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VITAL VOICES: Helping Vulnerable Witnesses Give Evidence

Chapter 2: Criminal Proceedings

Who is Vulnerable?

2.1 At the moment, the current statutory definition excludes many witnesses from having access to special measures. Such measures can greatly assist vulnerable witnesses to give their best evidence and there was majority support from consultees for widening the categories of witnesses eligible to use special measures.

2.2 These three categories are set out in more detail below:

Automatic Entitlement

Child Witnesses

2.3 Most people agree that children are particularly vulnerable, and many children, especially young children, will find the whole court process intimidating, confusing and distressing. We believe child witnesses (aged under 16) should have a right to use a special measure when they give evidence. Making sure child witnesses have automatic entitlement should mean that it is clear at an early stage how their evidence will be given to the court, so that the process is less unsettling for them.

2.4 We are proposing extra protection for particularly vulnerable young children. In criminal cases about sexual or violent matters, our policy is that other than in the most exceptional cases, no child witness under 12 should have to attend court to give their evidence. This will mean that they will give evidence from another building by a live television link, or by evidence on commission, and that there should be greater use of pre-recorded statements.

2.5 In all child witness cases both the person calling the witness, and the court, will have to consider the opinion of the child. If the child is unable to give an opinion the court must consider the opinion of the child's parent or guardian (unless they are the accused). So, if a child witness does not want to have special measures, but would prefer to give evidence in the normal way, then this will be taken into consideration.

2.6 At the moment, if a child witness turns 16 before the trial starts, then they are considered to be an adult, and will lose any entitlement to special measures even where an application for special measures has already been granted. We will change this so that if the witness is under 16 at the start of the criminal proceedings, they will keep their automatic entitlement even if they are 16 by the time the trial starts.

Discretionary Entitlement

Mental Disorder

2.7 Any person who has a mental disorder which affects their ability to give evidence will qualify for consideration for special measures.

2.8 By "mental disorder", we mean any mental disorder as defined by the Mental Health (Scotland) Bill, ² which is currently before the Scottish Parliament.

2.9 Our proposal is that an application for special measures could be made for any person with a mental disorder. The application would have to show that as a result of a mental disorder, the witness would not give their best evidence if they had to testify in the normal way. The application would include a report from a medical professional, such as a psychiatrist, who had assessed the witness.

2.10 The court would then consider this application and would either grant or refuse it, or choose an alternative special measure.

2.11 The current law helps two categories of adult witnesses: people with a mental illness who are subject to one of a number of mental health related court orders, and people who suffer from "significant impairment of intelligence and social functioning" (people with learning disabilities). Our new definition will cover both of these groups, and will go further to allow anyone with a mental disorder to be considered for special measures.

Taking Wider Circumstances into Account

2.12 One of the main concerns voiced by consultees was that the current categories are too narrow. At the moment the focus is on witnesses of a certain age, or witnesses with a mental disorder and as a result, witnesses who are vulnerable because of wider circumstances are simply not eligible under the current legislation. There was general support from consultees for the court to be able to take a witness's external circumstances into account.

2.13 We are proposing that there should be a new category of vulnerable witness. It would cover any witness where fear, distress or intimidation is likely to impair significantly their ability to give their evidence in the normal way, i.e. in open court.

2.14 In deciding if a special measure will help a witness to give their best evidence, the court will have to take into account a range of relevant factors. These will include things like the nature of the offence or the evidence, as well as the views of the witness. The court will also take into account wider background circumstances such as the age of the witness, their social or cultural background, and information about any disability, discrimination or harassment.

2.15 We want this to be flexible enough to mean that anyone who is vulnerable could be eligible for special measures. We expect this will help many different people, such as victims of sexual or violent abuse, or witnesses of racist or homophobic crimes.

The Accused

2.16 Although an accused person does not have to give evidence, some accused people do. The accused is in a different position to other witnesses as they can choose whether or not to give evidence, and they usually have a lawyer acting on their behalf. Even so, there may be times when for example, the accused may be under 16, or may have a mental disorder, and where special measures would be needed to enable them to testify.

Who Makes the Application?

2.17 In child witness cases the child will be automatically entitled to special measures. This will mean that there will be a streamlined notification procedure. Whoever is calling the witness (i.e. the prosecution or defence) will decide which special measure(s) are best for the child, and will notify the court and the other side. In most cases, if there is no objection from the other side, arrangements for those measures will simply go ahead. If the court does not approve the particular special measure requested, they must replace it with another special measure which is in the best interests of the child.

2.18 For any other vulnerable witness, whoever calls the witness will make an application for special measures. The court will then consider this application, and decide whether the measure(s) should be used.

2.19 Our policy is that the court should have a duty to find out if there are any vulnerable witnesses in a case and to make sure that appropriate arrangements are made for them to give evidence. So, if no application for special measures is made, but the court decides that a witness should have special measures, then it will be able to order special measures to be used. In child witness cases, the court must ensure that the most appropriate special measures for the child are used. It would only be in an exceptional case that the court should decide that no special measure is appropriate.

