Vital voices

Background to the Act

The Vulnerable Witnesses (Scotland) Act 2004 received Royal Assent on 14 April 2004. It was the result of extensive consultation carried out over several years and drew on detailed research and analysis. It responded to the concerns held by many organisations and individuals that too many victims of and witnesses to crime found the criminal justice process daunting, stressful and intimidating.

A 1998 consultation paper, Towards a Just Conclusion, which led to the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, gave rise to further work that looked at how the treatment of victims and witnesses could be improved more generally. In May 2002 the Scottish Executive issued a further consultation paper, Vital Voices – Helping Vulnerable Witnesses Give Evidence. The outcome favoured changes to the law on the categories of persons who should be able to use special measures when giving evidence, the types of special measures used and the availability of these measures in different court proceedings.

What the Act contains

In criminal cases:

All child witnesses under the age of 16 will be automatically entitled to standard special measures to assist them to give their best evidence. (See special measures below.)

• Applications may be made to request any special measures for any child or adult vulnerable witnesses, including witnesses for the defence.
• These measures also apply if a child accused or vulnerable adult accused gives evidence.
• The Act introduces a notice procedure in respect of child witnesses, which will streamline the process of deciding on the appropriate special measures.
• Some child witnesses will be able to give evidence without attending the court building where the trial is taking place, in particular child witnesses under 12 in criminal cases involving sexual assault or violence.
• A witness may not need to identify an accused person in the courtroom in cases where there has been a previous formal identification by the witness, if the court allows this to be used instead.
• An accused person in cases of certain violent crimes is prohibited from personally taking statements from a child witness under 12.
• An accused person in cases of certain violent crimes involving child witnesses under 12 is prevented from conducting their own case. The accused must be legally represented.
• The court will also have discretionary power to prevent the accused conducting their case personally in other cases involving vulnerable witnesses, and the power to appoint a legal representative for the accused. This provision already exists in all sexual offence cases.

The Act allows the use of expert evidence to explain a victim’s behaviour in certain cases.

In civil cases:

• Standard and further special measures also apply in civil proceedings including children’s hearings court procedures. There will be a similar notice procedure in respect of child witnesses and application procedure in respect of vulnerable adult witnesses.
• There is provision to protect children and young people against unfair use of sexual or character history evidence about them in children’s hearings court procedures.

In both criminal and civil cases:

• The definition of “vulnerable witness” is widened to include anyone where there is a risk that the quality of their evidence may be diminished by reason of fear or distress in connection with giving evidence at the trial. This will enable the court to take into account the wider circumstances of the case, such as the nature of the evidence the witness will give and any relationship between the witness and the accused.
• The Act abolishes the “competence test”. The court is no longer entitled to ask preliminary questions of the witness to ascertain whether the witness understands the difference between truth and lies and the duty to give truthful evidence.

Special measures

The Act formalises existing special measures and introduces some new ones.

• The standard special measures to which child witnesses under the age of 16 are automatically entitled are:
• Use of a live television link in another part of the court building (or from another place if the child is under 12 years of age)
• Use of a screen
• Use of a supporter, in conjunction with either of the standard special measures mentioned above.

The further special measures available on application for either child witnesses under the age of 16 or adult vulnerable witnesses are:

• Use of a live television link from a place outwith the court building
• Greater use of prior statements of vulnerable witnesses as evidence in chief (in criminal cases only)
• Taking of evidence by a commissioner
• Use of a screen
• Use of a supporter

The special measures may be used in combination where appropriate.

Applying for special measures

Information about which measure is most appropriate for the witness, will now be specified on either a child witness notice or, in the case of an adult witness, on a vulnerable witness application.

A child under 16 is automatically entitled to “standard special measures”.  The court will expect a child to use one or more of these measures. The court will take account of the child’s own preference and his or her best interest. Information about this will be provided on the child witness notice.

