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

SECTION EIGHT: RELATED ISSUES

Question 26: Should greater use be made of expert evidence in cases involving vulnerable witnesses, and if so in what circumstances?

180. Thirty per cent of Consultees (n=23) did not specifically address this question. Of those that did (n=53), 64% (n=34) were in favour of greater use being made of expert evidence in cases involving vulnerable witnesses. Two per cent (n=1) expressed conditional support, 21% of Consultees (n=11) were opposed to the proposal and
13% (n=7) did not specify a view.

181. The Consultees in favour of greater use being made of expert evidence in cases involving vulnerable witnesses advocated use in cases involving:

• Child sexual abuse: ⁸⁴² a pilot scheme set up should be established ⁸⁴³
• Abuse ⁸⁴⁴
• Sexual abuse/offences ⁸⁴⁵
• Rape ⁸⁴⁶
• Domestic violence ⁸⁴⁷
• Murder, when the accused has killed the perpetrator of domestic abuse ⁸⁴⁸
• Cases involving children ⁸⁴⁹: In the English case of DPP v A and BC Chewing GumLtd⁸⁵⁰ the judge summed up by saying "any jury and any justices need all the help they can get…as to effect [of something] on different children'" ⁸⁵¹
• Crimes of violence ⁸⁵²
• Exceptional circumstances where, for example, there is an identified difficulty in explaining a child's behaviour ⁸⁵³
• Witnesses with learning disabilities, ⁸⁵⁴ or hearing/sight difficulties ⁸⁵⁵

182. According to Consultees, greater use of expert evidence would be advantageous as for example, it would result in the court being afforded greater scope and ability to interpret, ⁸⁵⁶ human behaviour. It could also lead to a greater understanding of the "dynamics of abuse", ⁸⁵⁷ the "predatory nature of perpetrators" of child abuse, ⁸⁵⁸ and the behaviour of those who have been subjected to crimes such as rape, abuse, domestic violence, etc. ⁸⁵⁹ In addition, greater use of expert evidence would provide the courts with information on the long term effects such experiences have on the victim and, from a greater knowledge of what the witnesses have experienced, the court would be in a better position to understand the problems that can arise from these experiences, such as drug abuse, alcoholism, self harming, mental illness etc. ⁸⁶⁰ However, there is still a need for the legal profession to receive training on the issues surrounding vulnerability, ⁸⁶¹ child development and how abuse affects those involved, ⁸⁶² in addition to training on the effects of domestic abuse and rape. ⁸⁶³

183. Consultees suggested that (a) further research should be undertaken on the use of expert evidence; ⁸⁶⁴ (b) a working party should be established to examine the measure further; ⁸⁶⁵ and, (c) information on how the witnesses' disabilities have impacted on their capability within the court environment should be provided by Chartered Clinical Psychologists. ⁸⁶⁶

184. Some Consultees were opposed to greater use of expert evidence in cases involving vulnerable witnesses, while others were concerned over the financial implications.

• There could be problems with conflicting expert advice being given to the court ⁸⁶⁷
• It may lead to an unnecessary overburdening of the court ⁸⁶⁸
• It could confuse issues and divert attention away from the evidence ⁸⁶⁹
• There is a risk of making the court experience more difficult for the witness due to increased questioning ⁸⁷⁰
• Witnesses may be more stressed if expert witnesses are arguing over the cases ⁸⁷¹
• There would be financial implications as both parties could employ the services of an expert which, in the case of the defence, would probably be met from legal aid ⁸⁷²
• Opinions could be challenged, ⁸⁷³ which could lead to lengthier trials which would bring more costs to be met ⁸⁷⁴
• There would be no need for greater use of expert evidence if evidence on commission was adopted ⁸⁷⁵
• The proposal could lead to generalisations about how witnesses in certain categories of crime (for example, rape) behave ⁸⁷⁶

185. As indicated, 13% of Consultees (n=7) were undecided on whether there should be an increase in the use of expert evidence in cases involving vulnerable witnesses. However, they did offer views on the matter:

• The use of a 'medical model' (that is, generalising reactions to events/actions) could be used to assess individual's reactions to an action (for example, rape) and this could be employed to discredit a witness ⁸⁷⁷
• It could lead to delays in proceedings ⁸⁷⁸
• The case could become a "trial by expert": there is a danger of jurors accepting the word of experts over their own assessment of the witnessv ⁸⁷⁹
• An accredited panel of experts should be used ⁸⁸⁰
• There needs to be a change so as to remove the battle of the experts from the court context ⁸⁸¹
• A party to the proceedings should have the opportunity to ask the court to appoint an expert witness. The court must have the power to grant or refuse that request, dependent on its own view as to the need for the expert ⁸⁸²
• Alternatively, the decision on whether to appoint expert witnesses should rest with the court ⁸⁸³
• The use of expert evidence is complex and therefore the issue would benefit from exploration through the establishment of a working group ⁸⁸⁴
• The area would benefit from further research ⁸⁸⁵

Question 27: Should the Scottish Law Commission's recommendations on identification evidence be implemented in full?

186. Sixty three per cent of submissions (n=48) did not offer any comments or suggestions in response to Question 27. Of the Consultees that addressed this question (n=28), 89% (n=25) were in favour of implementation, in full, of the Scottish Law Commission's recommendations on identification evidence. Two Consultees expressed opposition to implementation of the recommendations while one was 'undecided' on the matter.

Consultees in favour of implementation of the recommendations of the Commission were so on the basis that the recommendations:

• "Seek to safeguard the integrity and dignity of the vulnerable witness" ⁸⁸⁶

• Are vital to prevent child witnesses coming face to face with the accused ⁸⁸⁷

• Are essential if special measures suggested in the consultation document are to be successful ⁸⁸⁸

• Will result in a reduction in the number of court identifications ⁸⁸⁹

188. One of the Consultees expressing support for implementation of the recommendations was concerned that "procedural safeguards" would be put in place in addition to the accused having the right to dispute the identification. ⁸⁹⁰

189. Two Consultees were opposed to implementation of the Scottish Law Commission's recommendations on identification evidence. According to one Consultee identification of the accused "is essential". ⁸⁹¹ The other Consultee suggested that Section 271(11) of the 1995 Act "goes far enough." Implementation of the Law Commission's recommendations would "place the onus on an accused person to take procedural steps to protect their rights. Identification of the accused should remain a matter for the Crown to establish positively, except where statute already provides otherwise." ⁸⁹²

190. The Consultee undecided on the matter expressed the view that, while the arguments in favour of implementation are persuasive and anxiety could be reduced for those with learning difficulties, the views of defence counsel need to be taken into account. ⁸⁹³

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