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

SECTION FOUR: EXISTING SPECIAL MEASURES

Question 11: What are the advantages and disadvantages of video recording evidence on commission, and how could the procedure be better used?

75. Forty six per cent (n=35) of the Consultees specifically addressed this question. These Consultees offered a number of comments in relation to the advantages and disadvantages of video recording evidence on commission; following is a synopsis of same:

(a) Advantages of video recording evidence on commission

• It is useful for child witnesses ³²⁹
  • It is less frightening for children ³³⁰
  • Use avoids the child having to be in the same room as the accused ³³¹
  • It assists in providing a child friendly environment ³³² away from the court building ³³³
  • It is particularly useful for children who have been traumatised by the offence ³³⁴
  • It also ensures child witness are unaffected by adjournments or delay and can result in less delays to the therapy and recovery of the child ³³⁵
  • It avoids children being asked repeated questions and possibly altering their evidence, fearing they have given the 'wrong' answer ³³⁶
  • Use might also assist deaf children in giving evidence: this may prove difficult in practice though, as the child and interpreter would need to be visible ³³⁷
  • 76. One Consultee noted that the Lord Advocate's Working Group on Child Witness Support did not identify any cases where this special measure was in use. 338

• It is useful for other vulnerable witnesses: ³³⁹
• • Again, it permits a less daunting setting to be created ³⁴⁰
• Evidence is given away from the court setting and therefore the stress associated with providing evidence in a court of law is avoided ³⁴¹
• Use of the method minimises the numbers present when the witness is giving evidence ³⁴²
• It can also allow for evidence to be given outwith the court setting ³⁴³
• It ensures the witness(es) do not face the accused in court ³⁴⁴
• Use would be beneficial for the mentally ill to alleviate distress ³⁴⁵
• It avoids repeat questioning ³⁴⁶
• The number of questioners of the witness can be limited ³⁴⁷
• The timing of evidence giving can be more certain ³⁴⁸
• Avoids witness having long waits to give evidence: ³⁴⁹ they would not be adversely affected by any delays ³⁵⁰
• Evidence is less open to interference ³⁵¹
• Evidence is less likely to become blurred ³⁵² as memory recall is sharper if evidence is taken nearer the time the offence was committed ³⁵³ and before a witness' memory of events fades ³⁵⁴
• Useful for offences that had taken place over long periods of time ³⁵⁵
• It would allow deaf people to give evidence in a more comfortable situation ³⁵⁶
• The technology is widely available ³⁵⁷
• Assists those with learning disabilities to give evidence and answer questions ³⁵⁸
• Advantageous for those with medical conditions as it would prevent time delay, which may be critical for illnesses where mental deterioration is an issue ³⁵⁹
• Journalists can still participate in the reporting process ³⁶⁰

77. As highlighted by one Consultee, the advantages to use of video recording evidence depend on the court acting quickly to organise this measure. ³⁶¹

(b) Disadvantages of video recording evidence on commission

78. For Consultees, the disadvantages associated with giving evidence on commission are:

• It does not allow the Defence to ask questions and therefore does not provide a full and tested statement ³⁶²
• It creates problems for the Defence as the accused is not present when the evidence is being given ³⁶³
• Matters arising from evidence led from other witnesses at trial cannot be put to the witness ³⁶⁴
• If instructions follow from the Accused there would need to be adjournments to allow the Defence to meet with his/her client face to face. This might result in delays and extra costs ³⁶⁵
• The Accused should have the right to listen or receive a transcript of proceedings ³⁶⁶
• The Defence may find it difficult to gather evidence due to short timescale between service of indictment and trial date ³⁶⁷
• It is difficult for a jury to assess the demeanour and impressiveness of a witness when the evidence is taken so remotely ³⁶⁸
• There are issues relating to availability of the technology, logistics and its cost ³⁶⁹ facilities are not always widely available ³⁷⁰
• Older witnesses could find technology daunting ³⁷¹
• Lawyers may be able to subject a witness to repeated questioning ³⁷²
• Lawyers, or other questioners, may not take account of vulnerability: ³⁷³ the method of questioning may still be an ordeal for a child ³⁷⁴
• Both lawyers will be present in addition to the Commissioner who acts as 'judge': this could be intimidating for children ³⁷⁵
• This measure will only be effective "if it is part of wider changes to the criminal justice system" ³⁷⁶

