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MODERNISING JUSTICE IN SCOTLAND: THE REFORM OF THE HIGH COURT OF JUSTICIARY
Chapter 9: SUPPORTING VICTIMS AND WITNESSES
Where is this found in Lord Bonomy's report?
- Chapters 15 and 16
What is the present law?
- The Court has power to exclude the public from the court room from the point at which evidence is led in sensitive cases such as those of a trial for rape. There is an existing range of statutory special measures available to help vulnerable people give evidence, and the court has an intrinsic power to authorise special measures in any case where they consider additional protection is required.
- At present, because there is no mandatory preliminary hearing, it can be the trial judge who authorises special measures. Sometimes a vulnerable witness may not know what support will be available until the day of the trial, contributing to additional stress.
- In practical terms one of the greatest causes of stress for victims and witnesses is encountering the accused and his or her family or associates within the confines of the court.
What are the arguments for change?
- Lord Bonomy saw the preliminary hearing as a key tool for improving the experience of vulnerable people who have to come to court. He made clear that at that hearing agreement should be reached about the special measures which would apply in relation to any particular case, so that those giving evidence would be clear in advance how they would do so and what protection they would have.
- Lord Bonomy noted the Executive's intention to introduce separate legislation on vulnerable witnesses. The Vulnerable Witness (Scotland) Bill is due to be introduced shortly. This legislation will widen the category of witnesses eligible to use special measures, and will give children an automatic right to special measures when they give evidence. The statutory special measures currently available in the High Court are giving evidence on commission, use of screens and live television link, and the legislation will also give statutory backing to the use of supporters and prior statements. It is intended that the Court should determine the special measure appropriate for a vulnerable witness in advance of the trial diet.
- Lord Bonomy was anxious to ensure that this further legislation would not erode the fundamental discretion of the Court to decide on special measures appropriate to the individual case, even if the witness did not fall into a category of persons statutorily defined as 'vulnerable'. We are content on the basis of the case law that the new Bill will not undermine that wider court discretion.
- Lord Bonomy sought additional separation between victims/witnesses and accused in the context of the court. He addressed this in two ways;
- Recommending that accused persons on bail should be required to come to court 45 minutes before the hearing, and to remain in separate accommodation until the hearing starts (so that they cannot encounter the victim or the victim's family in the corridor); and
- Seeking enhanced accommodation for vulnerable victims and next of kin in particular so that they should be not be required to share general witness accommodation or remain in a place where they could encounter the accused.
What were the views expressed in consultation?
- There was general support in consultation for the proposals to introduce earlier certainty for vulnerable witnesses and victims as to how their evidence would be taken, and for more careful people management within the confines of the court to reduce the trauma for victims and next of kin in particular.
Our detailed proposals and how we will implement them
- We accept that establishing any special measures in relation to the taking of evidence which should apply at the trial is an important task of the preliminary hearing. We will consult with the Lord Justice General on the proposal that this area be specifically covered in an Act of Adjournal setting out the content of the managed meeting before that preliminary hearing. We will set out the format and content of the hearing in primary legislation.
- On Lord Bonomy's proposal for more restrictive bail conditions, we propose, as noted above, to address the first of these points by providing that at the preliminary hearing the Court should explicitly address any need for enhanced bail conditions given the nature of the case.
- We recognise, however, that confrontation with the accused is not the only problem; victims and next of kin can also find it difficult to encounter the family or associates of the accused. Rather than focusing on the accused in isolation, therefore, the prime need is to provide a place where vulnerable witnesses and next of kin can enjoy privacy and feel secure. We therefore support the principle of Lord Bonomy's recommendation for enhanced accommodation for victims and next of kin, though we recognise that around 80% of Scottish courts are in Victorian buildings, many of them listed, and that scope for adaptation can be limited. The Scottish Court Service will, however, work progressively to ensure that accommodation for vulnerable witnesses is available where the High Court sits, and will build this specification into any proposals for new courts and court refurbishment.
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