# Victims and Witnesses (Scotland) Act 2014

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# Victims and Witnesses (Scotland) Act 2014

# 2014 asp 1                     

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 12th December 2013 and received Royal Assent                        on 17th January 2014                     

An Act of the Scottish Parliament to make provision for certain rights and support for victims and witnesses, including provision                        for implementing Directive 2012/29/EU of the European Parliament and the Council; and to make provision for the establishment of a committee of the Mental Welfare                        Commission with functions relating to persons who were placed in institutional care as children.                     

## General principlesS

### 1General principlesS

## Standards of serviceS

### 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  

### 3ReportsS

## Rules: review of decision not to prosecuteS

### 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  

## Restorative justiceS

### 5Restorative justiceS

(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 [F1or alleged offence] and a person who has or is alleged to have committed the offence [F2or 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 informationS

### 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  

## InterviewsS

### 7Interviews with children: guidanceS

### 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  

Prospective

## Medical examinationsS

### 9Certain medical examinations: gender of medical examinerS

(1)This section applies where a person makes a complaint to a constable alleging that the person is the victim of an offence                           listed in any of paragraphs 36 to 59ZL of Schedule 3 to the Sexual Offences Act 2003.                     

(2)Before a medical examination of the person in relation to the complaint is carried out by a registered medical practitioner                           in pursuance of section 31 of the Police and Fire Reform (Scotland) Act 2012, the constable must give the person an opportunity                           to request that any such medical examination be carried out by a registered medical practitioner of a gender specified by                           the person.                     

(3)If the person makes such a request, the constable must ensure that the registered medical practitioner who is to (or, but                           for the request, would) carry out the examination is 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 witnessesS

### 10Vulnerable witnesses: main definitionsS

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).”,                  

(c)subsection (1A) is repealed,                  

(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.”.                  

### 11Child and deemed vulnerable witnessesS

(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)—                  

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

(ii)for “child”, where it second occurs, substitute “ vulnerable ”, and                  

(iii)in each of paragraphs (a) and (b), the word “child” is repealed,                  

(c)in each of subsections (3) and (4), for “child” substitute “ vulnerable ”,                  

(d)after subsection (3), insert—                  

“(3A)In the case where a vulnerable witness notice under subsection (2)(a) specifies only a standard special measure, subsection                           (3)(a) does not apply.”.                  

(e)in subsection (5)—                  

(i)for “child”, where it first occurs, substitute “ vulnerable ”, and                  

(ii)in paragraphs (a), (b) and (c), the word “child”, in each place where it occurs, is repealed,                  

(f)in subsection (5A)—                  

(i)in paragraph (a), for “child” substitute “ vulnerable ”, and                  

(ii)in paragraph (b), for “child” substitute “ vulnerable ”,                  

(g)in subsection (6)—                  

(i)in paragraph (a), after “child witness” insert “ or a deemed vulnerable witness ”,                  

(ii)in paragraph (b), for “child”, where it first occurs, substitute “ vulnerable ”,                  

(iii)in paragraph (b), the word “child”, where it second occurs, is repealed,                  

(iv)in paragraph (c), for “child”, where it first occurs, substitute “ vulnerable ”, and                  

(v)in paragraph (c), the word “child”, where it second occurs, is repealed,                  

(h)in subsection (7)(a)—                  

(i)for “child”, where it first occurs, substitute “ vulnerable ”, and                  

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

(i)in subsection (8A)(a)—                  

(i)in sub-paragraph (i), for “child” substitute “ vulnerable ”, and                  

(ii)in paragraph (ii), the word “above”, where it second occurs, is repealed,                  

(j)in subsection (9), the word “child”, in each place where it occurs, is repealed,                  

(k)in subsection (10), the word “child”, in each place where it occurs, is repealed,                  

(l)in subsection (11)(a), the word “child” is repealed, and                  

(m)in subsection (13), for “child” substitute “ vulnerable ”.                  

(5)The title of section 271A of the 1995 Act becomes “ **Child and deemed vulnerable witnesses** ”.                  

