Preparation for, and the course of, a trial or proof Flashcards

Question

What happens if the prescribed oath is not appropriate to the oath-taker?

Answer 1

Witnesses may, however, give the oath in another appropriate manner if this form is not appropriate to their religious belief. But If a witness has declared a form of oath to be binding upon him, no objection can be taken on the ground that it later appears to be in conflict with his religious beliefs (see Oaths Act 1978, s 4(1)

Answer 2

The main witness for the Crown was a man who was muslim. He took the oath using the new testament. The accused was convicted and on appeal the accused argued that no account should have been taken of that witness's evidence because his own religious beliefs meant that his oath was not binding on him. The court held that because no objection was made at the time to taking the oath, the oath was binding on the witness.

Answer 3

⁃ Meehan was a man convicted of murder which he probably didn't commit. There was a long campaign after his conviction to have him freed which was eventually successful. At one stage it was argued on behalf of Meehan that he would willingly take a truth drug and he wanted the evidence that he made under the influence of this drug to be admissible in court. The court held that this was simply incompetent because that evidence was not evidence given on oath. ⁃ [Not too important?]

Answer 4

In civil proofs in the ordinary cause level of the sheriff court and in the Outer House evidence taken is recorded either by shorthand notes or by electronic means. The same is true in solemn criminal proceedings. There is no procedure for taking a record of evidence in summary criminal cases or in summary cause small claims civil cases. Evidence (Scotland) Act 1866; Rules of the Court of Session 1994, r 36.11; Ordinary Cause Rules 1993, rule 29.18; CPSA 1995, ss 93, 157.

Answer 5

There is a general prohibition on a person giving evidence in a trial or a proof if prior to giving evidence he or she has heard other earlier evidence in that case.

Answer 6

The common law position: ⁃ "At common law a witness who had been in court and heard the evidence of other witnesses was thereby rendered incompetent to testify. The only exception was that skilled (expert) witnesses might be allowed to hear evidence of fact, but were required to withdraw during the evidence of other skilled witnesses." (Walker and Walker (2nd edn), para 13.22.1).

Answer 7

The common law position has now been amended by statute. The court has a discretion to: ⁃ "admit the witness, where it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent, and that the witness has not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his examination." ⁃ [CPSA 1995, s 267/Evidence (Scotland) Act 1840, s3; terms almost identical as 1840 Act formerly applied to both civil and criminal cases]

Answer 8

Yes - Affleck v HM Advocate 2005

Answer 9

⁃ Trial for murder. One of the witnesses for the Crown was the mother of a deceased person. She was cited to give formal identification evidence. However both the Crown and the defence both agreed that she did not need to give this evidence. She was allowed to sit through the rest of the trial. During the trial she spoke to the Advocate-Depute for the Crown and told him that she had had a conversation with the accused sometime after the event. She also said that during investigations she had told the police that she had had this conversation but the police had not informed the Crown. ⁃ The court held that from the perspective of the crown it couldn't be said that the presence of this woman in court was a result of culpable negligence because they were unaware of the potential evidence that she could give - so the woman was allowed to give evidence.

Answer 10

The judge can raise the issue (of whether such a witness is competent) even if no party objects: ⁃ Macdonald v Mackenzie 1947 ⁃ Defence in a criminal case called as a witness someone who had been in court for an earlier part of the trial. The Crown itself made no objection to this person giving evidence. But the sheriff hearing the case himself raised the question as to whether the witness is competent because there is no automatic rule under the statute that a person who has already been in court can always give evidence.

Answer 11

Gerrard v R W Sives Ltd 2003 ⁃ Civil action against a company. Company was represented by its managing director. But before the case began the pursuer pointed out that the company director would be giving evidence and therefore should not be present prior to him giving evidence himself. ⁃ It was held that this was a perfectly legitimate objection to make - the pursuer was giving notice to the other side that the pursuer would be calling the managing director as a witness and therefore he should be unaware of the prior evidence.

