In my January article about children I mentioned that a Bill was going through the Scottish Parliament to change the law to make it easier for children to give evidence. That Bill has been passed and is now the Vulnerable Witnesses (Scotland) Act 2004.

This act is a giant leap forward and its passing perhaps gives some credibility to the Parliament, which was otherwise well described by Billy Connolly as "that wee pretendy parliament." For the first time children have some control over how they are to give evidence and not be left to the whim of adults.

Where a witness is under 16 at the start of the criminal proceedings, they are entitled to the benefit of one or more of the special measures for the purpose of giving evidence. The right is the child’s and the child, not the court or parties, may choose whether or not to exercise that right. This right may only be refused where its use gives rise to a significant risk of prejudice to the fairness of the trial and that risk significantly outweighs the risk of prejudice to the child.

Up to now it had to be proved that it was necessary to use the special measures. Now it has to be proved that it will be seriously unjust if the measures are used. The situation has been completely reversed.

At present the Act only applies in the Sheriff and High Courts, but there is provision for bringing it into the District Court if needed. However as the Procurator Fiscal chooses which court any case is brought in and cases involving children should not be brought in the District Court, there should be no need to extend the provisions to that court.

The special measures are (a) taking the evidence by an appointed person before the trial (b) use of CCTV (c) use of a screen in court to prevent the child and accused seeing each other directly (d) having someone in court with the child while giving evidence or (e) having part of the evidence given by way of a statement given before. In practice the most likely methods will be by use of CCTV or screens in the presence of a supporter for the child.

If the child is under 12, even stricter rules apply.

The Act is not called the Child Witnesses Act, but is the Vulnerable Witnesses Act. These rules also apply to others who may find it difficult to give evidence in the normal way because of mental disorder or fear or distress in connection with giving evidence. The difference between a child and another vulnerable witness, is that it is presumed that a child is a vulnerable witness and thus entitled to use the special measures, whereas a vulnerable adult will have to satisfy the court that he needs to use the special measures. It will be interesting to see how it works in practice.

Charles Kennedy asked me recently if I was still persecuting the establishment. On this occasion, the establishment deserves applause. Let us see if they can keep it up by removing the Skye Bridge tolls and keeping Scotland GM free.