(6)The title of section 271C of the 1995 Act becomes “ **Vulnerable witness application** ”.                  

(7)In section 271E(1)(a) of the 1995 Act (party considering vulnerable witness notice or application), for “child” substitute                        “ vulnerable ”.                  

(8)In section 271F(2)(a) of the 1995 Act (modifications of section 271 in relation to accused giving evidence as a child witness)—                  

(a)in paragraph (a)(i), for “child witness (except in the phrase “child witness notice”)” substitute “ witness ”, and                  

(b)in paragraph (a)(ii), the word “child” is repealed.                  

(9)In section 288E of the 1995 Act (prohibition of personal conduct of defence in certain cases involving child witnesses under                        the age of 12), in each of subsections (5) and (7) for “child” substitute “ vulnerable ”.                  

### 12Child and deemed vulnerable witnesses: standard special measuresS

In section 271A of the 1995 Act (the standard special measures)—

(a)in subsection (14)—                  

(i)in paragraph (a), the words from “where” to the end are repealed, and                  

(ii)in paragraph (c), the words from “in”, where it second occurs, to the end are repealed, and                  

(b)after that subsection, insert—                  

“(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.”.                  

### 13Objections to special measures: child and deemed vulnerable witnessesS

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

(a)after subsection (4), insert—                  

“(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).”,                  

(b)in subsection (5), for “later than 7” substitute “ earlier than 7 days and not later than 14 ”, and                  

(c)in subsection (13), after “notice” insert “ or an objection notice ”.                  

### 14Child witnessesS

(1)In section 271B of the 1995 Act (further special provision for child witnesses under the age of 12), for subsection (3), substitute—                  

“(3)Subsection (4) applies if the child witness expresses a wish to be present in the court-room for the purpose of giving evidence.                  

(4)The court must make an order under section 271A or, as the case may be, 271D which has the effect of requiring the child witness                           to be present in the court-room for the purpose of giving evidence unless the court considers that it would not be appropriate                           for the child witness to be present there for that purpose.                  

(5)Subsection (6) applies if the child witness—                  

(a)does not express a wish to be present in the court-room for the purpose of giving evidence, or                  

(b)expresses a wish to give evidence in some other way.                  

(6)The court may not make an order under section 271A or 271D having the effect mentioned in subsection (4) unless the court                           considers that—                  

(a)the giving of evidence by the child witness in some way other than by being present in the court-room for that purpose would                           give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice, and                  

(b)that risk significantly outweighs any risk of prejudice to the interests of the child witness if the order were to be made.”.                  

(2)In section 271A(5) of the 1995 Act (orders authorising special measures), for “271B(3)” substitute “ 271B ”.                  

(3)In section 271D of the 1995 Act (review of arrangements for child witnesses and certain other witnesses), after subsection                        (6), add—                  

“(7)This section is subject to section 271B.”.                  

### 15Reporting of proceedings involving childrenS

In section 47 of the 1995 Act (restriction on report of proceedings involving children), in each of subsections (1), (2) and                     (3)(a), for “16”, wherever it occurs, substitute “ 18 ”.                  

### 16Other vulnerable witnesses: assessment and applicationS

(1)After section 271B of the 1995 Act, insert—                  

#### “271BAAssessment of witnesses

(1)This section applies where a party intends to cite a witness other than a child witness or a deemed vulnerable witness to                           give evidence at, or for the purposes of, a hearing in relevant criminal proceedings.                  

(2)The party intending to cite the witness must take reasonable steps to carry out an assessment under subsection (3).                  

(3)An assessment must determine whether the person—                  

(a)is likely to be a vulnerable witness, and                  

(b)if so, what special measure or combination of special measures ought to be used for the purpose of taking the person's evidence.                  

(4)In determining under subsection (3)(a) whether a person is likely to be a vulnerable witness the party must—                  

(a)take into account the matters mentioned in section 271(2),                  

(b)have regard to the best interests of the person, and                  

(c)take account of any views expressed by the person.”.                  