A child may be entitled to further special measures.  The court will have to be satisfied, on the basis of the information on the child witness notice, that the use of such a measure is appropriate. Where these are specified, the court may be satisfied on the basis of the information provided. However, further information, or a hearing may be required.

The court will normally expect a child under the age of 12 at the time of indictment, in certain categories of cases, to give their evidence without having to come to court. 

In High Court proceedings, a child witness notice/vulnerable witness application must be lodged no later than 14 clear days before the preliminary hearing; in solemn proceedings in the sheriff court, no later than seven clear days before the first diet; in any other case, no later than 14 clear days before the trial diet. 

The notice or application must specify what special measures are being asked for. If no special measures are asked for in the case of child witnesses, the notice must give reasons so that the court is satisfied.

The notice or application must include a summary of the views expressed by the child witness or vulnerable adult and in some cases, the views of their parent or carers. The court will consider these views in private along with the other information in the notice. The court may agree with what is requested or defer a decision until a hearing.

The court still has overall authority to authorise a special measure or measures and will take the final decision as to which special measure(s) may be most appropriate.

It is possible for the sheriff or judge to review the arrangements for taking the vulnerable witness’s evidence at any time during the proceedings. The person who cited the witness can also request a review. A child witness notice or vulnerable witness application can therefore be lodged after the required time in special circumstances.

Further information

The Scottish Executive Victims and Witnesses Unit – Vital Voices website www.scotland.gov.uk/topics/justice/criminal/17416/12874 provides the remits, membership, papers and minutes of the Implementation Steering Group and its sub-groups. The website also provides details on the wider aspects of what the Unit is doing to help meet the goal of putting victims and witnesses at the heart of the criminal justice system.

Further guidance on the use of special measures in relation to child witnesses will follow over the summer.

Useful links

Vulnerable Witnesses (Scotland) Act 2004

www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts2004/20040003.htm

Vital Voices – Helping Vulnerable Witnesses Give Evidence – Policy Statement

www.scotland.gov.uk/library5/justice/vvps-00.asp

Scottish Executive Justice Department, Victims and Witnesses Unit, GWR, St Andrew’s House, Regent Road, Edinburgh EH1 3DG

MINISTER: ACT MEANS BETTER JUSTICE

We want public justice services that are fairer for victims, fairer for witnesses but uphold the right to a fair trial for the accused. That is the message at the heart of Scottish Ministers’ reforms. We are committed to modernising the justice services so that victims and witnesses find a system that meets their needs.

The whole court process – from the start of an investigation to giving evidence in court – can make an already traumatic experience even more upsetting and stressful. Even more so if the victim or witness is a child or a vulnerable adult. The Vulnerable Witnesses (Scotland) Act 2004 is one of the building blocks in our commitments to improve and increase the support for vulnerable adult, and child witnesses.

The Act will formalise existing special measures and introduce new ones aimed at reducing the stress that until now has meant that many witnesses, for both prosecution and defence, were prevented from giving their best evidence. We believe this is better for the individual and better for justice.

This is a major commitment by all agencies involved and will require dedication and a lot of hard work. It will require a culture change. I would stress the importance we attach to partnership working in achieving this. 

The commencement of the Act will be phased in over the next three years. Not because we have fears or qualms over the measures – far from it. But we need to ensure those agencies involved have the appropriate support mechanisms in place to assist vulnerable witnesses give their best evidence.

From 1 April 2005 we will introduce provisions applying to children in High Court and sheriff court solemn cases reported to the procurator fiscal on or after that date. The Act will also apply in respect of relevant appeals and applications under sections 51(1), 68 and 85 of the Children (Scotland) Act 1995.

Then in April 2006, the provisions relating to adult vulnerable witnesses in High Court and sheriff solemn cases will be implemented. During 2007 and 2008 we intend to implement the rest of the Act, extending its coverage to sheriff summary. This will, of course, depend on action being taken to implement the recommendations of the McInnes Report on summary justice.

