Legalize / United Kingdom / Public General Act

Criminal Procedure (Scotland) Act 1995

Type Public General Act

Publication 1995-11-08

Last updated 2026-04-07

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(3) The discretionary disqualification period is the period for which, in the absence of this section, the court would have disqualified the person under section 248 or 248A of this Act.

(4) The appropriate extension period is—

(a) in the case of a life prisoner, a period equal to the punishment part of the life sentence;

(aa) in the case of a person serving a serious terrorism sentence, a period equal to the appropriate custodial term;

(ab) in the case of a person serving an extended sentence that falls within section 1AB(2A) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (“the 1993 Act”), a period equal to the custodial term;

(ac) in the case of a person serving an extended sentence in respect of which section 1AB(3) to (5) of the 1993 Act applies to the person, a period equal to two-thirds of the custodial term;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ca) in the case of a person serving a sentence imposed under section 205ZC of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), a period equal to two-thirds of the appropriate custodial term;

(cb) in the case of a person serving any other sentence of imprisonment in respect of which section 1AB of the 1993 Act applies to the person, a period equal to two-thirds of the sentence;

(d) in any other case, a period equal to half the sentence of imprisonment imposed.

(5) If a period determined under subsection (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days.

(6) For the purposes of subsection (4), a sentence is to be taken to start on the date of commencement of the sentence.

(7) Subsection (8) applies where an amending order provides for a reference in section 1(1) or (3), 1AA(1) or 1AB(3)(a) of the 1993 Act to a particular proportion of a prisoner’s sentence to be construed as a reference to some other proportion (“the new proportion”) specified in the order.

(8) The Secretary of State may by order provide that the proportion specified in subsection (4)(ac), (c), (ca), (cb) or (d) of this section is to be read, in the case of a sentence of imprisonment to which the amending order relates, as a reference to the new proportion.

(9) An order under subsection (8) is to be made by statutory instrument and a draft of the statutory instrument containing the order must be laid before, and approved by a resolution of, each House of Parliament.

(10) In this section—

“amending order” means an order made by the Scottish Ministers under section 27(2)(b) of the 1993 Act;

“appropriate custodial term”—in relation to a serious terrorism sentence, means the term imposed under subsection (5)(a) or (as the case may be) (7)(a) of section 205ZA of the 1995 Act;in relation to a sentence imposed under section 205ZC of the 1995 Act, means the term imposed under subsection (3)(a) or (as the case may be) (4)(a) of that section;

“custodial term” has the meaning given by section 210A(2)(a) of this Act;

“extended sentence” has the meaning given by section 210A of this Act;

“life prisoner” has the meaning given by section 2(1) of the 1993 Act;

“punishment part”, in relation to a life sentence, means the punishment part of the sentence as specified in an order mentioned in section 2(2) of the 1993 Act;

“sentence of imprisonment” includes—an order for detention in a residential establishment under section 44 of this Act, anda sentence of detention under section 205, 205ZA(7), 205ZC(4), 207 or 208 of this Act.

“serious terrorism sentence” means a sentence imposed under section 205ZA of the 1995 Act;

Effect of sentence of imprisonment in other cases

248E

(1) This section applies where a person is convicted of an offence for which a court proposes to order the person to be disqualified under section 248 or 248A from holding or obtaining a driving licence and—

(a) the court proposes to impose on the person a sentence of imprisonment for another offence, or

(b) at the time of sentencing for the offence, a sentence of imprisonment imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under section 248 or 248A, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a sentence of imprisonment.

(4) If the court proposes to order the person to be disqualified under section 248 or 248A and to impose a sentence of imprisonment for the same offence, the court may not in relation to that disqualification take that sentence of imprisonment into account for the purposes of subsection (2).

(5) In this section “sentence of imprisonment” has the same meaning as in section 248D.

Compensation

Compensation order against convicted person.

249

(1) Where a person is convicted of an offence the court, instead of or in addition to dealing with him in any other way, may make an order (in this Part of this Act referred to as “a compensation order”) requiring him to pay compensation in favour of the victim for any—

(a) personal injury, loss or damage caused directly or indirectly; or

(b) alarm or distress caused directly,

to the victim.

(1A) For the purposes of subsection (1) above, “victim” means—

(a) a person against whom; or

(b) a person against whose property,

the acts which constituted the offence were directed.

(1B) Where a person is convicted of an offence, the court may (instead of or in addition to dealing with the person in any other way), in accordance with subsections (3A) to (3C), make a compensation order requiring the convicted person to pay compensation in favour of—

(a) the victim, or

(b) a person who is liable for funeral expenses in respect of which subsection (3C)(b) allows a compensation order to be made.

(1C) For the purposes of subsection (1B)(a), “victim” means—

(a) a person who has suffered personal injury, loss or damage in respect of which a compensation order may be made by virtue of subsection (3A), or

(b) a relative (as defined in Schedule 1 to the Damages (Scotland) Act 1976 (c.13)) who has suffered bereavement in respect of which subsection (3C)(a) allows a compensation order to be made.

(2) It shall not be competent for a court to make a compensation order—

(a) where, under section 246(2) of this Act, it makes an order discharging him absolutely;

(ab) where, under section 227A of this Act, it imposes a community payback order;

(3) Where, in the case of an offence involving dishonest appropriation, or the unlawful taking and using of property or a contravention of section 178(1) of the Road Traffic Act 1988 (taking motor vehicle without authority etc.) the property is recovered, but has been damaged while out of the owner’s possession, that damage, however and by whomsoever it was in fact caused, shall be treated for the purposes of subsection (1) above as having been caused by the acts which constituted the offence.

(3A) A compensation order may be made in respect of personal injury, loss or damage (apart from loss suffered by a person's dependents in consequence of a person's death) that was caused directly or indirectly by an accident arising out of the presence of a motor vehicle on a road if—

(a) it was being used in contravention of section 143(1) of the Road Traffic Act 1988 (c.52), and

(b) no compensation is payable under arrangements to which the Secretary of State is a party.

(3B) Where a compensation order is made by virtue of subsection (3) or (3A), the order may include an amount representing the whole or part of any loss of (including reduction in) preferential rates of insurance if the loss is attributable to the accident.

(3C) A compensation order may be made—

(a) for bereavement in connection with a person's death resulting from the acts which constituted the offence,

(b) for funeral expenses in connection with such a death,

except where the death was due to an accident arising out of the presence of a motor vehicle on a road.

(4) Unless (and to the extent that) subsections (3) to (3C) allow a compensation order to be made, no compensation order shall be made in respect of—

(a) loss suffered in consequence of the death of any person; or

(b) injury, loss or damage due to an accident arising out of the presence of a motor vehicle on a road ....

(5) In determining whether to make a compensation order against any person, and in determining the amount to be paid by any person under such order, the court shall take into consideration his means so far as known to the court.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) In solemn proceedings there shall be no limit on the amount which may be awarded under a compensation order.

(8) In summary proceedings—

(a) a sheriff ... . . . , shall have power to make a compensation order awarding in respect of each offence an amount not exceeding the prescribed sum;

(b) a judge of a JP court ... shall have power to make a compensation order awarding in respect of each offence an amount not exceeding level 4 on the standard scale.

