital mutilation),
(m) an offence under section 3 of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 (aiding and abetting female genital mutilation),
(n) an attempt to commit an offence mentioned in any of paragraphs (a) to (m).
(3) The court must enable all of the child witness's evidence to be given in advance of the hearing unless the court is satisfied that an exception is justified under subsection (7) or (8).
(4) For the purposes of this section, the court enables all of the child witness's evidence to be given in advance of the hearing if—
(a) the court makes an order under section 271A which satisfies the following requirements—
(i) it authorises the use of one or both of the special measures listed in subsection (5) for the purpose of taking all of the child witness's evidence,
(ii) it does not authorise the use of an incompatible special measure for the purpose of taking any of the child witness's evidence, and
(iii) it does not authorise the giving of any of the child witness's evidence without the benefit of any special measure, and
(b) the court, if it commences a review under section 271D before the hearing has commenced, does not make an order under that section which—
(i) revokes the order made under section 271A, or
(ii) varies it in such a way that it no longer satisfies the requirements set out in paragraph (a)(i), (ii) and (iii).
(5) The special measures mentioned in subsection (4)(a)(i) are—
(a) taking of evidence by a commissioner in accordance with section 271I,
(b) giving evidence in chief in the form of a prior statement in accordance with section 271M.
(6) In this section, “incompatible special measure” means a special measure which is capable of being used only if the child witness gives evidence at the hearing (whether or not its use would require the child witness to be present in the courtroom).
(7) An exception is justified if—
(a) the giving of all of the child witness's evidence in advance of the hearing would give rise to a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice, and
(b) that risk significantly outweighs any risk of prejudice to the interests of the child witness if the child witness were to give evidence at the hearing.
(8) An exception is justified if—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the child witness expresses a wish to give evidence at the hearing, and
(c) it would be in the child witness's best interests to give evidence at the hearing.
(9) The Scottish Ministers may by regulations—
(a) modify subsection (2),
(b) remove the condition set out in subsection (1)(b) and the list of offences in subsection (2).
(10) Regulations under subsection (9) are subject to the affirmative procedure.
271BZB Child witnesses in certain solemn cases: modifications of section 271A
(1) In a case to which section 271BZA applies, section 271A applies with the following modifications.
(2) References to a standard special measure are to be read as references to any of the following special measures (and subsection (14) is to be read accordingly)—
(a) taking of evidence by a commissioner in accordance with section 271I,
(b) use of a supporter in accordance with section 271L,
(c) giving evidence in chief in the form of a prior statement in accordance with section 271M.
(3) Section 271A(2) has effect as if—
(a) the words “Subject to section 271AA,” were omitted,
(b) the words “or a deemed vulnerable witness” were omitted.
(4) Section 271A has effect as if the following subsection were inserted after subsection (2)—
(2A) A vulnerable witness notice must—
(a) state that section 271BZA applies, and
(b) explain why the party considers that an exception is justified under section 271BZA(7) or (8) if the notice—
(i) does not specify one or both of the special measures listed in section 271BZA(5) for the purpose of taking all of the child witness's evidence,
(ii) specifies an incompatible special measure (as defined in section 271BZA(6)) for the purpose of taking any of the child witness's evidence, or
(iii) states that the party considers that the child witness should give any of the child witness's evidence without the benefit of any special measure.
.
(5) Section 271A has effect as if the following subsections were inserted after subsection (10)—
(10A) Subsections (5), (9) and (10) are subject to subsections (10B) to (10F).
(10B) Where the court is considering a notice in accordance with subsection (5) and the notice does not specify one or both of the special measures mentioned in section 271BZA(5) for the purpose of taking all of the child witness's evidence, the court may nonetheless make an order which has the effect of authorising the use of one or both of those special measures for that purpose.
(10C) Unless the court is satisfied that an exception is justified under section 271BZA(7) or (8), an order made by the court under this section—
(a) must authorise the use of one or more of the special measures mentioned in section 271BZA(5) for the purpose of taking all of the child witness's evidence,
(b) must not authorise the use of an incompatible special measure (as defined in section 271BZA(6)) for the purpose of taking any of the child witness's evidence, and
(c) must not authorise the giving of any of the child witness's evidence without the benefit of any special measure.
(10D) Even if the court is satisfied that an exception is justified under section 271BZA(7) or (8), an order made by the court under this section must not have the effect of requiring the child witness to be present in the courtroom to give evidence unless the court is satisfied that subsection (10E) or (10F) applies.
