The Scottish Government

« Previous | Contents | Next »

Listen

VITAL VOICES: Helping Vulnerable Witnesses Give Evidence
Report on the Analysis of Responses to the Consultation

SECTION THREE: DEFINING VULNERABILITY

Question 2: Should the external circumstances faced by a witness be taken into account in deciding whether he or she should be eligible for special measures?

14. Of the Consultees that addressed Question 2 (n=52), 85% (n=44) were in favour of the external circumstances faced by a witness being taken into account in deciding whether s/he should be eligible for special measures; 13% (n=7) of Consultees were opposed to the proposal while 2% (n=1) did not specify a view.

15. The view was expressed that the current test is "too restrictive" ³¹, "restrictively narrow" ³² and "very prescriptive". ³³ Instead, the court should be able to exercise a discretion to provide special measures to a wider range of witnesses (such as witnesses who were victims of sexual assault; threatened witnesses etc) ³⁴ in addition to being able to take account of external circumstances such as the nature of the crime ³⁵. It was suggested that, unless the circumstances of individual witnesses are considered it is unclear how 'best evidence' might be obtained from them. ³⁶

16. According to one Consultee, as vulnerability manifests itself "in different forms, at different times, in different people" it is therefore not easy to define: the focus must be the impact on testimony. ³⁷ The view was advanced by another Consultee that, apart from child witnesses, all other witnesses should be regarded as vulnerable if their circumstances are such that the quality of their evidence will be affected if the measures are not made available to them. ³⁸

17. Suggestions advanced by other Consultees as to what external circumstances faced by witnesses should be taken into account in determining eligibility for special measures include:

• The relationship between the child and the accused must always be considered a "crucial factor" ³⁹ in determining a child's ability to give reliable evidence ⁴⁰
• The nature of the crime ⁴¹
• The emotional/physical state of the witness ⁴²
• Evidence of intimidation ⁴³
• If the witness has been a victim:
• Witnesses who have been victims of domestic violence or sexual assault/offences; ⁴⁴ abuse ⁴⁵ or physical violence ⁴⁶ should be afforded special measures. This should also include adult victims of sexual abuse perpetuated when the victim was a child ⁴⁷
• Witnesses subject to repeat victimisation ⁴⁸
• The individual characteristics of the witness should be taken into account, for example:
• Age
• the elderly, ⁴⁹ particularly if they have been subject to an attack of any kind ⁵⁰
• Children should prima facie be regarded as vulnerable ⁵¹
• Frailty ⁵²
• Disability ⁵³ or communication difficulties ⁵⁴, such as deaf people ⁵⁵
• Membership of minority groups: ethnic minorities; ⁵⁶ members of gay, bisexual, trans-sexual communities ⁵⁷
• People with a dementing illness ⁵⁸
• Witness experiencing intimidation ⁵⁹
• Witness who feel threatened ⁶⁰
• Witnesses subjected to crimes of hatred; for example, racial or homophobic attacks ⁶¹

18. In addition, it was suggested that there could be included a discretionary category such as on 'cause shown' ⁶² which would cover unusual or exceptional circumstances.

19. Opposition to the proposal was expressed by 13% of Consultees (n=7). For one Consultee, opposition was based on the premise that the proposal might lead to additional delay and cost, and the blurring of the focus on those people with a mental disorder and others who need protection. ⁶³ Another suggested that the eligibility criteria remain unchanged until the Court Witness Service has had time to 'bed in' ⁶⁴ while another favoured retention of the status quo on the basis that it would be hard to differentiate between a witness' fear of giving evidence and those fearful of appearing due to their "inability to tell truth". ⁶⁵

20. In the view of one Consultee certain types of witness should be presumptively vulnerable, rather than having to establish vulnerability by category or specific circumstances in each case. Those for which the presumption should exist are:

• the under 16s
• individuals with a mental disorder (to be subject to medical report if not in detention)
• those over a certain age (possibly 75), and
• individuals certified (by the police) as intimidated ⁶⁶

All other witnesses should have the right to seek vulnerable status on provision of evidence of vulnerability: the status should not be granted as of right. Witnesses should, however, have the right to opt out of any special processes to which vulnerability entitles them. ⁶⁷

21. While opposed to a "blanket widening" of the current definition of vulnerable witness, one Consultee suggested that the issue of vulnerability should be determined on two issues:

(a) "does the cognitive, communication or physical abilities of the witness create conditions that might cause them to be unduly led or caused to give confused testimony as a result of the normal course of the conduct of the proceedings?; or

(b) "is the witness rendered unable to give testimony in the usual way because of the nature of the offence they have allegedly been subject to or witnessed?" ⁶⁸

Question 3: Should only specific categories of witness be eligible for special measures, or should any witness be allowed to use them if the court permits?

