VWSL/07/05
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1. A further draft Commencement order was received from OSSE on 21 February. Comments were invited by 28 February.
2. An annotated version which includes comments from the Lord President's Private Office and the Victims and witnesses Unit is attached together with comments from COPFS are attached for information.
3. It should be noted that the draft has yet to take account of the decision to delay implementation of the special measure on taking evidence on commission until the end of October.
4. OSSE is invited to update the sub-group on the current state of play with the Order.
SEJD
Victims and Witnesses Unit
March 2005
ANNEX A
DRAFT SCOTTISH STATUTORY INSTRUMENTS
2005 No. (C. )
COURT PROCEDURE
The Vulnerable Witnesses (Scotland) Act 2004 (Commencement) Order 2005
Made - - - - 2005
The Scottish Ministers, in exercise of the powers conferred upon them by section 25 of the Vulnerable Witnesses (Scotland) Act 2004( 1), hereby make the following Order:
Citation
- This Order may be cited as the Vulnerable Witnesses (Scotland) Act 2004 (Commencement) Order 2005.
Appointed day
- - (1) 1st April 2005 is the day appointed for the coming into force of the provisions of the Vulnerable Witnesses (Scotland) Act 2004 set out in column 1 of the table of commencements in the schedule to this Order.
(2) The provisions referred to in subsection (1) shall come into force only for the purposes set out in column 2 of the table of commencements in the schedule to this Order.
Definitions
- In this instrument:
"the 2004 Act" means the Vulnerable Witnesses (Scotland) Act 2004;
"the 1995 Act" means the Criminal Procedure (Scotland) Act 1995( 2).
Savings and Transitions
- - (1) The provisions of the Vulnerable Witnesses (Scotland) Act 2004 brought into force by this Order shall, in respect of criminal proceedings in the High Court and the sheriff court, apply only to criminal proceedings commenced on or after 1st April 2005, with proceedings being taken to have commenced when a report of the case has been received by the procurator fiscal.
(2) Part 2 of the Vulnerable Witnesses (Scotland) Act 2004, commenced by this Order in respect of children's hearings court proceedings, shall apply only in respect of hearings of relevant appeals and applications which have been made on or after 1st April 2005.
A member of the Scottish Executive
St Andrew's House
2005
(1) 2004 asp 3.
(2) 1995c.40.
SCHEDULE
Table of Commencements of the Vulnerable Witnesses (Scotland) Act 2004
Provisions to be commenced | Purposes for which the provision is to be commenced |
Section 1 insofar as it inserts into the 1995 Act sections 271, 271A , 271B, 271D (other than (5) and other than the reference in (2)(a) to 271C), 271E (other than the reference in (1)(b) to 271C), 271F (other than (3) and (4)), 271G (other than in respect of section 271C), 271H (other than the reference in (1) and (3) to 271C) and 271I-271M | Only - (a) in respect of solemn proceedings in the High Court and sheriff court; and (b) in respect of child witnesses as referred to in section 271(1)(a) of the Criminal Procedure (Scotland) Act 1995 |
Section 2 except section 2(3) and (5) | Only - (a) in respect of solemn proceedings in the High Court and sheriff court; and (b) in respect of child witnesses as referred to in section 271(1)(a) of the Criminal Procedure (Scotland) Act 1995 |
Section 3 insofar as it inserts section 15A (other than the reference in section 15A(3)(b) to section 271C) | Only - (a) in respect of solemn proceedings in the High Court and sheriff court and (b) in respect of child witnesses as referred to in section 271(1)(a) of the 1995 Act |
Section 4 | For all purposes |
Section 5 | For all purposes |
Section 6 insofar as it inserts section 288E into the 1995 Act | Only in respect of solemn proceedings in the High Court and sheriff court |
Section 6 insofar as it inserts section 288F into the 1995 Act | Only - (a) in respect of solemn proceedings in the High Court and sheriff court; and (b) in respect of child witnesses as referred to in section 271(1)(a) of the 1995 Act |
Section 7(1) and (3) | Only - (a) in respect of solemn proceedings in the High Court and sheriff court; and (b) in respect of child witnesses as referred to in section 271(1)(a) of the 1995 Act |
Section 8 | Only in respect of solemn proceedings in the High Court and sheriff court |
Section 11 | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 12(1) to (4) | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 13 | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland)Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 14 | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 15 (with omission of the words "or a vulnerable witness application" in section 15(1)(a) and the omission of the words" vulnerable witness application in section 15(4)(a)) | Only in respect of child witnesses in hearings in respect of applications under sections 51(1), 68 and 85 of the Children (Scotland) Act 1995 |
Section 16 (with omission in the first line of "or other person") | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 17(1) | For all purposes |
Section 17(2) | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 18 | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 19 | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 20 | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 21 | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 22 | Only in respect of proceedings in the sheriff court under Part II of the Children (Scotland) Act 1995 in respect of appeals under section 51(1) and applications under sections 68 and 85 of that Act |
Section 23 | For all purposes |
Section 24 | For all purposes |
EXPLANATORY NOTE
(This note is not part of the Order)
ANNEX B
Bill
I have had a quick look at the draft Commencement Order.
On first glance it looks as if it enacts the particular provisions required for phase 1 of the implementation. However, I do have an inquiry in relation to the current section 271 of the 1995 Act.
The intention in phase 1 is to introduce the new section 271 so that it applies only to child witnesses in solemn proceedings.
Therefore, the current section 271 is still required for other vulnerable witnesses and children in summary proceedings.
Having looked at the Commencement Order I have been unable to find any saving provision with regards the current section 271. I may be missing something but, if not, should there not be such a saving provision?
Of course it may be that such a saving provision is provided for elsewhere or is not required due to the operation of other statutory provision (perhaps, in the Bonomy Act commencement order?) but I would appreciate some confirmation that there is no difficulty in effectively having two section 271 running in tandem for different types of proceedings.
For our purposes, apart from advising staff of the new arrangements for child witnesses in solemn proceedings we also have to be able to clearly advise them of what provisions will apply to summary proceedings and other vulnerable witnesses.
Grateful for any clarification that can be provided.
Justin E. Farrell
Procurator Fiscal Depute
Policy Group
Crown Office
0131 247 2699