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

SECTION SIX: RANGE OF PROCEEDINGS

Question 21: Should some or all special measures available in the criminal courts also be available in court proceedings connected with children's hearings?

146. Sixty seven per cent of Consultees (n=51) specifically addressed this question. As the data demonstrate, 84% (n=43) were in favour of some or all special measures available in the criminal courts being made available in court proceedings connected with children's hearings, 6% (n=3) were opposed to this view while a further 10% (n=5) were undecided.

147. Support for the proposal was based on the view that:

• There is no reason to differentiate between children's hearings and criminal proceedings ⁶⁹⁷
• Lack of availability of these measures appears "anomalous" given the content of the proceedings ⁶⁹⁸
• Proceedings can be no less worrying or traumatising to the witness than appearing in a criminal trial ⁶⁹⁹
• It is immaterial to a child witness whether they are appearing in a proof or in relation to a criminal case: the distinction is "lost" ⁷⁰⁰ on them. The experience can be intimidating to them whatever the nature of the court proceedings is ⁷⁰¹
• The hearings are judicial proceedings and subject to the same rules ⁷⁰²
• Availability would ensure that the vulnerable witness is supported through the process ⁷⁰³
• Measures should be made available in the interests of consistency and fairness ⁷⁰⁴

148. In particular, Consultees suggested these measures should be made available where:

• Children and young people have a learning disability and/or mental health problem ⁷⁰⁵
• The child has to testify against a parent or a carer who has sexually abused them ⁷⁰⁶
• The witness is giving evidence in cases of sexual ⁷⁰⁷ or violent crime ⁷⁰⁸
• The case involves child care and child protection matters ⁷⁰⁹

149. One Consultee suggested that consideration should be had to copying the facility available in the Children's Hearings system of excluding a relevant person (a person with rights in respect of the proceedings as defined in the 1995 Act) whilst a child gives evidence. ⁷¹⁰

150. Again, the issue of the financial implications of introducing these measures was raised. It was suggested that the measures should be funded through the public purse ⁷¹¹ but consideration would need to be given to financing these measures outwith the current legal aid framework. ⁷¹² The view was advanced that the courts should determine the request while "bearing in mind the interests of parties, availability, costs and other factors relevant to fairness of proceedings." ⁷¹³

151. One Consultee, while in favour of implementation of special measures in children's hearings, suggested that consideration should be given to removing alleged victims of abuse from contested proofs altogether. ⁷¹⁴

152. Six per cent (n=3) of Consultees were opposed to the availability of special measures in proceedings connected with children's hearings. Opposition was based on the view that it would add extra expense and a layer of court bureaucracy to proceedings. ⁷¹⁵ In addition, the issues covered by the consultation papers are already treated with sensitivity by the judges etc. and therefore "significant problems" do not arise. ⁷¹⁶

153. A Consultee, undecided on the matter, highlighted the fact that legal aid is not currently available for proceedings involving children's hearings. Therefore, a new form of legal aid may be required or, if special measures are to be made available in these proceedings, a method of meeting costs within the children's hearing system may need to be considered. ⁷¹⁷

Question 22: Should the restrictions on use of character and sexual history evidence in criminal trials also apply in court proceedings connected with children's hearings?

154. Sixty two per cent (n=47) of Consultees specifically addressed this question. Of those, 87% (n=41) were in favour of the restrictions on the use of character and sexual history evidence in criminal trials also applying in court proceedings connected with children's hearings. Eleven per cent (n=5) were opposed to this proposal, while one consultee was undecided.

155. Consultees in favour of the restriction on the use of character and sexual history evidence also applying in court proceedings connected with children's hearings, expressed the following views in support of their opinion:

• Children/adolescents should have same protection as adults: ⁷¹⁸ it is "anomalous" that they are not protected by such measures ⁷¹⁹
• Unless there is a good reason to draw a distinction then the difference of treatment of such witnesses is difficult to rationalise ⁷²⁰
• The measures should be available based on the logic of the Sexual Offences Act ⁷²¹
• It is difficult to see how a 14 year olds' sexual history is any more relevant than an adults ⁷²²
• Adolescents are reluctant to report abuse as they are aware that any consensual sex they have had will be used to diminish their evidence ⁷²³
• Such questioning can embarrass children and compound their feelings of shame and guilt ⁷²⁴
• Witnesses may have been more vulnerable to succumbing to sexual relationships, ⁷²⁵ or acting inappropriately, due to abuse experienced ⁷²⁶
• Measures should be available as children might be asked about abuse with the alleged abuser present ⁷²⁷
• It is against the spirit of the Kilbrandon report and recognition that children in need of care and protection to impune motivation of a child due to previous sexual experience ⁷²⁸
• Measures should be made available on the decision of the sheriff or judge ⁷²⁹
• The test should be one of relevance to the issue in the case ⁷³⁰