(a) Should specific categories of witness be allowed to use special measures?

22. Thirty three per cent of Consultees did not specifically address Question 3. Of those that did (n=51), 49% (n=25) were in favour of specific categories of witnesses being accorded special measures; five Consultees expressed conditional support while 29% (n=15) were opposed to the proposal and 12% (n=6) did not specify a view.

23. While the majority (49%) of Consultees were in favour of special measures applying to specific categories only, many of these favoured an expansion of the current range of categories on the basis that they are too restrictive ⁶⁹ or "inadequate." ⁷⁰ Consultees advocated expansion of the range of categories so as to incorporate:

• Children: all children should be considered for special measures in the first instance ⁷¹ in all cases and not just those who were victims of personal sexual assault. ⁷²

Suggestions as to how 'child' should be defined were advanced. According to two Consultees the status of 'child' should refer to those under 16 years of age ⁷³ while another mooted a redefinition so as to refer to the age of the complainer at the time the alleged offence occurred thereby recognising the vulnerability of adults who were subjected to abuse as children. In addition, it would take account of any child who has reached 16 before the commencement of the trial. ⁷⁴

• Those with a mental disorder as well as mental incapacity: ⁷⁵ people with a diagnosed and enduring mental illness ⁷⁶
• Victims of sexual abuse, ⁷⁷ in particular adults who have been a victim of sexual abuse perpetrated when they were children ⁷⁸
• Victims of domestic abuse and violence ⁷⁹
• Persons over 75 ⁸⁰
• Those who are intimidated ⁸¹
• The visually impaired ⁸²
• Witnesses who have communication problems: all communication problems should be confirmed by medical staff ⁸³
• Witnesses with hearing difficulties ⁸⁴
• Deaf and deafblind people with mental health difficulties ⁸⁵
• Persons with a learning difficulties ⁸⁶
• Victims of crimes of hatred (for example, racial or homophobic attacks) ⁸⁷

24. While opposed to a blanket widening of the definition, one Consultee advocated making explicit the criteria by which eligibility for special measures was determined as this might assist to include those who currently fall outwith the scope of the measures. ⁸⁸ It was further suggested that the categories should be wide enough to include a range of vulnerabilities. ⁸⁹ In addition, Consultees specified that, while measures should be available only to specific categories, witnesses who do not fall within the defined categories but are identified as needing access to special measures at any point during proceedings should then be considered. ⁹⁰ Or, as mooted by one Consultee, a discretionary category should be included such as 'exceptional circumstances' where special measures could be used if the court was satisfied exceptional circumstances existed. ⁹¹

25. Consultees in favour of retaining specific categories cautioned that (a) the use of non-specific categories would lead to substantial number of applications from persons "not specifically vulnerable"; ⁹² and (b) opening the measures to all witnesses would place an "intolerable burden" on the courts. ⁹³

26. The idea was mooted that a working group should be established to look at formulating a standardised approach to assessing those eligible for special measures. ⁹⁴

27. One Consultee expressed conditional support for specific categories on the proviso that investments continue to be made in improving practices, procedures and facilities for all witnesses. ⁹⁵

Question 3(b) Should all categories of witness be allowed to use special measures?

28. As the data above indicate, 33% (n=25) of Consultees did not specifically address this question. Of the 67% that did (n=51), 49% (n=25) were opposed to all categories of witnesses being eligible for special measures. 29% (n=15) of Consultees supported access to special measures by all categories of witnesses, 10% (n=5) of consultees expressed conditional support while 12% (n=6) did not specify a view.

29. A Consultee in favour of special measures for all categories of witness expressed the view that the current categories are "too crude and rigid". ⁹⁶ Other Consultees in favour of special measures being made available to all categories of witness expressed the view that:

• If it is determined that the use of special measures would enable the witness to give their best evidence then the measures should be made available ⁹⁷
• It should be a matter for the court to determine, on assessment: ⁹⁸ guidance should be drafted to assist the court in determining the matter ⁹⁹
• No victim or witness should be "denied full access to justice due to lack of special measures" ¹⁰⁰
• It would ensure all witnesses could participate equally ¹⁰¹ and were treated equally ¹⁰²
• All groups of witnesses listed [in the consultation document] should be considered ¹⁰³
• Any victim who is very frightened or insecure should be allowed to use special measures; ¹⁰⁴ those who fear or experience intimidation and wish measures to be provided ¹⁰⁵
• In determining eligibility, it is important to consider the nature of the relationship between the parties ¹⁰⁶