Giving evidence can be an overwhelming and sometimes intimidating experience. We can’t remove all of those feelings, but the support provisions within the Vulnerable Witnesses Act can make a difference. I am convinced that, with the support and commitment of all the other agencies, we will help improve the experience of giving evidence for vulnerable child and adult witnesses.

HUGH HENRY, MSP, Deputy Minister for Justice

CASE FOR THE DEFENCE

Practitioners recognise the needs of vulnerable witnesses, but have criticised the Act. So who’s right? RAYMOND McMENAMIN of the Criminal Law Committee tells Peter Nicholson that more work is needed before it achieves its aims

“A gross erosion of the accused’s right to a fair trial”, one indignant delegate to an Update roadshow described the Vulnerable Witnesses Act. Raymond McMenamin of Keegan Walker SSC, member of the Society’s Criminal Law Committee and himself a solicitor advocate with over 20 years’ criminal defence experience, wouldn’t go that far.

“I’m not convinced about all the measures it introduces, but I think what it does is make an effort to try and bring people into the justice system, to try and give them the opportunity to give evidence. It doesn’t do away with the right to cross examine.”

Some measures, such as use of screens, or a supporter, or live TV links McMenamin believes the profession have confidence in, having seen them work in practice It’s the new provisions on prior statements and evidence on commission which he thinks will take some time to settle in, especially as the practicalities have still to be worked out.

“Nobody has decided yet who is the most appropriate person to be a commissioner. Should it be the trial judge, or sheriff, or somebody else and at what stage should the evidence be taken on commission? There is some suggestion that it should be taken right at the very end of the preparations, but you’re then adding in another chunk of procedure, and rather than streamline the procedure as the Bonomy proposals aim to do, this may in fact make it longer and more cumbersome.”

Like all new legislation, no matter how good the aim, the devil is in the detail. The operation of the Act remains shrouded in uncertainty in many respects. There is little guidance on how judges will determine applications. “I think it’s going to be case specific,” says McMenamin. “Individual judges may have their own views and I suspect there may be some marked variation between sheriffdoms and indeed between particular judges, as well as between the sheriff court and High Court.”

The alien factor

Evidence in chief may be permitted by means of a written police statement, witnesses being cross examined on the statement in court. While some see these statements as a way of preserving evidence it was pointed out at one roadshow that use of this special measure will not spare a vulnerable witness from cross examination and the trauma of a court. “Frankly one view, and possibly my own, is that you might as well have them giving evidence anyway,” McMenamin comments.

Cross examination on screen or by TV link can take some getting used to, but McMenamin believes it is workable. “I’m not looking forward to conducting a trial by cross examining somebody based on their prior statement submitted as evidence in chief, simply because it’s a new experience, although in many criminal trials, particularly in the High Court, there’s an increasing use of prior statements being put to witnesses and supplied by the Crown to the defence.” Much defence preparation time, he predicts, will be spent examining in detail prior statements, perhaps several from each witness, to look for discrepancies. He had just such an experience in a murder case last year. “That was a big operation and a lot of work. So I suppose in some respects prior statements are not totally alien. The alien factor here for practitioners is that that is your starting point as evidence.”

A fundamental change in practice is taking evidence by commissioner. “I think of all the measures that is the one that removes the witness and the evidence-gathering process from the courtroom the most” – contrary to the principle that trials take place in the presence of the accused. The Act provides for the accused to watch the proceedings by TV link but remote from the advocate conducting the defence case. He believes that the accused must be able to communicate with his representative. “It’s vital to achieve this, and if there’s any prospect of a challenge based on the right to a fair trial I think it’s going to arise in connection with the restrictions which may be imposed on the ability of an advocate to conduct effective cross examination in these proceedings.”