(8A) In summary proceedings before the sheriff, where the fine or maximum fine to which a person is liable on summary conviction of an offence exceeds the prescribed sum, the sheriff may make a compensation order awarding in respect of the offence an amount not exceeding the amount of the fine to which the person is so liable.

(9) Payment of any amount under a compensation order shall be made to the clerk of the court who shall account for the amount to the person entitled thereto.

(10) Only the court shall have power to enforce a compensation order.

(11) This section is subject to section 34 of the Regulatory Reform (Scotland) Act 2014.

Compensation orders: supplementary provisions.

250

(1) Where a court considers that in respect of an offence it would be appropriate to impose a fine and to make a compensation order but the convicted person has insufficient means to pay both an appropriate fine and an appropriate amount in compensation the court should prefer a compensation order.

(2) Where a convicted person has both been fined and had a compensation order made against him in respect of the same offence or different offences in the same proceedings, a payment by the convicted person shall first be applied in satisfaction of the compensation order.

(3) For the purposes of any appeal or review, a compensation order is a sentence.

(4) Where a compensation order has been made against a person, a payment made to the court in respect of the order shall be retained until the determination of any appeal in relation to the order.

Review of compensation order.

251

(1) Without prejudice to the power contained in section 213 of this Act, (as applied by section 252 of this Act), at any time before a compensation order has been complied with or fully complied with, the court, on the application of the person against whom the compensation order was made, may discharge the compensation order or reduce the amount that remains to be paid if it appears to the court that—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) that property the loss of which is reflected in the compensation order has been recovered.

(1A) On the application of the prosecutor at any time before a compensation order has been complied with (or fully complied with), the court may increase the amount payable under the compensation order if it is satisfied that the person against whom it was made—

(a) because of the availability of materially different information about financial circumstances, has more means than were made known to the court when the order was made, or

(b) because of a material change of financial circumstances, has more means than the person had then.

(2) In subsection (1) above “the court” means—

(a) in a case where, as respects the compensation order, a transfer of fine order under section 222 of this Act (as applied by the said section 252) is effective and the court by which the compensation order is enforceable is in terms of the transfer of fine order a court of summary jurisdiction in Scotland, that court; or

(b) in any other case, the court which made the compensation order or, where that court was the High Court, by which the order was first enforceable.

Enforcement of compensation orders: application of provisions relating to fines.

252

(1) The provisions of this Act specified in subsection (2) below shall, subject to any necessary modifications and to the qualifications mentioned in that subsection, apply in relation to compensation orders as they apply in relation to fines; and section 91 of the Magistrates’ Courts Act 1980 and article 96 of the Magistrates’ Courts (Northern Ireland) Order 1981 shall be construed accordingly.

(2) The provisions mentioned in subsection (1) above are—

section 211(3), (4) and (7) to (9) (enforcement of fines);

section 212 (fines in summary proceedings);

section 213 (power to remit fines), with the omission of the words “or (4)” in subsection (2) of that section;

section 214 (time for payment) with the omission of—

(a) the words from “unless” to “its decision” in subsection (4); and

(b) subsection (5);

section 215 (further time for payment);

section 216 (reasons for default);

section 217 (supervision pending payment of fine);

section 218 (supplementary provisions), except that subsection (1) of that section shall not apply in relation to compensation orders made in solemn proceedings;

subject to subsection (3) below, section 219(1)(b), (2), (3), (5), (6) and (8) (maximum period of imprisonment for non-payment of fine);

section 220 (payment of fine in part by prisoner);

section 221 (recovery by civil diligence);

section 222 (transfer of fine orders);

section 223 (action of clerk of court on transfer of fine order); and

section 224 (discharge from imprisonment to be specified) ; and.

section 248B (driving disqualification for fine defaulters) so far as it relates to the power conferred by section 219(1)(b).

(3) In the application of the provisions of section 219 of this Act mentioned in subsection (2) above for the purposes of subsection (1) above—

(a) a court may impose imprisonment in respect of a fine and decline to impose imprisonment in respect of a compensation order but not vice versa; and

(b) where a court imposes imprisonment both in respect of a fine and of a compensation order the amounts in respect of which imprisonment is imposed shall, for the purposes of subsection (2) of the said section 219, be aggregated.

Effect of compensation order on subsequent award of damages in civil proceedings.

253

(1) This section shall have effect where a compensation order or a service compensation order or award has been made in favour of any person in respect of any injury, loss , damage, alarm or distress and a claim by him in civil proceedings for damages in respect thereof subsequently falls to be determined.

(2) The damages in the civil proceedings shall be assessed without regard to the order or award; but where the whole or part of the amount awarded by the order or award has been paid, the damages awarded in the civil proceedings shall be restricted to the amount (if any) by which, as so assessed, they exceed the amount paid under the order or award.

(3) Where the whole or part of the amount awarded by the order or award remains unpaid and damages are awarded in a judgment in the civil proceedings, then, unless the person against whom the order or award was made has ceased to be liable to pay the amount unpaid (whether in consequence of an appeal, or of his imprisonment for default or otherwise), the court shall direct that the judgment—

(a) if it is for an amount not exceeding the amount unpaid under the order or award, shall not be enforced; or

(b) if it is for an amount exceeding the amount unpaid under the order or award, shall not be enforced except to the extent that it exceeds the amount unpaid,

without the leave of the court.

(4) In this section a “service compensation order or award” means—

(a) an order requiring the payment of compensation under paragraph 11 of—

(i) Schedule 5A to the Army Act 1955;

(ii) Schedule 5A to the Air Force Act 1955; or

(iii) Schedule 4A to the Naval Discipline Act 1957; or

(b) an award of stoppages payable by way of compensation under any of those Acts.

Restitution order

Restitution order where conviction of police assault etc.

253A

(1) This section applies where a person (“P”) is convicted of an offence under section 90(1) of the Police and Fire Reform (Scotland) Act 2012 (police assault etc.).

(2) The court, instead of or in addition to dealing with P in any other way, may make an order to be known as a restitution order requiring P to pay an amount not exceeding the prescribed sum (as defined in section 225(8)).

(3) The Scottish Ministers may by regulations amend subsection (2) so as to substitute for the amount for the time being specified such other amount as may be prescribed by, or determined in accordance with, the regulations.

(4) Any amount paid in respect of a restitution order is to be paid to the clerk of any court or any other person (or class of person) authorised by the Scottish Ministers for the purpose.

(5) Regulations under subsection (3) are subject to the negative procedure.

(6) A restitution order is to be treated as a sentence for the purposes of any appeal under this Act.

The Restitution Fund

253B

(1) A person to whom any amount is paid under section 253A in respect of a restitution order must pay the amount to the Scottish Ministers.

(2) The Scottish Ministers must pay any amount received by virtue of subsection (1) into a fund to be known as the Restitution Fund.

(3) The Scottish Ministers must establish, maintain and administer the Restitution Fund for the purpose of securing the provision of support services for persons who have been assaulted as mentioned in section 90(1) of the Police and Fire Reform (Scotland) Act 2012 (“victims”).

(4) Any payment out of the fund may be made only to—

(a) a person who provides or secures the provision of support services for victims, or

(b) the Scottish Ministers or, with the consent of the Scottish Ministers, a person specified by order by virtue of subsection (5) in respect of outlays incurred in administering the fund.