(2)In section 271C(1) of the 1995 Act (citation of vulnerable witnesses)—                  

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

(b)before “considers” insert “ and, having carried out an assessment under section 271BA, ”.                  

### 17Objections to special measures: other vulnerable witnessesS

In section 271C of the 1995 Act (other vulnerable witnesses)—

(a)after subsection (4), insert—                  

“(4A)Any party to the proceedings may, not later than 7 days after a vulnerable witness application 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 specified in the vulnerable witness application 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) does not apply to the vulnerable witness application, and                  

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

(b)in subsection (5), for “later than 7” substitute “ earlier than 7 days and not later than 14 ”, and                  

(c)in subsection (11)—                  

(i)after “application”, where it first occurs, insert “ or an objection notice ”, and                  

(ii)after “application”, where it second occurs, insert “ or, as the case may be, the notice ”.                  

### 18Review of arrangements for vulnerable witnessesS

In section 271D(1)(a) of the 1995 Act (application for review of arrangements for vulnerable witnesses), for “the party citing                     or intending to cite the witness” substitute “ any party to the proceedings ”.                  

### 19Temporary additional special measuresS

After section 271H of the 1995 Act, insert—

#### “271HATemporary additional special measures

(1)The Scottish Ministers may, by order subject to the affirmative procedure, specify additional measures which for the time                           being are to be treated as special measures listed in section 271H(1).                  

(2)An order under subsection (1)                  

(3)An order under subsection (1) must specify—                  

(a)the area in which the additional measures may be used,                  

(b)the period during which the additional measures may be used, and                  

(c)the procedure to be followed when the additional measures are used.”.                  

### 20Special measures: closed courtsS

(1)In section 271H(1) of the 1995 Act (the special measures), after paragraph (e) insert—                  

“(ea)excluding the public during the taking of the evidence in accordance with section 271HB of this Act,”.                  

(2)After section 271HA of the 1995 Act (inserted by section 19), insert—                  

#### “271HBExcluding the public while taking evidence

(1)This section applies where the special measure to be used in respect of a vulnerable witness is excluding the public during                           the taking of the evidence of the vulnerable witness.                  

(2)The court may direct that all or any persons other than those mentioned in subsection (3) are excluded from the court during                           the taking of the evidence.                  

(3)The persons are—                  

(a)members or officers of the court,                  

(b)parties to the case before the court, their counsel or solicitors or persons otherwise directly concerned in the case,                  

(c)*bona fide* representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous                           reports of the proceedings,                  

(d)such other persons as the court may specially authorise to be present.”.                  

(3)In section 271F(8)(a) of the 1995 Act (special measures not applying in relation to a vulnerable witness who is the accused),                        after “271H(1)(c)” insert “ and (ea) ”.                  

### 21Power to prescribe further special measuresS

In section 271H of the 1995 Act (the special measures)—

(a)in subsection (1), paragraph (f) is repealed,                  

(b)after subsection (1), insert—                  

“(1A)The Scottish Ministers may, by order subject to the affirmative procedure—                  

(a)modify subsection (1),                  

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

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

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

(c)subsection (2) is repealed.                  

### 22Vulnerable witnesses: civil proceedingsS

In section 11(1) of the Vulnerable Witnesses (Scotland) Act 2004 (vulnerable witnesses: civil proceedings)—

(a)in paragraph (a), for “16” substitute “ 18 ”,                  

(b)the word “or” immediately after that paragraph is repealed, and                  

(c)after paragraph (b), insert “, or                   

(c)the person is of such description or is a witness in such proceedings as the Scottish Ministers may by order subject to the                           affirmative procedure prescribe.”.                  