79. One Consultee stated that it is difficult to outline the disadvantages of the method as there is a lack of empirical evidence available on the use of video recorded evidence. ³⁷⁷

80. Additionally, Consultees had a number of suggestions on how giving evidence on commission might be improved:

• Guidelines are required generally ³⁷⁸ and also in order to establish appropriate questioning by lawyers ³⁷⁹
• There is a need for effective training for those in the legal profession: ³⁸⁰ training would ensure the procedure was better used ³⁸¹
• The Executive should follow the recommendations in the Home Office revised 'Guidance on Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable and Intimidated Witnesses (Jan 2002)' ³⁸²
• The Executive should look at schemes in other countries, in particular the English scheme, ⁸ and consider a pilot scheme in Scotland ³⁸⁴
• Commissioners should be used to conduct all questioning ³⁸⁵
• Questions should be provided by the parties, in advance ³⁸⁶
• Defence should be carried out in court ³⁸⁷
• There should be a live sound link as questioning occurs ³⁸⁸
• Parties should be able to observe proceedings through a one-way mirror and also be provided with an audio link ³⁸⁹
• An independent observer should be present ³⁹⁰
• There should be an opportunity at the end of the evidence provision to challenge the Commissioner's questioning and to pick up on any issues overlooked ³⁹¹
• The method should be used for Children's Hearings ³⁹²
• The system could be better used by allowing the child more space and time to give views. Commissioners could use pictures/stories rather than routine questioning ³⁹³

81. Finally, it was suggested that there is a need for strict controls over who has access to the videos. ³⁹⁴

Question 12: How could screens be better used?

82. Forty six per cent of the Consultees specifically addressed this question. Of those that did (n=35), not all were in favour of the use of screens. Following is an overview of the reservations expressed by these Consultees:

• Witnesses can still feel threatened as the accused is in the room, ³⁹⁵ in close proximity of the witness ³⁹⁶ and therefore no sense of security is gained by the witness through use of this measure. ³⁹⁷ A live link is a more effective measure to adopt ³⁹⁸
• Screens can be intimidating. ³⁹⁹ The use of a screen or live link could reinforce the beliefs of a person who, as a result of mental illness, believes that he/she is being spied on through walls ⁴⁰⁰
• Witnesses may be unsure what is happening around them in the courtroom and this may increase the stress experienced by the witness. It could be unhelpful to extend the use of screens ⁴⁰¹
• Use of screens can make the accused feel that they are 'hiding' and can lead to feelings of 'shame or intimidation' ⁴⁰²

83. Three Consultees suggested that the results of any research into the effectiveness of the measure should be considered. ⁴⁰³

84. The majority of Consultees (n=20) that addressed this question supported the use of the screens with one pointing out that the screens are not used enough. ⁴⁰⁴ It was suggested that those who would benefit from use of screens would be:

• Children ⁴⁰⁵
• Deaf people who are fearful of the court environment; ⁴⁰⁶ however, an interpreter would be needed ⁴⁰⁷
• All vulnerable witnesses; ⁴⁰⁸ however the cost implications must be born in mind ⁴⁰⁹
• Complainers of sexual offences ⁴¹⁰
• All civil actions which involved vulnerable witnesses ⁴¹¹
• All civil trials ⁴¹²

85. It was noted that the use of screens is dependent on their availability in courtrooms. ⁴¹³ It was suggested that every court should have access to screens and the screen type should be standardised. ⁴¹⁴ In addition, as the positioning of the screen is important ⁴¹⁵ court staff need to ensure that the screens are set up properly. ⁴¹⁶ Guidance on the use of screens was requested. ⁴¹⁷ It was suggested that it might be worth considering using one way screens so that the accused could see the witness, ⁴¹⁸ as in England and Wales. ⁴¹⁹

Question 13: How could CCTV be better used?