One area which will be under intense scrutiny is interviewing vulnerable witnesses, particularly children, through intermediaries. South of the border pilot schemes are running which use intermediaries in the commission process. They put the lawyer’s questions to a child in a child-friendly manner. The Scottish Executive is monitoring the pilots and may consider similar provision for Scotland. The principle has its supporters, but McMenamin disagrees with those who claim that leading questions should not be put to children in cross examination. “Sometimes leading questions are absolutely necessary. Their evidence still has to be tested.” There is a danger, he warns, of “getting away from the adversarial system into something which is much more sterile, much more towards the inquisitorial system, and the powers that be ought to think long and hard before they take that course, which I think many practitioners at the moment would feel was a step too far”.

The Act does not sit alone. For taking precognitions, practitioners already have article 13 of the Criminal Code of Conduct; by the summer there is likely to be in force the Serious Organised Crime and Police Bill, providing for registration of precognition officers. The Society has set up a working party to assess the impact of the Protection of Children (Scotland) Act 2002 and will give guidance to practitioners on measures to be taken when precognoscing a child witness.

And even the accused

Since the Act as applying to vulnerable adults in solemn proceedings comes into force a year later than for children, practitioners have that time to consider another set of issues – relating to the accused as vulnerable witness. “Criminal practitioners will need to investigate their clients and decide whether or not there are reasons for considering them vulnerable”, McMenamin points out. “One difficulty is that the Act is very wide in its terms and open to interpretation, because the test really is whether or not the quality of the evidence would be diminished should the person not be deemed vulnerable.”

“The onus is on the practitioner, absolutely. If they just turn a blind eye to it they are leaving themselves open to Anderson appeals in criminal cases, and generally perhaps to claims of professional negligence.” The range of options for giving evidence must be discussed with the client and their preferences taken into account.

He poses the scenario of an accused person deemed to be vulnerable due to fear of a co-accused. If that accused gives evidence say by live TV link, will they sit in court beside the co-accused, be taken out of court to give their evidence, and then be put back beside the co-accused again? “I don’t see how that is going to work. If that is the reason why an accused is deemed to be vulnerable, something has got to be sorted out there.”

In many respects, therefore, any advice has to be of the “watch this space” nature. The Society will run further training seminars later this year, and there is guidance on both the Society’s and the Scottish Executive’s websites which will be kept updated. “If there’s any message, it’s that practitioners must be prepared, they must be aware of the legislation and keep up with its implementation and application”, McMenamin concludes.

RESPECTING CHILD WITNESSES

Children have felt badly let down by the court system and the Act is only a first step, albeit an important one, says MARGARET McKAY

Do you believe that children have rights and should be treated with dignity and respect, just as adults? For some, the answers are a resounding yes, but having worked on child protection matters since the 1960s I know that other adults have views contrary to the internationally agreed human rights standards on children.

The Vulnerable Witnesses (Scotland) Act 2004 is designed to enable children, and certain other vulnerable adults, to give their best evidence in court while properly ensuring the accused’s right to a fair trial. That is an important principle to uphold for everyone including when children are the accused. CHILDREN 1ST believes that there must be equality before the law and that our system of justice should ensure equal protection of the parties.

Parents, carers and children expect the court process to be about getting at the truth. When children get to court, many find that they did not get a chance to tell what happened and are shocked at the aggressive and intimidating style of some of the questioning. As a charity we are too often left to pick up the pieces not just of the offence itself but the harm caused by the child’s participation in the court process. Unfortunately for us all, the fear of giving evidence in court can also mean that some of the most serious crimes are never reported.

When disclosure of abuse leads to further suffering for a child, then the threats made by the abuser, of dire consequences should they ever tell anyone, are in fact borne out by the child’s subsequent experiences. Our justice system should not be responsible for secondary abuse.

So CHILDREN 1ST welcomes the Act as an important step in changing the system and the culture, but much more is needed. For example, encouraging the training of sheriffs and lawyers in the cognitive and language skills of children. Those skills are key in dealing with children, whether they appear as witness for the defence or the prosecution. Of course we welcome the Supporting Child Witnesses Guidance Pack issued by the Scottish Executive, but telling someone what to do is not the same as showing them how to do it.

