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PAPER ON COMMENTS ON FIRST DRAFT OF ACT OF ADJOURNAL (CRIMINAL PROCEDURE AMENDMENT NO. )(VULNERABLE WITNESSES (SCOTLAND) ACT 2004) 2005 dated 17.11.04

This is an amalgamation of comments received from Bill Moore, SEJD Victims and Witnesses Unit, Frances Roberts, SCRA, Lindsey Anderson, and Justin Farrell of COPFS and responding comments. Some amendments have been made to the Act of Adjournal as a result of these comments and as a result of discussions with Lords Philip and Bracadale and the Deputy Principal Clerk of Justiciary.

Comments from Mr Moore.

1. Form 22.1 should record how the child's views are taken into account.

2. The CWN could have contained this information in paragraphs 7 or 8. However, the information section of paragraph 7 has been amended to include clarification that this information is to be included here. The amount and detail of information provided will depend on the measures sought and the circumstances of the case.

3. Form 22.1 should contain a statement that a child under 12 cannot be precognosed by the accused where section 288E applies.

4. The CWN is not a notice that seeks to simply impart information. It is seeking an order of the court. The primary legislation does not specifically require notices to be served on the accused containing this information. The prohibition is apparent from the terms of the legislation and there is nothing beyond the information in the legislation that would be necessary in a notice. Also, this provision will not be applicable in all cases.

   Further, if an accused is prohibited from conducting his own defence under section 288E, he will receive a notice advising him of this and it would seem less likely he would attempt to seek a warrant from the court to personally precognoses a child under 12. The draft Act of Adjournal provides at paragraph 2(6)(e) and (f) that the application forms to the court for a warrant to precognose will be amended to require a declaration to be completed which will highlight the issue to the applicant and court, thereby preventing any frivolous applications.

   Finally, a CWN might be lodged by the defence and therefore, any such information notice in the CWN, for the benefit of the accused, would have to be inserted by the accused or their representative.

5. Form 22.1 should specify what non-standard measures are being sought.

6. Paragraph 5 of Form 22.1 has been amended to allow non-standard special measures to be specified, and for reasons to be given for them being considered the most appropriate.

7. Should Form 22.1 specify if the witness is for the prosecution or defence?

8. This should be apparent from the identity of the party that lodges the CWN.

9. Does Form 22.4 only cover child witnesses as it is in Chapter 22?

10. No. The new Chapter 22 is headed "Evidence of Vulnerable Witnesses" and there is nothing in the form that prevents it being applicable to vulnerable adults when that part of the primary legislation is implemented.

11. Should Form 22.4 specify if the witness is defence or prosecution?

12. The form has been amended to specify that the minuter has cited or intends to cite the vulnerable witness in question. Only the party that has cited or intends to cite the witness can minute for a review and therefore it will be apparent from the identity of the minuter whether the defence or the prosecution has cited the witness.

13. Should there be a form to serve on the accused to advise of the prohibition of the accused personally precognosing a witness under 12, where section 288E applies?

14. This is not required by the legislation and there is no additional information to the terms of the legislation that would need to be included in such a notice. It is not generally required for all matters that are contained in the primary legislation to be brought to the attention of the accused by notice. See the comments at note number 2.

15. LPPO agreed to consider further whether rules are required for live TV links from outside the court building.

16. It was agreed there would be consideration of any suggestions for matters that are properly the subject of court procedure rules regarding live TV links to a remote location. There are no existing rules in relation to live TV links from within the court. There has been no indication of court procedure rules that would be necessary because the link was from outwith the court building. Matters such as accommodation, equipment, security, the placement of people within the room, what should be in the room etc., should not be prescribed by rules and the judge in each case will always have an element of discretion on how their court is to be organised.

17. Does rule 22.12 need to say something about transcription of video recorded evidence, admissibility or editing the tape?

18. In the original section 271(4) of the 1995 Act, parts of section 272 were applied to evidence on commission rules for vulnerable witnesses. It was explicit in those sections that video taped proceedings had to be transcribed. There is now no specific provision within the primary legislation as amended by the Vulnerable Witnesses (Scotland) Act 2004 that requires transcription of video recorded commission proceedings. Therefore, it is considered it would not be appropriate to require such transcriptions. There is also no information that would make a total ban seem appropriate, as there may be times a transcript might be considered necessary. It would seem likely that judges and parties would prefer there to be an element of discretion, depending on the case. As the legislation appears to have specifically removed the requirement for transcription, but has not ruled it out completely, the rule should be silent on the matter.