(5) The Scottish Ministers may delegate to such person as they may specify by order the duties imposed on them by subsection (3) of establishing, maintaining and administering the Restitution Fund.

(6) The Scottish Ministers may by order make further provision about the administration of the Restitution Fund including provision for or in connection with—

(a) specifying persons or classes of person to or in respect of whom payments may be made out of the fund (but subject to subsection (4)),

(b) the making of payments out of the fund,

(d) the making of reports to the Scottish Government containing such information and in respect of such periods as may be specified.

(7) An order under subsection (5) or (6) is subject to the affirmative procedure.

(8) In this section, “support services”, in relation to a victim, means any type of service or treatment which is intended to benefit the physical or mental health or wellbeing of the victim.

Restitution order, fine and compensation order: order of preference

253C

(1) Subsection (2) applies where a court considers in relation to an offence that it would be appropriate—

(a) to make a restitution order,

(b) to impose a fine, and

(2) If the person convicted of the offence (“P”) has insufficient means to pay an appropriate amount under a restitution order, to pay an appropriate fine and to pay an appropriate amount in compensation, the court should prefer a compensation order and then a restitution order over a fine.

(3) Subsection (4) applies where a court considers in relation to an offence that it would be appropriate—

(a) to make a restitution order, and

(b) to impose a fine or make a compensation order.

(4) If P has insufficient means to pay an appropriate amount under a restitution order and to pay an appropriate fine or, as the case may be, an appropriate amount in compensation, the court should prefer a compensation order and then a restitution order over a fine.

Application of receipts

253D

(1) This section applies where the court makes a restitution order in relation to a person (“P”) convicted of an offence and also in respect of the same offence or different offences in the same proceedings—

(a) imposes a fine and makes a compensation order, or

(b) imposes a fine or makes a compensation order.

(2) A payment by P must be applied in the following order—

(a) the payment must first be applied in satisfaction of the compensation order,

(b) the payment must next be applied in satisfaction of the restitution order,

Enforcement: application of certain provisions relating to fines

253E

(1) The provisions of this Act specified in subsection (2) apply in relation to restitution orders as they apply in relation to fines but subject to the modifications mentioned in subsection (2) and to any other necessary modifications.

(2) The provisions are—

(za) section 121(4),

(zb) section 193(3),

(a) section 211(3) and (7),

(b) section 212,

(d) section 214(1) to (4) and (6) to (9) (with the modification that subsection (4) is to be read as if the words from “unless” to “decision” were omitted),

(e) sections 215 to 217,

(f) subject to subsection (3) below, section 219(1)(b), (2), (3), (5), (6) and (8),

(g) sections 220 to 224,

(h) section 248B.

(3) In the application of the provisions of section 219 mentioned in subsection (2)(f) for the purposes of subsection (1)—

(a) a court may impose imprisonment in respect of a fine and decline to impose imprisonment in respect of a restitution order but not vice versa,

(b) where a court imposes imprisonment both in respect of a fine and a restitution order, the amounts in respect of which imprisonment is imposed are to be aggregated for the purposes of section 219(2).

Victim surcharge

253F

(1) This section applies where—

(a) a person (“P”) is convicted of an offence other than an offence, or offence of a class, that is prescribed by regulations by the Scottish Ministers,

(b) the court does not make a restitution order in respect of the same offence or a different offence in the same proceedings, and

(2) Except in such circumstances as may be prescribed by regulations by the Scottish Ministers, the court, in addition to dealing with P in any other way, must order P to pay a victim surcharge of such amount as may be so prescribed.

(3) Despite subsection (2), if P is convicted of two or more offences in the same proceedings, the court must order P to pay only one victim surcharge in respect of both or, as the case may be, all the offences.

(4) Any sum paid in respect of a victim surcharge is to be paid to the clerk of any court or any other person (or class of person) authorised by the Scottish Ministers for the purpose.

(5) Regulations under this section may make different provision for different cases and in particular may include provision—

(a) prescribing different amounts for different descriptions of offender,

(b) prescribing different amounts for different circumstances.

(6) Where provision is made by virtue of subsection (5), the Scottish Ministers may by regulations make provision for determining which victim surcharge is payable in the circumstances mentioned in subsection (3).

(7) Regulations under this section are subject to the affirmative procedure.

The Victim Surcharge Fund

253G

(1) A person to whom any sum is paid under section 253F(4) in respect of a victim surcharge must pay the sum to the Scottish Ministers.

(2) The Scottish Ministers must pay any sum received by virtue of subsection (1) into a fund to be known as the Victim Surcharge Fund.

(3) The Scottish Ministers must establish, maintain and administer the Victim Surcharge Fund for the purpose of securing the provision of support services for persons who are or appear to be the victims of crime and prescribed relatives of such persons.

(4) Any payment out of the fund may be made only to—

(a) a person who is or appears to be the victim of crime,

(b) a prescribed relative of a person who is or appears to be the victim of crime,

(c) a person who provides or secures the provision of support services for persons who are or appear to be victims of crime, or

(d) the Scottish Ministers or, with the consent of the Scottish Ministers, a person specified by order by virtue of subsection (5) in respect of outlays incurred in administering the fund.

(5) The Scottish Ministers may delegate to such person as they may specify by order the duties imposed on them by subsection (3) of establishing, maintaining and administering the Victim Surcharge Fund.

(6) The Scottish Ministers may by regulations make further provision about the administration of the Victim Surcharge Fund including provision for or in connection with—

(a) the making of payments out of the fund,

(b) the keeping of financial and other records,

(c) the making of reports to the Scottish Government containing such information and in respect of such periods as may be specified.

(7) An order under subsection (5) and regulations under subsection (6) are subject to the affirmative procedure.

(8) In this section—

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

“support services”, in relation to a person who is or appears to be the victim of crime, means any type of service or treatment which is intended to benefit the physical or mental health or wellbeing of the person or a prescribed relative of the person.

(9) Regulations under subsections (3), (4) and (8) are subject to the negative procedure.

Application of receipts

253H

(1) This section applies where the court orders the payment of a victim surcharge in relation to a person (“P”) convicted of an offence and also in respect of the same offence or different offences in the same proceedings—

(a) imposes a fine and makes a compensation order, or

(b) imposes a fine or makes a compensation order.

(2) A payment by P must be applied in the following order—

(a) the payment must first be applied in satisfaction of the compensation order,

(b) the payment must next be applied in satisfaction of the victim surcharge,

Enforcement: application of certain provisions relating to fines

253J

(1) The provisions of this Act specified in subsection (2) apply in relation to victim surcharges as they apply in relation to fines but subject to the modifications mentioned in subsection (2) and to any other necessary modifications.

(2) The provisions are—

(za) section 121(4),

(zb) section 193(3),

(a) section 211(3) and (4),

(b) section 212,

(d) section 214(1) to (4) and (6) to (9) (with the modification that subsection (4) is to be read as if the words from “unless” to “decision” were omitted),

(e) sections 215 to 218,

(f) subject to subsection (3) below, section 219(1)(b), (2), (3), (5), (6) and (8),

(g) sections 220 to 224,

(h) section 248B.

(3) In the application of the provisions of section 219 mentioned in subsection (2)(f) for the purposes of subsection (1)—

(a) a court may impose imprisonment in respect of a fine and decline to impose imprisonment in respect of a victim surcharge but not vice versa,

(b) where a court imposes imprisonment both in respect of a fine and a victim surcharge, the amounts in respect of which imprisonment is imposed are to be aggregated for the purposes of section 219(2).