## Victim statementsS

### 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  

## SentencingS

Prospective

### 24Duty to consider making compensation orderS

### 25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  

### 26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  

## Release of offender: victim's rightsS

### 27Victim's right to receive information about release of offender etc.S

### 28Life prisoners: victim's right to make oral representations before release on licenceS

### 29Temporary release: victim's right to make representationsS

## National Confidential ForumS

### 30National Confidential ForumS

After section 4 of the Mental Health Act, insert—

#### “4ZANational Confidential Forum

(1)The Commission must establish and maintain a committee to be known as the National Confidential Forum (“NCF”) for the purpose                           of carrying out the following functions (referred to in this Act as “NCF functions”)—                  

(a)the general functions mentioned in section 4ZB,                  

(b)the functions conferred on NCF in schedule 1A.                  

(2)Schedule 1A makes further provision about NCF.                  

#### 4ZBGeneral functions of NCF

The general functions of NCF are—                  

(a)to provide means for persons who were placed in institutional care as children to describe in confidence (such descriptions                           being referred to in this Act as “testimony”)—                  

(i)experiences of that care,                  

(ii)any abuse experienced during the period spent in that care,                  

(b)to acknowledge testimony by enabling it to be given at hearings established by NCF or by written or other means,                  

(c)based on testimony received—                  

(i)to identify any patterns and trends in the experiences of persons placed in institutional care as children (including the                           causes, nature, scale and circumstances of any abuse experienced), and                  

(ii)to make recommendations about policy and practice which NCF considers will improve institutional care (including by protecting                           children from, and preventing or reducing the incidence of, abuse),                  

(d)while preserving the anonymity of participants, establishments providing institutional care and other persons, to prepare                           reports of the testimony it receives and its recommendations in relation to them,                  

(e)to provide information about advice and assistance available to persons giving, or proposing to give, testimony.                  

#### 4ZCCarrying out NCF functions

(1)The Commission must delegate the NCF functions to NCF.                  

(2)The person appointed to chair NCF (the “NCF Head”) must account to the Commission for the carrying out of the NCF functions.                  

(3)Subsections (1) and (2) do not affect the responsibility of the Commission for the carrying out of the NCF functions.                  

#### 4ZDModifications in relation to NCF

(1)The following modifications of this Part apply in relation to the NCF functions—                  

(a)sections 5, 6, 9, 9A, 10, 16 and 19 do not apply,                  

(b)in section 17(1), references to the Commission (except in the phrase “Commission Visitor”) are to be read as if they were                           references to NCF,                  

(c)sub-paragraph (2) of paragraph 11 of schedule 1A applies in relation to the Commission's annual report mentioned in section                           18(1) as it applies in relation to a report prepared under that paragraph,                  

(d)section 20 is to be read as if after subsection (1) there were inserted—                  

“(1A)For the purposes of the law of defamation—                  

(a)any statement made in good faith by NCF, its members or NCF staff in carrying out any of the NCF functions is privileged,                  

(b)any statement made by an eligible person in accordance with arrangements made by NCF under paragraph 8(2) of schedule 1A is                           privileged.                  

(1B)A word or expression used in subsection (1A) has the same meaning as it has in schedule 1A.”.                  

(2)Section 1 of the Public Records (Scotland) Act 2011 is to be read as if after subsection (8) there were inserted—                  

“(8A)The Mental Welfare Commission for Scotland must have a separate records management plan in relation to the public records                           created in carrying out the NCF functions (within the meaning of section 4ZA(1) of the Mental Health (Care and Treatment)                           (Scotland) Act 2003).”.”.                  

Commencement Information

I1S. 30 is partly in force; s. 30 not in force at Royal Assent; s. 30 in force for certain purposes at 18.1.2014, see s. 34(1)

### 31NCF: constitution and operationS

(1)In schedule 1 to the Mental Health Act—                  

(a)in paragraph 2A(1)(b), for “6 nor more than 8” substitute “ 7 nor more than 9 ”,                  

(b)omit the word “and” immediately preceding paragraph 2B(2)(b), and                  

(c)at the end of that paragraph, insert “and                   

(c)one person who has such skills, knowledge and experience as the Scottish Ministers consider to be relevant in relation to                           the carrying out of the NCF functions.”.                  