30. According to one Consultee it is difficult to confine special measures to pre-determined groups and therefore a compromise could be reached. This would entail pre-determined groups automatically qualifying for special measures but would also allow for individuals who fall outwith these categories to avail of these measures if they can demonstrate 'special cause'. ¹⁰⁷

31. One Consultee suggested that, rather than viewing such measures as special treatment and giving rise to a special measures culture, the justice system must take responsibility for the comfort and security of all those giving evidence and ensure that all witnesses have whatever arrangements they need to give their best evidence. ¹⁰⁸ In the view of another Consultee, the special measures culture could be avoided by the "application of new rules by the courts to set the thresholds for court witness vulnerability." ¹⁰⁹

32. In addition, in order that vulnerable witnesses can be identified and assisted at the earliest opportunity, victim awareness training is essential for all personnel involved in the criminal justice system. ¹¹⁰

Question 4: What criteria should be used to decide whether someone with a mental illness should be able to use special measures?

33. Thirty four per cent (n=26) of submissions did not address this question. Of the Consultees that did (n=50), 66% (n=33) supported the recommendation of the Millan Committee ¹¹¹ that the use of special measures should be dependant on the illness of the witness and not on whether a court order was issued. ¹¹²

34. Three Consultees supported use of the English/Welsh system ¹¹³ with one stating that the system appears to be "well founded and could be readily imported into the Scottish Legal System." ¹¹⁴

35. Other suggestions advanced by Consultees on the issue include the following:

• The nature of the illness should be deciding factor in each case ¹¹⁵
• Anyone with a mental illness whether "sectioned" or not should be entitled to apply to the court. ¹¹⁶ This is necessary in the interests of justice and the good of the witness ¹¹⁷
• Measures should be made available to all persons suffering from a mental disorder as defined by statute ¹¹⁸
• The definition of mental disorder should be broadened to include:
• A person who has accepted voluntary treatment ¹¹⁹
• Voluntary patients ¹²⁰
• Those using dedicated services in either the voluntary, statutory or health sectors ¹²¹ but not detained in hospital ¹²²
• People who are mentally ill ¹²³
• Those suffering from a phobia or anxiety or post natal depression ¹²⁴
• Individuals with Alzheimers and enduring mental health problems such as schizophrenia ¹²⁵
• However, it should be broad enough to incorporate people with mental health problems which do not fit a particular diagnosis ¹²⁶ as many individuals with mental health problems do not fit into the criteria that would allow them to qualify for special measures. ¹²⁷ Any definition of mental illness should seek to ensure that it does not exclude people suffering from mental health problems who may not fit into a diagnostic category ¹²⁸
• It should not have to be a requirement that the mental illness suffered should be directly related to the court case for example, depression as a result of crime ¹²⁹
• Witness should be asked if they foresee a problem in giving evidence in open court ¹³⁰

36. Consultees offered suggestions as to how the need for special measures for someone with a mental illness should be assessed:

• An evaluation of the capacity, current mental state, objectivity and reality orientation of the witness should be undertaken with any assessment being conducted by professionals ¹³¹
• Medical, or other evidence, to show that without access to use of special measures the health of the witness is at risk ¹³²

• A soul and conscience report from a general practitioner, psychiatrist and/or psychologist should be produced stating that the witness has mental health difficulties and specifying what these are ¹³³

• Any assessment of the witness would need to be conducted by a relevant professional such as a:
  • general practitioner ¹³⁴
  • mental health officer ¹³⁵
  • psychiatrist ¹³⁶
  • psychologist ¹³⁷
  • counsellor ¹³⁸
  • social worker ¹³⁹
  • any other relevant agencies ¹⁴⁰
• Judges should hear evidence from experts (such as social workers or mental health professionals) to ascertain whether someone with mental illness should be allowed to give evidence by special measures ¹⁴¹
• The decision should be a collective decision, taken by a number of persons, for example, a psychiatrist, psychologist, solicitor and someone who knows the witness very well such as a nurse or social worker ¹⁴²
• There should be a standardised assessment carried out based on the available clinical information: not in favour of relying on psychiatric diagnosis as this can result in inconsistencies ¹⁴³

37. Guidance for the courts ¹⁴⁴ and police ¹⁴⁵ was requested. It was suggested that suitably qualified professionals such as psychiatrists, psychologists or mental health officers could provide the guidance. Guidance would also have to be given to such professionals with regard to the level of vulnerability the court would expect before granting special measures. ¹⁴⁶