Answer 12

The rule seems to be that in these circumstances no objection can be made to the witness giving further evidence on being recalled simply because he/she remained in the court after giving their own original evidence. ⁃ Civil Evidence (Scotland) Act 1988 s 4; CPSA 1995, ss 268-269.[ Not very well taught?]

Answer 13

The general order of examination is as follows: ⁃ Examination in chief ⁃ Cross-examination ⁃ Re-examination (should be confined to matters raised in cross) Each witness is examined by the above three stage process: ⁃ So the party who has called a witness questions that witness first (examination in chief). ⁃ Then the other side examine the witness by a process called cross examination. ⁃ The remaining stage is where the party who called the witness questions the witness about the points made in the cross examination (re-examination)

Answer 14

The position may be complicated where there are more than two parties (usually in criminal cases where there are co-accused). see e.g. Sandlan v HM Advocate 1983 SCCR 71. ⁃ Example: crown indicted two accused for trial (A and B). If A has witnesses, A questions first, then B and then the Crown. It seems to be the order in which co-accused cross-examine other witnesses is the order that they appear on the indictment. [Strange rule because there is no hard practice as to which order co-accused appear on the indictment.]

Answer 15

There is a method whereby you must ask questions of your own witness - you cannot ask "leading questions."

Answer 16

⁃ "Leading questions" (those which contain or suggest the answer[ Usually to e.g. yes or no. Example. If the witness is thought to be an eyewitness to an assault, then the Crown must not ask "Did A hit B?". Instead, what they would have to say is "What did you see?"]) are generally prohibited. If they are nevertheless asked, the answers obtained are generally worthless: see ⁃ McKenzie v McKenzie 1943

Answer 17

A witness had been examined by counsel reading from a precognition asking the witness if this was true or not. The court held that this method of examination (using leading questions) makes the examination worthless.

Answer 18

In English law there is an expression "hostile witness" although this term is not used in Scotland in a technical sense (but it is still often used). A hostile witness is one who's evidence does not quite measure up to what the party thought or their evidence points in different directions. At a certain stage when asking questions in chief, in these circumstances counsel can treat the witness as hostile and start asking leading questions

Answer 19

It was pointed out that unlike in English law counsel do not require the leave of the court before they can treat their own witness as hostile.

Answer 20

It was pointed out that very often in criminal cases the Crown has to lead witnesses to establish some important point although the witness may also give evidence which is against the Crown's case. ⁃ In these circumstances once the Crown has asked the questions it want's to ask, and depending on what the witness has said, it can treat the witness as hostile and ask leading questions.

Answer 21

Where a witness gives internally contradictory evidence, it is up to the jury to decide which part of the witness's evidence they prefer

Answer 22

⁃ This case concerned a charge of sexual assault on a young girl. Evidence was led from the girl herself. The Crown led another witness to corroborate the girls evidence. That other witness gave contradictory evidence. ⁃ There was an argument that the evidence of the other witness could not corroborate the complainer's evidence. ⁃ The court disagreed and held that it was a question for the jury to decide which bits, if any, of the other witness's evidence they would believe. And if they decided that they would believe the parts consistent with the complainer's evidence then corroboration had been established.

Answer 23

⁃ The general rule is that a witness should speak from memory, but can refresh his or her memory by looking at notes which he made at the time or shortly thereafter. ⁃ If this happens then the notes are not written evidence - they are treated as if they are part of the oral evidence. ⁃ But it follows that the other side are entitled to see the notes

Answer 24

⁃ Crown witness referred to notes taken earlier for the purpose of refreshing his memory. Counsel for the accused asked if he could see the notes. The judge refused to allow this. The man was convicted. ⁃ On appeal it was held that the trial judge had been wrong because the rule was that where the witness uses notes when giving evidence to refresh memory then the other side are entitled to see the notes in question.