    Admissibility is dealt with in rule 22.11. It is not clear what else would or should be said in the rules regarding it, as the law relating to evidence would otherwise govern it.

    It is not clear what would be expected in a rule on editing. This is more a practical matter not for court procedure. It will be expected that only admissible evidence be put to the jury. If evidence which is not admissible is on the original tape, that will have to be omitted either by editing and preparing a copy that is agreed by parties to be accurate, or by stopping and starting the tape at the relevant parts.

    Comments from Frances Roberts.

19. Should rule 22.3(h) (properly 22.3(d)) say "further diets" as it may be the first hearing at which a CWN will have been considered?

20. A judge in chambers will always have considered the CWN before such a hearing is fixed. However, it is agreed that the word "further" can be deleted, where it first appears, as there may not have been any previous hearings under those specified sections. The rule has been amended to reflect that a hearing under section 271A(7)(b)(ii) might be fixed when there is no CWN.

21. Should the word "written" be removed from rule 22.4 (1) to require all applications for review to be in writing (to give the witness as much certainty as possible)?

22. The qualification that only written applications require to be in the prescribed form was deliberate to allow verbal applications where a hearing is about to be held. As only the person who has cited the witness can make a review application, it is assumed the review is sought because of circumstances that the witness is aware of and to meet their needs. Requiring a written procedure in every case might delay a review decision in some cases (as a hearing will have to be fixed, see note 12 below). A quick decision by verbal application at a hearing might benefit the witness by giving certainty sooner.

    After discussions with Lord Philip, the rule has been amended to make it explicit that verbal applications for review can be made during the course of a hearing.

23. Should rule 22.5 be amended to allow standard measures to be ordered on review, without a hearing?

24. The primary legislation requires parties to be given an opportunity to be heard where a review application has been made under section 271D(1). Therefore, if the application were not made verbally at a pre-existing hearing where parties can be heard there and then, a hearing would have to be fixed in all cases. There is no specified exception to this in the legislation on the ground the special measures sought on review are standard special measures.

25. Should rule 22.14 state that only part of the video might be played?

26. The rule states that "the video record of the evidence" will be played. That can be all, or part of, the tape as it specifically means only the evidence that is admissible is to be put before the jury.

27. Rule 22.15 typo, at 22.12(5).

28. Amended.

29. Form 22.1 should allow specification of special measures, which are not standard measures, and provide that reasons have to be given only for them.

1. Amended. See note 3 above.

1. Is "other information" to be intimated on the other side, as well as the CWN? (Presumably meaning "other information" in separate documents accompanying the CWN).

2. There is no clear consensus on this and it might be a matter for judicial interpretation of the Act. The Act is not clear on the matter. I would be cautious about providing in the rules that any document accompanying a CWN that was referred to, it's terms were incorporated into, or was designed to give information required by the CWN, should not be intimated with the CWN, given that the legislation says a copy of the "notice" is to be served on the other side.

   Where the primary legislation is silent, the rule should not make any assumptions on the matter. It might be decided by judicial interpretation of the legislation.

3. Rule 22.4 should make it clear only a person who has cited a witness can apply for a review of the arrangements.

4. The rules should not repeat the terms of the primary legislation (section 271D(1)(a) of the 1995 Act as amended). However, Form 22.4 has been amended to reflect that the minuter has cited or intends to cite the witness, which should prevent incompetent minutes.

5. Form 22.4 should have an option for standard measures to be granted without a hearing.
6. This would be in conflict with the primary legislation. See note 12.

Comments from Lindsey Anderson

1. Form 22.1 should specify the non-standard measures that are sought.

1. In Rule 22.2 can the execution of service be lodged after the CWN is lodged to allow service with the indictment by police officers?

2. The CWN does not require to be served, the party is only to "intimate" it (section 271A(13) of the 1995 Act as amended). Therefore, it is not envisaged that there will have to be proof it has been received, only that it has been sent by an appropriate method of service. A certificate of execution confirming posting and a RD receipt being attached to the certificate should adequately do this.