(2)After schedule 1 to the Mental Health Act, insert—                  

#### “SCHEDULE 1ASNational Confidential Forum

 (introduced by section 4ZA(2))

##### **Part 1**SMembers of NCF etc.

###### MembershipS

1(1)NCF is to consist of—                  

(a)the NCF Head, appointed by the Scottish Ministers, and                  

(b)at least 2 other members, appointed by the Scottish Ministers.                  

(2)The Scottish Ministers must, when appointing a person under sub-paragraph (1)(a) or (b), have regard to the recommendation                           of the selection panel mentioned in paragraph 2(1).                  

(3)Each member—                  

(a)is to be appointed for such period as the Scottish Ministers think fit, and                  

(b)holds and vacates office in accordance with the terms of appointment.                  

(4)A member may by written notice to the Scottish Ministers resign office as a member.                  

(5)The Scottish Ministers must, as soon as practicable after receiving a resignation notice, inform the Commission of the notice.                  

###### Membership selection panelS

2(1)The selection panel is to consist of—                  

(a)a representative of the Scottish Ministers,                  

(b)the person appointed in accordance with paragraph 2A(1)(a) of schedule 1 to chair the Commission, and                  

(c)other persons of such number and description as may be determined by the Scottish Ministers.                  

(2)The selection panel may recommend for appointment only persons who the panel consider to have such skills, knowledge and experience                           as the panel consider to be relevant to the carrying out of the NCF functions.                  

(3)The selection panel may not recommend for appointment persons who are members of the Commission.                  

(4)The selection panel is to determine the selection process to be applied in determining persons to be recommended for appointment.                  

###### NCF staffS

3(1)This paragraph applies where—                  

(a)the Commission proposes, in accordance with paragraph 7(1)(b) of schedule 1, to appoint a member of staff, and                  

(b)the employment of that person is to relate to the carrying out of NCF functions.                  

(2)The person may be appointed only if—                  

(a)the person has been recommended for appointment by the NCF Head,                  

(b)the terms of the person's appointment would prevent the person from carrying out any other function conferred on the Commission                           during the period when the Commission is required to establish and maintain NCF.                  

###### NCF powers and procedureS

4(1)NCF may do anything which appears to it to be necessary or expedient for the purposes of, or in connection with, the carrying                           out of the NCF functions.                  

(2)It is for the NCF Head to determine NCF's procedure, having regard to the views of the other NCF members.                  

(3)In carrying out its functions and in determining its procedure, NCF must have regard to the need to avoid any unnecessary                           costs to public funds, eligible persons and others.                  

(4)The validity of any proceedings of NCF is not affected by—                  

(a)any vacancy in its membership,                  

(b)any defect in the appointment of a member.                  

(5)Members of the Scottish Government and persons authorised by the Scottish Government may not attend or take part in meetings                           of NCF.                  

###### Application of schedule 1 to NCFS

5(1)The provisions of schedule 1 mentioned in sub-paragraph (2) do not apply in relation to NCF.                  

(2)The provisions are—                  

(a)paragraph 7D,                  

(b)paragraph 7E,                  

(c)paragraph 7G.                  

##### **Part 2**SDelegation of functions

###### Delegation by NCFS

6(1)NCF must delegate the NCF functions to the persons mentioned in sub-paragraph (3), to the extent determined by the NCF Head.                  

(2)NCF may otherwise delegate the NCF functions to those persons, to the extent determined by NCF.                  

(3)Those persons are—                  

(a)the NCF Head,                  

(b)any other member of NCF,                  

(c)any member of NCF staff.                  

(4)This paragraph does not affect—                  

(a)NCF's responsibility for the delegated functions, or                  

(b)the NCF Head's accountability for the carrying out of the NCF functions under section 4ZC(2).                  

##### **Part 3**SEligibility to participate in forum

###### EligibilityS

7(1)NCF may receive testimony from any eligible person whose application to provide testimony has been accepted by NCF.                  

(2)An “eligible person” is a person who—                  

(a)is 16 years of age or over,                  

(b)was placed in an establishment providing institutional care during the person's childhood, and                  

(c)is no longer in that care.                  