Answer 25

⁃ Pointed out that the same also applies to medical reports. Medical reports are often lodged as written evidence but in this case the court was talking about the situation where there had been a post mortem report which had not been lodged as written evidence but which a medical witnesses was using while giving oral evidence to refresh his memory. The court held that in these circumstances the normal rule applies[ That these notes can be used.] but the other side are entitled to see the notes in question.

Answer 26

But if these notes are not referred to by the witness, the other party has no right to see them

Answer 27

⁃ Evidence was given by police officers for the Crown. They said that after the incident in question they had made notes for the purposes of passing to their superior officers. These notes were not used while giving evidence to refresh memory. However, counsel for the accused requested to see these notes. The court refused this for two reasons: ⁃ 1) The notes were probably privileged; and more importantly for our purposes ⁃ 2) Since the notes were not referred to or used as a basis for the oral evidence, then the other side had no right to see them.

Answer 28

⁃ A police witness was giving evidence. He was cross examined by counsel for the accused. During cross examination he was asked if he had taken notes at the time of the incident. The witness said that he had and it seems that prior to giving evidence in court he had consulted his notes. Crucially he had not used the notes whilst giving evidence. ⁃ It was held that the other side could not see these notes because the witness had not used them whilst giving oral evidence in court itself.

Answer 29

⁃ Police officer giving evidence. He referred to his notebook to assist his memory. The other side (accused) were therefore entitled to see these notes. However the counsel for the accused wanted to see an earlier part of the notes (i.e. notes taken by the police officer concerning earlier events). ⁃ It was held that the police officer was not entitled to see those parts of the notes but only the part of the notebook about which the officer had given evidence.

Answer 30

Here are two quotes which give alternative views of the value of cross examination: ⁃ "The greatest legal engine ever invented for the discovery of truth", or "...the best means of working upon witnesses and leading them astray"? (J Spencer and R Flin, The Evidence of Children, 2nd edn (1993) 222 and 270, quoting Wigmore and Schneikert respectively.)

Answer 31

The purpose of cross examination is to test a witness's veracity and accuracy, to obtain evidence on points about which the witness has not been questioned, and generally to elicit admissions or information favourable to the cross-examiner's case. But it is open to serious objections, particularly in the case of young or vulnerable witnesses[ This is why there are special rules about when such questions can be asked in these cases.]. See Spencer and Flin, 70-276.

Answer 32

Leading questions are permissible, but hypothetical questions, and "double" or trick questions will be discouraged: e.g. "Have you stopped beating your wife?"[ The reason this question is not allowed is that people who haven't ever beaten their wife can't answer the question yes or no.] "…the most obvious principles of fairplay dictate that, if it is intended later to contradict a witness upon a specific and important issue to which that witness has deponed, or to prove some critical fact to which that witness ought to have a chance of tendering an explanation or denial, the point ought normally to be put to the witness in cross-examination." (*McKenzie v McKenzie 1943 SC 108 at 109 per the Lord Justice-Clerk (Cooper)).

Answer 33

(1) Failure to cross examine[ This is where the other side do not cross-examine]: civil cases (1) a failure to cross-examine the pursuer's witness can be objectionable as failing to lay a foundation for the defence case[ I.e. it is not giving notice as to the line of defence that] – i.e. pursuer has been prejudiced because no opportunity to "meet" defence case. Here, the court can simply prevent the defence from leading the relevant evidence themselves, but the courts tend not to act that harshly: see ⁃ *Bryce v British Railways Board 1996 (2) failure to cross-examine defender's witness. Here, there is no question of prejudice, but the failure can be taken as implied acceptance of the evidence: see ⁃ Keenan v Scottish Wholesale Co-operative Society 1914 Modern cases have not, however, gone so far[ These modern cases tend to simply treat failure to cross examine as an aspect of weight rather than a full admission of the other side's case.]: see e.g. ⁃ Harrington v Milk Marketing Board 1985 [Incidentally, this analysis assumes that the pursuer is leading at the proof, which is not inevitable: the defender can be ordained to lead in appropriate cases. If so, these rules are reversed.]

