VWSL/05/05
This document is also available in pdf format (56k)
1. Following the meeting of the sub-group on 3 February a further draft of an Act of Sederunt was produced and presented to the Sheriff Court Rules Council at their meeting on 11 February.
2. The Council pronounced themselves content subject to the amendments track-changed in the further version attached and to those outlined in Karen Stewart's note of 22 February (also attached).
3. Members are invited to note these developments and Civil Justice Division/ OSSE is invited to provide the sub-group with a further update on progress.
SEJD
Victims and Witnesses Unit
March 2005
ANNEX
From: Karen Stewart
Civil Justice Division
22 February 2005
To : Helena Janssen
John St Clair
Paul Cackette
Glynis McKeand
Marilyn Riddell
VULNERABLE WITNESSES (SCOTLAND) ACT 2004
Instructions for Sheriff Court Rules
1. Background
The Draft Act of Sederunt (dated 3 February 2005) was considered by the Sheriff Court Rules Council at their meeting on 11 February 2005.
Subject to the amendments proposed below and those highlighted in red in Annex 1, the Council considered the draft Act other wise to be in order.
2. Instructions to draftsperson
I draw your attention to the under noted amendments proposed by the Council in addition to those highlighted in red in the draft Act. The commencement date as currently advised is due for the 1 st April.
The following matters were agreed:
- The Council do not consider that forms of intimation of a diet of hearing are required. The terms of draft Rule 3.75 should be echoed in 3.67, 3.69 and 3.72 to cover intimation.
- The Council consider that draft Rule 3.67(2) to (4) should be removed.
- The Council do not consider that forms of interlocutor should be attached to each of Forms XX1 and XX3.
- The Council agree that draft Rule 3.74 should be removed in its entirety as unnecessary.
- The council agree that under the new Section 68B, an application must be made in the process in a similar manner to that currently undertaken in criminal procedure. There should be no time limit for making such an application. Rules should be drafted similar to draft rules 3.70 to 3.72. and such an application may be considered without a hearing.
The Council agreed that the amended draft Act may be taken forward with the Chairman. Accordingly, I would be obliged of you would give consideration to the proposed amendments as soon as possible in order that the Secretariat may take this forward timeously.
Karen Stewart
Assistant Secretary to the Sheriff Court Rules Council
Civil Justice Division
22 February 2005
Annex 1
cottish Statutory Instruments
2005 No.
SHERIFF COURT
Act of Sederunt (Child Care and Maintenance Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2005
Made - - - | 2005 |
Coming into force - | 2005 |
The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971( 1), section 14(2) of the Vulnerable Witnesses (Scotland) Act 2004( 2), and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:
Citation and commencement
- -(1) This Act of Sederunt may be cited as the Act of Sederunt (Child Care and Maintenance Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2005, and shall come into force on [1st April] 2005.
(2) This Act of Sederunt shall be inserted in the Books of Sederunt.
(3) [ Ensure that coming into force ties in with commencement of relevant provisions of the VW Act.] Amendment of Child Care and Maintenance Rules
- -(1) The Act of Sederunt (Child Care and Maintenance Rules) 1997( 3) Chapter 3 (Children (Scotland) Act 1995) is amended in accordance with the following paragraphs.
(2) In Rule 3.22(1) (applications for evidence of children by television link) after the words "under Part II of the Act" insert "other than proceedings in the sheriff court [arising from]/[related to]in an appeal under section 51(1) or an application under section 65(7) or (9) or 85(1) of the Act".
(3) After Part X (Application for review of establishment of grounds of review referral - new evidence) insert-
"PART XI
VULNERABLE WITNESSES (SCOTLAND) ACT 2004
Interpretation
3.65. In this Part-
"Act of 2004" means the Vulnerable Witnesses (Scotland) Act 2004( 4);
"child witness notice" has the meaning given in section 12(2) of the 2004 Act;
"review application" means an application for review of arrangements for vulnerable witnesses pursuant to section 13 of the Act of 2004.
