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VITAL VOICES: Helping Vulnerable Witnesses Give Evidence

Chapter 3: Civil Proceedings

3.1 We propose that vulnerable witnesses in civil proceedings should also be able to use special measures. There are currently only very limited statutory provisions ⁶ to allow witnesses to use special measures. Civil proceedings can, however, sometimes be a worrying and intimidating experience for witnesses. In family proceedings, for instance, a child witness may be asked to give evidence about alleged abuse, or a complainer in a rape case may undertake a civil action against the alleged offender.

3.2 The majority of consultees considered that special measures should be available in civil proceedings. There are many different reasons why there may be vulnerable witnesses in civil proceedings. Some children and mentally-ill people could be vulnerable in any court case. Other people may be vulnerable due to the nature of the evidence they have to give, or because they have experienced distress due to harassment or discrimination. Whatever the reason for the vulnerability, we want to make sure that vulnerable witnesses are helped to give their best evidence.

Who is Vulnerable?

3.3 We propose three categories of vulnerable witness. These categories are similar to the ones used for criminal proceedings, and are wide ranging enough to help any potentially vulnerable witnesses.

Children

3.4 Children under the age of 16 will be automatically entitled to special measures. As with criminal courts, there will be a streamlined notice procedure, and the court will have a duty to ensure that children will have the benefit of special measures.

3.5 Unlike in criminal proceedings, there will not be any automatic entitlement for children under 12 to give their evidence outside of the court in civil proceedings. This is because this entitlement is linked to certain types of criminal case.

Mental Disorder

3.6 Anyone who has a mental disorder will be potentially eligible for special measures. Mental disorder will have the same wide definition as for criminal proceedings. As with criminal proceedings, the court will have a discretionary power to grant special measures, if the party calling the witness has shown that the witness might give their best evidence using a special measure.

Wider Circumstances

3.7 There will also be a third category, designed to take into account wider circumstances and background information. It will help people who are victims of abuse, racial harassment, intimidation, etc. Again, the court will have a power to grant special measures at its discretion.

Range of Proceedings

3.8 There are many different types of civil proceedings, from family proceedings to commercial contract disputes. Potentially, however, any kind of civil case could involve a child witness, or a witness with a learning disability or mental illness. For this reason, special measures will apply across the whole range of civil proceedings, which would include sheriff court proceedings connected with children's hearings.

Special Measures

3.9 The rules of evidence in civil courts are generally much more flexible than in criminal cases and the court may have the common law power to allow special measures to be used, although the extent of the power is not clear. Many vulnerable witnesses will also have an extra level of protection in civil cases as compared to criminal cases. Often the person most vulnerable will be a party to the case and may have a legal representative to protect their own interests, for instance by objecting to unfair or aggressive questioning. This means that the need for special measures in civil cases may be less, but nevertheless we want to make sure they are available when they are needed.

3.10 We think it would be helpful to clarify that all the special measures (live TV link, screens, the use of a supporter and evidence on commission) used in criminal proceedings should also be available for vulnerable witnesses in civil proceedings. Evidence on commission is already available in civil proceedings, but it is not currently used to help vulnerable witnesses. We propose to extend the use of evidence on commission to explicitly allow for its use for vulnerable witnesses. We do not need to change the law relating to prior statements or expert evidence in civil proceedings, since these can already be used.

Who Pays?

3.11 Certain special measures do not cost much money. For instance, courts are equipped with screens already, and so it will not cost anything to use them. For special measures which do incur a cost, it will be the responsibility of the party calling the witness to pay for the special measure. This is normal for civil courts. For instance, if a party calls a witness who speaks no English, then they will have to pay for an interpreter to allow the witness to be able to give their evidence.

3.12 In civil proceedings, the onus is on the parties to present a case and pay for the process as necessary. We do not think this should change although some parties will be receiving legal aid.

Specific Provision for Court Proceedings Arising from Children's Hearings

Restrictions on Use of Character and Sexual History Evidence

3.13 When the Reporter to the Children's Panel receives information that a child may be in need of compulsory measures of care, he or she will arrange a children's hearing to deal with the case. The grounds for referral to the hearing may not be accepted, or only accepted in part, by the child and/or the relevant person, such as the parent. In such cases the Reporter, if directed to do so by the children's hearing, must apply to the sheriff to find that the grounds for referral are established.

3.14 Many of the cases being referred to the sheriff now involve grounds alleging sexual abuse by either the parents or carers of a child, and this may result in evidence of a sensitive nature being led at the proof.

3.15 In some cases it may be necessary to lead the evidence of the child or of another witness, such as a sibling, about any alleged sexual abuse which they have suffered. This can result in the alleged abuser seeking to lead evidence about that witness's character or sexual behaviour. In a criminal trial there are restrictions on the use of such evidence, but these do not apply in proceedings connected with children's hearings, even if essentially the same course of conduct is being examined. We think this is an anomaly in the law and can lead to unfair questioning of some vulnerable witnesses. We propose to introduce provisions similar to those that are available in criminal proceedings under the Sexual Offences (Procedure and Evidence)(Scotland) Act 2002 which restricts the use of evidence relating to a complainer's character and sexual behaviour.

3.16 Our policy is that a party in the proceedings should only be allowed to lead character or sexual history evidence about any witness if the court is satisfied that it is relevant to establishing the grounds of referral. Many consultees were supportive of a restriction on this type of evidence. The procedure to be used will be simpler than in a criminal case, to reflect the distinct nature of the proceedings.

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