(10E) This subsection applies if—
(a) the giving of evidence by the child witness in some way other than by being present in the courtroom for that purpose would give rise to a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice, and
(b) that risk significantly outweighs any risk of prejudice to the interests of the child witness if the child witness were to be present in the courtroom to give evidence.
(10F) This subsection applies if—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the child witness expresses a wish to be present in the courtroom to give evidence, and
(c) it would be in the child witness's best interests to be present in the courtroom to give evidence.
.
271BZC Child witnesses in certain solemn cases: modifications of section 271D
(1) In a case to which section 271BZA applies, section 271D applies with the following modifications.
(2) Section 271D has effect as if—
(a) subsections (3A) to (3C) were omitted,
(b) subsection (4A) were omitted, and
(c) the following subsections were inserted after subsection (4A)—
(4B) Subsections (2) to (4) are subject to subsections (4C) to (4H).
(4C) Unless the hearing has already commenced when the court commences its review or the court is satisfied that an exception is justified under section 271BZA(7) or (8), an order made by the court under this section must not—
(a) revoke the earlier order, or
(b) vary it in such a way that it no longer satisfies the requirements set out in section 271BZA(4)(a)(i), (ii) and (iii).
(4D) An order made by the court under this section must have the effect of authorising the use of the special measure of taking of evidence by a commissioner in accordance with section 271I if—
(a) that is requested by any party to the proceedings, and
(b) the earlier order authorises only the special measure of giving evidence in chief in the form of a prior statement in accordance with section 271M.
(4E) However, an order made by the court under this section need not have the effect described in subsection (4D) if—
(a) the hearing has already commenced when the court commences its review, or
(b) the court is satisfied that an exception is justified under section 271BZA(7) or (8).
(4F) Even if the hearing has already commenced when the court commences its review or the court is satisfied that an exception is justified under section 271BZA(7) or (8), an order made under this section must not have the effect of requiring the child witness to be present in the courtroom to give evidence unless the court is satisfied that subsection (4G) or (4H) applies.
(4G) This subsection applies if—
(a) the giving of evidence by the child witness in some way other than by being present in the courtroom for that purpose would give rise to a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice, and
(b) that risk significantly outweighs any risk of prejudice to the interests of the child witness if the child witness were to be present in the courtroom to give evidence.
(4H) This subsection applies if—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the child witness expresses a wish to be present in the courtroom to give evidence, and
(c) it would be in the child witness's best interests to be present in the courtroom to give evidence.
(1) This section applies where a party intends to cite a witness other than a child witness or a deemed vulnerable witness to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings.
(2) The party intending to cite the witness must take reasonable steps to carry out an assessment under subsection (3).
(3) An assessment must determine whether the person—
(a) is likely to be a vulnerable witness, and
(b) if so, what special measure or combination of special measures ought to be used for the purpose of taking the person's evidence.
(4) In determining under subsection (3)(a) whether a person is likely to be a vulnerable witness the party must—
(a) take into account the matters mentioned in section 271(2),
(b) have regard to the best interests of the person, and
(c) take account of any views expressed by the person.
(1) This section applies where a party citing or intending to cite a person (other than a child witness or a deemed vulnerable witness) to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings (such a person being referred to in this section as “the witness”) and, having carried out an assessment under section 271BA, considers—
(a) that the witness is likely to be a vulnerable witness, and
(b) that a special measure or combination of special measures ought to be used for the purpose of taking the witness’s evidence.
(2) Where this section applies, the party citing or intending to cite the witness shall, by the required time, make an application (referred to as a “ vulnerable witness application ”) to the court for an order authorising the use of one or more of the special measures for the purpose of taking the witness’s evidence.
(3) A vulnerable witness application shall—
(a) specify the special measure or measures which the party making the application considers to be the most appropriate for the purpose of taking the evidence of the witness to whom the application relates, and
(b) contain or be accompanied by—
(i) a summary of any views expressed for the purposes of section 271E(2)(b) of this Act, and
(ii) such other information as may be prescribed by Act of Adjournal.
(4) The court may, on cause shown, allow a vulnerable witness application to be made after the the required time.
(4A) Any party to the proceedings may, not later than 7 days after a vulnerable witness application has been lodged, lodge with the court a notice (referred to in this section as “an objection notice”) stating—
(a) an objection to any special measure specified in the vulnerable witness application that the party considers to be inappropriate, and
(b) the reasons for that objection.
