1. At its meetings on 11 and 25 September and on 2 October, the Delegated Powers and Law Reform Committee considered the delegated powers in the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill (“the Bill”).ⁱThe Bill as introduced is available here. The Scottish Government has provided the Parliament with a memorandum on the delegated powers provisions in the Bill.ⁱⁱThe Delegated Powers Memorandum is available here.

2. The Committee submits this report to the lead Committee for the Bill (the Justice Committee) under Rule 9.6.2 of Standing Orders.

3. This Scottish Government Bill was introduced by the Cabinet Secretary for Justice on 12 June 2018.

4. The stated purpose of the Bill is to improve how children, in the first instance, and other vulnerable witnesses participate in the criminal justice system. It seeks to do so by enabling greater use of pre-recording when taking the evidence of children and vulnerable witnesses in advance of a criminal trial.

5. The Bill consists of 12 sections, grouped under 7 headings. The following paragraphs provide a broad overview.

6. Sections 1 and 2 (Child witnesses) require child witnesses (other than the accused) who are giving evidence in solemn proceedings for particularly serious offences to have all of their evidence pre-recorded before the trial, unless certain exceptions apply. This is referred to as “the new rule” in this report. Section 1 enables the Scottish Ministers to modify or remove the list of offences to which the new rule applies. For example, the new rule could be applied to all child witnesses in solemn proceedings (other than the accused).

7. Section 3 (Deemed vulnerable witnesses) empowers the Scottish Ministers to extend the new rule so that it applies to a “deemed vulnerable witness” (other than a child witnesses) or to particular types of deemed vulnerable witness. A “deemed vulnerable witnesses” is a complainer in proceedings for certain serious offences (sexual offences, human trafficking, domestic abuse or stalking).

8. Section 4 (Review of arrangements for taking evidence) restricts the ability of the court to use a review to displace a previous order authorising the use of pre-recording for vulnerable witnesses (other than children).

9. At its meeting on 2 October, the Committee considered the five delegated powers in the Bill, which are as follows:

   • Section 1 - new section 271BZA(9) of the Criminal Procedure (Scotland) Act 1995 (“1995 Act”) (Child witnesses in certain solemn cases: special measures)

   • Section 3 - new section 271BZD of the 1995 Act (Deemed vulnerable witnesses in certain solemn cases)

   • Section 6 - new section 271AA of the 1995 Act (Using only standard special measures)

   • Section 10 – Ancillary provision

   • Section 11 – Commencement

10. The Committee determined that it did not need to draw the attention of the Parliament to any of the delegated powers.

Recommendation