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

SECTION FIVE: NEW SPECIAL MEASURES

Question 18: Should any accused outwith sexual offence cases be banned from personal cross-examination and if so in what circumstances?

122. Thirty eight per cent of Consultees did not specifically address this question. Of those that did (n=47), 70% (n=33) were in favour of the ban on personal cross-examination of witnesses by an accused being extended to cases outwith sexual offences. Twenty six per cent (n=12) were opposed to an extension, while the remaining 4% (n=2) did not specify a view.

123. One Consultee expressed the view that a vulnerable witness should never be cross examined by the accused. ⁵⁸⁸

124. Those in favour of a partial extension expressed the view that the ban should be extended to cases involving:

• child witnesses if the accused is a close relative ⁵⁸⁹
• children ⁵⁹⁰
• child abuse ⁵⁹¹
• domestic abuse ⁵⁹²
• domestic abuse where the accused is related to the witness ⁵⁹³
• domestic abuse if it is too costly to extend to all cases ⁵⁹⁴
• mentally ill ⁵⁹⁵
• violence ⁵⁹⁶
• intimidation ⁵⁹⁷ or 'significant harassment' ⁵⁹⁸
• sexual offences ⁵⁹⁹
• stalking ⁶⁰⁰
• a suggestion of a "degree of pleasure or premeditation" ⁶⁰¹
• crimes of hatred ⁶⁰²
• witnesses with learning disabilities ⁶⁰³
• a personal element between the accused and witness ⁶⁰⁴
• in children's hearing court proceedings a witness who is the alleged victim of, or witness to, abuse allegedly perpetuated by the defendant ⁶⁰⁵
• the Court should be able to exercise some discretion in this matter ⁶⁰⁶

125. One Consultee suggested that there is a need to re-assess the ban based on the results of the Sexual Offences (Procedure and Evidence) Act. ⁶⁰⁷

126. The Consultee expressing conditional support for the proposal was in favour of each case being assessed on its merits, with due consideration being accorded to the provisions of the European Convention on Human Rights. ⁶⁰⁸ Another said that failure to afford an accused the right to cross examine a witness may have implications in terms of compliance with human rights legislation. ⁶⁰⁹

127. Twenty six per cent of Consultees (n=12) were not in favour of an extension of the ban on cross-examination. Their opposition was based on the opinion that (a) an accused has the right to test all evidence by cross-examining a witness: the presiding officer can control the accused if the need arises; ⁶¹⁰ (b) there does not exist the same level of risk that an accused may seek further gratification/power by questioning the complainer; ⁶¹¹ and, (c) the premise of the Sexual Offences (Procedure and Evidence) (Scotland) Act is unsound. ⁶¹²

128. It was further suggested by Consultees that (a) the ban would be unnecessary if evidence on commission was allowed; ⁶¹³ (b) the matter should depend on the case and the ability of the witness; ⁶¹⁴ and (c) an extension of the ban is not necessary at the moment but the Executive should review the matter at a later stage. ⁶¹⁵

Erratum : The data for Question 19 has been revised since initial publication of the analysis of responses to the consultation. The revision does not materially alter the findings of the original analysis to this question, but more accurately reflects the views of one Consultee.

Question 19: Do Consultees have views on the possible use of intermediaries?

129. A third of Consultees (32%) did not address this question. Opinion among those that did (n=52) was divided with 44% (n=23) supporting use of intermediaries, 12% (n=6) in favour of limited use while 17% (n=9) were opposed to use. Twenty one per cent (n=11) were in favour of either (a) awaiting the results of the pilot in England and Wales or (b) undertaking a pilot in Scotland. The remaining 6% (n=3) were undecided on the matter.