(4B) The court may, on cause shown, allow an objection notice to be lodged after the period referred to in subsection (4A).
(4C) If an objection notice is lodged in accordance with subsection (4A) or (4B)—
(a) subsection (5) does not apply to the vulnerable witness application, and
(b) the court must make an order under subsection (5A).
(5) The court shall, not earlier than 7 days and not later than 14 days after a vulnerable witness application is made to it, consider the application in the absence of the parties and—
(a) make an order authorising the use of the special measure or measures specified in the application if satisfied on the basis of the application that—
(i) the witness in respect of whom the application is made is a vulnerable witness,
(ii) the special measures or measures specified in the application are the most appropriate for the purpose of taking the witness’s evidence, and
(iii) it is appropriate to do so after having complied with the duty in subsection (8) below, or
(b) if not satisfied as mentioned in paragraph (a) above, make an order under subsection (5A) below.
(5A) That order is an order—
(a) in the case of proceedings in the High Court where the preliminary hearing is yet to be held, appointing the vulnerable witness application to be disposed of at that hearing,
(b) in the case of proceedings on indictment in the sheriff court where the first diet is yet to be held, appointing the vulnerable witness application to be disposed of at that diet, or
(c) in any other case, appointing a diet to be held before the hearing at which the evidence is to be given and requiring the parties to attend the diet.
(6) On making an order under subsection (5A)(c) above, the court may postpone the hearing at which the evidence is to be given.
(6A) Subsection (7) below applies to—
(a) a preliminary hearing or first diet so far as the court is, by virtue of an order under subsection (5A)(a) or (b) above disposing of a vulnerable witness application at the hearing or diet, and
(b) a diet appointed under subsection (5A)(c) above.
(7) At a hearing or diet to which this subsection applies, the court may—
(a) after giving the parties an opportunity to be heard, and
(b) if satisfied that the witness in respect of whom the application is made is a vulnerable witness,
make an order authorising the use of such special measure or measures as the court considers to be the most appropriate for the purpose of taking the witness’s evidence.
(8) In deciding whether to make an order under subsection (5)(a) or (7) above, the court shall—
(a) have regard to—
(i) the possible effect on the witness if required to give evidence without the benefit of any special measure, and
(ii) whether it is likely that the witness would be better able to give evidence with the benefit of a special measure, and
(b) take into account the matters specified in subsection (2)(a) to (f) of section 271 of this Act.
(9) A hearing or diet to which subsection (7) above applies may—
(a) on the application of the party citing or intending to cite the witness in respect of whom the diet is to be held, or
(b) of the court’s own motion,
be held in chambers.
(10) A diet appointed under subsection (5A)(c) above in any case may be conjoined with any other diet to be held before the hearing at which the evidence is to be given.
(11) A party making a vulnerable witness application or an objection notice shall, at the same time, intimate the application or, as the case may be, the notice to the other parties to the proceedings.
(12) In subsections (2) and (4) above, “the required time” means—
(a) in the case of proceedings in the High Court, no later than 14 clear days before the preliminary hearing,
(b) in the case of proceedings on indictment in the sheriff court, no later than 7 clear days before the first diet,
(c) in any other case, no later than 14 clear days before the hearing at which the evidence is to be given.
271D Review of arrangements for vulnerable witnesses
(1) In any case in which a person who is giving or is to give evidence at or for the purposes of 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 the hearing or before or after the witness has begun to give evidence)—
(a) on the application of 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.
(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 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.
(4A) In a case in which a notice has been provided to the clerk of court in accordance with section 271AA(2), this section is to have effect as if the special measure or measures specified in the notice were authorised by an order under section 271A.
(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.
(6A) In this section, “court” includes a commissioner appointed under section 271I(1).
(7) This section is subject to sections 271B to 271BZC.
(1) Subsection (2) below applies where—
(a) a party is considering for the purposes of a vulnerable witness notice , a notice that is to be lodged with the clerk of court under section 271AA or a vulnerable witness application which of the special measures is or are the most appropriate for the purpose of taking the evidence of the person to whom the notice or application relates, or
(b) the court is making an order under section 271A(5)(a)(ii) or (b) or (9), 271C or 271D of this Act.