86. Fifty one per cent of the Consultees (n=39) specifically addressed the question of how CCTV could be better used. Of those Consultees, not all were in favour of use of CCTV and cited the following reasons for their opposition:

• The use of CCTV is not always in a child's best interests:
  • "When a judge decides to cut the screen 'dead' a child can feel this is a sign they have done something wrong" ⁴²⁰
  • CCTV can be used by defence lawyers to their advantage as they can speak closely to the screen which can intimidate a child ⁴²¹
  • The experience can be threatening for a child ⁴²²
  • A child witness still has to attend court and, as a result, may come into contact with the accused ⁴²³
• There can be recurring technical problems which results in lengthening the court experience for vulnerable witnesses ⁴²⁴
• There have been problems with use of CCTV for deaf people: a deaf person seeks assurance of who is in the room and also, when sign language is used, it can become tiring on the eye ⁴²⁵
• CCTV could be threatening to the mentally ill ⁴²⁶
• CCTV may not give an accurate portrayal of the evidence ⁴²⁷
• It can lead to miscommunication between the witness and the person asking the questions ⁴²⁸
• The accused cannot see the witness which is incorrect procedure ⁴²⁹
• There is a fear that use of CCTV would result in it being easier to bring allegations without having to attend court; therefore, use should be restricted ⁴³⁰
• CCTV is not always available in courts ⁴³¹

87. It was suggested that the use of screens ⁴³² or evidence on commission ⁴³³ is preferable to the use of CCTV. ⁴³⁴

88. The Consultees in favour of use of CCTV expressed the view that:

• CCTV helps witnesses, in particular children, feel better protected when giving evidence ⁴³⁵
• Its use would result in the creation of a more child friendly ⁴³⁶ and, overall, witness friendly environment ⁴³⁷
• CCTV should be used for all cases of child abuse ⁴³⁸
• Its use would also be beneficial to the mentally ill in order to avoid distress to these witnesses ⁴³⁹
• CCTV should be used in rape and sexual abuse trials as it would enable rape victims to avoid the courtroom experience ⁴⁴⁰
• Use could be extended to other vulnerable adults; for example, those with learning disabilities ⁴⁴¹
• Overall, use of CCTV would ensure that it was less intimidating for the witness who may fear coming into contact with the accused ⁴⁴²
• Additionally, it is a way to improve the quality of evidence as the witness would feel more relaxed ⁴⁴³

89. Consultees offered suggestions as to how CCTV could be better used:

• Its use should be extended:
• All courts should have links with rooms where vulnerable witnesses can use this facility ⁴⁴⁴
• All Sheriff Court and High Courts should be equipped with CCTV ⁴⁴⁵
• In addition, Children's Hearing rooms would benefit from CCTV use ⁴⁴⁶
• • It should be used outside the court setting ⁴⁴⁷
  • Evidence should not be given from the witness' home ⁴⁴⁸ for fear of intimidation and identification ⁴⁴⁹
  • Witness, when giving evidence, should be accompanied by a supporter ⁴⁵⁰
• There should be co-operation between agencies; for example, social work departments ⁴⁵¹
• There should be clear rules regarding use ⁴⁵²
• Financial investment in technology is required ⁴⁵³

90. It was also suggested that, before any changes are implemented, the outcome of current research to determine the effectiveness of use of CCTV should be considered. ⁴⁵⁴

Question 14a: How could better use be made of prior recorded statements?

91. As the data above indicate, 53% of Consultees (n=40) did not specifically address the question on how better use could be made of prior recorded statements.