   The CWN does not require to be served at the same time as the indictment. It is also not entirely correct to say that there will always be 7 days from the CWN being lodged, before it is considered, to allow the Crown 7 days to lodge an execution of service by police officers. The primary legislation (section 271A(5) of the 1995 Act as amended) provides that the CWN is to be considered "not later than 7 days" after it is lodged. If this suggestion were to be followed it is possible the CWN could be put before the judge before an execution of service has been lodged. It would be an extra burden on the court to have to keep CWN's back and match them up with certificates of execution of service lodged at a later stage before they could be put before the judge.

3. Rule 22.9(1). Is transfer of a case to be upon application of the parties, or only ex proprio motu?

4. Under section 271J (4) of the 1995 Act as amended a transfer can only take place where the sheriff court in which the proceedings are to take place does not have the equipment necessary to receive a TV link. In most cases only the court itself will be aware of this and therefore in most cases the transfer would be ordered ex proprio motu. It would not be authorised under this section on any other grounds.

5. Rule 22.10 and Rule 22.11(3). It would always be beneficial for the Commissioner to be the trial judge. If the Commissioner were the trial judge could they determine questions of admissibility during the commission?

6. It is open for the Commissioner to be a judge and if the commission was fixed during the trial it could be the trial judge. However, it is assumed most commissions would be fixed and completed before the trial and therefore before the trial judge is known. If the objections to admissibility are known at the preliminary hearing it is envisaged they should be raised and determined at that stage. If necessary any video recording of commission proceedings that have already taken place can then be edited. If evidence is required on the objections or the objections only become apparent after the preliminary hearing they will have to be dealt with at the trial by the trial judge. (As per the Criminal Procedure (Amendment) (Scotland) Act 2004 the party first raising the objection at the trial will have to advise the court why it is being raised only at this stage.)

   Lord Philip and Lord Bracadale have doubted whether it will always be possible to state a commissioner will be a judge. This may depend on the frequency of commissions and the availability of judges.

7. Rule 22.11(1). When it is says the Commissioner will "determine" the diet does it mean the Commissioner will arrange the diet? Who arranges the site diaries and cites witnesses?

8. The Commissioner will determine the diet by fixing the place, date and time of the commission. It is not yet established where the sites for commissions will be and on what basis they will be leased. These matters will be administrative matters not suitable for the Act of Adjournal or any Practice Note. The draft Act of Adjournal provides that once a place, date and time has been fixed the commissioner shall give "reasonable notice of those matters to all the parties concerned". This means the prosecution and all co-accused. It is envisaged the party whose witness is to give evidence will cite the witness to attend the commission in the normal way.

9. Rule 22.12. What are the rules for carrying out the video taping? Who is to do it? Is it to be the whole proceedings or edited?

10. The videotape is to record the whole proceedings of the commission, much as a tape record is to be made of trial proceedings. It is presumed the tape will not require to run once the case has been closed by the Commissioner or before the commission has commenced. Although for practical purposes the tape may be started before the Commissioner opens the proceedings. Who operates the video may be dependent on the technical requirements in operating the machinery but is a technical and administrative matter not for the criminal procedure rules. There are cameras in use when TV link evidence is taken and the issue of who operates the camera is not detailed in the CPR. It is assumed any edited copy of the tape would have to be agreed by the parties as accurately reflecting the evidence ruled to be admissible. It is anticipated the judge would resolve any dispute.

11. In Rule 22.14 what form is the motion to take and when is it to be made?

12. It is not specified that the motion has to be in written form. There would be no bar to it being made verbally.

    It was assumed it would be made at a logical point in the proceedings. (Past case law on evidence obtained by letter of request ( HMA v Lesacher 1982 SCCR 418) stated that, as a preliminary matter, and after the jury had been given copies of the indictment and a joint minute of admissions had been lodged, the agent for the panel, who cited the witnesses whose evidence was taken by letter of request, sought leave of the court to lodge the evidence (in a written report). Thereafter, when the evidence for the panel was concluded made a motion for copies of the evidence to be given to the jury. The sheriff allowed the evidence to be read to the jury be the clerk of court first).

    The Act of Adjournal currently provides there can be no reference to the evidence without leave as this was a pre-existing rule for evidence on commission.