130. Supporters described the use of intermediaries as an "excellent idea" ⁶¹⁶ and a "highly sensible way forward." ⁶¹⁷ It was suggested that "the advantages far outweigh the disadvantages." ⁶¹⁸ One Consultee stated that use of intermediaries would be "one of the most far-reaching reforms that would improve children's experience of criminal proceedings in Scotland." ⁶¹⁹

131. Other Consultees in favour of the use of intermediaries contributed the following opinions:

• Use of intermediaries is a way of reducing stress to the witness and therefore assist more accurate evidence giving ⁶²⁰
• Intermediaries would be a welcome addition to existing special measures ⁶²¹
• They could be a valuable resource and help in translating questions for witnesses: ⁶²² they could also provide a translation of the witnesses replies and thoughts ⁶²³
• They could aid communication ⁶²⁴
  • Use would be beneficial for those deaf people who have fewer language skills ⁶²⁵
  • Intermediaries would be particularly useful for witnesses with dual sensory loss, that is those who are deafblind ⁶²⁶

• They could complement the Appropriate Adult scheme ⁶²⁷
• Intermediaries could prevent the mentally ill becoming overwhelmed by the courtroom experience ⁶²⁸
• Intermediaries should be used in cases involving children: ⁶²⁹
  • The use of intermediaries is a good way of getting children through the experience ⁶³⁰ and to avoid further stress to the child witness ⁶³¹
  • Intermediaries would be able to adopt language and behaviour a child could understand ⁶³²

132. One Consultee, while in favour of use of intermediaries, highlighted a potential problem in that the intermediary might be deemed a stranger by the witness and therefore use might not make a vulnerable witness feel more comfortable. ⁶³³ Another supporter indicated that there might be a danger of misinterpretation of evidence and, therefore, the role of intermediary should be filled by "trained specialists." ⁶³⁴ One submission suggested that intermediaries should be recruited from the ranks of professionals such as speech therapists, nursery teachers and special needs teachers. ⁶³⁵ The financial implications of use of intermediaries was recognised by the Consultees. ⁶³⁶ In addition, it was noted that use of intermediaries may be limited due to a lack of sufficiently trained professionals. ⁶³⁷

133. Additional suggestions put forward by the Consultees include:

• Existing Home Office Guidance should be refereed to ⁶³⁸
• Reference should be made to the Home Office pilot in terms of learning from experience ⁶³⁹ and guidelines on use ⁶⁴⁰
• The use of intermediaries should be informed by the Appropriate Adult scheme ⁶⁴¹
• Screening of the appropriate people could be undertaken ⁶⁴²
• 'The standards to be applied to intermediaries should be the standards which judges expect of advocates ⁶⁴³
• Intermediaries would need expertise in witness vulnerability and legal matters ⁶⁴⁴
• Intermediaries would need to be aware of Sign Language and deaf issues ⁶⁴⁵
• While it is a "reasonable idea", it should not be used as a substitute for trained legal staff ⁶⁴⁶

134. Twelve per cent (n=6) of Consultees advocated limited use of intermediaries, with one Consultee suggesting that intermediaries would be useful in cases of child sexual abuse but of little value in other cases. ⁶⁴⁷

135. Overall, 17% (n=9) of Consultees did not support the use of intermediaries. Opposition to the suggestion was based on a number of factors (an overview of which is provided below) but included the view that the practice would be "unworkable". ⁶⁴⁸

• The "filtering of witness' evidence through an intermediary is too far removed from the direct evidence on the part of the witness" ⁶⁴⁹
• The issue may be resolved by greater training of lawyers or by identifying specialist counsel, judges etc. ⁶⁵⁰
• Alternatively, the use of a Commissioner would be an effective measure ⁶⁵¹
• The Appropriate Adult service could be used to advise the court if they assess that the witness is not understanding - it would also be possible to provide a service to the vulnerable accused ⁶⁵²
• There exists a danger of 'contamination of evidence' by the intermediary ⁶⁵³ or misinterpretation of evidence ⁶⁵⁴
• Could objectivity of the intermediary be ensured? ⁶⁵⁵ Safeguards should be put in place so that the intermediary does not misinterpret the lawyer's questions or allow their own views to influence the witness ⁶⁵⁶
• There could be problems in identifying suitable people to conduct this role ⁶⁵⁷
• Use of intermediaries would 'clutter up' the system ⁶⁵⁸
• It might result in elongated or complicated proceedings ⁶⁵⁹
• There is a danger of confusion of roles and therefore there is a need for clear guidelines ⁶⁶⁰
• Use is not necessary unless the individual circumstances of each witness are genuinely taken into account and intermediaries are made available to all witnesses ⁶⁶¹
• The jury should be warned of the risk of contamination ⁶⁶²

