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Madam Speaker: With this, it will be convenient to discuss also the following: New clause 7--Protection of mentally disordered witnesses--
'--After section 271 of the 1995 Act (evidence of children) there shall be inserted the following section:--
"Evidence of Vulnerable Witnesses
271A--(1) subject to subsections (7) and (8) below, where a vulnerable witness could be or has been cited to give evidence in a trial the court may appoint a commissioner to take the evidence of the vulnerable witness if--
(a) in solemn proceedings at any time before the oath is administered to the jury;
(b) in summary proceedings, at any time before the first witness is sworn;
(c) in exceptional circumstances in either solemn or summary proceedings, during the course of the trial,
application is made to the court in that regard; but to be so appointed a person must be, and for a period of at least five years have been, a member of the Faculty of Advocates or a solicitor.
(2) Proceedings before a commissioner appointed under subsection (1) above shall be recorded by video recorder.
(3) An accused shall not except by leave of the commissioner, be present in the room where such proceedings are taking place but shall be entitled by such means as seem suitable to the commissioner to watch and hear the proceedings.
(4) Subsections (2) to (6), (8) and (9) of section 272 of this Act shall apply to an application under subsection (1) above and evidence taken by a commissioner appointed on such an application.
(5) Subject to subsections (7) and (8) below where a vulnerable witness has been or is likely to be cited to give evidence in a trial, the court may, on an application being made to it, authorise the giving of evidence by the vulnerable witness by means of a live television link.
(6) Subject to subsections (7) and (8) below where a vulnerable witness has been or is likely to be cited to give evidence in a trial the court may on application being made to it, authorise the use of a screen to conceal the accused from the sight of the vulnerable witness while the vulnerable witness is present to give evidence; but arrangements shall be made to ensure that the accused is able to watch and hear as the evidence is given by the vulnerable witness.
(7) The court may grant an application under subsections (1), (5) or (6) above only on cause shown having regard in particular to--
(a) the possible effect on the vulnerable witness if required to give evidence, no such application having been granted;
(b) whether it is likely that the vulnerable witness would be better able to give evidence if such application were granted; and
(c) the views of the vulnerable witness.
(8) In considering whether to grant an application under subsections (1), (5) or (6) above, the court may take into account, where appropriate, any of the following--
(a) the age and maturity and degree of disorder of the witness;
(b) the nature of the alleged offence;
(c) the nature of the evidence which the vulnerable witness is likely to be called on to give; and
(d) the relationship, if any, between the vulnerable witness and the accused.
(9) Where a Sheriff to whom an application has been made under subsections (1), (5) or (6) above would have granted the application but for the lack of accommodation or equipment necessary to achieve the purpose of the application, he may by order transfer the case to any Sheriff Court which has such accommodation and equipment available, being a Sheriff Court in the same Sheriffdom.
(10) The Sheriff Court to which a case is transferred under subsection (9) above shall be deemed to have granted an application under, as the case may be, subsections (1), (5) or (6) above in relation to the case.
(11) Where a court has or is deemed to have granted an application under subsections (1), (5) or (6) above in relation to a vulnerable witness and the vulnerable witness gives evidence that he recalls having identified prior to the trial, a person alleged to have committed an offence, the evidence of a third party as to the identification of that person by the vulnerable witness prior to the trial shall be admissible as evidence as to such identification.
(12) In this section--
'vulnerable witness' means a witness aged 16 years or over whom the court determines to be suffering from mental disorder as defined in section 1 of the Mental Health (Scotland) Act 1984;
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'court' means the High Court or the sheriff court; and
'trial' means a trial under solemn or under summary procedure".'.
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