    Lord Philip and Lord Bracadale have questioned whether such a motion should be necessary if evidence by commission is to be seen as the norm in more cases, whereas previously it was a very rare procedure. The case of Lang Petr. (1991 SCCR 138) observed that the motion allowed parties to raise the issue of the fairness of the evidence being received at the trial, as it was a specific provision in the legislation that the evidence should only be received in evidence where that can be done without unfairness to either party. The new provisions in section 271I(4) of the 1995 Act (as amended) no longer require the issue of fairness to be considered before the evidence is received. Therefore, this rule might properly be amended to remove the necessity for such a motion to be made. This will be considered further with Lord Philip and Lord Bracadale.

    The evidence itself would be presented to the court and the jury at the logical time in the trial i.e. the time the witness would have given the evidence if present.

13. In Rule 22.15(4) is there any reason the court should not be able to refuse an application for leave to attend the commission without a hearing?

14. Lord Philip and Lord Bracadale were of the opinion that a judge would not wish to refuse such an application without having a hearing and giving parties the opportunity to be heard.

15. Who can be appointed as commissioner?

16. The existing requirements for commissioners in the primary legislation have been removed (section 271(2) of the 1995 Act). It is assumed this is deliberate but no guidance has been given on whether it has been determined who should be entitled to act as a commissioner. No provisions are made as to who can be a commissioner under section 272 of the 1995 Act, which shall remain after amendment by the Act of 2004. Comment on the types or categories of persons who might be deemed suitable might be made elsewhere than the Act of Adjournal.

17. How would evidence be taken?

18. The Criminal Procedure Rules cannot restate the law or clarify the law. There is some case law and other sources that set out some of the expectations of evidence taken on commission. It seems well established that questioning of witnesses is in the normal form and that interrogatories are not approved of in commissions in criminal cases where the witness is in the UK. This is different from letters of request and a clear distinction must be drawn between the two types of procedure (Lang Petr, 1991 SCCR 138 at page 140).

    Also, section 271(4) of the 1995 as amended provides the "recording…shall be received in evidence without being sworn to by witnesses". This seems to imply the videotape will simply replace evidence taken in the normal form where a witness is present during the course of trial.

Discussions with Lord Philip and Lord Bracadale

As mentioned above, but also:-

1. In rule 22.13 they suggested removing the provision that the name of the witness need not be included on the list of witnesses.
2. Where evidence in chief is to be by prior statement there should be a rule to provide the witness must be called, sworn, affirmed, admonished etc. before the evidence by prior statement is given. A new rule 22.19 to that effect is included in the draft Act of Adjournal.

2005 No.
HIGH COURT OF JUSTICIARY
SHERIFF COURT
Act of Adjournal (Criminal Procedure Rules Amendment No. ) (Vulnerable Witnesses (Scotland) Act 2004) 2005

The Lord Justice General, the Lord Justice Clerk and the Lords Commissioners of Justiciary, under and by virtue of the powers conferred on them by section 305 of the Criminal Procedure (Scotland) Act 1995( ^a), and of all other powers enabling them in that behalf, do hereby enact and declare:

Citation and commencement

1. - (1)This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules Amendment No. ) (Vulnerable Witnesses (Scotland) Act 2004) 2005 and shall come into force on *********2005.
   (2) This Act of Adjournal shall be inserted in the Books of Adjournal.

Amendment of the Act of Adjournal (Criminal Procedure Rules) 1996

1. -(1) The Act of Adjournal (Criminal Procedure Rules) 1996( ^b) shall be amended in accordance with the following sub-paragraphs.

2. (2) In rule 8.2(2) (notice to accused to appear) after "section 288C" there shall be inserted "or where it is known by the prosecutor that the offence is one to which section 288E".

   (3) In rule 21.4 (authentication of certain prior statements of witnesses) after "the first page of the statement" there shall be inserted "or attached to the device on which the statement has been recorded.".

   (4) After rule 21.5 (form of application to introduce evidence relating to sexual offences) there shall be inserted the following:-

   " Notice of presumption of identification

   21.6-(1) A notice served by the prosecutor under section 281A(2)(a) of the Act of 1995 (notice of presumption of identification prior to trial) shall be in Form 21.6-A.

   (2) A notice by the accused under section 281A(2)(b) of the Act of 1995 (notice of challenge of facts in report of identification) shall be in Form 21.6-B.".