Extent of application of this Part
3.66. This Part of Chapter 3 shall apply to proceedings arising fromin an appeal under section 51(1) or applications under section 65(7) or (9) or 85(1) of the Act.
Child Witness Notice
3.67.-(1) A child witness notice lodged in accordance with section 12(2) of the Act of 2004 shall be in Form XX1.
(2) Where a child witness notice is lodged by an applicant under section 65(7) or (9) or 85(1), or an appellant under section 51(1), of the Act it shall be lodged with the application under section 65(7) or (9) or 85(1) or appeal under section 51(1) of the Act to which it relates.
(3) Paragraph (4) applies where-
(a) a child witness notice is lodged by any party other than an applicant or appellant specified in paragraph (2); or
(b) the sheriff on cause shown allows such an applicant or appellant to lodge a child witness notice at a later date.
(4) A copy of-
(a) the appeal under section 51(1) or the application under section 65(7) or (9) or 85(1) of the Act to which the child witness notice relates; and
(b) in relation to an application under section 65(7) or (9), the grounds of referral which form the subject of that application,
shall be attached to the child witness notice.
3.68.-(1) The party lodging a child witness notice shall intimate a copy of the child witness notice to all other parties to the proceedings [and to any safeguarder who has been appointed by a court] and complete a certificate of intimation.
(2) A certificate of intimation referred to in this rule shall be in Form XX2 and shall be lodged together with the child witness notice.
(3) On receipt of a child witness notice the sheriff clerk shall endorse on the notice the time and date on which it was received.
3.69.-(1) On receipt of a child witness notice, a sheriff may-
(a) make an order under section 12(1) of the Act of 2004 without holding a hearing;
(b) require of any of the parties further information before making such an order;
(c) fix a date for a hearing [and grant warrant to cite witnesses and havers].
(2) [The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate].
(3) Where a hearing is fixed for the child witness notice, the applicant shall intimate the date and time of the hearing to all other parties to the proceedings and any person or persons the sheriff deems appropriate.Import similar terms to draft rule 3.75
Review of arrangements for vulnerable witnesses
3.70.-(1) A review application under section 13 of the Act of 2004 shall be by minute in the appeal under section 51(1) or the application under section 65(7) or (9) or 85(1) of the Act to which it relates and shall be in Form XX3.
(2) A review application shall be lodged prior to the date fixed for the hearing under section 51(1), 65(7) or (9) or 85(1), as appropriate, and a copy of-
(a) the appeal under section 51(1) or the application under section 65(7) or (9) or 85(1) of the Act, as appropriate, and
(b) in relation to an application under section 65(7) or (9) of the Act, the grounds of referral which form the subject of that application,
shall be attached to the review application.
(3)(2) Where the review application is made during the sheriff's hearing of the case, the sheriff may dispense with all or some of the requirements of paragraph (1)(2).
3.71.-(1) The applicant for a review under section 13 of the Act of 2004 shall intimate a copy of the review application to all other parties to the proceedings and complete a certificate of intimation.
(2) A certificate of intimation referred to in this rule shall be in Form XX4 and shall be lodged together with the review application in the appeal under section 51(1) or the application under section 65(7) or (9) or 85(1) of the Act to which the review application relates.
(3) On receipt of a review application the sheriff clerk shall endorse on the application the time and date on which it was received.
3.72.-(1) On receipt of a review application, a sheriff may-
(a) make an order under section 13(2) of the Act of 2004 without holding a hearing;
(b) require of any of the parties further information before making such an order;
(c) fix a date for a hearing of the review application [and grant warrant to cite witnesses and havers].
(2) [The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate].
(3) Where a hearing is fixed for the review application, the applicant shall intimate the date and time of the hearing to all parties to the proceedings and any person or persons as the sheriff deems appropriate.Import similar terms to draft rule 3.75
Determination of special measures
3.73. When making an order under section 12(1) or 13(2) of the Act of 2004 a sheriff may make such further orders as the sheriff deems appropriate in all the circumstances.
