The Scottish Government

This item was published during the term of a previous administration that ended in April 2007

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Vulnerable Witnesses Bill

24/06/2003

Justice Minister Cathy Jamieson today promised to seek legal changes so that children under the age of 12 will no longer have to come to court to give evidence in sexual or violent crime cases.

It is widely accepted that children under 16 and other vulnerable witnesses find the current court process intimidating and distressing.

The Executive is now moving to change the law with the introduction of the Vulnerable Witnesses (Scotland) Bill to the Scottish parliament.

It will allow further assistance and protection to be given to vulnerable witnesses enabling them to give their best evidence.

The measures include the recording of evidence of a vulnerable witness usually before a trial and away from the court building, a screen used to conceal the witness from the accused while they are giving their evidence, and live TV link either to a room in the court building or to another building out with the court.

The new measures cover the following groups of vulnerable witness:

• All children under 16, with extra protection for children under 12 in sexual and violent cases
• people with a mental disorder which affects their ability to give evidence
• a new category of vulnerable witness flexible enough to cover any witness where fear, distress or intimidation could prevent them from giving their best evidence to the court in the normal way (e.g. victims of sexual or violent abuse, or victims of rape or homophobic crimes)

Ms Jamieson said:

"Children called as witnesses sometimes want an opportunity to have their say - to have their day in court and tell their story. It is right that they continue to have that option.

"But, similarly, the prospect of giving evidence in a court setting can often make upsetting circumstances even more traumatic. This Bill will enable vulnerable witnesses to receive better assistance and protection while in court. This is especially important for young children in sexual or violent crime cases.

"Fundamentally, we are working to deliver a safer, stronger Scotland through an efficient and effective justice system founded on the basic principles of fairness and equality.

"During the last seven days I have made two major announcements -a white paper on reforms to the way the High Court operates and this Bill which is intended to protect vulnerable witnesses in court - both will be crucial in modernising Scotland's justice system.

"These are common sense reforms that will ensure those of us who may only come into contact with the justice system once in our lives discover a system that is there for us and shaped to our needs.

"I want a justice system in Scotland that truly enables us to see justice being done. Fair for victims, fair for witnesses, fair for jurors - while upholding the right to a fair trial for the accused."

In full, the measures proposed in the Bill are:

• All child witnesses aged under 16 to be automatically entitled to special measures
• Child witnesses under 12 in criminal cases involving sexual assault or violence will normally give evidence by means that do not require their personal attendance at court
• Widening the definition of "vulnerable person" to include anyone whose ability to give evidence may be diminished if they are not allowed to use a special measure. Complainers in sexual offence cases, victims of racial harassment, or people with mental disorder may be eligible for special measures if the court is satisfied that the circumstances of the case merit it, having regard to the interests of the witness. A young person who would not qualify as a child may still qualify for special measures depending on the circumstances of the case
• An accused who chooses to give evidence may be eligible for special measures if the court considers the accused to be vulnerable
• A notice procedure to simplify the process by which the court decides which special measure i.e. screens, live TV link, evidence on commission etc. is most appropriate for the child witness
• The use of a supporter to be a statutory special measure. A supporter is a designated person who will be able to sit near to a vulnerable witness either in the court itself or from where they give evidence by remote TV link. This person will not be able to communicate with the witness, but their physical presence should be a comfort or support to the witness
• The court to have a discretionary power to prevent an accused conducting his defence personally in cases other than sexual offence cases (where there is already an automatic ban) and power to appoint a legal representative for the accused in such cases
• Greater use of prior recorded statements of vulnerable witnesses
• Allowing the use of expert evidence to explain a witness's behaviour in certain cases
• Doing away with "dock identification" of the accused where there has been a previous identification by the vulnerable witness
• Clarifying the law to ensure that special measures can be used in civil proceedings, including referrals from the children's hearing system to the Sheriff Court
• Providing protection for children and young people against unfair use of sexual or character history evidence about them in proceedings in the sheriff court related to children' hearings
• Abolishing the "competence test" whereby currently the evidence of some witnesses such as young children or people with learning disabilities is simply not allowed to be heard

Steven Kidd, Chair of the Scottish Youth Parliament, commented:

"The Scottish Youth Parliament is an organisation which exists to allow young people to have their views heard, however, it is also an organisation that recognises that in some circumstances certain young people are put under a great deal of pressure and subjected to undue trauma - this is one such circumstance.

"By enabling young people to use the special measures outlined in this bill, these witnesses will be able to offer what can be extremely important evidence with as little distress as is necessary. Allowing young people to have their voice heard is one thing, making sure they are supported to do so is an equally important other."

Children can see a special interview with Cathy Jamieson and Seonaid, virtual presenter on Junior Exec, on the issues raised in the Vulnerable Witnesses (Scotland) Bill.