92. Consultees in favour of the use of prior recorded statements suggested they should be used in (a) all cases involving children and at the court's discretion for other vulnerable witnesses; ⁴⁵⁵ or (b) cases where the witness has a mental health problem. ⁴⁵⁶

93. Support for use of the statements was, for some Consultees, based on the view that using the statements could reduce the stress experienced by a witness as a result of reliving the traumatic event ⁴⁵⁷ and would therefore enable witnesses to give their 'best evidence'. ⁴⁵⁸

94. A number of suggestions were advanced by Consultees on the use of prior recorded statements and include the following:

• There is a need for detailed written guidance for those conducting such interviews; ⁴⁵⁹ in particular, in relation to the types of questions that can be asked with regard to admissible evidence. ⁴⁶⁰ There should be safeguards in place to ensure that the evidence obtained is admissible ⁴⁶¹
• Also, there is a need for training for interviewers ⁴⁶²
• There is a need for a greater sense of urgency in taking down prior recorded statements: ⁴⁶³ the statement should be taken as soon as possible after the event ⁴⁶⁴
• The statement should be taken by either:
  • A person or persons with mental health and legal training ⁴⁶⁵
  • In the presence of a trained Commissioner and /or supporter ⁴⁶⁶
  • Someone similar to an Appropriate Adult, although this person needs to be fully aware of the witness' vulnerability ⁴⁶⁷
• Interviews should be conducted in a child-friendly setting ⁴⁶⁸
• Social workers and police receive training in interviewing techniques, and should be able to competently conduct and record interviews ⁴⁶⁹

95. According to one Consultee the role of the defence should also be considered, as a defence agent may object to "not being able to ask leading questions of the witness" and this may impact on the agent's ability to adequately defend their client. ⁴⁷⁰

96. Another Consultee, while in favour of use of the statements, noted that current use is of limited benefit as the witness still has to attend at court. ⁴⁷¹

97. Consultees opposed to use of prior recorded statements expressed the following reservations:

• The method is 'fraught with difficulties' and therefore evidence should be given in person ⁴⁷²
• Those conducting the interview may not follow the rules appropriate to the court ⁴⁷³
• The system of use of prior recorded statements would undermine the defence's ability to cross-examine a witness ⁴⁷⁴ as matters arising from evidence led from other witnesses cannot be put to a witness pre trial
• It is difficult for a jury to assess demeanour etc of witness when evidence is taken so remotely, and it is not compatible with an accused's right to a fair trial under Article 6 of the European Convention on Human Rights ⁴⁷⁵

98. It was suggested that there is a need to look at the research on this subject, ⁴⁷⁶ which would include an analysis of any research conducted on use of the statements in England and Wales. ⁴⁷⁷

Question 14b: Would separate pre-trial video-recorded cross-examination be a positive development, and how would it work?

99. Over half (63%) the Consultees did not specifically address the second strand of this question. Of those that did (n=28), 68% (n=19) expressed the view that the separate use of pre-trail video-recorded cross-examination would be a positive development, 18% (n=5) did not accord with this view, while 14% (n=4) were undecided on the matter.

10. The 68% of Consultees that commented and advanced the view that the use of separate pre-trial video-recorded cross-examination evidence would be a positive development cited the following points in support of its use:

• Greater pre-trial judicial management would reduce the strain on witnesses and would benefit the judicial system as a whole ⁴⁷⁸
• It would allow witnesses to give evidence at an earlier stage ⁴⁷⁹
• It would reduce court time ⁴⁸⁰ and therefore reduce time delays that occur in the court process ⁴⁸¹
• It would reduce the need for witnesses to repeat statements ⁴⁸²
• Use would reduce the stress experienced by witnesses as ⁴⁸³
• they would spend less time giving evidence ⁴⁸⁴
• alternatively they might not be required to attend at court at all ⁴⁸⁵
• It would be less intimidating for an alleged victim as there would be less people present to hear the details ⁴⁸⁶
• Use would be favourable for witnesses with mental health problems ⁴⁸⁷
• The court would save money as it would negate the need for a witness and interpreter to appear in court ⁴⁸⁸
• It is a useful way to avoid further stress to child witnesses ⁴⁸⁹

