Bill published to bring in more pre-recorded evidence

Legislation to enable the greater use of pre-recording of evidence by child and vulnerable witnesses in criminal trials has been introduced to the Scottish Parliament.

Under the Scottish Government's Vulnerable Witnesses (Scotland) Bill, children who are due to give evidence in the most serious criminal cases should have their evidence pre-recorded in advance of trial, usually by the special measure of evidence by commissioner.

The offences to which the new rule applies are:

• murder, culpable homicide, and assault to the danger of life;
• rape and other sexual offences;
• abduction and plagium (child kidnapping);
• human trafficking, slavery and female genital mutilation;
• an attempt to commit any of these offences.

There is power to extend the rule by regulations to all solemn proceedings.

Exceptions are provided where the new procedure "would give rise to a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice", and 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"; and also where the child is aged 12 or over at the start of the proceedings, wants to give evidence at the hearing and it would be in their interests to do so.

The bill contains a further power to extend the new rule to adult witnesses deemed to be vulnerable under the Criminal Procedure (Scotland) Act 1995, including by categories such as complainers of sexual offences, stalking, domestic abuse and human trafficking – again in solemn proceedings.

It also proposes a simplified process for deemed vulnerable witnesses to request standard special measures such as giving evidence via a live TV link.

Other changes in the bill include: 

• new "ground rules hearings" to discuss whether all arrangements are in place and ready for pre-recording, and to discuss the scope of questioning;
• the opportunity for evidence to be pre-recorded pre-indictment if considered appropriate;
• increased flexibility by giving a new power for judges (when acting as a commissioner during the pre-recording) to review all the special measures arrangements in place for that witness.

Justice Secretary Michael Matheson commented: "Building on our other improvements for victims and witnesses, this bill is an important step forward, which will mean far fewer vulnerable witnesses have to give evidence in court during criminal trials. As young witnesses often need extra support, we have previously made clear that this reform must focus in the first instance on children.

"This represents a significant change to the law and practice, which justice organisations will need to implement in a managed way in order to achieve our aim of ensuring witnesses can give their best evidence, while protecting the rights of the accused."

Click here to access the bill and related papers.