Use of evidence on commission
3.74. [Notwithstanding the generality of rule 3.73, a sheriff when making an order under section 12(1) or 13(2) of the Act of 2004 authorising the special measure of use of evidence on commission, may, in particular, make such further directions as the sheriff deems appropriate in relation to the methods by which parties may-
(a) watch and hear proceedings; and
(b) communicate with legal representatives during the taking of evidence on commission.]
Intimation of an order under section 12(1) or 13(2)
3.75. An order under section 12(1) or 13(2) of the Act of 2004 shall be intimated by the sheriff clerk-
(a) on the day the order is made; and
(b) in such manner as may be prescribed by the sheriff,
to all parties to the proceedings and such other persons as are named in the order where such persons or parties are not present at the time the order is made.
Custody of video record and documents
3.76.-(1) Where evidence is taken on commission pursuant to an order made under section 12(1) or 13(2) of the Act of 2004 the commissioner shall lodge the video record of the commission and relevant documents with the sheriff clerk.
(2) On the video record and any documents being lodged the sheriff clerk shall-
(a) note-
(i) the documents lodged;
(ii) by whom they were lodged; and
(iii) the date on which they were lodged, and
(b) intimate what he has noted to all parties concerned.
Custody of video record and documents
3.77.-(1) The video record and documents referred to in rule 3.76(1) shall, subject to paragraph (2), be kept in the custody of the sheriff clerk.
(2) Where the video record of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under rule 3.76(2), the name and address of that witness and the record of his evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary-
(a) to include the name of that witness in any list of witnesses; or
(b) to include the record of his evidence in any list of productions.".
(1) 1971 c.58. Section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), Schedule 2, paragraph 12, the Civil Evidence (Scotland) Act 1988 (c.32), section 2(4), the Children (Scotland) Act 1995 (c.36), Schedule 4, paragraph 18(2), the Adults with Incapacity (Scotland) Act 2000 (asp 4), Schedule 5, paragraph 13 and the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), section 43 and was extended by the Child Support Act 1991 (c.48), sections 39(2) and 49 [and the Vulnerable Witnesses (Scotland) Act 2004 (asp 3), section 14(2). [NOTE: CONFIRM DETAILS.]
(2) 2004 asp 3.
(3) S.I. 1997/291 (S.19). [NOTE: HISTORY REQUIRED.]
(4) 2004 asp 3.
Lord President
I.P.D.
Edinburgh
2005
Schedule
Rule 3.67 FORM XX1
VULNERABLE WITNESSES (SCOTLAND) ACT 2004 Section 12
Received the ……….. day of ………….. 200…. at ………… [am/pm] (Date and time of receipt of this notice) ……..…………………………. [signed] Sheriff Clerk |
[FORM OF] CHILD WITNESS NOTICE
Sheriff Court ................................ 20.... (Court Ref. No.)
1. [A.B.] (the [applicant]) is a party to [an appeal under section 51] or [an application under section [65(7)] or [65(9)] or [85(1)]] of the Children (Scotland) Act 1995. [( Specify nature of interest of the party.)]
2. The applicant [has cited [or intends to cite] [C.D.]( date of birth) as a witness.
3. [C.D.] is a child witness under section 11 of the Vulnerable Witnesses (Scotland) Act 2004 [and was under the age of sixteen on the date of commencement of proceedings].
4. The [applicant] considers that the following special measure[s] is [are] the most appropriate for the purpose of taking the evidence of [C.D.] or that CD should give evidence without the benefit of any special measure.
( here specify special measure(s)if any sought).
5. [(a) The reason[s] this [these] special measure[s] is [are] considered the most appropriate is [are] as follows:-
( here specify reason(s) for the special measure(s) sought).] OR
[(b) The reason[s] that no special measures are being considered is [are]-
( here explain why it is felt that no special measures are required).
The [applicant] is satisfied that this reflects [C.D.]'s wish-
( here provide information to satisfy court that it is [C.D.]'s wish).