101. Suggestions as to how the system of pre-trial video-recorded cross-examination would work were advanced by these Consultees and include:

• Interviewing should only be conducted by accredited ⁴⁹⁰ and appropriately trained ⁴⁹¹ professionals
• Commissioners should be present at interviews ⁴⁹²
• All interviews should be conducted in accordance with written guidelines ⁴⁹³
• The statement could be taken nearer to the time of the incident ⁴⁹⁴
• Cross examination could take place away from the court setting ⁴⁹⁵

102. It was suggested by two Consultees that the findings of a review of the English and Welsh scheme should be considered prior to any change in use being implemented. ⁴⁹⁶

103. The Consultees who did not feel the use of separate pre-trail video-recorded cross-examination would be a positive development (n=5) advanced the view that:

• Use of pre-trial video-recorded cross-examination would affect the accused's right to a fair trial which could result in an infringement of human rights legislation ⁴⁹⁷
• In addition, it would undermine the defence's ability to cross-examine a witness ⁴⁹⁸
• "It is doubtful that the proposal would be workable without some injustice being capable of being alleged by an accused after trial" ⁴⁹⁹
• Those conducting the interview may not follow the rules appropriate to the court ⁵⁰⁰

104. Some Consultees expressed concerns that if evidence was edited as the paper suggests this could distort what is being said ⁵⁰¹, or that editing could detract from the evidence. ⁵⁰² Another Consultee pointed out that the "paper ignores the fact that hearsay evidence is an option for witnesses." ⁵⁰³

Question 15a: Does the role of a supporter require clarification?

105. Seventy one per cent (n=54) of the submissions received did not specifically address Question 15a. Of those that did (n=22), 91% (n=20) were of the view that the role of supporter required clarification; 5% (n=1) expressed opposition to the use of supporters, while 5% (n=1) did not specify a view.

106. Consultees for whom clarification of the role of supporter was desirable (91%) of these that commented expressed the following views:

• The use of a supporter varies between courts: it is largely based on the personal preference of court officials and therefore there is a need for further guidance on use ⁵⁰⁴
• At present the witness is unaware of their chance to use a supporter until they are about to enter the court ⁵⁰⁵
• If the role was clarified then witnesses would know what level of support to expect ⁵⁰⁶
• The role is 'inconsistent and unpredictable': ⁵⁰⁷ there is a need for consistency ⁵⁰⁸ and certainty ⁵⁰⁹, especially for children ⁵¹⁰ and in rape cases ⁵¹¹
• Clarification is also important for the supporter so that they can be clear what their role is ⁵¹²

107. One Consultee commented that the use of supporters has been a positive development and therefore use should be extended to other vulnerable witnesses. ⁵¹³

108. Suggestions as to what the role of the supporter should entail were advanced by some of the Consultees:

• The role of the supporter should be limited ⁵¹⁴
• It should be similar to that of an Appropriate Adult ⁵¹⁵
• A supporter needs to be detached from, ⁵¹⁶ or unconnected with, the case ⁵¹⁷ and there exists a danger of an emotional relationship with the witness distorting the evidence ⁵¹⁸
• Conversely, if a supporter is required to be present it can result in witnesses not knowing or trusting the supporter ⁵¹⁹
• S/he should not interfere with the proceedings ⁵²⁰
• A supporter should be able to highlight to the court any distressing issues faced by the witness ⁵²¹
• S/he should be able to comfort and support a child "in an age appropriate manner." ⁵²² It is hoped that the [Lord Advocate's] guidance will allow for appropriate physical contact to comfort the child ⁵²³
• The supporter should be allowed to sit in view of the witness or behind them ⁵²⁴
• Guidance for the Lord Advocate's Working Group is a good starting point ⁵²⁵