Forfeiture

Search warrant for forfeited articles.

254

(1) Where a court has made an order for the forfeiture of an article, the court or any justice may, if satisfied on information on oath—

(a) that there is reasonable cause to believe that the article is to be found in any place or premises; and

(b) that admission to the place or premises has been refused or that a refusal of such admission is apprehended,

issue a warrant of search which may be executed according to law.

(2) In subsection (1), “article” includes animal.

European Protection Orders

European Protection Orders: interpretation

254A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Issuing of a European Protection Order

254B

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recognition of a European Protection Order

254C

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Implementation of a recognised European Protection Order

254D

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modification and revocation of non-harassment orders made under section 254D

254E

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART XII — Evidence

Special capacity

Special capacity.

255

Where an offence is alleged to be committed in any special capacity, as by the holder of a licence, master of a vessel, occupier of a house, or the like, the fact that the accused possesses the qualification necessary to the commission of the offence shall, unless challenged—

(a) in the case of proceedings on indictment, by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of this Act; or

(b) in summary proceedings, by preliminary objection before his plea is recorded,

be held as admitted.

Proof of age

Proof of age.

255A

Where the age of any person is specified in an indictment or a complaint, it shall, unless challenged—

(a) in the case of proceedings on indictment by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of this Act; or

(b) in summary proceedings—

(i) by preliminary objection before the plea of the accused is recorded; or

(ii) by objection at such later time as the court may in special circumstances allow,

be held as admitted.

Agreed evidence

Agreements and admissions as to evidence.

256

(1) In any trial it shall not be necessary for the accused or for the prosecutor—

(a) to prove any fact which is admitted by the other; or

(b) to prove any document, the terms and application of which are not in dispute between them,

and, without prejudice to paragraph 1 of Schedule 8 to this Act, copies of any documents may, by agreement of the parties, be accepted as equivalent to the originals.

(2) For the purposes of subsection (1) above, any admission or agreement shall be made by lodging with the clerk of court a minute in that behalf signed—

(a) in the case of an admission, by the party making the admission or, if that party is the accused and he is legally represented, by his counsel or solicitor; and

(b) in the case of an agreement, by the prosecutor and the accused or, if he is legally represented, his counsel or solicitor.

(3) Where a minute has been signed and lodged as aforesaid, any facts and documents admitted or agreed thereby shall be deemed to have been duly proved.

Duty to seek agreement of evidence.

257

(1) Subject to subsection (2) below, the prosecutor and the accused (or each of the accused if more than one) shall each identify any facts which are facts—

(a) which he would, apart from this section, be seeking to prove;

(b) which he considers unlikely to be disputed by the other party (or by any of the other parties); and

and shall, without prejudice to section 258 of this Act, take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement.

(2) Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented.

(3) The duty under subsection (1) above applies—

(a) in relation to proceedings on indictment, from the date of service of the indictment until the swearing of the jury or, where intimation is given under section 76 of this Act, the date of that intimation; and

(b) in relation to summary proceedings, from the date on which the accused pleads not guilty until the swearing of the first witness or, where the accused tenders a plea of guilty at any time before the first witness is sworn, the date when he does so.

(4) Without prejudice to subsection (3) above, in relation to proceedings on indictment, the parties to the proceedings shall, in complying with the duty under subsection (1) above, seek to ensure that the facts to be identified, and the steps to be taken in relation to those facts, are identified and taken—

(a) in the case of the High Court, before the preliminary hearing;

(b) in the case of the sheriff court, before the first diet

(5) Without prejudice to subsection (3) above, in relation to summary proceedings, the parties to the proceedings shall, in complying with the duty under subsection (1) above, seek to ensure that the facts to be identified, and the steps to be taken in relation to those facts, are identified and taken before any intermediate diet that is to be held.

Uncontroversial evidence.

258

(1) This section applies where, in any criminal proceedings, a party (in this section referred to as “the first party”) considers that facts which that party would otherwise be seeking to prove are unlikely to be disputed by the other parties to the proceedings.

(2) Where this section applies, the first party may prepare and sign a statement—

(a) specifying the facts concerned; or

(b) referring to such facts as set out in a document annexed to the statement,

and shall, not less than the relevant period before the relevant diet, serve a copy of the statement and any such document on every other party.

(2ZA) In subsection (2) above, the “relevant period” means—

(a) where the relevant diet for the purpose of that subsection is an intermediate diet in summary proceedings, 7 days;

(b) in any other case, 14 days.

(2A) In subsection (2) above, “the relevant diet” means—

(a) in the case of proceedings in the High Court, the preliminary hearing;

(aa) in summary proceedings in which an intermediate diet is to be held, that diet;

(b) in any other case, the trial diet.

(3) Unless any other party serves on the first party, not more than seven days after the date of service of the copy on him under subsection (2) above or by such later time as the court may in special circumstances allow, a notice that he challenges any fact specified or referred to in the statement, the facts so specified or referred to shall be deemed to have been conclusively proved.

(4) Where a notice is served under subsection (3) above, the facts specified or referred to in the statement shall be deemed to have been conclusively proved only in so far as unchallenged in the notice.

(4A) Where a notice is served under subsection (3) above . . . , the court may, on the application of any party to the proceedings made not less than 48 hours before the relevant diet, direct that any challenge in the notice to any fact is to be disregarded for the purposes of subsection (4) above if the court considers the challenge to be unjustified.

(4AA) Where in summary proceedings the relevant diet for the purposes of subsection (4A) above is an intermediate diet, an application under that subsection may be made at (or at any time before) that diet.

(4B) In subsection (4A) above, “the relevant diet” means—

(a) in proceedings in the High Court, the preliminary hearing; . . .

(b) in solemn proceedings in the sheriff court, the first diet.

(i) in which an intermediate diet is to be held, that diet;

(ii) in which such a diet is not to be held, the trial diet.

(4C) In proceedings in the High Court, the Court may, on cause shown, allow an application under subsection (4A) above to be made after the time limit specified in that subsection.

(4D) In summary proceedings, the court may allow an application under subsection (4A) above to be made late if the court is satisfied that a timeous application would not have been practicable.

(5) Subsections (3) and (4) above shall not preclude a party from leading evidence of circumstances relevant to, or other evidence in explanation of, any fact specified or referred to in the statement.

(6) Notwithstanding subsections (3) and (4) above, the court—

(a) may, on the application of any party, where it is satisfied that there are special circumstances; and

(b) shall, on the joint application of all the parties,

direct that the presumptions in those subsections shall not apply in relation to such fact specified or referred to in the statement as is specified in the direction.

(7) An application under subsection (6) above may be made at any time after the commencement of the trial and before the commencement of the prosecutor’s address to the court on the evidence.

(8) Where the court makes a direction under subsection (6) above it shall, unless all the parties otherwise agree, adjourn the trial and may, without prejudice to section 268 of this Act, permit any party to lead evidence as to any such fact as is specified in the direction, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.

(9) A copy of a statement or a notice required, under this section, to be served on any party shall be served in such manner as may be prescribed by Act of Adjournal; and a written execution purporting to be signed by the person who served such copy or notice together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such service.