6. [C.D.] [and the parent[s] of [ or person[s] with parental responsibility for] [C.D.]] have expressed the following view[s] on the special measure[s] that is [are] considered most appropriate:-
(here set out the view(s) expressed and how they were obtained).
7. Other information considered relevant to this application is as follows:-
( here set out any other information relevant to the child witness notice).
8. The [applicant] has intimated a copy of the Notice on [E.F. and G.H.] [ or the legal representative(s) of [E.F. and G.H.]] conform to the [certificate of intimation] attached to this Notice.
9. The [applicant] asks the court to-
(a) consider the Child Witness Notice;
(b) make an order authorising the [standard] special measure[s] sought; and [ or
(c) make an order authorising the further special measures sought; [ or
(d) make an order authorising the giving of evidence without the benefit of special measures];
(e) order the [sheriff clerk]/[applicant] to intimate the order to ( specify).
(Signed)
[A.B.]
[ or Legal representative of A.B.] ( include full designation)
Rule 3.673.68
FORM XX2
VULNERABLE WITNESSES (SCOTLAND) ACT 2004 Section [ ]
CERTIFICATE OF INTIMATION
[Sheriff Court ] [................................20....] [Court Ref. No.]
I certify that intimation of the child witness notice relating to [ A.B.name of child] was made to ( insert names of parties or solicitors for parties, as appropriate) by ( insert method of intimation; where intimation is by facsimile transmission, insert fax number to which intimation sent) on ( insert date of intimation).
Date: ……………......................................
Signed
Solicitor [or Sheriff Officer]
( include full business designation)
Rule 3.70
FORM XX3
VULNERABLE WITNESSES (SCOTLAND) ACT 2004 Section 13
Received the ……….. day of ………….. 200…. at ………… [am/pm] (Date and time of receipt of this notice) ……..…………………………. [signed] Sheriff Clerk |
[FORM OF] APPLICATION FOR REVIEW OF ARRANGEMENTS FOR VULNERABLE WITNESSES
Sheriff Court ................................20.... (Court Ref. No.)
1. [A.B.], the applicant, is a party to [an appeal under section 51] or [an application under section [65(7)] or [65(9)] or [85(1)]] of the Children (Scotland) Act 1995. [( Specify nature of interest of the party.)]
2. A hearing is fixed for [ (date)] at [ (time)].
3. [C.D.] is a witness who is to give evidence at, or for the purposes of, the hearing. [C.D.] is a vulnerable witness under section 11 of the Vulnerable Witnesses (Scotland) Act 2004.
4. The current arrangements for taking the evidence of [C.D.] are ( here specify current arrangements).
5. The current arrangements should be reviewed as ( here specify reasons for review).
6. [C.D.] [and the parent[s] of [ or person[s] with parental responsibility for] [C.D.]] have expressed the following view[s] on the special measure[s] that is [are] considered most appropriate:-
( here set out the view(s) expressed and how they were obtained).
7. The applicant seeks ( here specify the order sought).
8. A copy of this Minute has been intimated conform to the [certificate of intimation] attached to this Minute.
9. The applicant asks the court-
(a) to make an order authorising ( specify); and
(b) [to order the [sheriff clerk]/[applicant] to intimate the order to ( specify)].
IN RESPECT WHEREOF
( Signed)
[A.B.]
[ or Legal representative of A.B.] ( include full designation)
Rule 3.70(2)3.71 (2)
FORM XX4
VULNERABLE WITNESSES (SCOTLAND) ACT 2004 Section [13]
[Sheriff Court ] [................................20....] [Court Ref. No.]
CERTIFICATE OF INTIMATION
I certify that intimation of the review application relating to [ A.B.name of child] was made to ( insert names of parties or solicitors for parties, as appropriate) by ( insert method of intimation; where intimation is by facsimile transmission, insert fax number to which intimation sent) on ( insert date of intimation).
Date …………………………………………
Signed
Solicitor [or Sheriff Officer]
(include full business designation)