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SCOTTISH STATUTORY INSTRUMENTS

2005 No. 190
SHERIFF COURT
Act of Sederunt (Child Care and Maintenance Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2005

	Made	24th March 2005
	Coming into force	1st April 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] 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. - (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.

Amendment of Child Care and Maintenance Rules
     2. - (1) The Act of Sederunt (Child Care and Maintenance Rules) 1997[2] 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 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 referral - new evidence) insert-

" PART XI

VULNERABLE WITNESSES (SCOTLAND) ACT 2004

Interpretation

3.65.

In this Part-

"the Act of 2004" means the Vulnerable Witnesses (Scotland) Act 2004[

"admission application" means an application for the admission of evidence or allowance of questioning pursuant to section 68B of the Act;

"child witness notice" has the meaning given in section 12(2) of the Act of 2004;

"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 in 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. A child witness notice lodged in accordance with section 12(2) of the Act of 2004 shall be in Form 75.

     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 the court and complete a certificate of intimation.

    (2) A certificate of intimation referred to in this rule shall be in Form 76 and shall be lodged together with the child witness notice.

     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 any further order;

(c) fix a date for a hearing of the child witness notice 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) An order fixing a hearing for a child witness notice 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 parties or persons are not present at the time the order is made.

Review of arrangements for vulnerable witnesses
     3.70. - (1) A review application shall be in Form 77.

    (2) Where the review application is made during the sheriff's hearing of the case, the sheriff may dispense with the requirements of paragraph (1).

     3.71. - (1) Where a review application is in Form 77, the applicant shall intimate a copy of the review application to all other parties to the proceedings and to any safeguarder who has been appointed by the court and complete a certificate of intimation.

    (2) A certificate of intimation referred to in this rule shall be in Form 78 and shall be lodged together with the review application.

     3.72. - (1) On receipt of a review application, a sheriff may-

(a) if he is satisfied that he may properly do so, make an order under section 13(2) of the Act of 2004 without holding a hearing or, if he is not so satisfied, make such an order after giving the parties an opportunity to be heard;

(b) require of any of the parties further information before making any further 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) An order fixing a hearing for a review application 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 parties or persons are not present at the time the order is made.

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, in light thereof, make such further orders as he deems appropriate in all the circumstances.

Intimation of an order under section 12(1) or 13(2)
3.74. 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 parties or persons are not present at the time the order is made.

Lodging of video record and documents
3.75. - (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-

(b) intimate what he has noted to all parties concerned.

Custody of video record and documents
3.76. - (1) The video record and documents referred to in rule 3.75 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 3.75(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.

Application for admission of restricted evidence
     3.77. - (1) An admission application shall be in Form 79.

    (2) Where an admission application is made during the sheriff's hearing of the case, the sheriff may dispense with the requirements of paragraph (1).

     3.78. - (1) Where an admission application is in Form 79, the applicant shall intimate a copy of the admission application to all other parties to the proceedings and to any safeguarder who has been appointed by the court and complete a certificate of intimation.

    (2) A certificate of intimation referred to in this rule shall be in Form 80 and shall be lodged together with the admission application.

     3.79. - (1) On receipt of an admission application, a sheriff may-

(a) subject always to section 68B of the Act, make an order, in whole or in part admitting such evidence or allowing such questioning as may be set out in the admission application;

(b) require of any of the parties further information before making any further order;

(c) fix a date for a hearing of the admission 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 to which the admission application relates and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.

(3) An order fixing a hearing for an admission application 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 parties or persons are not present at the time the order is made.

3.80. - (1) When making an order pursuant to rule 3.79(1)(a) a sheriff may, in light thereof, make such further orders as he deems appropriate in all the circumstances.

3.81. - (1) An order made pursuant to rule 3.79(1)(a) 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 parties or persons are not present at the time the order is made.".

CULLEN OF WHITEKIRK
Lord President I.P.D.

Edinburgh
24th March 2005

SCHEDULE

FORM 75
Rule 3.67

VULNERABLE WITNESSES (SCOTLAND) ACT 2004
Section 12
Received the . . . . . . . . . . . . day of . . . . . . . . . . . . 20. . . . . . . . . . . .

(Date of

receipt of this notice)

. . . . . . . . . . . . [signed]

Sheriff Clerk

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 the 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 [C.D.] should give evidence without the benefit of any special measure]:-

delete as appropriate and specify any special measure(s) 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] it is considered that [C.D.] should give evidence without the benefit of any special measure is [are]-

here explain why it is felt that no special measures are required

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] or [the appropriateness of [C.D.] giving evidence without the benefit of any special measure]:-

delete as appropriate and 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 asks the court to-

(delete as appropriate)

. . . . . . . . . . . . (Signed)

[A.B.]

or [Legal representative of A.B.] (include full designation)

NOTE: This form should be suitably adapted where section 16 of the Act of 2004 applies.

FORM 76
Rule 3.68

VULNERABLE WITNESSES (SCOTLAND) ACT 2004
Section 12
CERTIFICATE OF INTIMATION

Sheriff Court . . . . . . . . . . . .	. . . . . . . . . . . . 20. . . . . . . . . . . .
	(Court Ref. No.)

I certify that intimation of the child witness notice relating to [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)

FORM 77
Rule 3.70

VULNERABLE WITNESSES (SCOTLAND) ACT 2004
Section 13
Received the . . . . . . . . . . . . day of . . . . . . . . . . . . 20. . . . . . . . . . . .

