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VITAL VOICES - Helping Vulnerable Witnesses Give Evidence
Chapter 5: New Special Measures
5.1 This chapter discusses some possible new special measures to help witnesses give evidence.
Ban on Conducting Defence in Person
5.2 The Sexual Offences (Procedure and Evidence) (Scotland) Act, which has recently been passed by the Scottish Parliament, will, when implemented, prevent an accused in a sexual offence case from conducting his own defence, and require him to appoint a solicitor. If he does not do so, the court will appoint one for him.
5.3 During the course of the Act's passage through the Scottish Parliament, some commentators suggested that the ban on personal cross-examination might be extended to other classes of case. A child witness in a sex offence trial would benefit from the protections contained in the Act, but child witnesses in other trials would not be covered, even if the party wishing to cross-examine the child himself was a close adult relative. Although we are not aware of any actual cases in which this has arisen, it could be argued that this sort of situation would place intolerable pressure on the child. Victims of domestic abuse or physical violence, or who have experienced actual intimidation may also find cross-examination by the accused in person frightening.
5.4 It should be borne in mind that cases of accused persons representing themselves in serious cases are rare in Scotland. All those which have caused concern so far have involved sexual offences. In the absence of evidence of a significant problem in practice, the benefits of further changing the law have to be weighed against the costs of doing so. To achieve the policy of preventing the accused in a sexual offence case from questioning the victim personally, the Sexual Offences (Procedure and Evidence) (Scotland) Act has had to build in procedures involving notices to the accused and pre-trial hearings to deal with legal representation. Similar, and possibly more complicated, procedures would be necessary if a ban on self-representation were to be extended to some non-sexual cases. Clearly this would have implications in terms of resources and possible delays in trials starting, and might give rise to increased uncertainty for both the accused and the complainer. We would, however, welcome further views as to whether the ban on personal cross-examination by the accused should be extended to cases other than those involving sex offences.
Use of an Intermediary
5.5 This method has been proposed by some groups as the best way to take the evidence of a child, or an adult witness with a disability impairing understanding or communication. It has much in common with the "combined approach" discussed at paragraphs 4.20 to 4.23 above. Rather than being questioned in the traditional way directly by lawyers representing the parties to the case, or even by a lawyer acting as a Commissioner, the witness would instead be interviewed by someone with specialist qualifications or experience relevant to the witness's age or capacity, e.g. a professional in the field of child welfare, learning disability or dementia. Lawyers from each side would be able to submit questions which would then be "translated" into language appropriate to the witness by the intermediary, with the intermediary in turn "interpreting" the witness's answers if necessary. The proceedings might take place in the court itself, or could be video-recorded in advance or conducted via a live TV link.
5.6 The potential advantages of this sort of procedure are that the questioning would be conducted in a non-confrontational way, using language and communication methods suitable to the witness. If a live TV link were used, there would be no need for the questioning to take place in the court complex at all. The interview could take place at another location, removing the possibility of the witness meeting the accused or his associates at court. It could take place well before the trial itself, and be video-recorded, "capturing" the witness's evidence at an early stage. The interview could, if begun far enough in advance, be carried out over a period. It may take patience and perseverance to obtain a full account of traumatic events from a young child, or an adult whose understanding or communication is impaired. Such an interview could supplement a video-recorded initial investigative interview.
5.7 Although at first sight an attractive proposition for some witnesses, the use of an intermediary throws up some very difficult issues. Firstly there is the question of exactly what role the intermediary is performing. In some ways he or she is an interpreter, but the role is more complex than that. Some might see it as involving an element of protectiveness towards the witness, with the intermediary acting as a kind of screen between the witness and the questioner. The intermediary may have to adjust the questions to the witness's level of understanding, and perhaps also explain the witness's answers, based on the intermediary's understanding of the witness's method of communication, which may be a very individual one, understood only by those who know the witness well. There could then be scope for differences of opinion about what the witness meant, with the court having great difficulty in verifying whether the intermediary was correct or not.