38. Concern was expressed by one Consultee that special measures might be invoked to force people with mental health issues to appear in the witness box instead of adjourning the trail to allow for treatment and recovery of the witness. The Consultee suggested that a distinction requires to be drawn between (a) those individuals with a chronic mental illness that does not render them too ill to appear and (b) those in an acute phase of illness likely to resolve and allow appearance, even if at a later stage. The test should be a medical one to determine if the witness could appear in a court setting if permitted access to special measures. ¹⁴⁷

39. Additionally, as highlighted by another Consultee, the court should take full account of the person's mental state as the court date approaches, as experience of people with mental health difficulties indicate, individuals who are to give evidence in court can become progressively more anxious as the court date approaches. Symptoms of serious mental illness can then assert themselves and can lead to "an otherwise credible witness appearing to be incredible." ¹⁴⁸

Question 5: Is the current definition of a vulnerable witness adequate to cover adults with learning disabilities?

40. Of the 29 Consultees that specifically addressed this question, 48% (n=14)) expressed the view that the current definition of a vulnerable witness is adequate to cover adults with learning disabilities. Thirty five per cent (n=10) of Consultees did not share this view, 14% (n=4) expressed conditional support, and 3% (n=1) did not specify a view.

41. Consultees of the opinion that the current definition of a vulnerable witness adequately covered those with learning disabilities suggested that it may not always be evident to police officers or witness support staff when an adult is suffering from significant impairment of intelligence or social functioning. Good quality training of all agencies involved is required. ¹⁴⁹ The problem may be who acts as representative for such a witness and whether the police alert the Crown Office/Procurator Fiscal. ¹⁵⁰

42. Consultees not satisfied that the current definition of vulnerable witness was adequate to cover adults with learning disabilities opined that:

• Under the present system, the need for some sort of special treatment often only becomes apparent once the case is in court ¹⁵¹
• The current definition is too narrow as witnesses with learning difficulties may not have a significant impairment of intelligence and social functioning ¹⁵² but may still be distressed and need support to give evidence ¹⁵³
• The current definition does not clearly define the difficulties of those who have a mild or borderline learning disability. It is not uncommon for such people to attend court as a witness/victim/accused and appear to understand the proceedings, answer questions in a superficial manner as if they understand the true implications of what is being said, but, in reality, they do not. ¹⁵⁴

43. These Consultees advanced a number of suggestions which include:

• Suggestibility is a particular problem for people with borderline learning disabilities and should be included in the definition of vulnerable witnesses ¹⁵⁵
• The definition should include the words "would include one whose communication difficulties are such that the individual is unable to fully express himself or herself, or fully comprehend another person through normal speech". Additional wording may need to be considered in instances where a person can only use sign language ¹⁵⁶
• Remove the term "significant" ¹⁵⁷ from the current definition and introduce instead a similar test to that for those with a mental illness ¹⁵⁸
• The definition used in the "Same as You" should apply ¹⁵⁹
• The court and the wider Criminal Justice System should ensure that the current criteria are determined by an assessment of a person's intelligence on a fully standardised intelligence test, and a reliable and valid assessment of sound functioning. Assessments should be carried out by a Chartered Clinical Psychologist with expertise in Adult Learning Disabilities ¹⁶⁰
• Adults with sensory impairment should be included ¹⁶¹

44. One Consultee who was undecided on the matter expressed concerns as to how the decision on whether impairment is significant would be made and whether a medical opinion would be required as this could result in additional distress for the witness. ¹⁶²

Question 6: Should all alleged victims of sexual offences be eligible for special measures?

45. Half the Consultees (n=38) did not address this question. Of the half that did, 71% (n=27) agreed that the alleged victims of sexual offences should be eligible for special measures; 24% (n=9) were opposed to extending the measures to these victims while one consultee expressed conditional support and the remaining 2% (n=1) was undecided on the matter.

46. Consultees who favoured the extension of special measures to all alleged victims of sexual offences did so on the basis that:

• There is a particular trauma associated with the crime ¹⁶³
• Witnesses have difficulties in giving evidence of such a distressing and personal nature ¹⁶⁴
• In addition, adults who have experienced sexual abuse during their childhood can be re-traumatised, in particular, when the victim is confronted with their alleged perpetrator in court ¹⁶⁵
• While the Sexual Offences (Procedure and Evidence) (Scotland) Act gives substantial new protections to complainers in sexual offences, they do not currently benefit from access to special measures when giving evidence: they still have to face the accused in court during questioning ¹⁶⁶
• The system in Scotland should accord with the law in England and Wales ¹⁶⁷
• Whether or not such measures are applied should depend on the victim's health, both mental and physical, and the circumstances of the case ¹⁶⁸
• The measures should be available particularly if the alleged victim knows the alleged perpetrator ¹⁶⁹ and, particularly, in intra-familial abuse cases ¹⁷⁰
• While there could be drawbacks in creating a "victim culture" whereby the nature of the offence designates the victim as inevitably vulnerable, the particular obstacles faced by complainers in sexual offence cases suggest that there should be access to special measures if the complainer so requests ¹⁷¹
• In view of the potential for harm arising from assertive challenge under cross-examination ¹⁷²
• The measures should be available to these victims on a discretionary basis ¹⁷³