Answer 34

⁃ Medical witness for the defender's. This line of evidence had not been put in cross-examination to the pursuer's witness. And the evidence from the medical witness did not involve cross-examination by the pursuer either. ⁃ The court held that the effect of all this was simply a question of the weight to be given to the evidence in question.

Answer 35

⁃ This was an action for personal injury said to have been caused by the way in which a man had driven a car. It was averred that the driver at the time of the accident had been talking to a man in the passenger seat. The pursuer produced 3 witnesses all of whom testified that this is what happened. However the defender produced witnesses saying that the driver had been aware in the car. ⁃ The pursuer did not cross-examine the defender's witnesses. It was held that by failing to cross-examine on this key point, the pursuer had admitted the defender's version of events.

Answer 36

⁃ This case concerned alleged negligence by a driver of a lorry. It was alleged that the engine of the lorry was failing and the driver simply parked the lorry on the main road. This led to an accident. It was averred that the driver could and should have parked the lorry at a nearby petrol station. ⁃ The point about whether the driver could have parked at the petrol station was not put in cross examination to the driver when he gave evidence. However the court accepted that failure to cross examine on this point went only to weight and not to an admission because there was strong other evidence by the pursuer that suggested that the driver could have parked the lorry somewhere else.

Answer 37

⁃ There had been an action of damages for fatal injuries. It was alleged that a man had been injured in a lorry in which he was travelling and driven by a particular man. But that man gave evidence for the defender. Pursuer's counsel asked various questions intended to discredit his evidence because the man said it was the deceased who had been driving the lorry. But pursuer's counsel did not cross examine on that particular issue. ⁃ Again it was held on the facts of the case that all the other evidence clearly suggested that the point here was who had been driving the lorry, and it was quite clear that the witness for the defender would say that he didn't drive it - it was the now deceased man. SO the court held that the failure to cross examine was not fatal - it only affected the weight to be given to the evidence for the pursuer.

Answer 38

A failure by the defence to cross-examine a Crown witness does not supply corroboration to the Crown: Wilson v Brown 1947. Failure to cross-examine can be the subject of comment but does not amount to acceptance of evidence - it only goes to the weight of the witness's evidence

Answer 39

Failure by the Crown to cross examine witnesses did not mean the Crown accepted their evidence.

Answer 40

Failure by defence | ⁃ 2 Crown witnesses about same point. Defence chose to cross examine only the second one - allowed.

Answer 41

1. The party who called the witness can re-examine on points which come out of the cross examination. 2. Where a witness makes damaging admissions, the court may have regard to a failure to re-examine on that point (but it doesn't amount to acceptance of the damaging admissions): Gibson v BICC 1973

Answer 42

After re-examination it is normally the end of examination of a witness but it is possible for a party to recall a witness. ⁃ There is a statutory power to do this in both criminal and civil cases. In criminal cases, see CPSA 1995 s 263(5) (only up to the close of that party's case). In civil cases, see the Evidence (Scotland) Act 1852 s 4 and the Civil Evidence (Scotland) Act 1988 s 4(1)(a).

Answer 43

There is no automatic right of recall: an "interests of justice" test applies

Answer 44

Witness refusing to answer questions as to identification. Detained until end of trial. Next day Crown asked for her to be recalled because she was now willing to answer. Court was correct in exercising its discretion to allow her to be recalled.

Answer 45

Murder trial. Crown witness brother of accused was rather hesitant about replying and gave some denials about prior statements. Arrested and charged with perjury. Next sitting the court exercised discretion and recalled because he had now accepted he wasn't telling the truth

Answer 46

In addition to recalling a witness there are procedures for allowing further evidence to be led. (This is because the Crown leads all their witnesses then the Defence leads all their witnesses. Thus all the Crown's witnesses are led quite early on. So procedures are available whereby after listening to all the other sides case the party first in has an opportunity to lead further evidence ⁃ In both civil and criminal law there is a procedure allowing the prosecutor or pursuer to lead such evidence called proof in replication.

