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VITAL VOICES - Helping Vulnerable Witnesses Give Evidence
Chapter 6: Range of Proceedings
6.1 This chapter will examine the possibility of making special measures for vulnerable witnesses available outside criminal proceedings. It is generally assumed that support for witnesses is mainly needed in the criminal courts, but some other legal proceedings may be almost as traumatic. Several illustrations of this are given below.
Children's Hearings
Special measures
6.2 Children's hearings are intended as informal proceedings which result in decisions about care, protection and supervision of children based on their best interests. If the grounds on which the child is thought to be in need of care or supervision are disputed, the question is referred by the children's hearing dealing with the case to the sheriff, who will conduct a proof to decide whether or not the grounds have been established. 28 Proofs before the sheriff may deal with very sensitive allegations, for example that a child is at risk because of physical or sexual abuse by a parent or carer.
6.3 In both children's hearings and proofs before the sheriff, the identity of the child is kept secret from the public through reporting restrictions under the Children (Scotland) Act 1995. 29 The sheriff can lift the restrictions if he deems that to be in the interests of justice. The public, but not usually the media, are excluded from children's hearings 30, and a sheriff would probably have power at common law to clear the court during a sensitive proof. Sheriffs could also follow the recommendations of the Lord Justice General's Memorandum of 1990.
6.4 There is no provision in any Act of the Scottish or Westminster Parliament for special measures in giving evidence either in children's hearings themselves, or in proofs before the sheriff even where the grounds of referral effectively accuse someone of an offence. The hearing itself is intended to be informal and non-confrontational, and there should therefore be less, if any, need for special measures. Although there is no explicit provision for it in the Children (Scotland) Act 1995, the live television link is in practice sometimes used when children give evidence during proofs before the sheriff.
6.5 Proofs before the sheriff in children's hearing cases, even when they in effect deal with conduct which could constitute a criminal offence, are not criminal proceedings, and so use the rules of evidence applying in civil cases. 31Hearsay evidence (i.e. evidence of what someone has said) would therefore generally be admissible, allowing greater use to be made of a child's prior statements than in a criminal case. A child may, however, have to testify in person against parents or carers in some cases. Special measures may, accordingly, not be as necessary as in criminal cases, but we do not think there is any reason in principle why they should not be available. We would welcome views on whether some, or all, special measures which are available in the criminal courts should also be available in court proceedings connected with children's hearings.
Sexual history and character evidence
6.6 In criminal trials for sexual offences, there are restrictions on the use of evidence about the complainer's character or past behaviour in relation to sexual matters. 32These restrictions will be tightened by the Sexual Offences (Procedure and Evidence) (Scotland) Act, once it is implemented. It is recognised that the use of this sort of evidence can be very distressing to the complainer, and that it usually has little relevance to the question of what actually happened at the time of the alleged offence. Since the restrictions only apply in criminal trials, they do not apply in court proceedings connected with children's hearings.
6.7 It might be expected that evidence about character or past behaviour would rarely be an issue in such cases. We have, however, been told that it is not unusual for solicitors acting for adults who are alleged to have abused a child to question the child about his or her possible past sexual experiences. This might happen, for example, when the child is an adolescent and possible experiences with a boyfriend or girlfriend are used to suggest either motivation to invent sexual abuse (to cover up for involvement in consensual sex) or an alternative source of graphic descriptions of sexual activity. If the child had been the complainer in a criminal trial, such evidence could not lawfully have been introduced without first making an application to the court and satisfying specific tests. This may seem anomalous, especially when in some instances there may be related criminal proceedings dealing with essentially the same allegations. We would therefore welcome views on whether the provisions regarding the use of sexual history and character evidence should also apply in court proceedings connected with children's hearings.
Family Proceedings
6.8 Family proceedings include cases such as divorce actions, or claims for residence or contact. There is a common law power to clear the court when sensitive evidence is given in such cases. 33 It is also possible for the court to impose reporting restrictions which have the effect of granting anonymity to a child involved in the proceedings. 34 While it does not strictly speaking apply, a sheriff or judge in a case which involved child witnesses could have regard to the Lord Justice General's Memorandum. Otherwise, the special measures do not apply in family cases. Prior statements of witnesses can, however, generally be admitted, since the civil rules of evidence apply.