The repeated delays in cases coming to court add to the stress and uncertainty. A year seems a very long time in the life of a 10 year old. Unfortunately the Act fails to deal with that issue, despite our representations. This aspect needs urgent attention.

We are disappointed at the limited categories of case to which the Act will initially apply. And some of the “special measures” such as the use of video link and screens have been available for some years, but experience shows that they are rarely and inconsistently used. So CHILDREN 1ST is very cautious about the limitations of the law in its application. Monitoring is essential and has been promised by the Deputy Minister, Hugh Henry. For example it would be very useful to know how many times the special measures agreed for children have been revoked by the court, and the reasons.

Of course a more straightforward approach is the introduction of intermediaries which have operated successfully in South Africa’s adversarial system for 11 years, but that is another debate.

The introduction of this Act serves as a useful reminder to us all that we must take responsibility for keeping children safe. That is a matter of international law as well as what our politicians and our communities believe across Scotland.

Margaret McKay, Chief Executive, CHILDREN 1ST

For more information about how we work to keep children safe in Scotland, visit www.children1st.org.uk

THE CHILDREN’S HEARINGS ANGLE

Part 2 of the Act applies to civil proceedings and to children’s hearing court proceedings. It will be commenced on 1 April only in relation to the latter, and only for the under-16 category of vulnerable witness. The basic elements of Part 1 reappear in Part 2, namely: the new definitions of vulnerable witness; the child witness notice procedure; the obligation to obtain the views of child and parent; and the standard and further measures. Section 23 inserts new sections 68A and 68B into the Children (Scotland) Act 1995 and provides for the restriction of certain evidence (e.g. relating to a witness’s sexual history) in section 52(2)(b) and (d) to (g) grounds. Section 24 in Part 3 abolishes the competence test in both civil and criminal proceedings.

The Act will apply to section 68 applications to find grounds established, or on their review where new evidence is available under section 85; and to section 51(1) appeals from a decision of a children’s hearing. All child witnesses under 16 at the time of commencement of proceedings are included (but not those beyond 16 even if currently subject to a supervision requirement).

Existing measures to protect child witnesses remain unaffected, for example the exclusion of a party while a child gives evidence, although a CCTV application currently covered in the rules will now be processed via the child witness notice. In addition reporters will always explore the possibility that the child’s hearsay testimony can be presented in place of the child.

The child’s views will be incorporated in the child witness notice. There are no timescales for lodging the notice but an expectation, in the spirit of the Act, that this occurs when the principal application is lodged, or as soon as possible thereafter. There is a statutory obligation to obtain the views of the parent, and provision for greater weight being given to the child’s should there be a conflict. “Parent” (section 15(4)) “means any person having parental responsibilities within the meaning of section 1(3) of the [1995 Act]” and is therefore a narrower category than “relevant person”, a term used in that Act.

The special measures in Part 1 are repeated in Part 2. The use of a supporter is a standard measure only when specified in conjunction with either internal CCTV or use of a screen. Section 12(1)(a) and (3) operates to render the authorisation of the standard measures automatic. Additional measures may be authorised on the basis of the child witness notice alone, or a court hearing may be required. It is possible for no measures to be specified or authorised, but only after the hurdles set out in section 12(4) have been cleared. Section 13 allows current arrangements to be reviewed.

Assisting witnesses to recount an event accurately does not strike at a party’s fundamental right to a fair hearing. Where a child is inhibited from describing what happened because court premises, procedures and language are all alien to their experience, it is in the interests of all to minimise that strangeness if it allows the story to be heard; similarly if their young age makes them especially liable to intimidation and distress. It is hoped that the Act will operate to level the playing field.

Frances Roberts, Practice Reporter, Scottish Children’s Reporter Administration