109. While in support of the view that the role of supporter requires clarification (in particular in relation to adult witnesses with mental health problems ⁵²⁶), Consultees advanced the suggestion that the role of the supporter should be determined by the presiding Judge. ⁵²⁷ In child witness cases and in adult cases the use of a supporter should be at their discretion; s/he should not be bound by the rules governing a supporter. ⁵²⁸

110. The consultee not in favour of the use of supporters (n=1) suggested that the use detracts from evidence of the witness; ⁵²⁹ and it is costly. ⁵³⁰ Another suggested the need for a supporter would diminish if prior recorded statements or evidence on commission were used. ⁵³¹

Question 15b: Would written guidance be helpful?

111. Half of the submissions received (55%) did not specifically address this section of Question 15. Of those that did (n=34), 94% (n=32) expressed the view that written guidance on the role of the supporter would be helpful and 3% (n=1) were opposed to this view while a further 3% (n=1) did not specify a view on the matter.

112. Consultees who considered guidance would be helpful (n=32) advanced the following suggestions:

• Witnesses should know, in advance, ⁵³² if they can use a supporter and what to expect from this service ⁵³³
• If the supporter was to be based on the Appropriate Adult Scheme it would be worth updating the Circular pertaining to this from 1990 ⁵³⁴
• While guidance would be useful, the court should have ultimate discretion ⁵³⁵
• Guidance should deal with 'appointment, rights and responsibilities of support persons' ⁵³⁶
• It is recommended that leaflets should be available in courts for witnesses or would be supporters ⁵³⁷

113. One Consultee pointed out that there already exists written guidance in the form of the 'NSPCC Young Witness Pack' Home Office guidance on Achieving Best Evidence', 2002. ⁵³⁸

114. Another Consultee expressed that view that the need for a Supporter would diminish if prior recorded statements were taken or evidence on commission used. ⁵³⁹

Question 16: What would be the advantages and disadvantages of a combined approach involving elements of video recorded evidence on commission, live link and a supporter?

115. Sixty one per cent (n=46) of Consultees did not offer a view on what the advantages and disadvantages of a combined approach involving elements of video recorded evidence on commission, live links and a supporter would be. Following is an overview of the suggestions advanced by the 39% (n=30) of Consultees that proffered a view on this matter:

Advantages of a combined approach

• A combined approach could be tailored to fit the needs of an individual vulnerable witness ⁵⁴⁰

• It would alleviate the stress caused to the mentally ill and those with learning disabilities ⁵⁴¹
• • It would also reduce the stress experienced by child witness as:
  • Child witnesses would not need to appear in court ⁵⁴²
• It would avoid children having to undergo repeat evidence giving ⁵⁴³

• The approach would result in a reduction in questioning for witnesses ⁵⁴⁴
• Witnesses would not need to go through multiple precognition statements ⁵⁴⁵
• It would also reduce multiple interviewing of witnesses ⁵⁴⁶and the occurrence ofrepeat questioning ⁵⁴⁷
• The approach would allow for evidence to be taken within a more efficient timescale ⁵⁴⁸ and allow evidence to be taken while the witness' memory was closer to events ⁵⁴⁹
• It would also assist witnesses in giving more 'lucid and consistent' evidence ⁵⁵⁰
• Questioning would be more appropriate to the witness ⁵⁵¹
• A Commissioner should be used as:
  • Using a Commissioner would avoid aggressive questioning from the defence ⁵⁵²
  • Witnesses may be able to give more accurate evidence as they would feel more supported by the use of a Commissioner ⁵⁵³
• It would be less traumatic for the witness as the witness could avoid facing the accused ⁵⁵⁴, and also avoid the court experience ⁵⁵⁵
• The approach would result in more support for witnesses and in turn better evidence would be given ⁵⁵⁶
• This approach has the needs of the witness at its core: it is the "most effective basis for making changes" ⁵⁵⁷

