Keep children out of court – but test their evidence: Faculty

Child witnesses in serious criminal cases can be kept out of court – provided their evidence can be properly tested, the Faculty of Advocates said today.

In a submission on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill to Holyrood's Justice Committee, Faculty claims it is essential that the evidence of the child "can be tested sufficiently and on an informed basis".

The Scottish Government wants much greater use of pre-recorded testimony, in line with proposals for reform set out in the Evidence and Procedure Review by Lord Carloway, the Lord Justice General. In its response, Faculty states it has no opposition to a rule that child witnesses in the most serious cases should give evidence in advance of a trial, away from court.

"It is well established that child witnesses benefit significantly from giving evidence in a different environment", its submission agrees. "However, the Faculty considers it vital that sufficient safeguards are in place to enable the rule to operate fairly, and to ensure that there is no scope for an increase in miscarriages of justice.

"It is therefore essential that the evidence of the child can be tested sufficiently and on an informed basis."

Faculty also calls for a stepped introduction of the new law – subject to parliamentary scrutiny – to improve its prospects of success and avoid putting too much pressure on the system.

One of its concerns is the lack of provision in the bill regarding intermediaries, those skilled in ensuring that the witness could understand questions. It is also concerned that as the bill stands, it could take up to two years after an incident before the witness’s evidence is recorded.

"It has long been accepted by experts in the field that neither lawyers nor the court are best placed to consider the communication abilities and needs of child and vulnerable witnesses, and that trained intermediaries are far better placed to carry out such an assessment", the response continues. It questions whether without such intermediaries, the aims of the bill can actually be delivered in practice.

"We understand that the Scottish Government is currently considering the potential benefits and operational requirements of introducing intermediaries. The Faculty considers that the Scottish Government should carry out their considerations as a matter of urgency and that provisions should be made in the Bill for the use of intermediaries."

As regards taking evidence by commissioner, whereas the Government has said that applications for this procedure "are likely to be rare" pre-indictment, Faculty believes that the presumption should be in favour of an application as soon as possible after the initial complaint.

It fears that if the policy is that a commission does not take place until after service of an indictment, the purpose of the bill could be undermined. It is crucial that the evidence is captured as near as possible to the time of the offence.

"The Faculty suggests that if the policy is to be that the commission is to be expected after the indictment is served then a real and sustained effort must be made to bring cases involving child and vulnerable witnesses to court within far shorter timescales than are adhered to currently."

In closing comments on the practical impacts of the bill, Faculty adds: "It is considered essential that there is timeous disclosure of all available and relevant evidence prior to cross-examination. The Faculty believes that a systemic failure to do so represents the single most significant obstacle to the success of this legislation. It is essential that this matter is not overlooked, and that the issue is resolved before the legislation is brought into force." It accuses the Crown of regularly being late with disclosure, especially in sexual offence cases.

There are also implications for child accused, and whether they might have to decide whether to give evidence in advance of trial – something that "would be a fundamental change in the current adversarial system, and one that could result in the inversion of the onus of proof... Faculty considers that [the timing of this decision] is an important issue that would benefit from some analysis and discussion, with ultimately direction being given to practitioners and the courts through a further practice note".

Click here to view the full response.