Answer 47

⁃ This is something which the prosecutor or pursuer may be allowed to do to avoid prejudice. ⁃ Allows them to lead evidence to contradict evidence by the defence which couldn't have reasonable been anticipated. ⁃ NB it is incompetent to use this procedure to contradict evidence introduced by a prosecution witness.

Answer 48

⁃ This arises in Criminal cases only: CPSA 1995 s 268; available to either the prosecutor or the accused. ⁃ An application to lead such additional evidence must be made prior to the stage of the parties making speeches to the jury. The judge can grant permission provided the additional evidence is material and not dealing with some collateral matter and secondly the additional evidence was not available at the time of the start of the trial or its relevant could not reasonably have been foreseen. ⁃ The defence can lead additional evidence to contradict evidence led by the prosecutor in replication.

Answer 49

The judge may put questions to "clear up ambiguities that are not being cleared up by either the examiner or the cross-examiner [and] such questions as he might regard relevant and important for the proper determination of the case", but should not take over the role of examiner or cross-examiner" (*Tallis v HM Advocate 1982 SCCR 91 at 98 per the Lord Justice-General (Emslie)).

Answer 50

Two accused charged with theft. They claimed someone else had committed the theft by preparing a bogus order for goods. One of the accused pled guilty and the other accused in evidence now said the accused who pled guilty had prepared the bogus order and admitted this was not what he had told the police but that he had only become aware of this point sometime after his interview with the police. His evidence was unclear as to exactly what he now believed he had told the police. The judge questioned this witness to seek clarification of his exact position. In directing the jury the sheriff referred to this line of questioning by himself and specifically said to the jury that they might consider the accused was someone who was likely to shift his ground. It was held that although the sheriff could ask questions in this case the sheriff had gone beyond this proper role and the conviction was quashed.

Answer 51

Leading questions may be permissible: ⁃ Elliot v Tudhope 1987[ After Crown witness examined in chief, cross examined and re-examined Sheriff asked witness 28 questions to fully understand his evidence. On appeal after conviction the court held this was more than normal but on the facts of this case the questions were all designed to seek clarification and did not give rise to new issues.]

Answer 52

Cross-examination[ I.e. by the parties.] should be allowed if the judge's questioning elicits new evidence: *McLeod v HM Advocate ⁃ Sexual assault of child. Evidence given by child. Second witness gave no evidence which was directly incriminating. Trial judge asked 2nd witness questions and the witness made a directly incriminating answer. Judge didn't allow witness to be further cross examined. On appeal held given judge's questions gave rise to new evidence the Crown and defence should have been allowed to ask further questions.

Answer 53

McCallum v Paterson 1969 ⁃ Questioning by judge strayed into asking questions, the answer to which would have been incompetent evidence. It was pointed out later on that the parties should object immediately to the line of questioning by the judge.

Answer 54

The judge has power at common law to recall a witness ex proprio motu, but only to clear up ambiguities

Answer 55

Crown led evidence from police. One made direct identification of accused when asked but second officer did not make a similar response so no corroboration. Sheriff recalled the second witness because the Crown said when the second officer was asked if the person was the accused he didn't say anything but he nodded his head. It was confirmed that the police officer had nodded his head and this was an ambiguity so the recall of the witness was correct.

Answer 56

Accused alleging assault by police officers while giving evidence. Neither defence or Crown saw this as relevant to theft charge. Judge recalled witness and asked questions. Held judge recalling witness was improper because it was not intended to clarify any doubt or ambiguities.

Answer 57

It is legitimate to cross-examine a witness on credibility, but this right is said to be "limited": *Dickie v HM Advocate (1897) You cannot, however, normally[ I.e. the s 275C is an exception to this rule. It is specifically designed to held in the common situation where a victim of sexual assault denies the acts to themselves and others and that the willingness to admit having been assaulted may only arise much later - this expert evidence is allowed to explain that this is a common reaction.] lead evidence on the point: HM Advocate v Grimmond 2002.