47. Consultees not in favour of affording all alleged victims of sexual offences eligibility for special measures expressed the view that:

• The interest of justice would not be served. In Solemn proceedings it would "send the wrong message to the jury by usurping the function of the jury to assess the credibility, and/or demeanour, of the witness independently; giving rise to prejudice against accused persons; and threatening the presumption of innocence of accused persons." ¹⁷⁴
• Instead, what is required is greater vigilance on the part of judges to stop inappropriate and aggressive lines of questioning ¹⁷⁵
• It may be appropriate for some witnesses to have the use of special measures e.g. the use of screens as these would be helpful in reducing anxiety for rape victims ¹⁷⁶. Should not apply except insofar as anonymity is presently always accorded to victims of rape and other sex crimes ¹⁷⁷
• The need for special measures should be based on an appropriate assessment ¹⁷⁸
• In England and Wales the Youth Justice and Criminal Evidence Act 1999 treats all complainers in sexual offence cases as vulnerable; however the relevant sections of the Act have yet to be implemented. It may therefore be appropriate to wait until they are in force and review the position in the light of subsequent experience in that jurisdiction ¹⁷⁹

Question 7: What factors should be taken into account in deciding whether a witness is sufficiently affected by actual or feared intimidation as to need special measures?

48. As the data indicate, 59% (n=45) of Consultees did not specifically address this question. Of the 41% (n=31) that did, not all were in favour of defining the factors which should be taken into account in deciding whether a witness is sufficiently affected by actual or feared intimidation so as to need special measures. Those Consultees advanced the following views:

• Every witness should be eligible for special measures ¹⁸⁰
  • The focus should be the effect, or potential effect, on the witness' ability to give evidence ¹⁸¹
  • Although certain groups may be more prone to intimidation than others, it would be unhelpful if all such groups were to be categorised as vulnerable. There should be capacity in the system to accommodate those who have a fear of intimidation both from the accused and from the process of justice ¹⁸²
  • The subjective fears of an individual witness should be taken into account. If a witness can demonstrate that they have a genuine fear that significantly inhibits their giving best evidence then they should be considered eligible ¹⁸³
• It is not helpful ¹⁸⁴ to list factors which will be relevant; instead, it should be for the court to determine ¹⁸⁵ on a case by case approach ¹⁸⁶
• Where intimidation is alleged, it should be investigated fully by the police on behalf of COPFS and a statement from the investigating officer, or from the Witness Protection Unit, in support of the allegation should be sufficient cause for the court to consider an application. ¹⁸⁷

49. One Consultee suggested that membership of a minority group, be it religious, racial, or sexual, should not ipso facto be considered relevant unless there is a link between membership of that group and the witness' difficulty in giving evidence. ¹⁸⁸

50. Consultees in favour of defining a list of factors to be taken into account in deciding whether a witness is sufficiently affected by actual or feared intimidation as to need special measures offered the following suggestions:

• Repeat harassment: either against the witness directly or a history of harassment in the area ¹⁸⁹
• The existence of corroborating evidence¹⁹⁰ to be based on
  • the witness having reported the intimidation to the police and the findings of the police investigation ¹⁹¹
  • evidence of breach of a specific bail condition or order of the court ¹⁹²
• Repeat victimisation of the witness by the accused, in particular in cases of domestic violence ¹⁹³

• The nature of the crime/offence¹⁹⁴:
  • In particular, childhood sexual abuse cases ¹⁹⁵; or
  • Crimes that were racially motivated or motivated by prejudice around a person's sexuality ¹⁹⁶
• The relationship between the witness and the accused:¹⁹⁷ such as family; neighbours; pupil and teacher; employer and employee relationship etc ¹⁹⁸