(2) The party or, as the case may be, the court shall—
(a) have regard to the best interests of the witness, and
(b) take account of any views expressed by—
(i) the witness (having regard, where the witness is a child witness, to the witness’s age and maturity), and
(ii) where the witness is a child witness, the witness’s parent (except where the parent is the accused).
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) In this section—
“parent”, in relation to a child witness, means any person having parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995 (c. 36) in relation to the child witness,
“the witness” means—
in the case referred to in subsection (1)(a) above, the person to whom the notice or application relates,
in the case referred to in subsection (1)(b) above, the person to whom the order would relate.
(1) For the purposes of the application of subsection (1) of section 271 of this Act to the accused (where the accused is giving or is to give evidence at or for the purposes of a hearing in relevant criminal proceedings), subsection (2) of that section shall have effect as if—
(a) for paragraph (c) there were substituted—
(c) whether the accused is to be legally represented at the hearing and, if not, the accused’s entitlement to be so legally represented,
, and
(b) for paragraph (e) there were substituted—
(e) any behaviour towards the accused on the part of—
(i) any co-accused or any person who is likely to be a co-accused in the proceedings,
(ii) any witness or any person who is likely to be a witness in the proceedings, or
(iii) members of the family or associates of any of the persons mentioned in sub-paragraphs (i) and (ii) above.
.
(2) Where, if the accused were to give evidence at or for the purposes of the hearing, he would be a child witness—
(a) section 271A of this Act shall apply in relation to the accused subject to the following modifications—
(i) references to a witness shall be read as if they were references to the accused,
(ii) references to the party citing or intending to cite a ... witness shall be read as if they were references to the accused, and
(iii) subsection (6) shall have effect as if for paragraph (a) there were substituted—
(a) it appears to the court that the accused, if he were to give evidence at or for the purposes of a hearing in relevant criminal proceedings, would be a child witness,
, and
(aa) section 271AA applies in relation to the accused with the following modifications—
(i) in subsection (1)(a), the reference to a child witness or a deemed vulnerable witness is to be read as if it were a reference to the accused,
(ii) in subsections (1) to (5), references to the party citing or intending to cite the witness are to be read as if they were references to the accused,
(iii) in subsections (1)(b), (2)(a) and (4), references to the witness are to be read as if they were references to the accused,
(iv) subsection (2) has effect as if for paragraphs (b) and (c) there were substituted—
(b) that the notice is lodged by the accused and that the accused is a child witness,
(c) the accused's age, and
, and
(b) section 271B of this Act shall apply in relation to the accused as if—
(i) for subsection (1) there were substituted—
(1) This section applies where the accused—
(a) if he were to give evidence at or for the purposes of a hearing in relevant criminal proceedings would be a child witness, and
(b) is under the age of 12 on the date of commencement of the proceedings.
, and
(ii) in subsection (3), references to the child witness were references to the accused.
(3) Subsection (4) below applies where the accused—
(a) considers that, if he were to give evidence at or for the purposes of a hearing in relevant criminal proceedings, he would be a vulnerable witness other than a child witness, and
(b) has not decided to give evidence without the benefit of any special measures.
(4) Where this subsection applies, subsections (2) to (11) of section 271C of this Act shall apply in relation to the accused subject to the following modifications—
(a) references to the witness shall be read as if they were references to the accused,
(b) references to the party citing or intending the cite the witness shall be read as if they were references to the accused, and
(c) in subsection (8)(b), the reference to subsection (2)(a) to (f) of section 271 of this Act shall be read as if it were a reference to that subsection as modified by subsection (1) above.
(5) Section 271D of this Act shall apply in any case where it appears to the court that the accused, if he were to give evidence at or for the purposes of the hearing, would be a vulnerable witness as it applies in the case referred to in subsection (1) of that section but subject to the following modifications—
(a) references to the witness shall be read as if they were references to the accused,
(b) references to the party citing or intending to cite the witness shall be read as if they were references to the accused.
(6) Where the witness within the meaning of section 271E of this Act is the accused, that section shall have effect in relation to the witness as if—
(a) in subsection (1), paragraph (a) were omitted, and
(b) in subsection (2), the words “The party or, as the case may be,” were omitted.
(7) Section 271M of this Act shall have effect, where the vulnerable witness is the accused, as if the reference in subsection (2) to the party citing the vulnerable witness were a reference to the accused.
(8) The following provisions of this Act shall not apply in relation to a vulnerable witness who is the accused—
(a) section 271H(1)(c) and (ea),
(b) section 271I(3).