Pre-recorded witness interviews should be evidence: report
Witness accounts recorded at or soon after the scene of a crime should be admissible at trial, and criminal trial procedure should be re-thought to permit such developments.
These are among the conclusions of a report published today by the Scottish Court Service (SCS), the Evidence and Procedure Review Report, prepared by a steering group chaired by Lord Carloway, the Lord Justice Clerk.
The review was set up in 2013 following a call by Lord Carloway for “clear-sky thinking” to help bring trial procedures rooted in the Victorian era into today's technologically-enhanced society. With Lady Dorrian, Sheriff Principal Craig Scott and SCS chief executive Eric McQueen as its other members, the review set out to consider in particular the rules of admissibility regarding witness statements and the technology now available, along with rules in other jurisdictions, and from this, how to exploit the opportunities this would bring to increase the efficiency of the trial process.
Research carried out by the group suggested two main conclusions that could help transform the conduct of criminal trials.
One is to rethink the way the courts hear the evidence of children and vulnerable witnesses. While a range of protections are already available, the report concludes that experience elsewhere, such as in England & Wales, Australia and especially Norway, suggests that Scotland can go further and ensure that evidence from vulnerable witnesses is taken in the most appropriate way in advance of the trial.
"Other jurisdictions have moved further than Scotland in applying the knowledge about and understanding of the factors affecting young and vulnerable witnesses to remodel their criminal trial procedures", it states. "It is the conclusion of this review that a similar transformation is required in Scotland, with the development of a new and systematic approach, rather than the piecemeal and ad hoc changes in practice that are currently occurring."
As for witness statements in general, the report calls for a rethinking of what constitutes the best evidence at trial. It is highly likely, it states, that a witness account taken at the scene of a crime or shortly after will be more reliable, full and accurate than their attempt to recall what happened many months later in court; and "It is clear that the technology is now sufficiently advanced in terms of the quality of reproduction that it can provide testimony for the finders of fact as a genuine substitute for live appearance."
While the review found little practice as yet in other jurisdictions of the use of recorded statements as evidence in chief, where the witness is not young or particularly vulnerable, this "should, however, not be a
reason to draw back from seeking to modernise the justice system. It is the opportunity for Scotland to take a lead in harnessing the opportunities that new technologies bring to improve the quality and accessibility of justice".
The report explores what legal and other changes would need to be made to allow pre-recorded witness statements to be admitted as direct evidence, and what safeguards would need to be in place. As well as greater accuracy and reliability of the evidence, it predicts benefits for the courts in being able to manage cases more effectively, with less reliance on witnesses turning up at court on the trial day.
The Scottish Court Service will now work with the Scottish Government, other justice agencies, the legal professions and victims groups to explore the implications of the report’s propositions and develop proposals for change.
Chief executive Eric McQueen commented: “This Report aims to stimulate discussion about the very nature of criminal trials – how do we ensure the testimony of witnesses is as reliable, accurate and complete as it could be; how do we eliminate unnecessary delays and preserve a fair, transparent and just system; how do we make sure that young and vulnerable witnesses are safeguarded against further trauma?
"The propositions in this report could transform our criminal justice system. We now need work through their implications with everyone with an interest, so that the proposals that emerge are ambitious, workable and will help create a modern, fair and efficient criminal justice system for the digital age.”
Responding to the report's publication, Ian Cruickshank, convener of the Law Society of Scotland's Criminal Law Committee, said:
“This review presents an important opportunity to examine current trial procedure and consider the best presentation of evidence in Scottish criminal trials.
“We would welcome any measures which improve the quality of evidence presented in criminal trials, particularly in relation to the evidence of children and vulnerable witnesses who can find the process very intimidating. We also believe that that the admissibility of statements and the modernisation of trial procedure are areas which should be considered.
“However it is essential that any proposal for change will continue to ensure witness evidence can be properly examined without compromising the accused’s right to a fair trial.
“We will liaise with our solicitor members and work with the Scottish Courts Service and other criminal justice stakeholders to help shape the outcomes from this important review.”
James Wolffe QC, Dean of the Faculty of Advocates, promised to consider the report's conclusions in detail but in an initial response said: "It is fundamental to the rule of law that an accused person should be able to challenge and test the evidence led by the prosecution. That is the mechanism by which we, in Scotland, seek to ensure that only the guilty are convicted. All of us have an interest in securing the sound administration of justice in Scotland – and, used appropriately, technology may provide opportunities for improving that system."