Hearsay

Exceptions to the rule that hearsay evidence is inadmissible.

259

(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied—

(a) that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in subsection (2) below;

(b) that evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it;

(c) that the person who made the statement would have been, at the time the statement was made, a competent witness in such proceedings; and

(d) that there is evidence which would entitle a jury properly directed, or in summary proceedings would entitle the judge, to find that the statement was made and that either—

(i) it is contained in a document; or

(ii) a person who gave oral evidence in the proceedings as to the statement has direct personal knowledge of the making of the statement.

(2) The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement—

(a) is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;

(b) is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;

(c) is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;

(d) having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or

(e) is called as a witness and either—

(i) refuses to take the oath or affirmation; or

(ii) having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement refuses to do so,

and in the application of this paragraph to a child, the reference to a witness refusing to take the oath or affirmation or, as the case may be, to having been sworn shall be construed as a reference to a child who has refused to accept an admonition to tell the truth or, having been so admonished, refuses to give evidence as mentioned above.

(3) Evidence of a statement shall not be admissible by virtue of subsection (1) above where the judge is satisfied that the occurrence of any of the circumstances mentioned in paragraphs (a) to (e) of subsection (2) above, by virtue of which the statement would otherwise be admissible, is caused by—

(a) the person in support of whose case the evidence would be given; or

(b) any other person acting on his behalf,

for the purpose of securing that the person who made the statement does not give evidence for the purposes of the proceedings either at all or in connection with the subject matter of the statement.

(4) Where in any proceedings evidence of a statement made by any person is admitted by reference to any of the reasons mentioned in paragraphs (a) to (c) and (e)(i) of subsection (2) above—

(a) any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;

(b) evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and

(c) evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.

(5) Subject to subsection (6) below, where a party intends to apply to have evidence of a statement admitted by virtue of subsection (1) above he shall, by the relevant time, give notice in writing of—

(a) that fact;

(b) the witnesses and productions to be adduced in connection with such evidence; and

to every other party to the proceedings and, for the purposes of this subsection, such evidence may be led notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.

(5A) In subsection (5) above, “the relevant time” means—

(a) in the case of proceedings in the High Court—

(i) not less than 7 days before the preliminary hearing; or

(ii) such later time, before the trial diet, as the judge may on cause shown allow;

(b) in any other case, before the trial diet.

(6) A party shall not be required to give notice as mentioned in subsection (5) above where—

(a) the grounds for seeking to have evidence of a statement admitted are as mentioned in paragraph (d) or (e) of subsection (2) above; or

(b) he satisfies the judge that there was good reason for not giving such notice.

(7) If no other party to the proceedings objects to the admission of evidence of a statement by virtue of subsection (1) above, the evidence shall be admitted without the judge requiring to be satisfied as mentioned in that subsection.

(8) For the purposes of the determination of any matter upon which the judge is required to be satisfied under subsection (1) above—

(a) except to the extent that any other party to the proceedings challenges them and insists in such challenge, it shall be presumed that the circumstances are as stated by the party seeking to introduce evidence of the statement; and

(b) where such a challenge is insisted in, the judge shall determine the matter on the balance of probabilities, and he may draw any reasonable inference—

(i) from the circumstances in which the statement was made or otherwise came into being; or

(ii) from any other circumstances, including, where the statement is contained in a document, the form and contents of the document.

(9) Where evidence of a statement has been admitted by virtue of subsection (1) above on the application of one party to the proceedings, without prejudice to anything in any enactment or rule of law, the judge may permit any party to lead additional evidence of such description as the judge may specify, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.

(10) Any reference in subsections (5), (6) and (9) above to evidence shall include a reference to evidence led in connection with any determination required to be made for the purposes of subsection (1) above.

Admissibility of prior statements of witnesses.

260

(1) Subject to the following provisions of this section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings.

(2) A prior statement shall not be admissible under this section unless—

(a) the statement is contained in a document;

(b) the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence; and

(3) For the purposes of this section, any reference to a prior statement is a reference to a prior statement which, but for the provisions of this section, would not be admissible as evidence of any matter stated in it.

(4) Subsections (2) and (3) above do not apply to a prior statement—

(a) contained in a precognition on oath; or

(b) made in other proceedings, whether criminal or civil and whether taking place in the United Kingdom or elsewhere,

and, for the purposes of this section, any such statement shall not be admissible unless it is sufficiently authenticated.

(5) A prior statement made by a witness shall not, in any proceedings on indictment, be inadmissible by reason only that it is not included in any list of productions lodged by the parties.

Statements by co-accused

261

(1) Subject to the following provisions of this section, nothing in sections 259 and 260 of this Act shall apply to a statement made by the accused.

(2) Evidence of a statement made by an accused shall be admissible by virtue of the said section 259 at the instance of another accused in the same proceedings as evidence in relation to that other accused.

(3) For the purposes of subsection (2) above, the first mentioned accused shall be deemed—

(a) where he does not give evidence in the proceedings, to be a witness refusing to give evidence in connection with the subject matter of the statement as mentioned in paragraph (e) of subsection (2) of the said section 259; and

(b) to have been, at the time the statement was made, a competent witness in the proceedings.

(4) Evidence of a statement shall not be admissible as mentioned in subsection (2) above unless the accused at whose instance it is sought to be admitted has given notice of his intention to do so as mentioned in subsection (5) of the said section 259; but subsection (6) of that section shall not apply in the case of notice required to be given by virtue of this subsection.

Statements by accused

261ZA

(1) Evidence of a statement to which this subsection applies is not inadmissible as evidence of any fact contained in the statement on account of the evidence's being hearsay.

(2) Subsection (1) applies to a statement made by the accused in the course of the accused's being questioned (whether as a suspect or not) by a constable, or another official, investigating an offence.

(3) Subsection (1) does not affect the issue of whether evidence of a statement made by one accused is admissible as evidence in relation to another accused.

Statements made after charge

Exception to rule on inadmissiblity

261ZB

Evidence of a statement made by a person in response to questioning carried out in accordance with authorisation granted under section 35 of the Criminal Justice (Scotland) Act 2016 is not inadmissible on account of the statement's being made after the person has been charged with an offence.

Witness statements

Witness statements: use during trial

261A

(1) Subsection (2) applies where—

(a) a witness is giving evidence in criminal proceedings,

(b) the witness has made a prior statement,

(d) the accused (or a solicitor or advocate acting on behalf of the accused in the proceedings) has seen or has been given an opportunity to see the statement.

(2) The court may allow the witness to refer to the statement while the witness is giving evidence.

Construction of sections 259 to 261A.

262

(1) For the purposes of sections 259 to 261A of this Act, a “statement” includes—

(a) any representation, however made or expressed, of fact or opinion; and

(b) any part of a statement,

but does not include a statement in a precognition other than a precognition on oath.

(2) For the purposes of the said sections 259 to 261A a statement is contained in a document where the person who makes it—

(a) makes the statement in the document personally;

(b) makes a statement which is, with or without his knowledge, embodied in a document by whatever means or by any person who has direct personal knowledge of the making of the statement; or

(3) In the said sections 259 to 261A—

“criminal proceedings” include (other than in section 261A) any hearing by the sheriff of an application made by virtue of section 93(2)(a) or 94(2)(a) of the Children’s Hearings (Scotland) Act 2011 (asp 1) to determine whether a ground is established, in so far as the application relates to the commission of an offence by the child, or for a review of such a determination;

“document” includes, in addition to a document in writing—any map, plan, graph or drawing;any photograph;any disc, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; andany film, negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom;

“film” includes a microfilm;

“made” includes (other than in section 261A) allegedly made.

