The expansion to the Sheriff Court of the presumption in favour of the pre-recording of evidence for under 16s in certain solemn cases, in terms of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, will come into effect on 30 March 2026*.

To support the court process by which evidence can be pre-recorded - known as evidence by a commissioner** - the Sheriffs Principal have produced a National Sheriff Court Practice Note. This sets out clearly the collective judicial expectations for Sheriff Court practitioners and users in these proceedings while embedding good practice across the country. It is underpinned by a collective commitment to a trauma informed approach and furthers the objective of ensuring that all participants in court proceedings are treated fairly and sensitively.

In recent years there has been an increase in the number of applications within the Sheriff Court jurisdiction to take the evidence of the most vulnerable in society at a commission hearing rather than at trial. This allows witnesses to give their best evidence in as safe an environment as possible.

Drawing on lessons learnt in the High Court, the Practice Note gives guidance on:

• when practitioners should consider whether the taking of evidence by a commissioner is required;

• what practitioners must do in preparation for seeking authorisation to take evidence by a commissioner;

• what issues the court will expect practitioners to address in an application in relation to taking evidence by a commissioner;

• what issues the court will expect practitioners to address at the Ground Rules Hearing;  and

• what must be done by practitioners in preparation for, during and after an evidence by a commissioner hearing

A copy of the Practice Note is accessible on the SCTS website and downloadable versions of the proformas*** referenced to support ease of completion are accessible as follows:

Additional Information for the Court Proforma

Evidence by a Commissioner Preparation Proforma

Evidence by a Commissioner Recording Check Proforma

Evidence by a Commissioner Recording Editing Request Proforma

Judicial lead for the expansion of evidence by a commissioner within the Sheriff Courts, Sheriff Principal Gillian Wade KC said in relation to the Practice Note: 

“The Sheriffs Principal have worked together to produce a comprehensive Practice Note to be followed in Sheriff Courts across Scotland. We have replicated much of what has been tried and tested in the High Court with innovations where necessary to reflect differences in the way Sheriff Court business is programmed and conducted. Each Sheriffdom will have dedicated commission suites designed to put the witness at ease and to capture their evidence using state of the art technology. I am most grateful to SCTS colleagues and justice partners for their hard work in ensuring that facilities are available in time for the expansion of the presumption coming into effect.”

 

Explanatory Note

* See The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (Commencement No. 3 and Transitional Provision) Regulations 2026 for further details.

**This is a specific special measure which allows the evidence of a vulnerable witness to be pre-recorded in advance of trial or applicable evidential hearing. It involves the prosecution and the defence asking the witness questions before and under the supervision of a Judge known as a ‘Commissioner’. The scope, format and length of the questioning amongst other things are discussed with the Judge at a formal procedural hearing known as a Ground Rules Hearing. To support practical implementation of Commissions the SCTS have created, through additional funding secured from the Scottish Government, new bespoke and trauma informed evidence by a commissioner facilities.

***Lodging of the documentation for Court will be in accordance with existing arrangements for the lodging of criminal documentation within each Sheriff Court. Any queries in this regard should be raised with the applicable Court in the first instance.