Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Victims and Witnesses (Scotland) Act 2014

Type Act of the Scottish Parliament

Publication 2014-01-17

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

General principles

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(1) Each person mentioned in subsection (2) must have regard to the principles mentioned in subsection (3) in carrying out functions conferred on the person by or under any enactment in so far as those functions relate to a person who is or appears to be a victim or witness in relation to a criminal investigation or criminal proceedings.

(2) The persons are—

(a) the Lord Advocate,

(b) the Scottish Ministers,

(d) the Scottish Court Service,

(e) the Parole Board for Scotland.

(3) The principles are—

(a) that a victim or witness should be able to obtain information about what is happening in the investigation or proceedings,

(b) that the safety of a victim or witness should be ensured during and after the investigation and proceedings,

(c) that a victim or witness should have access to appropriate support during and after the investigation and proceedings,

(d) that, in so far as it would be appropriate to do so, a victim or witness should be able to participate effectively in the investigation and proceedings.

(4) The Scottish Ministers may by order modify subsection (2).

(5) An order under subsection (4) is subject to the affirmative procedure.

Standards of service

2

(1) Each person mentioned in subsection (2) must set and publish standards in relation to—

(a) the carrying out of the functions of the person mentioned in subsection (3) in relation to a person who is or appears to be a victim or witness in relation to a criminal investigation or criminal proceedings,

(b) the person's procedure for making and resolving complaints about the way in which the person carries out those functions.

(2) The persons are—

(a) the Lord Advocate,

(b) the Scottish Ministers,

(d) the Scottish Court Service,

(e) the Parole Board for Scotland.

(3) The functions are—

(a) in the case of the Lord Advocate, functions relating to the investigation and prosecution of crime,

(b) in the case of the Scottish Ministers, functions relating to prisons and young offenders institutions and persons detained in them,

(4) Before a person mentioned in subsection (2) (“the publisher”) publishes standards under subsection (1), the publisher must consult—

(a) every other person mentioned in subsection (2), and

(b) such other persons as appear to the publisher to have a significant interest in the standards.

(5) The Scottish Ministers may by order—

(a) modify subsection (2),

(b) so far as is necessary or expedient in consequence of any modification made under paragraph (a), modify subsection (1), (3) or (6).

(6) In this section—

“prison” and “young offenders institution” have the meanings given by section 307(1) of the 1995 Act,

“victim” includes a prescribed relative of a victim.

(7) In subsection (6), “prescribed” means prescribed by the Scottish Ministers by order.

(8) An order under subsection (5) is subject to the affirmative procedure.

(9) An order under subsection (6) is subject to the negative procedure.

Reports

3

(1) This section applies where a person publishes standards under section 2(1).

(2) The person must prepare and publish a report in relation to the matters mentioned in subsection (3)—

(a) before the end of the period of 12 months beginning with the day on which standards are first published under section 2(1), and

(b) as soon as practicable following—

(i) the expiry of the period of 12 months beginning with the day on which a report is published under paragraph (a), and

(ii) each subsequent period of a year.

(3) The matters are—

(a) an assessment of how, and the extent to which, the standards have been met during the period of the report,

(b) an explanation of how the person intends to meet the standards during the year after the period of the report,

(d) a description of any modification of the standards that the person proposes to make during the year after the period of the report.

(4) The Scottish Ministers may by regulations prescribe information (in addition to that required under subsection (3)) that reports prepared under subsection (2) must contain.

(5) Regulations under subsection (4) are subject to the negative procedure.

Rules: review of decision not to prosecute

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(1) The Lord Advocate must make and publish rules about the process for reviewing, on the request of a person who is or appears to be a victim in relation to an offence or alleged offence, a decision of the prosecutor not to prosecute a person for the offence or alleged offence.

(2) Rules under subsection (1) may in particular make provision for or in connection with—

(a) the circumstances in which reviews may be carried out,

(b) the manner in which a request for review must be made,

(d) the matters to be taken into account by the Lord Advocate when carrying out reviews,

(e) the process to be followed by the Lord Advocate when carrying out reviews.

(3) In this section, “prosecutor” means Lord Advocate, Crown Counsel or procurator fiscal.

Restorative justice

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(1) The Scottish Ministers may issue guidance about—

(a) the referral of a person who is or appears to be a victim in relation to an offence or alleged offence and a person who has or is alleged to have committed the offence or alleged offence to restorative justice services, and

(b) the provision of restorative justice services to those persons.