136. Consultees expressed concern at the financial and administrative implications of introducing this measure with one Consultee suggesting that the cost would "likely to be met from legal aid". ⁶⁶³ In addition, concern was expressed that it might prove difficult to find suitably trained personnel to fill the role in rural areas. ⁶⁶⁴

137. The view was advanced that lessons should be learnt from the pilot schemes in England and Wales, ⁶⁶⁵ and some added that a Scottish pilot should be introduced. ⁶⁶⁶

Question 20: Would the appointment of an amicus be beneficial in particular cases?

138. Thirty two per cent of Consultees (n=24) did not specifically address this question. Opinion was divided among the 68% that did with 45% (n=23) expressing the view that the appointment of an amicus would be beneficial in particular cases; 11% (n=6) expressed conditional support while 40% (n=21) were opposed to the appointment and 4% (n=2) did not specify a view.

139. According to Consultees in favour of the appointment of an amicus, appointment should not be left to judicial discretion ⁶⁶⁷ as judges do not always have the knowledge to deal with all types of witnesses' needs. ⁶⁶⁸ Instead, appointment should occur in cases involving:

• rape or sexual assault ⁶⁶⁹
• cases of stalking ⁶⁷⁰
• child sexual abuse ⁶⁷¹
• abuse of the elderly ⁶⁷²
• abuse of those with learning disabilities ⁶⁷³
• those with hearing difficulties ⁶⁷⁴
• domestic abuse ⁶⁷⁵
• An amicus should be available for any vulnerable or intimidated witness but not for the accused ⁶⁷⁶

140. It was suggested that the costs involved should be met by central government. ⁶⁷⁷

141. While in support of the principle of an amicus, one Consultee noted that there might not be a requirement for use if other special measures were in place and the "bench continues the role of strong witness protection within court." ⁶⁷⁸

142. Eleven per cent (n=6) of Consultees expressed conditional support for the appointment of an amicus in particular cases. It was suggested that appointment should be "a rare event", ⁶⁷⁹ determined on a case-by-case basis and at the judge's discretion. ⁶⁸⁰ Additionally, it was mooted that there might be scope for giving the court power to appoint someone to "advocate the stance of the witness but it should only be used on order of the court to assist the court in hearing the case". ⁶⁸¹

143. As the data indicate, 40% (n=21) of Consultees were opposed to the appointment of an amicus for witnesses in particular cases. Opposition was based on the view that:

• Appointment is unnecessary and expensive ⁶⁸²
• Witnesses should have enough support under the current system ⁶⁸³
  • The court provides sufficient adjudication ⁶⁸⁴
  • Lawyers and judges should be capable of looking after the witness' interests: ⁶⁸⁵ judges should be aware of how to deal with vulnerability ⁶⁸⁶
• There would be no need for the appointment of an amicus if other special measures ⁶⁸⁷ and better arrangements for evidence taking were in place ⁶⁸⁸
• The role of amicus would overlap with the judge's role ⁶⁸⁹
• There should be greater training for lawyers, judges etc. or by identifying specialist counsel/judges for 'child victim' cases ⁶⁹⁰
• The Appropriate Adult service could be used to advise the court if the witness does not understand ⁶⁹¹
• A Supporter could fulfill this role ⁶⁹²
• Appointment of an amicus would introduce another person into the equation: there is a need for consistency of support for the child ⁶⁹³ and an amicus would simply be another person that the child was unfamiliar with ⁶⁹⁴

144. One Consultee suggested that the proposal requires further exploration and expressed the view that appointment of an amicus in particular cases would be tantamount to admitting failings in the current system. ⁶⁹⁵

145. Overall, two Consultees were 'undecided' on the matter with one expressing concern at the cost and administrative implications of introducing such a scheme. ⁶⁹⁶

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