(4) Nothing in the said sections 259 to 261A shall prejudice the admissibility of a statement made by a person other than in the course of giving oral evidence in court which is admissible otherwise than by virtue of those sections.

Witnesses

Examination of witnesses.

263

(1) In any trial, it shall be competent for the party against whom a witness is produced and sworn in causa to examine such witness both in cross and in causa.

(2) The judge may, on the motion of either party, on cause shown order that the examination of a witness for that party (“the first witness”) shall be interrupted to permit the examination of another witness for that party.

(3) Where the judge makes an order under subsection (2) above he shall, after the examination of the other witness, permit the recall of the first witness.

(4) In a trial, a witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in the trial; and evidence may be led in the trial to prove that the witness made the different statement on the occasion specified.

(5) In any trial, on the motion of either party, the presiding judge may permit a witness who has been examined to be recalled.

Spouse or civil partner of accused a compellable witness

264

(1) The spouse or civil partner of an accused is a competent and compellable witness for the prosecution, the accused or any co-accused in the proceedings against the accused.

(2) Subsection (1) is, if the spouse or civil partner is a co-accused in the proceedings, subject to any enactment or rule of law by virtue of which an accused need not (by reason of being an accused) give evidence in the proceedings.

(3) Subsection (1) displaces any other rule of law that would (but for that subsection) prevent or restrict, by reference to the relationship, the giving of evidence by the spouse or civil partner of an accused.

Witnesses not excluded for conviction, interest, relationship, etc.

265

(1) Every person adduced as a witness who is not otherwise by law disqualified from giving evidence, shall be admissible as a witness, and no objection to the admissibility of a witness shall be competent on the ground of—

(a) conviction of or punishment for an offence;

(b) interest;

(d) the absence of due citation to attend; or

(e) his having been precognosced subsequently to the date of citation.

(2) Where any person who is or has been an agent of the accused is adduced and examined as a witness for the accused, it shall not be competent for the accused to object, on the ground of confidentiality, to any question proposed to be put to such witness on matter pertinent to the issue of the guilt of the accused.

(3) No objection to the admissibility of a witness shall be competent on the ground that he or she is the father, mother, son, daughter, brother or sister, by consanguinity or affinity, or uncle, aunt, nephew or niece, by consanguinity of any party adducing the witness in any trial.

(4) It shall not be competent for any witness to decline to be examined and give evidence on the ground of any relationship mentioned in subsection (3) above.

Accused as witness.

266

(1) Subject to subsections (2) to (8) below, the accused shall be a competent witness for the defence at every stage of the case, whether the accused is on trial alone or along with a co-accused.

(2) The accused shall not be called as a witness in pursuance of this section except upon his own application or in accordance with subsection (9) or (10) below.

(3) An accused who gives evidence on his own behalf in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged.

(4) An accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless—

(a) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or

(b) the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establishing the accused’s good character or impugning the character of the complainer, or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution or of the complainer; or

(5) In a case to which paragraph (b) of subsection (4) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that subsection only if the court, on the application of the prosecutor, permits him to do so.

(5A) Nothing in subsections (4) and (5) above shall prevent the accused from being asked, or from being required to answer, any question tending to show that he has been convicted of an offence other than that with which he is charged if his conviction for that other offence has been disclosed to the jury, or is to be taken into consideration by the judge, under section 275A(2) of this Act.

(6) An application under subsection (5) above in proceedings on indictment shall be made in the course of the trial but in the absence of the jury.

(7) In subsection (4) above, references to the complainer include references to a victim who is deceased.

(8) Every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.

(9) The accused may—

(a) with the consent of a co-accused, call that other accused as a witness on the accused’s behalf; or

(b) ask a co-accused any question in cross-examination if that co-accused gives evidence,

but he may not do both in relation to the same co-accused.

(10) The prosecutor or the accused may call as a witness a co-accused who has pleaded guilty to or been acquitted of all charges against him which remain before the court (whether or not, in a case where the co-accused has pleaded guilty to any charge, he has been sentenced) or in respect of whom the diet has been deserted; and the party calling such co-accused as a witness shall not require to give notice thereof, but the court may grant any other party such adjournment or postponement of the trial as may seem just.

(11) Where, in any trial, the accused is to be called as a witness he shall be so called as the first witness for the defence unless the court, on cause shown, otherwise directs.

Witnesses in court during trial.

267

(1) The court may, on an application by any party to the proceedings, permit a witness to be in court during the proceedings or any part of the proceedings before he has given evidence if it appears to the court that the presence of the witness would not be contrary to the interests of justice.

(2) Without prejudice to subsection (1) above, where a witness has, without the permission of the court and without the consent of the parties to the proceedings, been present in court during the proceedings, the court may, in its discretion, 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.

Citation of witnesses for precognition

267A

(1) This Act shall be sufficient warrant for the citation of witnesses for precognition by the prosecutor, whether or not any person has been charged with the offence in relation to which the precognition is taken.

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Such citation shall be in the form prescribed by Act of Adjournal or as nearly as may be in such form.

(3) A witness who, having been duly cited—

(a) fails without reasonable excuse, after receiving at least 48 hours notice, to attend for precognition by a prosecutor at the time and place mentioned in the citation served on him; or

(b) refuses when so cited to give information within his knowledge regarding any matter relative to the commission of the offence in relation to which the precognition is taken,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale or to a term of imprisonment not exceeding 21 days.

Identification procedures

Order requiring accused to participate in identification procedure

267B

(1) The court may, on an application by the prosecutor in any proceedings, make an order requiring the accused person to participate in an identification parade or other identification procedure.

(2) The application may be made at any time after the proceedings have been commenced.

(3) The court—

(a) shall (if the accused is present) allow the accused to make representations in relation to the application;

(b) may, if it considers it appropriate to do so (where the accused is not present), fix a hearing for the purpose of allowing the accused to make such representations.

(4) Where an order is made under subsection (1) above, the clerk of court shall (if the accused is not present) have notice of the order effected as respects the accused without delay.

(5) Notice under subsection (4) above shall (in relation to any proceedings) be effected in the same manner as citation under section 141 of this Act.

(6) It is sufficient evidence that notice has been effected under subsection (5) above if there is produced a written execution—

(a) in the form prescribed by Act of Adjournal or as nearly as may be in such form; and

(b) signed by the person who effected notice.

(7) In relation to notice effected by means of registered post or the recorded delivery service, the relevant post office receipt requires to be produced along with the execution mentioned in subsection (6) above.

(8) A person who, having been given due notice of an order made under subsection (1) above, without reasonable excuse fails to comply with the order is—

(a) guilty of an offence; and

(b) liable on summary conviction to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 12 months or to both.

(9) For the purpose of subsection (5) above, section 141 of this Act is to be read with such modifications as are necessary for its application in the circumstances.

(10) In this section, “the court” means—

(a) in the case of proceedings in the High Court, a single judge of that Court;

(b) in any other case, any court with jurisdiction in relation to the proceedings.