(Date of

receipt of this notice)

. . . . . . . . . . . . [signed]

Sheriff Clerk

APPLICATION FOR REVIEW OF ARRANGEMENTS FOR VULNERABLE WITNESS

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 child 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] or [the appropriateness of [C.D.] giving evidence without the benefit of any special measure]:-

delete as appropriate and set out the view(s) expressed and how they were obtained

7. The applicant seeks (here specify the order sought).

. . . . . . . . . . . . (Signed)

[A.B.]

[or Legal representative of A.B.] (include full designation)

NOTE: This form should be suitably adapted where section 16 of the Act of 2004 applies.

FORM 78
Rule 3.71(2)

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 [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)

FORM 79
Rule 3.77

CHILDREN (SCOTLAND) ACT 1995
Section 68B
Received the . . . . . . . . . . . . day of . . . . . . . . . . . . 20. . . . . . . . . . . .

(Date of

receipt of this notice)

. . . . . . . . . . . . [signed]

Sheriff Clerk

APPLICATION FOR ADMISSION OF EVIDENCE OR ALLOWANCE OF QUESTIONING

Sheriff Court . . . . . . . . . . . .	. . . . . . . . . . . . 20. . . . . . . . . . . .
	(Court Ref. No.)

     1. [A.B.], the applicant, is a party to an application under section [65(7)] or [65(9)] or [85(1)]] of the Children (Scotland) Act 1995 in relation to the child [C.D.]. [(Specify nature of interest of the party.)]

     2. A hearing is fixed for [(date)] at [(time)].

     3. The applicant asks the court to admit, or allow questioning designed to elicit, evidence which shows or tends to show that [C.D.] or [other witness]:

* is not of good character (whether in relation to sexual matters or otherwise);

* has, at any time, engaged in sexual behaviour not forming part of the subject matter of the ground of referral;

* has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the ground of referral), engaged in such behaviour, not being sexual behaviour, as might found the inference that the witness is not a credible or reliable witness;

* has, at any time, been subject to any such condition or predisposition as might found the inference that the witness is not a credible or reliable witness.

4. The circumstances justifying this application are:

here set out these circumstances with particular reference to section 68B(1)(a), (b) and (c) of the Act

. . . . . . . . . . . . (Signed)

[A.B.]

or [Legal representative of A.B.] (include full designation)

FORM 80
Rule 3.78

CHILDREN (SCOTLAND) ACT 1995
Section 68B

Sheriff Court . . . . . . . . . . . .	. . . . . . . . . . . . 20. . . . . . . . . . . .
	(Court Ref. No.)

I certify that intimation of the application for [admission of evidence]/[allowance of questioning] 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)

EXPLANATORY NOTE

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

This Act of Sederunt amends the Act of Sederunt (Child Care and Maintenance Rules) 1997 and inserts a new Part XI.

New rules 3.67 and 3.68 provide for a form of child witness notice and for intimation of such notice by the party lodging the notice to all other parties to the proceedings and any safeguarder.

New rule 3.69 provides that a sheriff may, on receipt of a child witness notice, make an order authorising the use of special measures (pursuant to section 12 of the Vulnerable Witnesses (Scotland) Act 2004 ("the Act of 2004")) without holding a hearing. The sheriff may also, subject to any statutory time limits, alter the date of the proof or hearing at which the child is to give evidence. Where the sheriff decides to hold a hearing, the order fixing the hearing must be intimated on the day it is made to all parties to the proceedings and such other persons as are named in the order. The sheriff may prescribe the manner in which the order is to be intimated.

New rules 3.70 and 3.71 provide for a form of application for review of arrangements for vulnerable witnesses (pursuant to section 13 of the Act of 2004) and for intimation of such application by the applicant to all parties to the proceedings and any safeguarder. The sheriff may dispense with the requirement for the application to be in the prescribed form where the application is made during the hearing of the case (in these circumstances the requirement for intimation is not applicable). New rule 3.72 makes provisions in relation to review applications similar to those made in rule 3.69 in relation to child witness notices.

New rule 3.73 allows a sheriff to make further orders in light of any order made under section 12(1) or 13(2) of the Act of 2004 and new rule 3.74 provides that any order made under section 12(1) or 13(2) must be intimated by the sheriff clerk to all parties to the proceedings, on the day the order is made.

New rules 3.75 and 3.76 provide for the video record and relevant documents of evidence taken on commission to be lodged with the sheriff clerk who shall keep them in his custody.

New rules 3.77 and 3.78 provide for a form of application for the admission of restricted evidence or the allowance of questioning. Where such an application is made during the sheriff's hearing of the case, he may dispense with the requirement for the application to be in the prescribed form.

New rule 3.79 makes provisions in relation to admission applications similar to those contained in rule 3.69 in relation to child witness notices and rule 3.72 in relation to review applications.

New rules 3.80 and 3.81 mirror rules 3.73 and 3.74 to allow a sheriff to make further orders in light of an order for the admission of evidence or the allowance of questioning and provides for intimation of such orders.

Notes:

[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).back

[2] S.I. 1997/291 (S.19).back

[3] 2004 asp 3.back

ISBN 0 11 069527 5

Prepared 5 April 2005