2.20 Our aim is that in the vast majority of cases the decision about special measures will be made well before the trial. This should help to eliminate some of the stress that the process can cause, especially to child witnesses.

Common Law Powers

2.21 Under common law, the court has certain powers to allow special measures. For instance, a court allowed a complainer in a rape case to give her evidence from behind a screen. ³ We do not want to change the common law powers of the court. Our proposals will be in addition to the court's common law powers.

Special Measures

2.22 Our proposals will mean that more people will be eligible to use special measures when giving evidence. The special measures that can be used at present are:

• Video Evidence on Commission - This allows for the taking and recording of evidence of a vulnerable witness usually before the trial and away from the court building. Although it has not been used to date, many people who responded to the consultation thought it could be of great benefit to vulnerable witnesses, especially children.
• Screens - The screen is used to conceal the accused from the witness while the witness is giving evidence in the courtroom.
• Live television link (sometimes known as CCTV) - This method is most often used when children give evidence, particularly in sensitive cases of physical or sexual abuse. The live television link avoids the witness having to enter the courtroom.
• A supporter - A person who is allowed to sit near to a vulnerable witness in the court (or the room where the witness gives evidence by a live television link) while they give their evidence. Although they are not allowed to communicate with or comfort the witness, their physical presence can relieve the witness of some of their anxiety.

2.23 The first three special measures are provided for under s.271 of the Criminal Procedure (Scotland) Act 1995. There is currently no statutory provision for the use of a supporter in criminal proceedings, although there is some guidance ⁴ available that allows a supporter to be used in cases which involve child witnesses. We propose that the use of a supporter should also become a statutory special measure, so that if necessary court rules can be made to regulate how they are chosen and what they are allowed to do. Thirty-two consultees agreed that written guidance to clarify the role of the supporter would be beneficial. Under the proposals set out in paras 2.4 - 2.5 above, children under 12 who give evidence in cases involving sex offences or violence will not, other than in exceptional circumstances, have to come to court to do so. This will mean that greater use will have to be made of the current range of special measures, such as evidence on commission and live television link.

Admission of Prior Statements

2.24 Many consultees were of the view that better use could be made of prior statements. A prior statement is a previous statement made by a witness, which has been reliably recorded on video or some other way. The law already allows prior statements to be used as evidence in court, but it requires the witness to attend the court to either have the statement read over or a recording of it played back to them. The witness then has to confirm whether the statement is accurate. In effect, they have to be taken through their evidence again by the party who has called them to court, and this can be very distressing for vulnerable witnesses.

2.25 We propose to make it possible for a prior statement of a vulnerable witness to be used as the whole or part of his or her main evidence ("examination in chief"). This would mean that in appropriate cases, witnesses would no longer need to go through the process of having the statement read over or played to them in court and would only have to be cross-examined on it. This could help reduce the time the vulnerable witness needs to spend giving evidence in the courtroom.

2.26 We think this change could particularly help child witnesses under the age of 12 in combination with other special measures. The main evidence of a young child could be a prior statement, with the child only having to be cross-examined on it, either by means of a live television link or video evidence on commission. We are looking carefully at how high quality statements can be recorded and used in practice.

Restriction on Personal Conduct of Defence by the Accussed

2.27 The Sexual Offences (Procedure and Evidence)(Scotland) Act 2002 changed the law so that the accused in a rape or sexual offence case is no longer able to question the alleged victim personally. The Act requires an accused to be legally represented throughout the whole trial.

2.28 An accused in any other type of case is still entitled to conduct his or her own defence. Although we are not aware of any specific cases in which it has happened, many consultees took the view that there could be circumstances in which an accused conducting his or her own defence would be particularly distressing for a vulnerable witness.

2.29 We think the court should have a discretionary power to prevent an accused conducting his or her defence personally and to require the accused to be legally represented, where the interests of justice require it. The discretionary power would be flexible and could be applied where the circumstances of the case justify its use.

Scottish Law Commission's Recommendation on Dock Identification

2.30 The Lord Advocate's Working Group report on child witness support recommended ⁵ full implementation of the Scottish Law Commission's recommendation on identification procedure in court. Twenty-five consultees were in favour of this recommendation, with only two consultees opposed to it. We agree that this recommendation ( see Annex) should be fulfilled. This would mean that any witness who has previously identified the accused at an identification parade, or some other recognised identification procedure, would not have to identify the accused in court. The prosecutor would, instead, submit evidence to the court of the previous identification. This would make it unnecessary for the witness to have to make a "dock identification" which can be distressing, particularly for vulnerable witnesses such as children.

Expert Evidence

2.31 We consider that expert evidence can be of benefit in criminal trials of sexual assault or child abuse. Such evidence may explain why a witness behaved in a particular way, for example disclosing details of an alleged offence in stages over a period of time. Most people do not have any knowledge of how the behaviour of such victims can be affected, and expert evidence can provide juries with additional information to help them reach their decision. Thirty-four consultees were in favour of greater use being made of expert evidence in cases involving vulnerable witnesses, with only eleven consultees against this proposal. We want to make it competent to lead this kind of evidence where it would assist the fact-finding process and are looking at how this could be done without overburdening the court.

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