• Offence specific witnesses such as witnesses in cases involving:
  • Domestic Abuse: women, children and young people ¹⁹⁹
• • If the witness is a victim of:
    • racially motivated crimes ²⁰⁰
    • hate crimes ²⁰¹
    • crimes of violence ²⁰²
    • sex crimes ²⁰³
    • neighbourhood crimes as the address of the witness will be known to the accused ²⁰⁴
• Characteristics of the witness
• • The emotional or physical state of the witness ²⁰⁵
  • Disabilities; for example, deafness: some deaf people can feel isolated and therefore they might find the whole court experience confusing and threatening. ²⁰⁶ Other disabilities or health problems which make the witness feel more vulnerable should also be considered ²⁰⁷
  • Age: the elderly ²⁰⁸ and the young ²⁰⁹
  • Those whose first language is not Englis ²¹⁰
  • Recent arrivals from other societies ²¹¹
  • Witnesses whose sexual orientation is not heterosexual ²¹²

51. Other Consultees advocated a form of objective assessment such as an assessment of the mental state of the witness at the time of the interview, collaborative history and evidence from police or other reputable sources etc. ²¹³ Alternatively, it was suggested that an assessment should be conducted of the extent to which their giving of evidence would be impaired unless special measures were provided. ²¹⁴ One submission suggested the matter should be looked at as part of a working group. ²¹⁵

52. One Consultee cautioned that the jury's perception of the accused may be influenced by the provision of special measures to a witness. Therefore, the measures should be made available only in exceptional circumstances. ²¹⁶

Question 8: Should communication problems be included in the definition of a vulnerable witness, and if so how?

53. Over half the Consultees (n=40) did not specifically address Question 8. Of the 47% (n=36) that addressed the question, 72% (n=26) were in favour of extending the definition of a vulnerable witness to include those with communication problems; 22% (n=8) were opposed to this suggestion while 6% (n=2) were undecided on the matter.

54. One Consultee supported a widening of the definition to include witnesses with communication problems but only where these problems significantly inhibit the giving of best evidence. ²¹⁷ Other Consultees supported a widening when it caused difficulty for the witness and the court. ²¹⁸ Therefore, there should be general availability of special measures to any witness who can be shown to be able to benefit from them. ²¹⁹

55. Among the witness who should be included for consideration are:

• Any witness where English is not their first language ²²⁰
• People with sensory impairment or language barriers/problems ²²¹
• People who are:
  • deaf ²²²
  • deafened ²²³
  • hard of hearing ²²⁴
  • unable to speak or disability in speech ²²⁵
  • individuals whose first sign language is not British Sign Language ²²⁶
  • deafblind ²²⁷
  • Individuals with a learning disability ²²⁸
  • Individuals with Autistic Spectrum Disorders ²²⁹
  • Profoundly handicapped children/adults ²³⁰
  • Those with an emotional or psychiatric problem which affects their ability to communicate ²³¹ or those affected by physiological difficulties ²³²
  • Children under 16 who may have difficulty understanding ²³³

56. According to one Consultee, eligibility for special measures should be "stigma-free." ²³⁴ Additionally, it was suggested that the court should be given the discretion to use special measures on 'cause shown.' ²³⁵ It was also noted that consideration would need to be given to the impact of the European Convention on Human Rights, in particular in relation to the right accorded to each individual to have an interpreter appointed if they cannot understand or speak the language used in court. ²³⁶

57. Opposition to an extension of the definition of vulnerable witness to include individuals with communication difficulties was voiced by 22% (n=8) of Consultees on the basis that:

• The existing measures are adequate ²³⁷
  • Adequately addressed through use of translators, loop system and sign language ²³⁸
  • Communication difficulties do not create a need for special measures, as adequate translation facilities are available; however, a courtroom process which enables an efficient verbatim translation of evidence would be welcome, but it should not detract from the ability to cross-examine a witness effectively ²³⁹
• The Court Witness Scheme should assist communication problems. The Scheme should be allowed to operate across all courts before any changes to the current system are considered ²⁴⁰
• Better training and understanding of the needs of individuals with communication problems would be more beneficial ²⁴¹

58. One Consultee opposed to the expansion of the definition to include witnesses with communication difficulties suggested that "it may be appropriate to consider some sort of functional disability in communicating as a basis for defining a person as vulnerable, but special measures adopted must not restrict effective cross-examination". ²⁴² Another Consultee expressed support for the approach outlined in the Lord Advocate's guidance on the use of interpreters in court settings. ²⁴³

Question 9(a): Which vulnerable witnesses, if any, should be automatically entitled to use special measures?