(3)In this schedule “institutional care” means a care or health service which meets the conditions in sub-paragraph (4) and is of a description or type prescribed                           by order made by the Scottish Ministers.                  

(4)The conditions are that the care or health service—                  

(a)was provided to children in Scotland at some time (whether or not the service is still provided),                  

(b)included residential accommodation for the children, and                  

(c)was provided by a body corporate or unincorporated.                  

(5)An order under sub-paragraph (3) may not prescribe a service provided at premises used wholly or mainly as a private dwelling.                  

(6)An order under sub-paragraph (3) is subject to the affirmative procedure.                  

##### **Part 4**SConduct of hearings etc.

###### Testimony given to NCFS

8(1)NCF must make provision for receiving testimony under paragraph 7(1).                  

(2)NCF must make arrangements for testimony to be given—                  

(a)at a hearing established by NCF (a “forum hearing”), or                  

(b)by other means of communication (whether oral or written).                  

(3)Where NCF receives testimony at a forum hearing it must ensure that—                  

(a)at least 2 members of NCF are present while the forum hearing is receiving the testimony, and                  

(b)the forum hearing is held in private.                  

(4)For the purposes of sub-paragraph (3), a forum hearing is held in private if the only persons present are—                  

(a)the person giving the testimony,                  

(b)any person accompanying that person whose attendance has been approved by NCF,                  

(c)members of NCF,                  

(d)NCF staff.                  

(5)It is otherwise for NCF to determine procedures for receiving testimony, taking account of—                  

(a)any procedure determined under paragraph 4(2), and                  

(b)the duty in paragraph 4(3).                  

###### Recording of testimonyS

9(1)NCF may record testimony and any other information received from eligible persons in such manner as it thinks fit.                  

(2)NCF must as soon as reasonably practicable after receiving any information from an eligible person take such steps as it thinks                           fit to organise the information in such a way as to preserve the anonymity of—                  

(a)the person providing the information,                  

(b)any individual mentioned in the testimony, and                  

(c)any establishment providing institutional care mentioned in the testimony.                  

###### Payment of expensesS

10NCF may require the Commission to pay such expenses as NCF considers reasonable—

(a)to eligible persons, and                  

(b)to persons accompanying eligible persons to forum hearings.                  

##### **Part 5**SReporting

###### Reports by NCFS

11(1)NCF may prepare—                  

(a)reports based on testimony received,                  

(b)reports setting out, in relation to the testimony, matters it identifies and recommendations made by virtue of section 4ZB(c).                  

(2)A report prepared under this paragraph must not identify or include information which creates a real risk of identifying—                  

(a)a person who has been in institutional care during childhood,                  

(b)a person alleged to have experienced or committed abuse,                  

(c)an establishment providing institutional care.                  

(3)Sub-paragraph (2) does not prevent a report from including information which is otherwise in the public domain.                  

(4)It is otherwise for NCF to determine the form and content of a report prepared under this paragraph.                  

###### Annual NCF reportsS

12(1)As soon as practicable after 31 March in each year, NCF must submit to the Scottish Ministers a report on the discharge of                           the NCF functions during the period of 12 months ending on 31 March.                  

(2)NCF must consult the Commission before preparing a report under this paragraph.                  

(3)Sub-paragraph (2) of paragraph 11 applies in relation to a report prepared under this paragraph as it applies in relation                           to a report prepared under that paragraph.                  

(4)NCF must send a copy of each report prepared under this paragraph to the Commission.                  

(5)The Scottish Ministers must lay before the Scottish Parliament a copy of each report submitted to them under sub-paragraph                           (1).                  

##### ConfidentialityS

###### Disclosure of informationS

13(1)This paragraph applies to—                  

(a)the Commission,                  

(b)a person who is or has been a member of the Commission,                  

(c)NCF,                  

(d)a person who is or has been a member of NCF,                  

(e)a person who is or has been an employee of the Commission,                  

(f)a person who has been given information by a person carrying out NCF functions for the purpose of storing or preserving that                           information.                  

