Child Protection Guidance 2021

Part 3: Identifying and responding to concerns about children 127 National Guidance for Child Protection in Scotland 2021 Version 1.0 September 2021 3.194 Section 271 BZA of the Criminal Procedure (Scotland) Act 1995 (inserted by the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019) provides that in respect of both solemn proceeding and in respect of certain listed offences, the court must enable all of the child witness’s evidence to be given by means of a prior statement and/or a pre-recorded Commission hearing in advance, unless the court is satisfied that an exception is justified. These exceptions are if either the fairness of the trial or the child’s best interests would be prejudiced by such a course of action, or, if the child is 12 or over, has expressed a wish to give live evidence, and it would be in their best interests to do so. The most efficient means of complying with the requirements of the Act will be that the child’s evidence in chief will be given by means of his or her recorded JII; and that cross-examination and re-examination will occur by means of evidence taken by commissioner. If the JII is not suitable for use in criminal proceedings, all of the child’s evidence will require to be taken by a Commissioner. This rule came into force in January 2020 in respect of many, but not all, High Court cases in 2020. 3.195 The Act requires there to be a ground rules hearing prior to evidence being taken by commissioner, and specifies some issues which must be considered. The Act makes provision to allow for evidence to be taken by Commissioner to take place even before the indictment has been served. However, there remain significant legal barriers to holding Commissioner hearings in advance of service of an indictment. Therefore, many Commissioner hearings will continue to take place after an indictment has been served. Work is on-going to reduce the time between the offence being reported and the date on which an indictment is served. Improvements in facilities for witnesses to give their evidence in Commissioner hearings or by live TV link to court are in progress. (Vulnerable Witness (Criminal Evidence) (Scotland) Act 2019) .