   (5) For Chapter 22 (evidence of children) there shall be substituted the following:-

   "CHAPTER 22
   EVIDENCE OF VULNERABLE WITNESSES

   Child witness notice

   22.1. A notice by a party under section 271A(2) of the Act of 1995 (child witness notice) shall be in Form 22.1.

   Procedure on lodging child witness notice

   22.2. On receipt of a notice under rule 22.1 (child witness notice) with a certificate of execution of service the Clerk of Justiciary or the sheriff clerk, as the case may be, shall-

   1. endorse on the notice the time and date on which it was received; and
   2. place the notice before a judge in chambers.

   3. Intimation of an order under section 271A

      22.3.- (1) An order:-

      1. authorising the use of a special measure under section 271A(5)(a);
      2. authorising the taking of evidence with no special measures under section 271A(5)(b);
      3. appointing a child witness notice to be disposed of at-
      4. 1. the preliminary hearing; or
         2. the first diet; or
      5. fixing a diet under section 271A(5A)(c) or (7)(b)(ii) of the Act of 1995 (diet to further consider a child witness notice or need for special measures); or
      6. under section 271A(9) of the Act of 1995 (order in relation to special measures after hearing);

1. 1. grant leave as requested; or
   2. fix a diet for a hearing of the application; and
   3. make an order for service of the application with the date on all parties and to the governor of any institution in which the accused is detained.
   (5) Where an order under section 271I(3) (leave for accused to be present in the room) is granted it shall be intimated by the clerk of the court to all parties.

1. Evidence in chief in form of a prior statement

   22.16. Where a witness is to give evidence in chief in the form of a prior statement the witness must be called, and:-

   1. the oath or affirmation administered under rule 14.5 (form of oath or affirmation); or
   2. admonished to tell the truth;

1. In the appendix-
2. 1. for Form 8.2-C, there shall be substituted the form set out in Part 1 of the Schedule to this Act of Adjournal;
   2. for Form 21.4, there shall be substituted the form set out in Part 2 of the Schedule to this Act of Adjournal;
   3. after Form 21.5, there shall be inserted the forms set out in Part 3 of the Schedule to this Act of Adjournal;
   4. for Form 22.1, there shall substituted the forms set out in Part 4 of the Schedule to this Act of Adjournal;
   5. in Form 29.1-A, at the end of paragraph 3 there shall be inserted the following;-

   6. "[C.D.] is not a witness under section 291(6) of the Criminal Procedure (Scotland) Act 1995[ or as [C.D.] is a witness under section 291(6) of the Criminal Procedure (Scotland) Act 1995 warrant is sought to cite the witness to attend for precognition on oath by the solicitor for the accused only];

   7. in Form 29.1-B at the end of paragraph (3) there shall be inserted the following;-

Lord Justice General
I.P.D.

Edinburgh
2005

SCHEDULE
Part 1

Paragraph 2(6)
Rule 8.2(2)

FORM 8.2-C

Form of notice to accused to appear under section 66(6) of the Criminal Procedure (Scotland) Act 1995 where the charge in the indictment is of committing a sexual offence to which section 288C or an offence to which section 288E of the Criminal Procedure (Scotland) Act 1995 applies.

IMPORTANT NOTICE
(CITATION)

Court Reference………………………………….

TO: ( name) ( date of birth) ( address)

A criminal case is being brought against you

A document has been prepared which sets out the criminal charges against you.

That document (the "indictment") is attached to this notice.

YOU MUST APPEAR at ( place) High Court of Justiciary ( address) on ( date) at ( time) for a preliminary hearing [ or at ( place) Sheriff Court ( address) on (date) at (time) for a first diet and on (date) at (time) for a trial diet] at which you will be required to answer the criminal charges against you in the indictment.

Because you are being charged with at least one sexual offence or a serious offence where a witness is under the age of twelve years old-

IF YOU DO NOT ATTEND THE COURT, A WARRANT MAY BE ISSUED FOR YOUR ARREST

Part 2

Rule 21.4

FORM 21.4

Form of certificate of authentication relating to a prior statement for the purposes of section 260(4) of the Criminal Procedure (Scotland) Act 1995

Prosecution reference…………..