59. Forty nine per cent (n=37) of the Consultees specifically addressed this question. In their opinion, the witnesses who should automatically be entitled to use of special measures should include:

• All witnesses should be automatically considered for use of special measures but none should be entitled to their use ²⁴⁴
• Children: under 16 ²⁴⁵, children generally ²⁴⁶, children under 18 ²⁴⁷ and (most ²⁴⁸) young people ²⁴⁹, unless the court determines that no such measures are called for ²⁵⁰
  • In line with other legislation such as the Age of Legal Capacity (Scotland) Act 1991, it was suggested by one Consultee that children under the age of 12 have automatic entitlement as well as young persons (12-18 years) if they are affected by an additional vulnerability factor such as a learning disability or fear of intimidation ²⁵¹
• Victims of domestic violence/abuse ²⁵²
• Anyone with mental illness ²⁵³- past or present ²⁵⁴ - including mental incapacity ²⁵⁵
• Those with a learning difficulties ²⁵⁶
• Any individual who suffers from significant impairment of intelligence and social functioning ²⁵⁷
• Those with a diagnosis of Autistic Spectrum Disorder ²⁵⁸
• Members of diverse minority groups ²⁵⁹
• Victims of sexual offences ²⁶⁰
• Adults who are alleged victims of childhood abuse and/or all alleged victims of sexual offences ²⁶¹
• Repeat victims ²⁶²
• Elderly victims ²⁶³
• Witnesses suffering from intimidation or harassment ²⁶⁴
• The disabled ²⁶⁵
• Those with a communication problem ²⁶⁶
  • Those with a sensory impairment or language problem which affects their ability to communicate ²⁶⁷
• Victims of crimes of hatred (for example, racial or homophobic attacks) ²⁶⁸
• Victims of stalking ²⁶⁹
• As defined by statute ²⁷⁰
• Any victim or witness who is disadvantaged by the justice system where full and equal participation is not possible without the use of special measures ²⁷¹

60. The view was advanced that any witness who feels the need for additional protection to enable them to give quality evidence should be afforded such protection. ²⁷² The views of the victim or witness on using special measures should be taken into account. ²⁷³

61. Two Consultees suggested that no witness should have an automatic right to special measures; instead, the matter should be for the court to determine, on a case by case approach. ²⁷⁴ Another Consultee cautioned that "creating automatic rights and presumptions in favour of certain groups being treated in particular ways may result in inflexibility." ²⁷⁵

62. The suggestion was made that the Judiciary and court Staff should receive disability awareness training. ²⁷⁶

Question 9(b): Where entitlement depends on permission of the court, when and how should judicial discretion be exercised?

63. Sixty three per cent of Consultees did not specifically address this section of Question 9. Of the 37% of Consultees that did address this section (n=28), one was of the opinion that it would not be appropriate to be prescriptive as to how judicial discretion should be exercised. Instead, that matter "is best left to the judiciary." ²⁷⁷ Another expressed the view that "it would be unhelpful to fetter the court's discretion by providing specifically for when and how judicial discretion should be exercised." ²⁷⁸

64. Not all Consultees were in favour of the discretion to determine whether special measures apply residing in the Judiciary. Opposition to the principle was based on the premise that:

• Judicial discretion increases the risk of judgement rather than justice being the determining factor for entitlement ²⁷⁹
• Judicial discretion could lead to further variations in practice with consequent unintentional discrimination being experienced by witnesses in courts ²⁸⁰
• There was no evidence of judges or sheriffs exercising their own discretion to use special measures unless asked for ²⁸¹
• Discretionary entitlement is a further legal hoop or process that vulnerable witnesses would have to go through ²⁸²
• Judicial discretion should only to be used to include a witness in a category, not exclude them ²⁸³
• Where a witness has requested or been identified as needing special measures, it would be very difficult for a judge to refuse the witness otherwise ²⁸⁴

65. Other Consultees advanced suggestions as to how judicial discretion should be exercised:

• If a judge is asked to determine entitlement then s/he should have regard to the evidence produced in support of the application. This may include an expert report and perhaps a statement or affidavit from the witness ²⁸⁵
• The discretion should be exercised in such a way as to ensure the system is not misused ²⁸⁶
• By taking a flexible approach ²⁸⁷
• In the cautious and conscientious manner, as at present ²⁸⁸
• Other factors such as the public interest and the views of the witness need to be considered ²⁸⁹
• Discretion should be exercised where the court decides that the quality of individual testimony would be devalued ²⁹⁰
• Where cause is shown in relation to a witness with:
  • mental illness,
  • learning disability,
  • communication problems, or
  • where there is repeat victimisation or intimidation ²⁹¹

66. Consultees also advanced suggestions as to when the discretion should be exercised:

• "At an early stage in proceedings" ²⁹²
• At the pre-trial hearing using expert advice as necessary ²⁹³
• In Sheriff and jury trials, applications should be made at first diet ²⁹⁴ and in summary cases, applications should be made at the intermediate diet ²⁹⁵
• In criminal matters, applications should be made at preliminary, first or intermediate diets and, for civil matters, applications should be made either (a) by enrolled motion; or (b) a motion before the Lord Ordinary or Sheriff ²⁹⁶

67. One Consultee noted that, at present, judges too readily accede to Section 271 applications that do not set out the reasons why witnesses fulfil the statutory criteria. ²⁹⁷

68. It was further suggested that guidance should be drafted outlining potential scenarios where special measures would be used. ²⁹⁸

Question 10: Should the accused in a criminal trial ever be eligible for special measures, and if so when?