(2)A person must not disclose any information which—                  

(a)has been provided to the person in connection with the carrying out of the NCF functions, and                  

(b)is not otherwise in the public domain.                  

(3)Sub-paragraph (2) does not prevent disclosure of any information by the person in so far as—                  

(a)the disclosure is to another person mentioned in sub-paragraph (1) and is necessary for the purpose of enabling or assisting                           the carrying out by NCF or the Commission of any of its functions under this Act,                  

(b)the disclosure is necessary for the purpose of enabling—                  

(i)NCF to prepare a report in accordance with paragraph 11 or 12, or                  

(ii)the Commission to prepare its annual report mentioned in section 18(1),                  

(c)the disclosure is in accordance with sub-paragraph (4), (5) or (6).                  

(4)A member of NCF must disclose to a constable information received by that member to the extent that it is, in the opinion                           of the member acting in good faith, reasonably necessary to prevent the commission of an offence involving the abuse of a                           child.                  

(5)A member of NCF may disclose to a constable information received by that member to the extent that—                  

(a)it relates to an allegation made by a person who has given testimony that an offence involving the abuse of a child has been                           committed, and                  

(b)it is, in the opinion of the member acting in good faith, in the public interest to do so.                  

(6)A court may order disclosure of information in, or for the purposes of, civil or criminal proceedings (including the purposes                           of the investigation of any offence or suspected offence) if it is satisfied that—                  

(a)the disclosure is necessary in the interests of justice, and                  

(b)the extent of the disclosure is necessary in the interests of justice.                  

##### **Part 7**SGeneral

14In this schedule—
          -  “child” means a person who is under 18 years of age,                         
          -  “childhood” means the period when a person is under 18 years of age,                         
          -  “eligible person” has the meaning given by paragraph 7(2),                         
          -  “forum hearing” has the meaning given by paragraph 8(2),                         
          -  institutional care” has the meaning given by paragraph 7(3),                         
          -  “NCF staff” means persons appointed in accordance with paragraph 3.”.                         

(3)In schedule 2 to the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (specified authorities), before the entry                        for “Accounts Commission for Scotland” (and the italic cross-heading immediately preceding it), insert— “ NCF Head and any other member of the National Confidential Forum established under section 4ZA(1) of the Mental Health (Care                           and Treatment) (Scotland) Act 2003 ”.                  

Commencement Information

I2S. 31 partly in force; s. 31 not in force at Royal Assent; s. 31(2) in force for certain purposes at 18.1.2014 and s. 31(1)(3)                              in force at 18.1.2014, see s. 34(1)

## GeneralS

### 32InterpretationS

In this Act—
          -  “the 1995 Act” means the Criminal Procedure (Scotland) Act 1995,                         
          -  “the 2003 Act” means the Criminal Justice (Scotland) Act 2003,                         
          -  “the Mental Health Act” means the Mental Health (Care and Treatment) (Scotland) Act 2003.                         

### 33Ancillary provisionS

(1)The Scottish Ministers may by order make such supplementary, incidental, consequential, transitional, transitory or saving                        provision as they consider appropriate for the purposes of, in consequence of, or for giving full effect to, any provision                        of this Act.                  

(2)An order under this section may modify any enactment (including this Act).                  

(3)An order under subsection (1) containing provisions which add to, replace or omit any part of the text of an Act is subject                        to the affirmative procedure.                  

(4)Otherwise, an order under subsection (1) is subject to the negative procedure.                  

### 34CommencementS

(1)This section and sections 30 so far as it inserts the new section 4ZA, 31(1), 31(2) so far as it inserts paragraphs 1, 2 and                        5 of the new schedule 1A, 31(3), 32, 33 and 35 come into force on the day after Royal Assent.                  

(2)The other provisions of this Act come into force on such day as the Scottish Ministers may by order appoint.                  

(3)An order under subsection (2) may contain transitory or transitional provision or savings.                  

### 35Short titleS

The short title of this Act is the Victims and Witnesses (Scotland) Act 2014.