A quick guide to the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019

The Act is aimed at improving how children and vulnerable witnesses participate in the Scottish criminal justice system by making more use of pre-recording evidence in advance of a criminal trial.

The Scottish Government is bringing in the provisions of the act in stages. The full implementation plan is available on the Scottish Parliament website.

From today (Monday 20 January 2020) sections 1, 2,4, 5, 7, 8, 9 and 10(1) to 10(3) of the 2019 Act come into force.

What are the changes affecting criminal practice?

Pre-recording of evidence

Certain offences now have a presumption in favour of the pre-recording of child witnesses’ evidence including:

• murder, culpable homicide and assault to the danger of life
• rape and other sexual offences
• domestic abuse
• abduction
• human trafficking, slavery and female genital mutilation or
• an attempt to commit any such offence

The changes affect live cases from 20 January 2020 though not cases where the accused has appeared on petition before that date. Where the accused has never appeared on petition, the changes will affect cases where indictments are served after 20 October 2020. The effects of the changes are anticipated to affect custody cases and bail cases from March and October 2020 respectively.

These changes only affect solemn proceedings in the High Court and child witnesses excluding the accused.

Review of arrangements for vulnerable witnesses

Section 4 of the 2019 Act restricts the power of the court to alter on review any previous order providing for all a witness’s evidence to be pre-recorded.

Ground rules hearings

Section 5 of the 2019 Act require a ground rules hearing to be fixed in all cases involving evidence being taken by a commissioner.

Vulnerable witness notice

Section 7 of the 2019 Act means that an application for a standard special measure will no longer require 7 days’ notice.

ection 8 of the 2019 Act allows for a vulnerable witness notice to be lodged at any time before a date has been fixed for a preliminary hearing, first diet or evidential hearing. If the notice is not lodged before a date is fixed for the preliminary hearing or first diet, it must be lodged no later than 14 clear days (before preliminary hearings) or 7 clear days (before first diet). For evidential hearings on summary proceedings, any notice must be lodged no later than 14 clear days before that hearing.

Training

These changes are significant and important. We are rolling out training with the support of Scottish Government officials and members, keep an eye on the events pages of our website for dates.