Court reference…………………

I, ( insert name and designation of person authenticating), HEREBY CERTIFY THAT this document [ or the attached document], comprising [this and] the following ( insert number) pages [or ( insert number) hours, ( insert number) minutes and ( insert number) seconds of recorded time] is a full and accurate record of evidence given by ( insert name and designation of person who gave the prior statement and brief details of the nature, place and date of the proceedings during which the statement was made).

( Signed)

( Date)

Part 3

Rule 21.6(1)

FORM 21.6-A

Form of notice of report of identification of accused prior to the trial under section 281A of the Criminal Procedure (Scotland) Act 1995

IN THE HIGH COURT OF JUSTICIARY
[ or IN THE SHERIFF COURT
AT ( place)]
NOTICE OF REPORT OF IDENTIFICATION PRIOR TO TRIAL
by
HER MAJESTY'S ADVOCATE [ or THE PROCURATOR FISCAL, ( place)]
in
HER MAJESTY'S ADVOCATE [ or THE PROCURATOR FISCAL, ( place)]
against
( Insert name(s) of accused)

Prosecution reference……………………

Court reference…………………………..

To: ( name and address of accused)

TAKE NOTICE:

1. That a report stating the facts of an identification of [ insert name of accused identified] in an identification parade or other identification procedure by a witness, and the name of that witness, has been lodged by the prosecutor as a production in advance of trial under section 281A of Criminal Procedure (Scotland) Act 1995. The prosecutor intends to rely on a presumption that the person named in the report as having been identified by the witness is the person of the same name who appears in answer to the indictment.
2. That if you do not challenge [any of ] the fact[s] in the report within seven days of the date of service of this notice it shall be presumed under section 281A of the above-mentioned Act that the person named in the report as being identified by the witness is the person who appears in answer to the indictment[ or complaint].

Served on ( date) by me by ( state method of service).

( Signed)
Prosecutor
( Name, address, e-mail address and telephone number)
( Place and date)

Rule 21.6(2)

FORM 21.6-B
Form of notice of challenge under section 281A(2) of the Criminal Procedure (Scotland) Act 1995

NOTICE OF CHALLENGE OF FACTS
under section 281A(2) of the Criminal Procedure (Scotland) Act 1995
by
[A.B.] ( address)
[ or Prisoner in the Prison of ( place)]
in
HER MAJESTY'S ADVOCATE [ or THE PROCURATOR FISCAL, ( place)]
against
( Insert name(s) of accused)

Prosecution reference…………….

Court referencence………………..

NOTICE IS HEREBY GIVEN that the following fact[s] stated in the report of identification prior to trial under section 281A(1) of the Criminal Procedure (Scotland) Act 1995 served on ( date) is [ or are] challenged by me:-

( here state or refer to the fact(s) challenged)

( Signed)
Accused
*[ or Legal representative for accused]

Part 4

Rule 22.1

FORM 22.1

Form of child witness notice under section 271A(2) of the Criminal Procedure (Scotland) Act 1995
UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, LORD JUSTICE CLERK AND LORDS COMMISSIONERS OF JUSTICIARY
[ or UNTO THE HONOURABLE THE SHERIFF OF ( name of sheriffdom) AT ( place)]
CHILD WITNESS NOTICE
by
HER MAJESTY'S ADVOCATE [ or THE PROCURATOR FISCAL, ( place)]
[ or [A.B.] ( address)
[ or Prisoner in the Prison of ( place)]

Prosecution reference…………….

Court reference…………………...

HUMBLY SHEWETH:

1. That [A.B.], ( date of birth) [, along with ( name(s) of co-accused)] has been indicted on ( date of indictment) at the instance of Her Majesty's Advocate with a preliminary hearing [ or a trial diet] in the High Court of Justiciary sitting at ( place) on ( date) [ or with a first diet on ( date) and a trial diet on ( date) in the sheriff court of ( place)] .
2. That [A.B.] is charged with ( specify charge)[which is an offence to which section 288C [ or section 288E] applies][ or and an order has been made under section 288F(2)].
3. That the applicant [has cited [or intends to cite][C.D.]( date of birth) as a witness ( address)][ or [A.B.] may give evidence].
4. That [C.D.] [ or [A.B.]] is a child witness under section 271(1)(a) of the Criminal Procedure (Scotland) Act 1995 [and was under the age of twelve on the date of commencement of proceedings].
5. The following special measure[s] is [are] considered the most appropriate for the purpose of taking the evidence of [C.D.][ or the applicant]:-

6. ( here specify any special measure(s) sought)

   [and that the special measure of ( here specify special measure) is not a standard special measure under section 271A(14)] .