(2) Any person, or description of person, prescribed by the Scottish Ministers by order must have regard to any guidance issued by the Scottish Ministers under subsection (1).

(3) In this section, “restorative justice services” means any process in which the persons such as are mentioned in subsection (1)(a) participate with a view to resolving any matter arising from the offence or alleged offence with the assistance of a person who is unconnected with either person or the offence or alleged offence.

(4) An order under subsection (2) is subject to the negative procedure.

Disclosure of information

Disclosure of information about criminal proceedings

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(1) A person mentioned in subsection (2) (a “requester”) may at any time request a qualifying person to disclose to the requester qualifying information in relation to an offence or alleged offence and any criminal investigation or criminal proceedings relating to it.

(2) The persons are—

(a) a person who appears to be a victim of the offence or alleged offence,

(b) in the case where the death of a person mentioned in paragraph (a) was (or appears to have been) caused by the offence or alleged offence, a prescribed relative of the person,

(c) a person who is to give, or is likely to give, evidence in criminal proceedings which have been, or are likely to be, instituted against a person in respect of the offence or alleged offence,

(d) a person who has given a statement in relation to the offence or alleged offence to a constable or the prosecutor.

(3) Where a request is made under subsection (1), the qualifying person must disclose to the requester any qualifying information which the person holds.

(4) In the case where the qualifying information falls within paragraph (a), (b) or (c) of subsection (7), a qualifying person must not comply with a request under subsection (1) in so far as disclosure of the qualifying information would require disclosure of information supplied by a Minister of the Crown or a department of the Government of the United Kingdom that is held in confidence by the person.

(5) A qualifying person need not comply with a request under subsection (1) in so far as the qualifying person considers that it would be inappropriate to disclose any qualifying information.

(6) In this section—

“prescribed” means prescribed by the Scottish Ministers by order,

“qualifying information” means information that—falls within subsection (7),relates to the offence or alleged offence, andis specified in the request under subsection (1),

“qualifying person” means—the chief constable of the Police Service of Scotland,a prosecutor (as defined in section 307(1) of the 1995 Act),the Scottish Court Service.

(7) Information falls within this subsection if it is—

(a) a decision not to proceed with a criminal investigation and any reasons for it,

(b) a decision to end a criminal investigation and any reasons for it,

(d) the place in which a trial is to be held,

(e) the date on which and time at which a trial is to be held,

(f) the nature of charges libelled against a person,

(g) the place in which the hearing of an appeal arising from a trial is to be held,

(h) the date on which and time at which the hearing of an appeal arising from a trial is to be held,

(i) the stage that criminal proceedings have reached,

(j) the final decision of a court in a trial or any appeal arising from a trial, and any reasons for it.

(8) The Scottish Ministers may by order modify—

(a) the definition of “qualifying person” in subsection (6),

(b) subsection (7).

(9) An order under—

(a) subsection (2)(b) is subject to the negative procedure,

(b) subsection (8) is subject to the affirmative procedure.

Interviews

Interviews with children: guidance

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(1) Subsection (2) applies where the persons mentioned in subsection (3) are jointly carrying out an interview with a child in relation to—

(a) criminal proceedings which have been instituted against some other person, or

(b) a matter which might result in criminal proceedings being instituted against some other person.

(2) The persons must have due regard to any guidance issued by the Scottish Ministers about the carrying out of interviews with a child in relation to those matters.

(3) The persons are—

(a) a constable,

(b) a social worker (as defined in section 77 of the Regulation of Care (Scotland) Act 2001).

(4) The Scottish Ministers may by order modify subsection (3).

(5) An order under subsection (4) is subject to the negative procedure.

(6) In this section, “child” means a person under 18 years of age.

Certain offences: victim’s right to specify gender of interviewer

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(1) This section applies where an investigating officer intends to carry out a relevant interview with a person who is or appears to be the victim of an offence or alleged offence of a type mentioned in subsection (5).

(2) Before the relevant interview takes place, the investigating officer must give the person who is to be interviewed the opportunity to specify the gender of the investigating officer who is to carry out the interview.

(3) If the person who is to be interviewed specifies a gender under subsection (2), the relevant interview may be carried out only by an investigating officer of that gender.