Additional evidence, etc.

Additional evidence.

268

(1) Subject to subsection (2) below, the judge may, on a motion of the prosecutor or the accused made—

(a) in proceedings on indictment, at any time before the commencement of the speeches to the jury;

(b) in summary proceedings, at any time before the prosecutor proceeds to address the judge on the evidence,

permit him to lead additional evidence.

(2) Permission shall only be granted under subsection (1) above where the judge—

(a) considers that the additional evidence is prima facie material; and

(b) accepts that at the commencement of the trial either—

(i) the additional evidence was not available and could not reasonably have been made available; or

(ii) the materiality of such additional evidence could not reasonably have been foreseen by the party.

(3) The judge may permit the additional evidence to be led notwithstanding that—

(a) in proceedings on indictment, a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given; or

(b) in any case, a witness must be recalled.

(4) The judge may, when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.

(5) In this section “the commencement of the trial” means—

(a) in proceedings on indictment, the time when the jury is sworn; and

(b) in summary proceedings, the time when the first witness for the prosecution is sworn.

Evidence in replication.

269

(1) The judge may, on a motion of the prosecutor made at the relevant time, permit the prosecutor to lead additional evidence for the purpose of—

(a) contradicting evidence given by any defence witness which could not reasonably have been anticipated by the prosecutor; or

(b) providing such proof as is mentioned in section 263(4) of this Act.

(2) The judge may permit the additional evidence to be led notwithstanding that—

(a) in proceedings on indictment, a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given; or

(b) in any case, a witness must be recalled.

(3) The judge may when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.

(4) In subsection (1) above, “the relevant time” means—

(a) in proceedings on indictment, after the close of the defence evidence and before the commencement of the speeches to the jury; and

(b) in summary proceedings, after the close of the defence evidence and before the prosecutor proceeds to address the judge on the evidence.

Evidence of criminal record and character of accused.

270

(1) This section applies where—

(a) evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused’s good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer; or

(b) the nature or conduct of the defence is such as to tend to establish the accused’s good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.

(2) Where this section applies the court may, without prejudice to section 268 of this Act, on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character, notwithstanding that, in proceedings on indictment, a witness or production concerned is not included in any list lodged by the prosecutor and that the notice required by sections 67(5) and 78(4) of this Act has not been given.

(3) In proceedings on indictment, an application under subsection (2) above shall be made in the course of the trial but in the absence of the jury.

(4) In subsection (1) above, references to the complainer include references to a victim who is deceased.

Special measures for child witnesses and other vulnerable witnesses

Vulnerable witnesses: main definitions

271

(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,

(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),

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

(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.

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(2) In determining whether a person is a vulnerable witness by virtue of subsection (1)(b) or (d) above, the court shall take into account—

(a) the nature and circumstances of the alleged offence to which the proceedings relate,

(b) the nature of the evidence which the person is likely to give,

(d) the person’s age and maturity,

(e) any behaviour towards the person on the part of—

(i) the accused,

(ii) members of the family or associates of the accused,

(iii) any other person who is likely to be an accused or a witness in the proceedings, and

(f) such other matters, including—

(i) the social and cultural background and ethnic origins of the person,

(ii) the person’s sexual orientation,

(iii) the domestic and employment circumstances of the person,

(iv) any religious beliefs or political opinions of the person, and

(v) any physical disability or other physical impairment which the person has,

as appear to the court to be relevant.

(3) For the purposes of subsection (1)(a) , section 271B(1)(b) and sections 271BZA to 271BZC, proceedings shall be taken to have commenced—

(a) where it is relevant to a court's consideration of whether to authorise the use of the special measure of taking evidence by commissioner (on its own or in combination with any other special measure) and the accused has appeared on petition, on the date when the accused appeared on petition, or

(b) in any other case, on the date when the indictment or, as the case may be, complaint is served on the accused.

(4) In subsection (1)(b) above, the reference to the quality of evidence is to its quality in terms of completeness, coherence and accuracy.

(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.

(5) In this section and sections 271A to 271M of this Act—

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

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

“court” means the High Court or the sheriff court,

“hearing in relevant criminal proceedings” means any hearing in the course of any criminal proceedings in the High Court or the sheriff court.

(6) In sections 271A to 271M of this Act, “special measure” means any of the special measures set out in, or prescribed under, section 271H below.

Child and deemed vulnerable witnesses

271A

(1) Where a child witness or a deemed vulnerable witness is to give evidence at or for the purposes of a hearing in relevant criminal proceedings, the ... witness is entitled, subject to—

(a) subsections (2) to (13) below, and

(b) section 271D of this Act,

to the benefit of one or more of the special measures for the purpose of giving evidence.

(2) Subject to section 271AA, a party citing or intending to cite a child witness or a deemed vulnerable witness shall, by the required time, lodge with the court a notice (referred to in this Act as a “vulnerable witness notice”)—

(a) specifying the special measure or measures which the party considers to be the most appropriate for the purpose of taking the ... witness’s evidence, or

(b) if the party considers that the ... witness should give evidence without the benefit of any special measure, stating that fact.

(3) A vulnerable witness notice shall contain or be accompanied by—

(a) a summary of any views expressed for the purposes of section 271E(2)(b) of this Act, and

(b) such other information as may be prescribed by Act of Adjournal.

(3A) In the case where a vulnerable witness notice under subsection (2)(a) specifies only a standard special measure—

(a) subsection (3)(a) does not apply, and

(b) subsection (5) has effect as if the words “not earlier than 7 days and” were omitted.

(4) The court may, on cause shown, allow a vulnerable witness notice to be lodged after the required time.

(4A) Any party to the proceedings may, not later than 7 days after a vulnerable witness notice has been lodged, lodge with the court a notice (referred to in this section as an “objection notice”) stating—

(a) an objection to any special measure (other than a standard special measure) specified in the vulnerable witness notice that the party considers to be inappropriate, and

(b) the reasons for that objection.

(4B) The court may, on cause shown, allow an objection notice to be lodged after the period referred to in subsection (4A).

(4C) If an objection notice is lodged in accordance with subsection (4A) or (4B)—

(a) subsection (5)(a)(ii) does not apply to the vulnerable witness notice, and

(b) the court must make an order under subsection (5A).

(5) The court shall, not earlier than 7 days and not later than 14 days after a vulnerable witness notice has been lodged, consider the notice in the absence of the parties and, subject to sections 271B to 271BZB of this Act—

(a) in the case of a notice under subsection (2)(a) above—

(i) if a standard special measure is specified in the notice, make an order authorising the use of that measure for the purpose of taking the ... witness’s evidence, and

(ii) if any other special measure is specified in the notice and the court is satisfied on the basis of the notice that it is appropriate to do so, make an order authorising the use of the special measure (in addition to any authorised by virtue of an order under sub-paragraph (i) above) for the purpose of taking the ... witness’s evidence,

(b) in the case of a notice under subsection (2)(b) above, if—

(i) the summary of views accompanying the notice under subsection (3)(a) above indicates that the ... witness has expressed a wish to give evidence without the benefit of any special measure, and

(ii) the court is satisfied on the basis of the notice that it is appropriate to do so,

make an order authorising the giving of evidence by the ... witness without the benefit of any special measure, or

(i) paragraph (a)(ii) or (b) above would apply but for the fact that the court is not satisfied as mentioned in that paragraph, or

(ii) in the case of a notice under subsection (2)(b), the summary of views accompanying the notice under subsection (3)(a) above indicates that the ... witness has not expressed a wish to give evidence without the benefit of any special measure,

make an order under subsection (5A) below.

