Heard but not seen

September was a significant month for those concerned with the welfare of child witnesses. The Vulnerable Witnesses (Scotland) Bill received its stage 1 hearing and the Scottish Executive published two guidance documents, “Interviewing Child Witnesses in Scotland” and “Questioning of Children in Court”.

The documents are the first two of a planned series produced in partnership with the Crown Office, the Law Society of Scotland, the Faculty of Advocates and other interested agencies. The Society, represented principally by Gerry Brown, Convener of the Criminal Law Committee, had a major hand in the drafting; Joe Platt, the current President, contributes a foreword welcoming the improvements to the justice system which will result.

The first booklet is directed at interviews conducted with a view to bringing criminal charges or children’s hearing referrals. But Anne Keenan, the Society’s Deputy Director for Law Reform and a former procurator fiscal, believes that: “The practice recommended would also make preparation of the defence easier, if taken in conjunction with the Bonomy Report principle of greater early disclosure by the Crown.”

The guidance is clear that implementing and maintaining best practice will require standardised national model training programmes, kept under regular review. This national curriculum should be developed centrally by ACPOS (the police chiefs’ association) and the Social Care Council, and delivered locally to police officers and social workers. Until the provision of trained and competent professionals is achieved, “availability of suitable interview personnel will still be an issue”, it states somewhat enigmatically. Interviewers should be familiar with the legal system, and have some knowledge of the child’s understanding of language, their needs, and also the impact of abuse on a child’s development.

Joint interviews by police and social worker are advocated wherever possible, to keep the number of interviews to a minimum and to permit one interviewer to take the lead while the second keeps an accurate record (of demeanour as well as questions and answers), and looks for any inconsistencies or misunderstandings: it is “extremely important” that a full, accurate and verbatim record is taken during the interview and not written up afterwards, even immediately.

Space does not permit discussion of the recommendations on conducting the interview, its setting and the presence of other persons; or the special needs pertaining to, for example the very young, ethnic origins or any form of physical, social or other impairment.

The relatively short document on questioning children in court restates the principle that “only when it is unavoidable in the interests of justice should a child be called as a witness to give evidence”. It emphasises the role of sensitivity and common sense, and the importance of preparation both in considering special measures the court setting and in identifying the issues to which the child will be asked to speak. All of this will be reinforced on the passing of the Vulnerable Witnesses (Scotland) Bill, which has completed its stage 1 hearing before the Justice 2 Committee.

The bill, on which the Society has been in consultation with the Executive for over a year, has two main parts, criminal and civil proceedings, the former being the more elaborate. (One civil provision to note is the clause which states that in certain children’s hearing grounds of referral, no evidence is to be led adverse to the character of, or relating to sexual behaviour at other times by, a child – or other witness – unless the sheriff is satisfied that its probative value outweighs any likely prejudice.)

Anne Keenan, who gave evidence for the Society before the Committee along with solicitor advocate Murray Macara and Mental Health and Disability Committee Vice-Convener Hilary Patrick, says the Society supports the principle of the Bill, though some of the definitions need to be expanded. “One area of concern is whether the bill as drafted goes far enough in protecting adults with mental disability. The proposed test focuses on the risk that the quality of the evidence will be diminished, rather than on the impact that the experience of giving evidence will have on the witness”. Certain types of disorder such as schizophrenia can be aggravated in the aftermath of a stressful situation, with the result that “the stress of giving evidence may have such a profound effect on the witness that it induces mental health problems in that witness”. The Society’s position, she explains, is that the definition of vulnerability should be linked to whether the process of giving evidence would expose the witness to undue mental stress or suffering.

“The fact that a person suffers from a mental disorder within the Mental Health (Care and Treatment) (Scotland) Act 2003 should operate as a gateway, which would entitle the courts to determine whether it is appropriate for the person to receive special measures,” she says.

A contentious issue before the Justice Committee was whether there should be a specific presumption against a child being called to give evidence in court. Currently such a presumption would apply only to children under 12 in relation to violent or sexual offences. A more general presumption is strongly supported by Justice for Children and other organisations who believe that the unless the bill sets down standards that courts must follow, the cultural change necessary for its success will not happen. They advocate evidence on commission for all children up to 12, and for those over 12 an assumption that they give evidence on commission unless they decide otherwise. But despite supporting the “only when unavoidable in the interests of justice” principle in the guidance document, the Law Society submissions resist the call to give it the status of a presumption, preferring that each case be examined on its merits. “There is a significant difference between a 15 year old who has witnessed a shoplifting or an assault, and a 10 year old victim of a sexual offence”, says Keenan. “If evidence is available from adults, those witnesses should obviously be called in preference to the child. But if it is necessary to call the child, the question should then be asked, what is the best way for that child to give evidence.”

Or, as Murray Macara put it before the Justice Committee: “From my perspective as a criminal defence solicitor – and, I suspect, from the perspective of a jury that is trying to evaluate evidence and judge the demeanour of witnesses – if a witness can give evidence in court, they should do so subject to whatever special measures require to be taken. However, there are clearly circumstances in which the normal rule would be eroded.”

The bill provides that a party intending to call a child as a witness must lodge a “child witness notice”, specifying that the child wishes to give evidence without special measures being taken or, more probably, which of certain measures it is proposed to take. These may be one or more of:

n evidence taken by a commissioner (to be video recorded);

n use of a live television link;

n use of a screen in court;

n the presence of a supporter (who as the Bill stands would be unable to be a witness; the Law Society proposes that it would be better simply to require the supporter to give evidence first);

n taking the evidence in chief in the form of a prior statement – an option in criminal cases only.

Other measures may be prescribed by order subject to approval by the Scottish Parliament. The court would consider the notice in the absence of the parties and only if not satisfied with its proposals would a hearing be ordered.

Other clauses provide for the abolition of the competence test; for a prosecution notice, open to challenge, that a person named as having been identified by a specified witness at a parade, is the person cited to answer the charge; (controversially) that expert evidence relating to any subsequent statement or behaviour of the complainer in certain sexual offence cases may be led to rebut any adverse inference as to credibility that might otherwise be drawn; and for a power in the court, similar to the recent provision relating to sexual offences, to prohibit an accused from conducting his or her own defence in proceedings in which a vulnerable witness will appear.
As to this last, the Law Society is unhappy at the possible implications for a solicitor appointed to conduct a defence, given the Code of Conduct obligation to provide adequate professional services. To quote Murray Macara again: “The relationship between solicitor and client should be based on trust, and the client should have confidence in the solicitor. The client co-operates with, puts their position to and instructs the solicitor. The proposals in the bill represent a radical departure from that. An accused person, who might be stubborn in some way or see himself as principled, and elects to defend himself, will not necessarily co-operate with a solicitor appointed to represent him by the court and will not give instructions to that solicitor. How, then, is the solicitor to defend that person properly?”
The Society contends that the court in that situation should appoint an amicus curiae to protect the witness and intervene on appropriate occasions. No sexual cases have yet come to light in which the equivalent power has been exercised, so the extent of any difficulties in practice cannot yet be assessed. Detailed scrutiny of the bill at stage 2 has yet to take place, and its final form remains open to debate.