(4) The investigating officer need not comply with subsection (2) if—

(a) complying with it would be likely to prejudice a criminal investigation, or

(b) it would not be reasonably practicable to do so.

(5) The types of offence are—

(a) an offence listed in any of paragraphs 36 to 59ZL of Schedule 3 to the Sexual Offences Act 2003,

(b) an offence under section 22 of the 2003 Act (traffic in prostitution etc.),

(c) an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (trafficking people for exploitation),

(ca) an offence of human trafficking (see section 1 of the Human Trafficking and Exploitation (Scotland) Act 2015),

(d) an offence the commission of which involves domestic abuse,

(e) stalking.

(6) Failure to comply with subsection (2) in relation to a particular relevant interview has no effect on any criminal proceedings to which the interview relates.

(7) The Scottish Ministers may by order modify subsection (5).

(8) In this section—

“investigating officer” means—a constable, ora person of such other description as the Scottish Ministers may by order prescribe,

“relevant interview” means—questioning of a person in the course of criminal proceedings which have been instituted in relation to another person, orquestioning of a person with a view to instituting criminal proceedings against another person.

(9) Any reference in this section (other than subsection (10)) to an investigating officer includes a reference to two or more investigating officers acting jointly.

(10) An order under subsection (7) or paragraph (b) of the definition of “investigating officer” in subsection (8) is subject to the negative procedure.

Medical examinations

Certain medical examinations: gender of medical examiner

9

(1) This section applies where a forensic medical examination is to be carried out by virtue of section 2 of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021.

(2) Before a medical examination of the person ... is carried out by a registered medical practitioner , the person must be given an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a sex specified by the person.

(3) If the person makes such a request, ... the registered medical practitioner who is to (or, but for the request, would) carry out the examination is to be informed of the nature of the request.

(4) In this section, references to a registered medical practitioner include references to a person of such other description as the Scottish Ministers may by order prescribe.

(5) An order under subsection (4) is subject to the negative procedure.

Vulnerable witnesses

Vulnerable witnesses: main definitions

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In section 271 of the 1995 Act (vulnerable witnesses: main definitions)—

(a) for subsection (1), substitute—

(1) For the purposes of this Act, a person who is giving or is to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings is a vulnerable witness if— (a) the person is under the age of 18 on the date of commencement of the proceedings in which the hearing is being or is to be held, (b) there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of— (i) mental disorder (within the meaning of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003), or (ii) fear or distress in connection with giving evidence at the hearing, (c) the offence is alleged to have been committed against the person in proceedings for— (i) an offence listed in any of paragraphs 36 to 59ZL of Schedule 3 to the Sexual Offences Act 2003, (ii) an offence under section 22 of the Criminal Justice (Scotland) Act 2003 (traffic in prostitution etc.), (iii) an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (trafficking people for exploitation), (iv) an offence the commission of which involves domestic abuse, or (v) an offence of stalking, or (d) there is considered to be a significant risk of harm to the person by reason only of the fact that the person is giving or is to give evidence in the proceedings.

(b) after subsection (1), insert—

(1AA) The Scottish Ministers may by order subject to the affirmative procedure modify subsection (1)(c).

(d) in subsection (2), after “(1)(b)” insert “ or (d) ”, and

(e) after subsection (4), insert—

(4A) In determining whether a person is a vulnerable witness under subsection (1)(b) or (d), the court must— (a) have regard to the best interests of the witness, and (b) take account of any views expressed by the witness.

Child and deemed vulnerable witnesses

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(1) In section 71(2XA) of the 1995 Act (first diet), for “child” substitute “ vulnerable ”.

(2) In section 72(6)(b)(ii) of the 1995 Act (preliminary hearing procedure), for “child” substitute “ vulnerable ”.

(3) In section 271(5) of the 1995 Act (definitions for sections 271A to 271M of the 1995 Act)—

(a) before the definition of “court”, insert—

“child witness” means a vulnerable witness referred to in subsection (1)(a),

, and

(b) after that definition, insert—

“deemed vulnerable witness” means a vulnerable witness referred to in subsection (1)(c),

(4) In section 271A of the 1995 Act (child witnesses)—

(a) in subsection (1)—

(i) after “child witness”, where it first occurs, insert “ or a deemed vulnerable witness ”, and

(ii) the word “child”, where it second occurs, is repealed,

(b) in subsection (2)—

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