Answer 58

⁃ Charge of sodomy against two young boys. Boys made complaint to police after incident which led to charge of indecent behaviour to which he pled guilty. After this further charge of sodomy came to light. At trial the crown wished to lead evidence from child psychologist saying that the second statements made after the prior trial were credible and reliable because they could explain the reasons why boys in that situation might have not reported the more serious act earlier. Held this evidence was inadmissible - evidence could only be led to explain some oddity in the witness's reporting a crime if that witness suffered from a psychiatric illness. ⁃ NB this particular point has been overruled by s 275C of the 1995 Act - it allows psychological or psychiatric expert evidence to be led relating to the behaviour of the complainer subsequent to the event in question to rebut any inference which might be drawn as to the complainers credibility or reliability.

Answer 59

Yes. But until recently the defence were not able to obtain records of previous convictions. ⁃ See Dickie and also ⁃ HM Advocate v Ashrif 1988 This has changed as a result of ⁃ *Holland v HM Advocate 2005

Answer 60

Defence prior to trial wanted to recover convictions held by the Scottish Criminal Record Office in order to attack credibility of witnesses. Held they were not entitled to obtain these records because the court approved the then practice that if a witness giving evidence falsely denied that they had a previous conviction the Crown would disclose the true state of affairs.

Answer 61

Defence refused information about previous convictions of witnesses. On appeal held that this refusal was a breach of Article 6(1) of the ECHR. As a result of this case under statute the Crown must disclose prior to a trial any information that would include previous convictions of witnesses which has a bearing and is relevant to the defence.

Answer 62

Objections to questions should always be noted, in case an appeal has to be lodged. [So objections must be made at the time.]

Answer 63

No review of the competence, relevance or admissibility of evidence is possible unless objection was taken at the trial: CPSA 1995 ss 118(8) (solemn) and 192(3) (summary). The question of admissibility of evidence is a question of law and if there is a doubt as to admissibility then one or other of the parties may beforehand tell the judge that there may be a legal issue as to admissibility. If the issue arises during questioning then the counsel should stop and tell the judge that there is a point of law that they wish to raise. The jury are then excluded and a legal debate on admissibility takes place before the judge. If there is a need to establish surrounding facts to determine admissibility, a trial within a trial can be held

Answer 64

So if there is a trial within a trial the judge decides on the facts on this particular point and also on the legal question of admissibility.

Answer 65

If an improper question is asked but not answered, the general position is that the accused will suffer no harm.

Answer 66

Question put to witness that the witness had colluded with the accused to deceive the court. This question was objected to before an answer was given. Judge told the jury to disregard the whole incident. Accused convicted but appealed on the ground that prejudice had been suffered by what had happened. Appeal court held there had been no prejudice because the question had not been answered and the judge had told the jury to disregard the incident.

Answer 67

In summary cause procedure, evidence objected to must be admitted under reservation [this means the evidence is still admitted, but at the end of the case the judge will determine the questions of admissibility]: ⁃ Summary Cause Rules 2002 r 8.15

Answer 68

A prevaricating witness is one who is obviously refusing to answer questions or to answer questions truthfully. This can be a contempt of court and also could amount to perjury. Where a witness is prevaricating the judge should try not to order the witness to be detained or removed in open court because this might create prejudice in the minds of the jury

Answer 69

Two men gave evidence for the Crown. One prevaricated. At the end of his evidence the judge ordered he should be detained. He was taken into custody by the police in the presence of the jury. The other man prevaricated and was also detained after his questioning, and was seen struggling with the police violently in the presence of the jury. Held that ordering their immediate detention in court had been likely to create prejudice, but in this case given the overall evidence against the accused, the appeal court would not quash the conviction against the two accused.