156. Two Consultees called for children or young people not to be subjected to questioning of this nature. ⁷³¹

157. Eleven per cent (n=5) of Consultees were opposed to the restriction on use of character and sexual history evidence in criminal trials applying in court proceedings connected with children's hearings. In the view of some of these Consultees:

• The relevance of a particular line of cross-examination is a matter for the Sheriff to determine ⁷³²
• Questioning "should be left to the professional responsibility of the questioner who is subject to the Court's jurisdiction to prevent offensive and unnecessary questioning of any witness, especially a child" ⁷³³
• "Restrictions should not operate in any trial however unpleasant for the witness. An unpleasant experience of a witness pales into insignificance against the consequences of a wrongful conviction" ⁷³⁴

Question 23: Should special measures be available in civil proceedings, and if so in what types of case?

158. Two thirds of Consultees (n=50) specifically addressed this question. Of those, 90% (n=45) were in favour of special measures being made available in civil proceedings. Two per cent (n=1) expressed conditional support; 4% (n=2) were opposed to this proposal while 4% (n=2) were undecided.

159. Consultees suggested that availability of special measures in civil proceedings was in the wider public interest ⁷³⁵ and in the interests of fairness. ⁷³⁶ In addition, the experience of vulnerable witnesses in civil courts is not greatly dissimilar to those in criminal courts ⁷³⁷ and the experience can be no less worrying or traumatising to said witnesses than appearing in a criminal trial. ⁷³⁸ It was also noted that availability of the measures in civil proceedings may be required in order to ensure compliance with Article 6 of the European Convention on Human Rights. ⁷³⁹

160. In terms of the type of case for which these measures should be made available, Consultees suggested that:

• The measures should be available in any civil proceedings involving vulnerable witnesses ⁷⁴⁰
• In cases involving
• Children ⁷⁴¹
• Children or people with mental health problems or learning difficulties ⁷⁴²
• Mental health ⁷⁴³ and in cases under the Adults with Incapacity (Scotland) Act 2000 ⁷⁴⁴
• Abuse ⁷⁴⁵
• Neglect ⁷⁴⁶
• Sexual exploitation of children ⁷⁴⁷
• Elderly abuse/neglect ⁷⁴⁸Crimes of hatred ⁷⁴⁹
• Harassment ⁷⁵⁰
• Domestic abuse ⁷⁵¹ where a case is brought following years of abuse and intimidation ⁷⁵²
• Proof hearings, parental responsibility order Application hearings and adoption, residency and contact hearings ⁷⁵³
• Sexual abuse as abuse tends to take place in family settings and children/vulnerable adults should be protected in these proceedings ⁷⁵⁴
• Family proceedings ⁷⁵⁵ involving allegations of abuse & anti-social behaviour. ⁷⁵⁶
• When the penalty may result in a criminal sanction being imposed; for example, an anti-social behaviour order or sex offender orders ⁷⁵⁷

161. One Consultee expressed the view that research on the matter would be of assistance. ⁷⁵⁸

162. As the data indicate, 2% (n=1) of Consultees expressed conditional support for the proposal. This consultee expressed the view that special measures should not be in place unless financed by the parties. ⁷⁵⁹ One Consultee who was undecided expressed the view that while priority should be given to provision of the measures in criminal trials, a cost benefit analysis on the widening of special measures would be welcome. ⁷⁶⁰

163. Another Consultee advised that while they have "no objection in principle" they are concerned that a "vulnerable witness culture" may become prevalent. ⁷⁶¹ Another opponent of the proposal expressed the view that, as it stands, judges are perfectly placed to protect all participants from abuse. ⁷⁶² It was also opined that the provision of special measures in civil proceedings would result in an extra and expensive layer of court bureaucracy ⁷⁶³ and matters would be further complicated by funding issues. ⁷⁶⁴

Question 24: How would the costs involved be met?

164. As the data above indicate, less than a third of Consultees (n=22) addressed the issue of costs. Of the Consultees to address the question, half (n=11) were in favour of the costs being met by the state, ⁷⁶⁵ perhaps through the legal aid system ⁷⁶⁶ or the Scottish Court Service. ⁷⁶⁷ Four consultees suggested that the costs should be met in the normal way. ⁷⁶⁸ One consultee advocated payment by either the state or the applicant. ⁷⁶⁸ A further Consultee suggested that the costs of the special measures should be met by the parties to the proceedings generally. ⁷⁷⁰

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