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IMPROVING PRACTICE
CHAPTER 16 SUPPORT FOR PARTIES IN COURT
Background
16.1 In looking at the practices and procedures of the High Court with a view to suggesting improvements which should, among other things, result in a better service to the public in general, I have made occasional reference to victims of crime and those close to them. I now turn to look more closely at how the Court treats them and other people who reluctantly, but unavoidably, become involved with the Court. Some simply feel vulnerable in unfamiliar and daunting surroundings. The stress felt by those who are to give evidence is compounded if they are victims who have to relive unpleasant events. Many, who become involved in the system, are vulnerable by reason of age, disability, learning difficulty, language and a number of other factors.
16.2 A number of responses from individuals, and from various organisations, expressed concern that the impact of court procedure on children and victims should be minimised so far as possible. Concern was also expressed that the Scottish Court Service should be pro-active in providing information about the facilities available to help those who require support through the process, and in ensuring that support is routinely available to people, such as those with disabilities, who will experience greater difficulty than the able-bodied in attending court.
16.3 Having regard to the concerns expressed, I sought to establish the extent to which the problems that arise for vulnerable people in the High Court had already been dealt with or were being addressed. I was reassured to find that the issues identified in the various responses have either been dealt with or are being addressed.
Services to Witnesses and Victims
16.4 It is a tribute to the pioneering work done over the last 15 years or so by various organisations 240, formed to support victims and the relatives of homicide victims through their initial trauma, the court ordeal and the recovery process, that formal arrangements to carry that work on are now in place or are being developed. The growth of these voluntary schemes was accompanied by the development by social workers, engaged to provide a liaison service between the Court in Glasgow and Edinburgh and social work departments throughout the country, of their own informal schemes for supporting vulnerable people through the court process.
The Witness Service
16.5 Following a formal announcement in March 2000, a Witness Service, funded by the Scottish Executive and managed by Victim Support (Scotland), was introduced into every Sheriff Court in Scotland. The remit of the Witness Service is to provide support to any witness through the court process. Because Victim Support (Scotland) has a wider general role in supporting victims, they may also, independently of their work as the Witness Service, be involved in providing support before and after court proceedings. The Witness Service will, where appropriate, arrange a pre-trial court visit for vulnerable witnesses, to enable them to familiarise themselves with court surroundings. Although the current remit of the Witness Service does not extend to the High Court, its services are available on an informal basis wherever the High Court sits in a Sheriff Court. In Glasgow and Edinburgh reliance is still placed upon the support schemes developed by the social work court liaison staff. The Scottish Executive aim to introduce the scheme in the High Court in Glasgow and Edinburgh by the beginning of 2003, when additional resources will also be made available at those Sheriff Courts where the High Court sits, so that the service is provided there formally.
The Victim Information and Advice Scheme
16.6 The Lord Advocate has recently introduced the Victim Information and Advice Scheme (VIA). The purpose of this scheme is to provide information and assistance to victims of serious crime, the families of homicide victims, victims of domestic abuse and racial aggravation, and child witnesses and their families. VIA officers will work closely with procurators fiscal, who will identify those eligible for this support. The scheme will operate in both the Sheriff Court and the High Court. VIA officers will keep those in the scheme informed about the progress of their case, help them to understand the criminal justice process, and advise them of the agencies available to give them further support.
Keeping Witnesses Informed of Progress in Court
16.7 The Scottish Court Service and the Crown have given a commitment to ensuring that witnesses waiting in witness rooms are informed every two hours of the progress of the case 241. In the High Court that information should be relayed to them by the macer. The information should be compiled by a representative of the Crown and given to the clerk to be passed on to the macer, who should read the terms of the note to the witnesses in the witness room. I understand that this is seldom done. It is a good practice, which the Crown should ensure is followed.