(5A) That order is an order—

(a) in the case of proceedings in the High Court where the preliminary hearing is yet to be held, appointing the vulnerable witness notice to be disposed of at that hearing;

(b) in the case of proceedings on indictment in the sheriff court where the first diet is yet to be held, appointing the vulnerable witness notice to be disposed of at that diet; or

(c) in any other case, appointing a diet to be held before the hearing at which the evidence is to be given and requiring the parties to attend the diet.

(6) Subsection (7) below applies where—

(a) it appears to the court that a party intends to call a child witness or a deemed vulnerable witness to give evidence at or for the purposes of a hearing in relevant criminal proceedings,

(b) the party has not lodged a vulnerable witness notice in respect of the ... witness by the time specified in subsection (2) above or lodged a notice with the clerk of court in accordance with section 271AA by the time specified in that section, and

(c) the court has not allowed a vulnerable witness notice in respect of the ... witness to be lodged after that time under subsection (4) above or under section 271AA(5).

(7) Where this subsection applies, the court shall—

(a) order the party to lodge a vulnerable witness notice in respect of the ... witness by such time as the court may specify, or

(b) where the court does not so order—

(i) in the case of proceedings on indictment where this subsection applies at or before the preliminary hearing or, as the case may be, the first diet, at that hearing or diet make an order under subsection (9) below; or

(ii) in any other case, make an order appointing a diet to be held before the hearing at which the evidence is to be given diet and requiring the parties to attend the diet.

(8) On making an order under subsection (5A)(c) or (7)(b)(ii) above, the court may postpone the hearing at which the evidence is to be given.

(8A) Subsection (9) below applies to—

(a) a preliminary hearing or first diet, so far as the court is—

(i) by virtue of an order under subsection (5A)(a) or (b) above, disposing of a vulnerable witness notice at the hearing or diet; or

(ii) by virtue of subsection (7)(b)(i) above, to make an order under subsection (9) ... at the hearing or diet; and

(b) a diet appointed under subsection (5A)(c) or (7)(b)(ii) above.

(9) Subject to section 271B, at a hearing or diet to which this subsection applies, the court, after giving the parties an opportunity to be heard—

(a) in a case where any of the standard special measures has been authorised by an order under subsection (5)(a)(i) above, may make an order authorising the use of such further special measure or measures as it considers appropriate for the purpose of taking the ... witness’s evidence, and

(b) in any other case, shall make an order—

(i) authorising the use of such special measure or measures as the court considers to be the most appropriate for the purpose of taking the ... witness’s evidence, or

(ii) that the ... witness is to give evidence without the benefit of any special measure.

(10) Subject to section 271B, the court may make an order under subsection (9)(b)(ii) above only if satisfied—

(a) where the ... witness has expressed a wish to give evidence without the benefit of any special measure, that it is appropriate for the ... witness so to give evidence, or

(b) in any other case, that—

(i) the use of any special measure for the purpose of taking the evidence of the ... witness would give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice, and

(ii) that risk significantly outweighs any risk of prejudice to the interests of the ... witness if the order is made.

(11) A hearing or diet to which subsection (9) above applies may—

(a) on the application of the party citing or intending to cite the ... witness in respect of whom the diet is to be held, or

(b) of the court’s own motion,

be held in chambers.

(12) A diet appointed under subsection (5A)(c) or (7)(b)(ii) above in any case may be conjoined with any other diet to be held before the hearing at which the evidence is to be given.

(13) A party lodging a vulnerable witness notice or an objection notice shall, at the same time, intimate the notice to the other parties to the proceedings.

(13A) In subsections (2) and (4) above, “the required time” means—

(a) any time before a date has been fixed for one of the following—

(i) a preliminary hearing in the High Court,

(ii) a first diet in the sheriff court, or

(iii) a hearing at which the evidence is to be given, or

(b) if a date has been fixed—

(i) for a preliminary hearing in the High Court, no later than 14 clear days before the preliminary hearing,

(ii) for a first diet in the sheriff court in the case of proceedings on indictment, no later than 7 clear days before the first diet, or

(iii) in a case in which the proceedings are not to take place in the High Court or on indictment in the sheriff court, for a hearing at which the evidence is to be given, no later than 14 clear days before that hearing.

(14) In this section and section 271AA, references to a standard special measure are to any of the following special measures—

(a) the use of a live television link in accordance with section 271J of this Act ...

(b) the use of a screen in accordance with section 271K of this Act, and

(15) The Scottish Ministers may, by order subject to the affirmative procedure—

(a) modify subsection (14),

(b) in consequence of any modification made under paragraph (a)—

(i) prescribe the procedure to be followed when standard special measures are used, and

(ii) so far as is necessary, modify sections 271A to 271M of this Act.

Using only standard special measures

271AA

(1) This section applies where—

(a) a child witness or a deemed vulnerable witness is to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings, and

(b) the party citing or intending to cite the witness considers that it is most appropriate for the witness to give evidence with the benefit of—

(i) one or more standard special measures, and

(ii) no other special measure.

(2) The party must, by the required time, lodge with the clerk of court a notice specifying—

(a) the standard special measure or measures that the party considers to be the most appropriate for the purpose of taking the witness's evidence,

(b) whether the witness is a child witness or a deemed vulnerable witness,

(d) such other information as may be prescribed by Act of Adjournal.

(3) The party lodging a notice with the clerk of court under subsection (2) must, at the same time, intimate the notice to the other parties to the proceedings.

(4) If the party lodges a notice with the clerk of court by the required time, the witness is entitled to the benefit of the standard special measure or measures specified in the notice as if the use of that measure or measures were authorised by an order made by the court under section 271A(5)(a).

(5) If the party does not lodge a notice with the clerk of court by the required time, the court may, on cause shown, allow the party to lodge a vulnerable witness notice in accordance with section 271A (despite its being lodged later than the deadline for lodging a vulnerable witness notice).

(6) In this section, the “required time” means—

(a) any time before a date has been fixed for one of the following—

(i) a preliminary hearing in the High Court,

(ii) a first diet in the sheriff court, or

(iii) a hearing at which the evidence is to be given, or

(b) if a date has been fixed—

(i) for a preliminary hearing in the High Court, no later than 14 clear days before the preliminary hearing,

(ii) for a first diet in the sheriff court in the case of proceedings on indictment, no later than 7 clear days before the first diet, or

(iii) in a case in which the proceedings are not to take place in the High Court or on indictment in the sheriff court, for a hearing at which the evidence is to be given, no later than 14 clear days before that hearing.

(7) This section does not apply in a case to which section 271B or 271BZA applies.

Further special provision for child witnesses under the age of 12

271B

(1) This section applies where a child witness—

(a) is to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings in respect of any offence specified in subsection (2) below, and

(b) is under the age of 12 on the date of commencement of the proceedings in which the hearing is being or to be held.

(2) The offences referred to in subsection (1)(a) above are—

(a) murder,

(b) culpable homicide,

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