Faculty supports keeping children out of court

Children and other vulnerable witnesses should be kept from having to give evidence in court wherever possible, the Faculty of Advocates has agreed.

Responding to the Scottish Government's consultation on Pre-Recording Evidence of Child and Other Vulnerable Witnesses, which proposes as a longer-term aim a presumption that all evidence of such witnesses should be taken in advance of a criminal trial, Faculty states that such a move would be "logical and sensible”.

If carried out effectively and to required standards, this would serve both the public interest and justice, Faculty believes – while stressing that improvements need to be made to current practice before changes could be introduced.

The response comments: “It is recognised that the memories of young children and vulnerable adults in relation to traumatic and distressing events can become confused and fade with the passage of time. Accordingly, any delay in the recording of their evidence may have a detrimental effect on the quality of the evidence they are able to give in the trial process. It must therefore be in the interests of justice that the evidence of these witnesses is captured at the earliest available opportunity.

“As such, the Faculty considers that a statutory presumption that child and vulnerable witnesses should have their evidence taken in advance of a criminal trial is a logical and sensible approach and one that will, if carried out effectively and to the necessary standards, well serve both the public interest and the administration of justice.”

It supports the phasing in of pre-recorded evidence, initially involving witnesses under 16 in High Court cases of sexual and violent offences, along with the “crucial developments and changes” identified in the Scottish Courts & Tribunals Service’s Next Steps report. "We do not underestimate the challenges involved" in moving to such a system, the response adds.

Those steps include that “Interviews of witnesses should take place in the most secure environment and according to most effective techniques. There should be a presumption that evidence in chief will be provided by a pre-recorded interview as close as possible to the report of the alleged incident itself"; and “Further work is required to develop the appropriate procedures in order to minimise the gap between the child giving initial evidence and the cross examination… There requires to be a clear, structured process for the pre-recording of cross examination in advance of trial.”

Faculty further observes, however, that: “It is the collective experience of members of Faculty who appear regularly in criminal trials that, currently, the quality of both written and recorded prior statements of child or vulnerable witnesses is often very poor and cannot properly be used at trial in the way envisaged.”

And at present an application to take evidence on commission cannot occur until after service of the indictment, which may be long after the events in question.

Differences will also have to be considered between how a child complainer or witness gives evidence and how a child accused does so.

Click here to view the full response.