Pre-recording witness evidence
As part of our work to improve support for victims and witnesses we are expanding the use of ‘special measures’ to make it easier for them to give evidence.
This includes being able to pre-record evidence before a trial instead of appearing in a court room.
We are phasing in changes under the Vulnerable Witnesses (Criminal Evidence)(Scotland) Act 2019 to give children and vulnerable adult witnesses in the most serious criminal cases an automatic right to pre-record their evidence.
Witnesses are automatically treated by the court as vulnerable if they are:
- under 18
- a victim of sexual assault, domestic abuse, trafficking and/or stalking
This special measure is known as 'evidence by commissioner'. The commissioner is the person nominated by a court to hear the evidence, and is usually a judge.
Witnesses are still questioned by defence and prosecution lawyers, with a video recording being shown during the trial.
The exception to this is if it is shown that this would significantly prejudice the interests of justice in the individual case.
Child witnesses
An automatic right for witnesses under 18 to have their evidence pre-recorded in the most serious cases came into effect in 2020.
The rule covers criminal cases where the charge involves:
- murder, culpable homicide and assault to the danger of life
- rape and other sexual offences
- domestic abuse
- abduction and plagium (child kidnapping)
- human trafficking, slavery and female genital mutilation
- an attempt to commit an offence above
This system is in place in the High Court, with plans to extend this to sheriff court jury cases. It does not apply to child accused.
Vulnerable adult witnesses
We plan to extend the right to pre-record evidence to vulnerable adult witnesses in the most serious cases. See the below implementation plan for details.
Vulnerable Witnesses (Criminal Evidence)(Scotland) Act 2019 (pre-recording of evidence): implementation plan
We are rolling out the legislation in stages, to give the criminal justice system time to prepare and to make sure the right facilties are in place for witnesses.
See: Vulnerable Witnesses (Criminal Evidence)(Scotland) Act 2019: implementation plan
Monitoring progress
We published an evaluation of the effectiveness of the Vulnerable Witnesses Act at supporting witnesses in December 2023. This covered the first three years of the Act coming into force, and showed that it has resulted in a large increase in the number of witnesses pre-recording their evidence ahead of trial.
We also published a Vulnerable Witnesses Act: three month review report at the same time.