An alerter from the Scottish Government on the commencement of part of the new vulnerable witnesses legislation, including the pre-recording of the evidence of children in High Court proceedings

Last month the first commencement regulations for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (SSI 2019/392) were laid in the Scottish Parliament, signalling an approaching number of important changes from 20 January 2020.

This is another significant milestone in the Scottish Government’s commitment to improve the experience of children and vulnerable witnesses who come into contact with our criminal justice system.

It coincided with the official opening of the SCTS Evidence and Hearings Suite in Glasgow, which provides modern facilities to enable child witnesses and adult vulnerable witnesses to either pre-record their evidence or give evidence remotely by live TV link.

In terms of the regulations, only certain provisions of the Act are being progressed at this stage, with transitional arrangements where appropriate.

A detailed policy note has been published with the online SSI, alongside the existing explanatory notes for the Act to help support understanding of the impact from 20 January 2020.

What is being commenced?

The key component of the regulations is the commencement of a new rule, introduced by s 1 of the Act, in favour of pre-recording the evidence of child witnesses other than the accused in solemn proceedings (subject to specific exceptions), where the alleged offence is listed in new s 271BZA(2) of the Criminal Procedure (Scotland) Act 1995. This will come into force only for the purpose of proceedings in the High Court of Justiciary.

Under reg 3, s 1 will apply for this purpose only in cases where the accused first appears on petition on or after 20 January 2020. In a small number of cases the accused never appears on petition, and in this situation s 1 will apply where the indictment is served on or after 20 October 2020.

Under reg 4(2), the same transitional arrangements will apply to s 5(6) of the Act, which alters the way in which the age of a witness is calculated where this is relevant to a decision on authorising the taking of evidence by commissioner. This change was to enable commissions to be held potentially before an indictment is served, and to provide greater assurance to young witnesses about their eligibility to give evidence in this way. It is important to note that the commencement of s 5(6) is not restricted to the High Court.

Section 4 of the Act restricts the ability of the court to alter on review an order providing for all of a witness’s evidence to be pre-recorded, even where the case does not fall within the new rule. This will commence for reviews on or after 20 January 2020, but in High Court proceedings only.

Section 5(2) and (3) of the Act, which relates to a new requirement to fix a ground rules hearing in all cases where evidence is to be taken by commissioner, will apply only in cases where the commissioner is appointed by the court on or after 20 January 2020 (see reg 4(1)).

Although this article summarises the commencement provisions, members are encouraged to read the full regulations and policy note in advance of the commencement date.

Ongoing review

What happens going forward? Well, the Scottish Government established an implementation group for the Act as soon as it received Royal Assent on 13 June 2019. Membership of that group comprises a number of justice organisations, including the Law Society of Scotland, represented by Rosalyn McTaggart. The development of the regulations and accompanying policy note has been informed by contributions from this group.

The implementation group will next be considering how best to ensure that the new pre-recording rule is subject to a formal evaluation and review. The review period is to be three years from the first day that s 1 is brought into force for any purpose (i.e. three years from 20 January 2020). After the end of this review period a report on this review must be laid before the Scottish Parliament. There would also be consideration of the future rollout of the reforms to child witnesses in certain sheriff and jury cases in the future. The Scottish Government policy team leading on this work can be contacted at prerecordedevidence@gov.scot

Finally, let us not forget that overriding and common commitment to improve the experience of children and vulnerable witnesses who come into contact with our criminal justice system. These regulations are another step on that important journey.

The Author

Willie Cowan, Deputy Director, Justice Directorate, Scottish Government www.gov.scot

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