Answer 70

(1) Child witness | (2) Vulnerable witness

Answer 71

⁃ Children's evidence cannot be treated in the same way as an adult. ⁃ Used to be a competency test for children under 12 etc. ⁃ The old law has been swept away by s 24 Vulnerable Witnesses (Scotland) Act 2004. However it is not entirely clear what procedure the judge is to use where the witness is a child. It must be the case that the judge still has a discretion as to whether to put a child on oath or admonish them to tell the truth, although it is less clear what factors are to guide this discretion if no preliminary examination can be carried out. "I have found that when the question is as to what happened on a particular occasion the best witnesses are boys and girls. Their eyes are generally open and they are not thinking of other things and they are not talking to their neighbours." (Auld v McBey (1881) 18 SLR 312 per the Lord President (Inglis)). It used to be the case that: children under 12 were subject to a "competency test" – the judge had to be satisfied they knew the difference between truth and lies – then they would be admonished to tell the truth but not put on oath. children between 12 and 14: judge had to satisfy himself that they understood the nature of the oath children aged 14 or over: normally put on oath without any preliminary procedure. However, the competency test was abolished by s 24 of the Vulnerable Witnesses (Scotland) Act 2004. It seems that the judge still has a discretion as to whether to put a child on oath or admonish them to tell the truth, although it is less clear what factors are to guide this discretion if no preliminary examination can be carried out.

Answer 72

This category includes, but is not limited to, child witnesses. Special statutory provision for such witnesses dates back to 1990 but is now dealt with by the Vulnerable Witnesses (Scotland) Act 2004, which amends the CPSA 1995. A "vulnerable witness" is a person who falls into one of the following categories (CPSA 1995 s 271(1), as amended): ⁃ 1) A child witness (a person "under the age of 16 on the date of commencement of the proceedings in which the trial is being or to be held"). ⁃ 2) A person who is not a child witness, but "there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of" (a) mental disorder or (b) "fear and distress in connection with giving evidence at the trial". ⁃ To determine this s 271(2) lists a long list of factors which the court can take account of[ This includes: 1. age 2. maturity 3. relationship between witness and accused 4. social and cultural background and ethnic origins 5. sexuality 6. employment circumstances 7. physical disabilities etc] to determine is a person is a vulnerable witness. ⁃ 3) The accused themselves can be a vulnerable witness (see s 271F).

Answer 73

⁃ The following special measures are available to the court in respect of vulnerable witnesses (CPSA 1995 s 271H, as amended): ⁃ taking of evidence by a commissioner[ A mutual person (usually a lawyer) appointed by the court, to examine the witness.] (which will be video-recorded for use in the proceedings) ⁃ giving evidence by a live television link ⁃ using a screen (which should conceal the accused [in civil cases, the parties] from the sight of the witness, but be coupled with arrangements allowing the accused to see and hear the witness give evidence). ⁃ using a supporter (a person who may be present alongside the witness when giving evidence, but must not prompt or seek to influence them) ⁃ giving evidence in chief in the form of a prior statement [criminal cases only]. - Excluding the public when a vulnerable witness is giving evidence (excluding members of the court, parties to the case and their lawyers, bona fide news reporters and any other persons the court authorises to be present. Furthermore, as a result of the Victims and Witnesses (Scotland) Act 2014, the Scottish Ministers may specify additional measures which for the time being are to be treated as special measures listed in s271H (CPSA 1995, s271HA).

Answer 74

⁃ 1) "Standard special measures" are automatically to be granted on request for child witnesses. ⁃ A request can also be made for a child to give evidence without special measures: CPSA 1995 s 271A. There are further protections for child witnesses under 12 in respect of sexual offences or offences of violence, under which the court should not normally require the witness to be in the court building for the purpose of giving evidence (CPSA 1995 s 271B). ⁃ 2) In all other cases, the court has a discretion as to whether or not a special measure should be authorised in the circumstances (CPSA 1995 s 271C).