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VITAL VOICES - Helping Vulnerable Witnesses Give Evidence
Introduction
The norm for our system of justice, both criminal and civil, is for a witness to give evidence from a witness box in a public courtroom, in response to direct questioning, usually from a lawyer. There is an underlying assumption that such oral testimony is the most effective way to obtain the best evidence, which has traditionally been seen as that which is most direct. In recent years this assumption has come to be questioned and it is now generally acknowledged that there are some people who will be unable, for a variety of reasons, to give their best evidence in the standard court setting. The law currently allows special arrangements to be made for children and some people with mental disorder. This paper looks at these arrangements, considers whether they need to be extended and whether there are other ways in which witnesses who may have particular needs can be helped to play their full role in the justice system.
This paper continues a programme of work on the law of evidence started by the Scottish Office with the issue in November 1998 of a Consultative Document on vulnerable and intimidated witnesses in criminal and civil cases, entitled Towards a Just Conclusion. An Action Plan following on that paper, published in June 2000, made commitments both in relation to the cross-examination of witnesses in sexual offence cases, and in relation to vulnerable witnesses more generally. The first commitment was fulfilled with the introduction of the Sexual Offences (Procedure and Evidence) (Scotland) Bill, which has recently been passed by the Scottish Parliament. This paper follows through on the commitment given in paragraph 2.12 of the Action Plan to consider in detail how the treatment of vulnerable and intimidated witnesses could be improved by changes in the law of evidence and court procedures.
This consultation exercise should not be confused with the Lord Advocate's Working Group Report on Child Witness Support, which is a separate project. That report dealt with the practical support given to young witnesses in criminal and child protection cases. It is currently in the process of implementation, which is being overseen by a cross-cutting group chaired by the Scottish Executive Justice Department.
DefinitionsTowards a Just Conclusion distinguished between "vulnerable" and "intimidated" witnesses. The latter term was applied to someone who had been subject to an external threat, but the paper acknowledged that "intimidation" could include fear of going to court because of the witness's perception of a danger, as well as fear caused by the actual behaviour of another person. The distinction between "vulnerable" and "intimidated" is not clear cut. However fear of going to court arises, the end result is likely to be similar: difficulty for the witness in giving their evidence. What this paper focuses on is what can be done to reduce that difficulty, from whatever cause. In this Consultation Paper, we accordingly use the word "vulnerable" to refer to any witness who may be in special need of help for any reason, and treat those who have been intimidated as a particular type of vulnerable witness.
We use the word "complainer" to mean the alleged victim of a criminal offence, or other damaging behaviour by someone else. The term "special measure" is adopted as shorthand for any kind of special help which is or could be made available to assist a vulnerable witness to testify in a criminal or civil case. A "proof" is the technically correct name for a civil trial. Where a criminal offence or a special measure is "statutory", this means that it has been created by an Act of the Scottish or Westminster Parliament, or by regulations made under such an Act. Conversely, a "non-statutory" offence or measure exists as part of the judge-made common law. A "precognition" is an unsigned statement taken from a potential witness before formal evidence at trial is given. It need not be verbatim, but should record the gist of the witness's account. Finally, references to "the 1995 Act" relate to the Criminal Procedure (Scotland) Act 1995.
Research In tandem with this Consultation Paper, we are conducting research on vulnerable witnesses. This will look at the extent of use and the effectiveness of existing special measures. We are also conducting a review of the literature to explore how other legal systems deal with these issues. We would be glad of any additional information which you can provide.
There are some references to research material in this Consultation Paper. Where possible, we have used Scottish material. However, sometimes there has been a shortage of work to draw on, and references have also been made to English publications where relevant.
Next Steps This Consultation Paper is intended as an open document, suggesting some possible changes in the law. These have not reached the stage of being firm proposals. We are seeking as wide a range of views as possible before any decisions are made.
Acknowledgements During the development of this paper, a number of informal meetings were held with representatives of various groups who have an interest in the issues. These were extremely helpful and we would like to thank all those who participated and who shared their ideas and concerns with us.
How to respond We welcome responses from anyone who has an interest in the questions raised by this paper. They should be sent, by 31st July 2002, to:
Steve McCourt
Scottish Executive Justice Department
2nd Floor West
St Andrew's House
EDINBURGH EH1 3DG
Telephone: 0131 244 4830
Fax: 0131 244 4848
Email: vitalvoices@scotland.gsi.gov.uk
In accordance with normal practice in Scottish Executive consultations, all responses received will be made available to the public, unless confidentiality is specifically requested.
This paper is also published in electronic form on the Scottish Executive website.( www.scotland.gov.uk )
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