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VITAL VOICES: Helping Vulnerable Witnesses Give Evidence
Annex
Summary of Relevant Current Law
Criminal Proceedings
Definition of "vulnerable person"
The law currently allows a "vulnerable person" to be eligible to use special measures in criminal trials in certain circumstances. 7 It defines a "vulnerable person" as a person who comes within one of three categories:
- a person under the age of 16;
- a person aged 16 or over who is the subject of one of a number of mental health-related court orders; and
- a person aged 16 or over who suffers from significant impairment of intelligence and social functioning.
Entitlement to special measures and procedure
There is currently no automatic entitlement to special measures, even for child witnesses. The party calling the witness (i.e. the Crown or the defence) must make a specific application for a particular special measure.
The court must first be satisfied that the witness falls within one of the three categories. It then has discretion whether to grant the application, having regard to the possible effect on the witness if required to give evidence in the standard way, whether the witness would be likely to be better able to testify using a special measure, and the witness's own views about the manner of giving evidence. The court may also consider where appropriate, the nature of the crime, the nature of the evidence the witness is likely to have to give, the nature of any relationship between the witness and the accused, and where the witness is a child, his or her age and maturity.
Range of measures available
The current special measures which are specifically provided for by section 271 of the Criminal Procedure (Scotland) Act 1995 are:
Screens
Screens are placed so that a witness cannot see the accused while the witness gives evidence. The accused still must be able to see and hear the person give evidence and normally a TV monitor relays the image of the witness to the accused.
Live Television Link
A witness giving evidence in this way usually does so from another room within the court complex. The witness is shown on a TV monitor in the courtroom, and watches a TV monitor in the room where they are giving evidence. The judge controls the images that the witness sees. This method is most often used when children give evidence in cases of a traumatic nature such as sexual abuse.
Evidence on Commission
This involves the taking and recording of evidence of a witness separate from and usually prior to, the trial, outwith the court building. The court appoints a solicitor or advocate as a "commissioner", which essentially means that person assuming the role of the judge and presiding over the questioning of the witness by the lawyers acting for the Crown and the defence. The commissioner may also ask questions. The accused would not normally be present in the room where the evidence of the witness is being taken, but must be allowed to watch and listen to it by some other means such as a live TV link. The proceedings are recorded on videotape in order that it can be played at the trial. Currently this method is rarely used for vulnerable witnesses.
Some other special measures can be made available at common law:
Supporter
The court may permit a vulnerable person to have a supporter who accompanies the witness into court (or the room where the witness gives evidence by live television link). Practice on this varies widely but can include:
- Removal of wigs and gowns
- Seating a child witness at the table in the court rather than in the witness box
- Clearing the court
The Lord Justice General issued a Memorandum of Guidance in 1990 advising on the use of these measures in cases involving child witnesses. The Scottish Executive has recently consulted on its "Child Witness Support Consultation document" which dealt with such issues as interviewing child witnesses and questioning of children in court.
Use of Prior Statements
In criminal proceedings, any prior statement made by the witness is admissible as long as it is reliably recorded. The prior statement has to be contained in a document (which can be a video recording), the witness must appear in court to "adopt" it, and must have been a competent witness at the time the statement was made. 8
Although in theory this provision could be used for vulnerable witnesses, in practice this is very rarely done. Instead, it tends to be used to allow witnesses to confirm details of events they gave statements about previously, the details of which they have now forgotten. The fact that the witness needs to "adopt" the statement, which would involve reading it over, or having a recording of it played in court, also rather undermines its usefulness for vulnerable witnesses.
Use of Expert Evidence
There is no statutory provision in Scotland in relation to the admissibility of expert psychological evidence in criminal proceedings. Prosecutors have been attempting to make greater use of expert evidence where they consider it could explain the behaviour of complainers in certain cases, such as where a child may have been the victim of sexual abuse. In a recent case 9 the Crown sought to lead the evidence of a child psychologist with extensive experience of cases of sexual abuse, to explain why child victims of sexual abuse tended to give an account of what had happened to them in stages over a period of time. The court refused to allow the prosecutor to lead this evidence.
Identification Evidence
Currently a vulnerable witness who gives evidence by means of one of the special measures can confirm that he remembers having identified, before the trial, a person alleged to have committed the offence. 10 The evidence of a third party about the identification made by the witness is then admissible evidence of the identification.
In 1990 the Scottish Law Commission recommended that there should be a procedure whereby it should be possible, in any criminal proceedings, to lodge a report of such an identification parade with the court prior to the trial. The accused would be able to challenge the identification report, but if he did not do so within a specific period, it would be presumed that the person named in the report and the accused were one and the same person. This recommendation, which would cut down the number of "dock identifications", and be of benefit to some witnesses who may not otherwise qualify for special measures, has not been implemented.
Civil Proceedings
Availability of Special Measures for Vulnerable Witnesses
There is currently no provision in primary legislation for special measures to assist vulnerable witnesses to give evidence in civil proceedings.
Use of Prior Statements
Hearsay evidence, which would include prior statements recorded in any form, is currently generally admissible in civil proceedings. 11
Civil Proceedings in the Sheriff Court Following Referrals from the Children's Hearing
Use of Special Measures
When the grounds for referral to a children's hearing are not accepted, or are only accepted in part, the Reporter if directed to do so by the children's hearing will apply to the sheriff to find that the grounds for referral are established. Although the primary legislation, the Children (Scotland) Act 1995, stipulates that these proceedings should be heard by the sheriff in chambers, 12 it does not make specific provision for the use of special measures. Rules applicable to these proceedings 13 make provision for the giving of evidence by a child by means of a live television link, and allow the sheriff to exclude any person, including the relevant person, from the referral while hearing the evidence of any child in the proceedings, if satisfied it is in the interests of the child to do so.
Use of Sexual History and Character Evidence
Civil proceedings to establish disputed grounds of referral in children's hearing cases may involve the leading of evidence that a child has been the victim of a sexual offence, similar to the type of evidence which would be lead to establish the guilt of the alleged perpetrator of the offence. 14 In some instances there may be concurrent civil and criminal proceedings. While in a criminal trial for a sexual offence, there would be restrictions on the use of evidence about the victim's (i.e. the complainer's) character or past behaviour in relation to sexual matters, no such restrictions apply in civil proceedings to establish the grounds of referral to a children's hearing.
Criminal and civil proceedings
The Competence Test
In Scotland there is no minimum age at which a child is considered competent to give evidence. A child must, however, be able to tell the difference between telling the truth and lying, and appreciate the need to be truthful when giving evidence, and the judge must question the child to ascertain this prior to the child giving evidence. This assessment process is known as the "competence test", and applies in both criminal and civil proceedings. Any child who does not pass the competence test will not be allowed to give evidence.
As regards adults it will, in the first instance, be assumed that an adult is competent to give evidence, but if doubts arise a similar competence test will be used.
The test can result in young children, and some adults (for example, someone with a learning disability), who may not understand the abstract concepts of "truth" and "lies", not being permitted to give evidence at all, even if they would be able to give a coherent account of relevant events. Anecdotal evidence also suggests that, since there are no clear criteria for applying the test, it is applied inconsistently. The Scottish Executive report on "Vulnerable and Intimidated Witnesses: Review of provisions in other jurisdictions" noted that there had been major changes in this area particularly for children, and that a number of countries have relaxed competence laws generally.
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