   The reason[s] this [these] special measure[s] other than the standard special measures is [are] considered the most appropriate is[are] as follows:-

   ( here specify reason(s) for the special measure(s), other than the standards special measure(s) sought).

7. [ or Authorisation of the use of no special measure s is considered the most appropriate for the taking of evidence of [C.D.] [ or the applicant] for the following reasons:-

8. ( here specify the reasons for no special measures being sought).]

9. That [C.D.] [ or [A.B.]] [and the parent[s] of [ or person[s] with parental responsibility for] [C.D.] [ or [A.B.]] have expressed the following view[s] on the special measure[s] that is [are] considered most appropriate:-

10. ( here set out the view(s) expressed, how and when they were obtained).

11. [That other information considered relevant to this application is as follows:-

12. ( here set out any other information relevant to the child witness notice).]

13. That the applicant has intimated a copy of the Notice on [A.B.] [ or the legal representative of [A.B.]][ or on the Crown Agent or the Procurator Fiscal]conform to the execution[s] attached to this Notice.

MAY IT THEREFORE PLEASE YOUR LORDSHIP[S] TO:

( Address, e-mail address and telephone number of agent)

Rule 22.4

FORM 22.4

Form of application for review of arrangements for taking evidence under section 271D of the Criminal Procedure (Scotland) Act 1995
UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, LORD JUSTICE CLERK AND LORDS COMMISSIONERS OF JUSTICIARY
[ or UNTO THE HONOURABLE SHERIFF OF ( name of sheriffdom) AT ( place)]
MINUTE
by
HER MAJESTY'S ADVOCATE [ or THE PROCURATOR FISCAL, ( place)]
[ or [A.B.] ( address)]
[ or Prisoner in Prison of ( Place)]
in
HER MAJESTY'S ADVOCATE [ or THE PROCURATOR FISCAL, ( place)]
against
[A.B.] ( address)
[ or Prisoner in Prison of ( Place)]

Prosecution reference………………..

Court reference………………………

HUMBLY SHEWETH:

1. That [A.B.][, along with ( names of co-accused)] has been indicted at the instance of Her Majesty's Advocate.
2. That the Minuter has cited [ or intends to cite] [C.D.] as a witness who is to give evidence at, or for the purposes of, [ or [A.B.] may give evidence at] the trial. That [C.D.] [ or [A.B.]] is a vulnerable witness under section 271 (1) of the Criminal Procedure (Scotland) Act 1995.
3. That the current arrangements for taking the evidence of [C.D.][ or [A.B.]] are ( here specify current arrangements).
4. That the current arrangements should be reviewed as ( here specify reason(s) for review).
5. That an order should be made to ( here specify the order sought).
6. That a copy of this Minute has been duly intimated conform to the execution[s] attached to this Minute.

MAY IT THEREFORE PLEASE YOUR LORDSHIP[S]

Rule 22.7

FORM 22.7
Form of notice of prohibition of personal conduct of defence in certain cases involving child witnesses under the age of twelve under section 288E of the Criminal Procedure (Scotland) Act 1995

IMPORTANT NOTICE

HER MAJESTY'S ADVOCATE [ or THE PROCURATOR FISCAL, ( place)]
against
[A.B.] ( address)
[ or Prisoner in the Prison of ( place)]

Prosecution reference……………………….

Court reference………………………………

To: ( name)( date of birth)( address)

You have been charged with at least one serious offence in which a child witness under the age of twelve is to give evidence at or for the purposes of the trial, therefore-

1. if you are tried for the offence, your defence may be conducted only by a lawyer;
2. it is therefore in your interests, if you have not already done so, to get the professional assistance of a solicitor;
3. if you do not engage a solicitor for the purpose of your defence at the preliminary hearing [ or first diet] or the trial, the court will do so.