6.9 Some family cases can be extremely sensitive, for example if the right to care for or have contact with a child is being disputed on the basis that a person exercising or seeking it has abused or neglected that child. Kathleen Murray's study 35 discusses a case where two very young sisters had to testify against their father in a criminal trial after he was accused of sexually molesting them. They used the live television link. The case collapsed when the younger sister was not accepted as a competent witness on the basis of not fully understanding the difference between truth and lies (we discuss the competency test in paragraphs 7.1 to 7.15 below). Some time later, both girls gave evidence about the same abuse in the courtroom in family proceedings, at which point their father broke down and admitted what had happened.
6.10 While some might argue that the contrast in the outcomes of the two sets of proceedings demonstrates the greater effectiveness of normal courtroom testimony, as compared with evidence given using special measures, the crucial factor may simply have been that the younger child was older by the second time she went to court. It does, however, seem anomalous that the live television link was available during the criminal trial, but not there in the family proceedings, when essentially the same evidence against the same person was involved on each occasion.
Domestic Abuse and Harassment
6.11 Court actions which seek to protect the applicant from alleged violence, harassment or abuse are heard in the civil rather than the criminal courts. Examples would be applications under the Protection from Harassment Act 1997 or the Protection from Abuse (Scotland) Act 2001. The applicant may well, however, be in fear of the person against whom the order is sought, and might benefit from special measures to assist them to give evidence in the case.
Housing Cases
6.12 This may also be the case with applications for Anti-Social Behaviour Orders (ASBOs) against troublesome neighbours, and eviction actions based on grounds of criminal or other anti-social behaviour. Where witnesses living close to alleged anti-social neighbours have to give evidence, this may be a particularly daunting prospect based on the nature of the conduct which has taken place and the fear of victimisation as a result of giving evidence. Some of these witnesses will already have been subjected to repeat victimisation at the hands of their neighbour. The Crime and Disorder Act 1998 and the new Housing (Scotland) Act 2001 36 should reduce the necessity for neighbours to go to court to explain the impact of the conduct on them and permit greater reliance on the observations of housing staff and police officers, but there may be cases in which neighbours do require to give evidence, and even professional witnesses may be subject to intimidation.
Mental Health Cases
6.13 There may be court cases under mental health law which would involve evidence being taken from someone who had, or was alleged to have, a mental illness or learning disability. Examples might include an application for an intervention or guardianship order under the Adults with Incapacity (Scotland) Act, or an application for detention of a patient under the Mental Health (Scotland) Act 1984. Although not criminal proceedings, these cases could involve vulnerable witnesses who were very anxious and distressed about the possibility of court orders being imposed on them.
Broadening the Picture
6.14 Paragraphs 6.8 to 6.13 are intended to illustrate types of case outside the criminal courts which may raise issues of vulnerability. What they have in common is the presence of a witness who is potentially vulnerable either because of personal characteristics (being a child or having a mental disorder) or because of external circumstances (a physically or sexually abusive relationship, repeat victimisation etc). In other words, these cases raise the same sorts of issues we have already explored in relation to criminal proceedings in chapter 3 of this paper (definitions of vulnerability).
6.15 There are good grounds for arguing that, while fewer cases outwith the criminal courts will involve vulnerable witnesses, there is no difference in principle between criminal and civil proceedings. The same legal definitions of vulnerability should arguably apply, with special measures being available in all types of criminal and civil cases for the use of those who are vulnerable. We would welcome views as to whether special measures should be made available in civil proceedings, and if so, in which types of case.
6.16 One significant difference between civil and criminal proceedings is, however, in relation to how they are funded. The state generally pays for criminal trials. Where special measures are available, these are provided through the Scottish Court Service at public expense. In civil cases, the basic rule is that parties pay their own costs, although these may be wholly or partly covered by legal aid. Where a party is successful, he may be able to recover at least some of his costs from his opponent, and if he has been granted legal aid, he will be required to repay this. The costs a party incurs will normally include fees paid to the court to help cover its administration of the case. Detailed consideration would therefore have to be given as to how the costs involved would be met before any commitment could be made to extending the availability of special measures to civil proceedings generally. We would welcome views as to how, if special measures were to become available in civil proceedings, the costs involved should be met.
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