69. Thirty per cent of Consultees (n=23) did not specifically address this question. Of those that did (n=53), 66% (n=35) were in favour of the accused in criminal trials being eligible for special measures; 23% (n=12) expressed conditional support while 11% (n=6) were opposed to an accused being eligible for special measures.

70. One of the Consultees in favour of the accused being eligible for special measures was so if access to these measures would assist the accused in giving evidence. ²⁹⁹ Eligibility for the measures was deemed necessary in order to "ensure a fair trial and to improve the quality of the evidence" ³⁰⁰ given by an accused. In addition, eligibility would ensure that "the over-riding principle of fairness to the accused" ³⁰¹ is achieved. According to two Consultees, the criteria for eligibility should be the same for an accused as it is for any other witness. ³⁰² One Consultee commented that the "approach which addresses the defendant's vulnerability on the basis of the same eligibility as other witnesses is to be commended." ³⁰³

71. Consultees pointed out that, in contemplating this matter, the following factors should be taken into account:

• The decision in V and T v United Kingdom³⁰⁴
  • This case dealt specifically with an instance where an accused who is vulnerable on grounds of age gave evidence. The court decided that such a witness should have the benefit of special measures and any other approach would be in danger of challenge on the ground of "inequality of arms" ³⁰⁵
  • The logic of "equality of arms" would also extend to the entitlement of an adult accused to special measures. ³⁰⁶ What is important is that the accused is entitled to seek special measures and not be automatically excluded on the basis that s/he is the accused ³⁰⁷
• Decisions of the European Court of Human Rights:
  • which confirmed that steps must be taken to ensure that an accused understands the proceedings, as with the Bulger case ³⁰⁸
  • measures may need to be made available to all adults on the principle of "equality of arms" under the Convention ³⁰⁹

72. As indicated above, a quarter of Consultees (n=12) expressed conditional support for the proposal of extending eligibility for special measures to the accused. These Consultees were in favour of measures being extended in cases involving:

• Children ³¹⁰ (under the age of 16 ³¹¹) and young persons ³¹²
• Immature young offenders particularly aged 16-17, many of whom may struggle to understand court proceedings and their implications ³¹³
• An accused charged with sexual assault or abuse: ³¹⁴ the accused in sex crimes/rape cases should be accorded anonymity until conviction ³¹⁵
• Those with learning difficulties ³¹⁶
• Accused with a diagnosis of Autistic Spectrum Disorder ³¹⁷
• An accused who is deaf; or has interpretation, communication or comprehension difficulties ³¹⁸
• An accused when they are accused of a crime against a person who was violent or abusive towards them; for example, where provocation or self-defence is an issue ³¹⁹
• As is already considered through the Appropriate Adult procedures ³²⁰

73. It was further suggested that the preparation of special measures for an accused should be put in place at the start of the trial, thereby ensuring that s/he is not disadvantaged by being unable to give evidence if s/he chooses. ³²¹ There may be grounds for making it incumbent on the defence to provide advance notice if the accused party seeks special measures. ³²²

74. Consultees opposed to the suggestion (n=6) that special measures should be extended to an accused party in criminal trials advanced the following views:

• The fact that the accused has a defence agent to 'protect' him/her coupled with the appeal process already offer significant safeguards for the accused under domestic and European law ³²³
• An accused party should be protected by current court procedures; for example insanity in bar of trial provides protection for those with a mental disorder ³²⁴
• There is an argument for making the special measures available in some circumstances; for example, to an accused with significant mental health problems, or a victim of domestic abuse or repeat harassment. However, on balance there is a danger that the defence could abuse this. An accused person is not obliged to give evidence and will always have a lawyer in court representing their interests ³²⁵
• There may be certain circumstances in which an accused person requires access to technical facilities, such as translation facilities, or other audio visual aids in the case of some accused with learning difficulties ³²⁶
• The accused person is generally less likely to be vulnerable because the Crown "will not intimidate them or interfere with their evidence and also they will have a lawyer to protect them" ³²⁷
• The role of an "appropriate adult" in criminal proceedings involving persons with a mental disorder should be maximised ³²⁸

« Previous | Contents | Next »