Accommodation for Victims, Next of Kin and Vulnerable Witnesses
16.8 Confrontation looms large in the circumstances which lead to witnesses having to give evidence, and also in the very process of giving that evidence. Having been exposed to the trauma of enduring the crime that was committed, the witness victim must then undergo examination and cross examination (including attacks on the truthfulness and accuracy of the account given) in the fairly intimidating atmosphere of the court room. At court there is separate accommodation for Crown witnesses and defence witnesses. At each High Court location discrete accommodation can be made available for victims and witnesses who require the security of accommodation completely separate from the others involved in the case.
16.9 Relatives of victims, and the next of kin of deceased victims, can find attending court and listening to evidence a harrowing experience that is difficult to bear with dignity. It was suggested to me, by those with experience of supporting such vulnerable people, that the High Court should have accommodation to which they could retire to compose themselves when the proceedings become too stressful. Such accommodation is provided in Glasgow. It should be provided at other High Court locations. It was also suggested that, in that accommodation, they should be able to follow the progress of the trial on a CCTV monitor. That would be feasible technically by the location of an unobtrusive camera in the court room. I have not been able to assess the practicality of that proposal. It would require the provision of additional accommodation and equipment. I understand that, at the Lockerbie trial 242, the victims' relatives made use of the separate accommodation to which they could retire at moments of stress, but did not use the CCTV monitor facility. Their reason for leaving the courtroom was to obtain relief from the proceedings. Perhaps this is a facility which would be little used. However, since a strong submission in support of this idea was made to me, I consider that the feasibility of providing this facility should be examined by the Scottish Court Service.
Arrangements for the Evidence of Vulnerable Witnesses
16.10 The court has power to exclude the public from the courtroom from the commencement of the leading of evidence in a trial for rape or the like 243. There is also a range of special measures already available to help vulnerable people give evidence. "Vulnerable people" are defined by statute as children under 16, anyone whose social or intellectual functioning is impaired, and individuals subject to certain orders under the mental health legislation 244. The measures currently available are the use of screens to shield the witness from the view of the accused 245, a live television link with the witness in a room quite separate from the court 246, and pre-trial video recording of the evidence 247. The last of the three has never been used. The other two are occasionally used. Screens are available at all regular High Court locations. Live television link facilities are available in the High Courts in both Edinburgh and Glasgow. There are a number of mobile units for use in Sheriff Courts.
16.11 I envisage that any application for the use of special measures to take the evidence of vulnerable people will be considered at the preliminary diet. A decision on the application should, if possible, be made at that diet, so that the witness can attend the trial diet in the knowledge that the appropriate special measure will be used. There will inevitably be cases where a final decision cannot be made until the trial diet, but these should be kept to a minimum.
16.12 The Scottish Executive is considering further measures to support vulnerable witnesses. Responses to their consultation paper "Vital Voices" were sought by 31 July. The goal of the consultation was to identify any further changes required to reduce the "fear factor", and to ensure that the voices of vulnerable witnesses are heard. Meanwhile the Crown have made a number of applications to the Court for special measures, particularly the use of screens, in the case of adult victims of sexual assaults who do not fall within the present definition of "vulnerable person". These applications have been made on the basis of the Court's inherent authority to regulate its own procedure in the interests of justice. At least one decision to authorise special measures in such a case is the subject of appeal 248. The court has also exercised its inherent power to authorise special measures to conceal witnesses or their identity, where revelation of their identity would expose them to danger or undermine their work 249. It is important that any further legislative provisions do not interfere with the Court's capacity to respond to new situations by authorising special arrangements in the courtroom. That might be done by giving a general power to the Court to determine whether, in the particular circumstances of any case, special arrangements are necessary to take the evidence of a particular witness.
16.13 When special arrangements are made to take the evidence of a vulnerable witness, the papers relating to the application are often not placed with the judge's papers for the trial. There does not seem to be any reason why they should not be with the judge's papers. On the contrary, there are positive reasons why they should be. The trial judge should have full information about the sensitivities that apply to a particular witness to ensure that nothing inappropriate is done inadvertently.