Disadvantages of a combined approach

116. The combined approach was described by one Consultee as a 'recipe for confusion and procedural difficulties'. ⁵⁵⁸ Following is an overview of some of the points raised by other Consultees on this matter:

• The combined approach would result in an additional administration burden for the Crown Office, the Procurator Fiscal Service, the Courts ⁵⁵⁹ and community agencies ⁵⁶⁰
• Additional resources and funding would be required ⁵⁶¹
• There may be difficulties in terms of cost and management ⁵⁶²
• One of the biggest difficulties of a combined approach would be timing as parties to proceedings would need to be prepared at a stage earlier than often occurs at present: ⁵⁶³ the timescale from service of indictment to trial and the operation of a sitting rather than fixed diet system make any substantial procedure "well before trial" virtually unachievable ⁵⁶⁴
• There may be difficulties at early stages in a case due to a lack of disclosure of the Crown case. Such evidence could only be taken where the case is fully prepared or the evidence fully disclosed ⁵⁶⁵
• The accused may be disadvantaged as they will need to have legal representation at an earlier stage in proceedings ⁵⁶⁶
• The defence may not be "in a position to deal with this at an early stage" ⁵⁶⁷
• Lawyers and the accused must be able to be flexible on questioning and instructions based on what the witness says ⁵⁶⁸
• "In criminal proceedings trial should take place in presence of accused, to ensure accused has a fair trial, ⁵⁶⁹
• The exacting professional standards of counsel and solicitors could not be accommodated if only the commissioner was to be allowed to ask questions of a vulnerable witness and therefore any questioning on commission needs to be conducted by a representative of the accused ⁵⁷⁰
• Vulnerable witnesses may need to give evidence more than once ⁵⁷¹
• It may take time to conduct: this could be more stressful for witnesses ⁵⁷²
• There could be errors depending on the complexity of the legislation: there is a need for a 'simple framework of legislation' ⁵⁷³
• There exists a concern that the information obtained could be released and exploited by the defence ⁵⁷⁴

117. It was suggested that there is a need for a 'collaborative multi-agency approach to decision making at all stages' of the process ⁵⁷⁵ in addition to the requirement for clear guidelines on the matter. ⁵⁷⁶

Question 17: Is the existing law on clearing the court operating satisfactorily?

118. Seventy per cent of Consultees (n=53) did not specifically address the question on whether the existing law on clearing the court is operating satisfactorily. Of those that did (n=23), 70% (n=16) were satisfied that the current law is operating satisfactorily, 17% (n=4) did not agree with this view while the remaining 13% (n=3) did not specify a view.

119. Consultees happy with the law commented that the judiciary currently has sufficient powers ⁵⁷⁷, and "experience suggests courts are cleared frequently and effectively in appropriate cases." ⁵⁷⁸ In relation to access to the media, Consultees commented that the press operate in a responsible manner ⁵⁷⁹ and therefore there is no need to grant courts more power to exclude the press. ⁵⁸⁰ However, it was suggested that it might be advantageous if the witness was briefed on the media's participation before giving evidence, thereby preventing any anxiety and misunderstanding by the witness on the role of the press. ⁵⁸¹ One Consultee expressed concern that if the court was cleared outwith existing guidelines the jury may be prejudiced. ⁵⁸²

120. Consultees not content with the current law on clearing of the courts suggested that:

• The presence of the media creates anxiety for the witness ⁵⁸³
• The Court should have more flexible powers with regard to closing the court to the public ⁵⁸⁴
• Witnesses are more likely to feel humiliated or threatened by the possible presence of the accused's family etc ⁵⁸⁵
• It seems reasonable to extend the same consideration of a closed court to the accused ⁵⁸⁶

121. One Consultee noted that clearing of the courtroom is not the most important thing: witness anonymity is far more essential. ⁵⁸⁷

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