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VITAL VOICES - Helping Vulnerable Witnesses Give Evidence
Chapter 1: The Context
Related initiatives
1.1 This paper looks at possible changes to the law of evidence. The law, however, provides only the framework. Changes in the way people are treated may be as likely to be achieved by using the existing law more effectively as by changing it. Changes in outmoded practices, policies, and attitudes towards witnesses, and the provision of services and practical support for them within the existing legal framework will make a great difference. Much is already happening here. Many witnesses are also victims of crime, and this consultation fits into the broader framework of the Scottish Strategy for Victims, published in January 2001. It commits the Scottish Executive to ensuring that victims are given relevant information, together with practical and emotional support, and is being taken forward through a wide variety of initiatives. Other strategies such as the National Strategy to Address Domestic Abuse in Scotland and the Equality Strategy will raise awareness and act as catalysts for change.
1.2 Some recent changes to help witnesses have not involved any change in the law. They have been achieved by new ways of doing things, or extra funding. The Crown Office and Procurator Fiscal Service have established a Victim Liaison Office to provide information and support to prosecution witnesses. Victim Support Scotland has been funded to provide a Witness Service in every sheriff court in Scotland. A multi-agency Implementation Group is putting into effect the recommendations of the Lord Advocate's Working Group on Child Witness Support. Reviews of practice and procedure are underway, with Lord Bonomy examining the criminal justice process in the High Court, and a committee led by Sheriff Principal McInnes reviewing summary criminal trials in the sheriff and district courts. These reviews are not primarily concerned with vulnerable witnesses, but their recommendations on efficiency are expected to have a beneficial impact on witnesses of all kinds.
1.3 There are other areas where changes to the law have been thought necessary and are already being made. The Sexual Offences (Procedure and Evidence) (Scotland) Act recently passed by the Scottish Parliament will prevent an accused in a sexual offence case from conducting his own defence at the trial. This will stop alleged sex offenders from personally questioning any complainer. The Act will also impose a clearer and stronger responsibility on lawyers and the court to justify use of any evidence about the complainer's character or past behaviour. The Criminal Justice (Scotland) Bill will allow for the introduction of pilot victims' statements schemes, which will not be evidential, but which may be taken into account by the court in sentencing, and the forthcoming Mental Health (Scotland) Bill will revise the criminal law protecting people with mental disorder from sexual abuse and exploitation.
1.4 This consultation is therefore only part of a much wider programme of work to help improve the position of victims and witnesses in our justice system. It looks at possible changes to the law of evidence and related aspects of court procedure, directed at providing specific help to vulnerable witnesses, but these will only be effective if they are accompanied by changes in the way things are done and in attitudes towards people who may be vulnerable.
1.5 Special measures to help a witness cope in court are not a substitute for proper preparation of that witness for the experience of giving evidence, or proper collection and sharing of information about the needs of the witness by and amongst all the agencies involved. This includes those agencies (such as police and social workers) concerned in the investigation, together with lawyers and court officials.
1.6 The identification of a witness as being potentially vulnerable, at an early stage in the case, and the communication of that information to all who are involved in it, is crucial. The fact that a witness is a child or young person will be self evident. But the fact that someone feels intimidated as a result of repeated victimisation, or has a mental illness or a learning disability, may not be immediately obvious. If agencies involved in the justice process lack the knowledge to spot the fact that additional support may be needed, the witness may go through the entire process without that support being provided. The suggestions contained in this paper are not a substitute for proper training and awareness.
1.7 Identification of witnesses as potentially vulnerable is a practical rather than a legal issue. It cannot be resolved simply by changing the law of evidence. It must be tackled through increasing awareness and sensitivity, and enhancing the knowledge and skills of everyone involved in the justice process. The Police and the Crown Office and Procurator Fiscal Service have a particularly important role to play here, and are committed to developing systems of early identification and better communication regarding witnesses' needs.
The Legal Context
1.8 It is important to understand the wider legal context in which any measures to help vulnerable witnesses must operate. Two of the most important elements of the Scottish justice system are the adversarial nature of the process and, in criminal cases, the need for evidence to be corroborated.
1.9 A criminal trial or a civil proof in Scotland will be conducted according to the adversarial method. Only a minority of criminal cases reach full trial, but those which do may involve serious crimes in which the facts pointing to guilt are strongly contested by the accused. A criminal trial therefore involves a confrontation between the accused and the prosecution. It takes place in public, with both sides putting forward their conflicting cases through witnesses. Although most civil cases never reach the stage of proof, because the parties negotiate and are able to agree an outcome, if a proof does take place, it will also be adversarial. Many legal systems elsewhere in Europe place less emphasis on public confrontation at trial, and more on fact-finding by an impartial third party, so that the trial or proof merges more into the longer investigative process. These are known as "inquisitorial" systems.
1.10 We do not plan to change the basically adversarial nature of Scotland's justice system. Scots law however, already acknowledges that a pure adversarial system is not always the best way to deal with the evidence of some witnesses. There are already special measures to help particular sorts of vulnerable witness, which work by reducing the element of confrontation. This consultation paper considers whether there are enough special measures, whether they are available to enough people and whether they are available across a sufficiently wide range of proceedings.
1.11 In Scottish criminal trials, other than in certain restricted circumstances, such as a few minor statutory offences, the prosecution requires to produce corroborated evidence to prove its case. This can be a particularly hard test to satisfy in sexual offence cases, where the crime is very frequently committed in private, with no witnesses to what occurred except the perpetrator and the victim, and may be reported too late for there to be any forensic evidence available.
1.12 Corroboration does not just mean having two witnesses both of whom can give evidence which supports the accused's guilt in some way. Each essential fact required to be proved by the prosecution has to be corroborated. In a rape trial, the Crown must establish by corroborated evidence (a) that sexual intercourse took place with the complainer (b) that the man involved was the accused and (c) that what happened was without her consent. 1 Corroboration of the third element can be particularly difficult to find, especially if the complainer has not felt able to disclose what may have happened immediately.
1.13 In sex abuse cases, where consent is not an issue, the main difficulty may be with corroboration of the identification of the accused as the offender. Many of these crimes are not reported until long after the event. Even if there is forensic evidence of the victim having been subjected to sexual abuse, it may not include anything which would identify the perpetrator. The victim may be unable to recall times and dates with sufficient certainty for the police to be able to challenge any alibi put forward by the accused.
1.14 It is possible for alleged victims of closely connected offences to corroborate each other's accounts of what happened. This is known as the Moorov doctrine, which is often the only basis on which a prosecution can proceed. Where there is only one complainer, the corroboration requirement may mean that there is simply not enough evidence to prosecute. It also means that a vulnerable witness who manages to give evidence successfully may still see the whole trial collapse for reasons unconnected with that witness. In a recent major child sex abuse trial, an eleven year old girl completed her evidence via live television link, but her case never reached the jury because her younger brother, who was the other alleged victim and was needed to provide corroboration, became too distressed to answer questions.
1.15 While such cases are extremely distressing for all concerned, and there may well be lessons to be learned from the circumstances of that case, we do not believe that doing away with the need for corroboration is the answer. The dangers of potential miscarriages of justice are too great. We prefer to tackle the problem by improving the supports available to children and other vulnerable witnesses and the procedures used to deal with such cases. We would welcome views as to whether this approach has general support.
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