Rule 22.8(1)

FORM 22.8-A
Form of minute to prohibit the personal conduct of defence by the accused under section 288F of the Criminal Procedure (Scotland) Act 1995
UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, LORD JUSTICE CLERK AND LORDS COMMISSIONERS OF JUSTICIARY
[ or UNTO THE HOURABLE THE SHERIFF OF ( name of sheriffdom) AT ( place)]
MINUTE
by
HER MAJESTY'S ADVOCATE [ or THE PROCURATOR FISCAL, ( place)]
in
HER MAJESTY'S ADVOCATE [ or THE PROCURATOR FISCAL ( place)]
against
[A.B.] ( address)
[ or Prisoner in the Prison of ( place)]

Prosecution reference…………………

Court reference………………………..

HUMBLY SHEWETH:

1. That [A.B] [, along with ( name(s) of co-accused)] has been indicted at the instance of Her Majesty's Advocate in the High Court of Justiciary [ or in the sheriff court] at ( place) and a diet of ( specify) has been fixed for ( date).
2. That [C.D.] is a witness who is to give evidence at, or for the purposes of, [ or [A.B.] may give evidence at] the trial. That [C.D.] [ or [A.B.]] is a vulnerable witness under section 271(1) of the Criminal Procedure (Scotland) Act 1995 as ( here state the reasons the witness is a vulnerable witness).
3. That the Minuter applies for an order prohibiting [A.B.] from conducting his [ or her] defence in person at the trial and in any victim statement proof relating to any offence to which the trial relates for the following reasons:-

4. ( here state reasons).

5. That the offence in the indictment is not one to which sections 288C or 288E of the Criminal Procedure (Scotland) Act 1995 applies.
6. That a copy of this Minute has been duly intimated conform to the execution[s] attached to this Minute.

MAY IT THEREFORE PLEASE YOUR LORDSHIP[S]:

FORM 22.8-B
Form of notice to accused where an order granted prohibiting the personal conduct of defence by the accused under section 288F of the Criminal Procedure (Scotland) Act 1995

To: ( name and address of accused)

You have been charged with an offence where a witness, who is to give evidence at, or for the purposes of, the trial, is [ or you are] a vulnerable witness under section 271 (1) of the Criminal Procedure (Scotland) Act 1995.

On ( date) at the High Court of Justiciary [ or in the sheriff court] at ( place) an order was made under section 288F(2) of that Act prohibiting you from personally conducting your defence to this charge.

TAKE NOTICE THAT-

1. if you are tried for the offence, your defence may be conducted only by a lawyer;
2. it is therefore in your interests, if you have not already done so, to get the professional assistance of a solicitor;
3. if you do not engage a solicitor for the purposes of your defence at the preliminary hearing [ or first diet] or the trial, the court will do so.

Rule 22.15

FORM 22.15
Form of application for leave for accused to be present in room during a commission under section 271I(3) of the Criminal Procedure (Scotland) Act 1995
UNTO THE RIGHT HONOURABLE THE LORD JUSTICE GENERAL, LORD JUSTICE CLERK AND THE LORDS COMMISSIONERS OF JUSTICIARY
[ or UNTO THE HONOURABLE THE SHERIFF OF ( name of sheriffdom) AT ( place)]
APPLICATION FOR LEAVE TO BE PRESENT AT COMMISSION
under section 271I(3) of the Criminal Procedure (Scotland) Act 1995
by
[A.B.] ( address)
[ or Prisoner in the Prison of ( place)]

Prosecution reference…………………….

Court reference…………………………..

HUMBLY SHEWETH:

1. That [A.B.][,along with ( name(s) of co-accused)] has been indicted at the instance of Her Majesty's Advocate in the High Court of Justiciary [ or in the sheriff court] at ( place) and a diet of ( specify) has been fixed for ( date).
2. That on ( date) an order was made to allow the evidence of [C.D.] to be taken on commission as [C.D.] is a vulnerable witness under section 271(1) of the Criminal Procedure (Scotland) Act 1995.
3. That [A.B.] seeks leave of the court to be present in the room during the proceedings before the commissioner appointed.
4. That [A.B.] can show special cause for leave to be granted as follows;-

5. ( here state reasons that show special cause).

6. That a copy of this application has been duly intimated conform to the execution(s) attached to this application.

MAY IT THEREFORE PLEASE YOUR LORDSHIP[S]:

EXPLANATORY NOTE

(This note is not part of the Act of Adjournal)

The Lords Commissioners of Justiciary have made an Act of Adjournal amending the Criminal Procedure Rules 1996 (S.I. 1996/513) ("the 1996 Rules").