5.8 A major stumbling block might be finding people to act as intermediaries, although it might be possible to draw on the "appropriate adult" schemes to some extent. Professionals in relevant fields are likely to be busy people at present, even without this added role. Finding one who was both available and not open to objection might not be easy. It might be argued that the intermediary should be someone previously known to the witness, to ensure a rapport which would allow the witness to talk and ensure that the intermediary was familiar with the witness's vocabulary and methods of communicating. If the intermediary was not previously known to the witness, it would take time to build up these elements. On the other hand, an existing relationship between intermediary and witness could lead to unhelpful emotional involvement on the part of the intermediary. The witness might end up reluctant to make a true statement which clashed with something he had told the intermediary before. There would be a danger in allowing someone too close to the witness to take on the intermediary's role, which might exclude anyone who was directly involved in the investigation giving rise to the court case.
5.9 It is easy to overstate the likely benefits of using an intermediary, and minimise the potential difficulties, which, while not insuperable, are significant. In England and Wales, the Youth Justice and Criminal Evidence Act 1999 26 provides for the use of intermediaries. Implementation of the provisions has, however, been delayed because of the complexities involved, and this special measure will not be generally available for some time. The Home Office plan to pilot introduction in a limited number of areas and we will follow developments closely with a view to learning from their experience. We are, however, keen to have further views on the possible use of intermediaries.
Amicus Curiae
5.10 In its response to Redressing the Balance, the Law Society of Scotland suggested that a lawyer should be appointed to represent the interests of complainers in sexual offence cases while they were cross-examined. The lawyer would be known as an amicus curiae (a Latin term literally meaning "friend of the court"). His or her role would be to protect the interests of the complainer by objecting to inappropriate questioning. In the Republic of Ireland, the law has very recently been changed to entitle the complainer in a sexual offence case to her own legal representative to represent her interests during a defence application to introduce evidence about her sexual history. This entitlement does not extend to any actual cross-examination of the complainer which follows on from such an application. 27
5.11 Scottish Ministers decided not to make provision for an amicus in the Sexual Offences Bill. The aim of the Bill was to prevent the sort of direct personal confrontation between accused and complainer which arises when the accused is able to question the complainer himself rather than through a lawyer. Appointing an amicus would not have achieved that. This paper provides an opportunity to look at the option again, in the context of more general protection of vulnerable witnesses.
5.12 The court could perhaps appoint an amicus when it became clear that a witness who was to be called in the case might be particularly vulnerable. The amicus could ascertain the witness's needs and make application for whatever special measures for giving evidence he felt were appropriate, taking account of the witness's own views. The amicus could then ensure that the measures were properly used and protect the interests of the witness by intervening in questioning, or asking for breaks, on behalf of the witness.
5.13 The possible need for an amicus would, of course, have to have been identified in the first place, and this could only be done by the party intending to call the witness. Once it had happened however, it would ensure that protecting the interests of the witness was firmly identified as being the responsibility of the court, rather than of the parties to the case. This should ensure that the witness's interests were not lost sight of.
5.14 On the other hand it could be argued that there is no need for a person to be specially appointed by the court for the specific purpose of protecting the interests of a witness. Once the potential vulnerability of a witness has been drawn to the court's attention, the judge could simply take control of the arrangements for hearing that witness's evidence. The court could itself call for any specialist advice and reports about the witness's needs, and make a judgement on the basis of these about any special measures. The court would then itself ensure that they were used properly. This approach would require a more "hands-on" style of judicial case management than currently exists in either the civil or criminal courts, and probably some fairly significant changes in procedure, particularly in relation to pre-trial or pre-proof hearings. It seems likely, however, that a move towards such an approach will be inevitable if any of the special measures are to be made to operate effectively.
5.15 It should also be recognised that the appointment of an amicus would be likely to have substantial cost implications, since the lawyer appointed would have to be paid for, either from the public purse, or by the party calling the witness. Overall, we do not think that an amicus curiae would be either necessary or beneficial in many cases, but we welcome further views on the possibility of an amicus being appointed in particular cases.
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