Further Arrangements for the Evidence of Children
16.14 The Scottish Executive, through its Child Witness Support Implementation Group, are also giving consideration to the introduction of measures to improve the way those investigating serious crime interview children, the arrangements to support children through the court process, and the manner in which they are questioned in court. The Group are also considering whether arrangements should be made to ensure that cases which are liable to have some adverse impact on the welfare of children as victims, witnesses or accused are brought to trial quickly. A consultation document has recently been published seeking views on proposals. 250
16.15 In the first instance it will be the responsibility of the Crown to identify the cases to which any new provision applies and to indict them within the appropriate timescale. It would then be for the judge at the preliminary diet to ensure that the earliest possible arrangements for trial were made.
Sensory Impairment and Physical Disability
16.16 A hitherto rather neglected, but important, subject is the support available to those who find involvement in the criminal justice system hard because they have difficulty in seeing, or hearing, or because their mobility is limited. I have already noted the submissions made to me about the importance of having support routinely available for them, rather than requiring them to go through the process of requesting special assistance. The Disability Rights Commission 251 reminded me that the Disability Discrimination Act 252 imposes a pro-active duty to make services accessible (in the broadest sense), rather than simply a duty to react when approached.
16.17 The Scottish Court Service has already audited its estate, in order to assess how its building and operational procedures affect court users with a disability, and to identify the changes required to comply with the Act. In addition to addressing the physical limitations of some parts of the estate, the audit examined the existing training for staff in the areas of disability awareness, and noted those areas where staff training needs to be extended. As the result of that review, the Scottish Court Service has identified a number of areas where changes in its work practices, information systems and buildings, are required to ensure compliance with Part III of the Disability Discrimination Act. The Service now has work in hand to ensure compliance with Part III of the Act by the operational date of 1 October 2004.
16.18 Many courtrooms currently have induction loop and/or sound enhancement systems. These will be provided in all courtrooms. The Scottish Court Service have a commitment to providing information leaflets - some of which are in draft form - in Braille, in large type and on audio tape. VIA is currently considering the provision of information in Braille. The Witness Service already has a number of leaflets about crime and the criminal justice system available in Braille.
Ensuring Judicial Awareness of Vulnerability
16.19 The Judicial Studies Committee is in the process of drafting the Equal Treatment Bench Book, which will provide guidance for judges at all levels, designed to ensure that all court users are treated with equal dignity regardless of age, ethnic origin, colour, religion, disability, gender or sexual orientation. It will also deal with intimidated witnesses, witnesses who are victims, and accused persons without legal representation. The guidance identifies sensitive issues and offers practical advice, with a view to avoiding inadvertent mistreatment in court through ignorance or misunderstanding. That guidance is expected to be issued to all judges within the next 6 months.
Interpretation
16.20 There is an increasing need for the services of interpreters. Since April 2002 responsibility for the provision of interpreters, where one is required for the accused in court, has lain with the Scottish Court Service. A protocol entered into by the Service with the police and the Crown specifies how the need for interpretation should be intimated to the Court 253. Interpreters are engaged through recognised interpreting services. The interpreters provided must all be qualified by holding the Diploma in Public Service Interpreting (DPSI). If it is not possible to instruct an interpreter who has the DPSI, the interpreting service will be asked to recommend one who is suitable for the assignment concerned, and to provide a written assessment of that interpreter in advance of the court hearing. Sign language interpreters require to be registered with the Scottish Association of Sign Language Interpreters (SASLI).
16.21 It is the responsibility of the Crown to arrange for an interpreter, where one is required to take the evidence of a Crown witness. It is the responsibility of the defence to engage the interpreter, where that is necessary for consultation with the accused or for the presentation of the evidence of a defence witness.
16.22 The Scottish Court Service regularly meet with the Crown to review any issues that have arisen in relation to the provision and standard of interpretation services. Any difficulty arising in any case, relating to the availability of interpreters or of facilities for translating documents such as transcripts of interviews, should be brought to the attention of the Scottish Court Service as the body best placed to take steps to resolve the difficulty or liaise with others to do so.
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