Ministers consult on pre-recording child witness evidence

Scottish ministers are consulting on the best way to spare child witnesses from having to give evidence during criminal trials.

A newly published paper seeks views on the Government's vision that all child witnesses will have their evidence recorded as early as possible, and how a model for pre-recording evidence could work best for Scotland.

The exercise follows the work of the Scottish Courts & Tribunals Service in its Evidence and Procedure Review, under the Lord Justice General, Lord Carloway, and subsequent work led by Lady Dorrian, the Lord Justice Clerk. While a number of measures have already been implemented to protect children and other vulnerable witnesses, it is acknowledged that there are limitations to the effective use of pre-recorded evidence under the existing legislation – though there is a growing view that evidence taken and recorded as early as possible is the most reliable, though technically hearsay when produced in court.

Current limitations include:

• The use of visually pre-recorded evidence is not a "standard special measure" for child and other vulnerable witnesses.
• There is no general presumption in favour of either all or certain child and other vulnerable witnesses being able to give pre-recorded evidence in advance of a criminal trial.
• There are issues with the timing within solemn and summary criminal proceedings when applications for the taking of evidence by a commissioner can be made and considered.
• Any pre-recorded evidence taken by way of evidence by a commissioner is not currently part of the formal proceedings in a criminal trial, so the commissioner does not have the same formal powers as the trial judge.
• There is no current requirement in Scotland for a "ground rules hearing" to be held for the court to agree the manner and duration of questioning of vulnerable witnesses; questions that may or may not be asked; any communication aids, etc. This can assist in ensuring a clear understanding of the court's expectations for how a child or other vulnerable witness should be questioned and protected.

The consultation document asks specific questions about how these issues might be addressed and seeks wider views about how current arrangements for child and other vulnerable witnesses providing pre-recorded evidence can be strengthened and improved.

While the initial focus of any changes is likely to be on child witnesses, the consultation seeks views on potential changes for vulnerable adult witnesses also. 

It is likely that there will need to be a staged approach to any changes and potential pilots to ensure a smooth transition to a new process where most children can give evidence in advance of the actual trial itself. Alongside this consultation the Scottish Government is also undertaking work to assess the current technology and facilities available so these can be updated if necessary to enable more child witnesses to give pre-recorded evidence in the short and medium term.

Justice Secretary Michael Matheson commented: “This is an ambitious aim and it is likely to take time to fully achieve. But I believe it is vital and necessary that we make this important progressive change whilst also ensuring that the rights of a person accused of a crime are maintained.”

Click here to access the consultation. The deadline for responses is Friday 29 September 2017.