GUIDANCE ON CHILD WITNESS COURT FAMILIARISATION VISITS
1. Familiarisation visits or court visits are an important element in the preparation for children who are asked to go to court to be a witness.
2. Recommendation 9 of the Lord Advocate's Working Group on Child Witness Support was that in order to improve the conduct of child witness familiarisation visits to the court:
9.1 The Lord Advocate should invite all those involved in the criminal justice and civil justice process to agree guidance on the conduct of familiarisation visits.
9.2 Persons conducting familiarisation visits should receive training on this guidance which raises awareness of the concerns of young witnesses and their carers and the importance of being able to respond to their questions in a neutral way.
9.3 The Lord Advocate should invite judges and sheriffs to ask whether children have had a familiarisation visit and allow some time for this to take place if the child has not already seen a courtroom.
3. This document contains guidance developed in response to recommendations 9.1 and 9.2. A group set up by the Scottish Executive's Justice Department to oversee development of this guidance comprised representatives from the Executive's Justice and Education Departments, Crown Office and Procurator Fiscal Service, Scottish Court Service, Scottish Children's Reporter Administration, Victim Support Scotland, Children 1st, the Association of Chief Police Officers of Scotland and the Association of Directors of Social Work. This guidance is also supported by the Faculty of Advocates and the Law Society of Scotland.
4. There has been extensive consultation on this guidance across a wide range of interests.
Purpose of the Guidance
5. The document is primarily for use by those directing or conducting a visit and as a training tool. Its aim is to provide consistent practice in relation to visits and to ensure that those involved with visits are aware of their importance and sufficiently skilled to carry out the visit.
6. The document is intended as a live document, subject to change as required. With the development of support measures for child and vulnerable witnesses 2 it is expected that relevant changes will be made to the document.
7. Whilst this document relates to child witnesses, its use is relevant in relation to any vulnerable witness.
- Court visits are part of a range of support measures available for children and should rarely be the only measure of preparation support that occurs. Measures of support may already be in place before the visit occurs. 3
- Individual needs of a child that may have a bearing on the conduct of a visit 4 should be identified before or during a visit. Information and detail provided to any child should be adjusted to a child's age and understanding.
- All children asked to give evidence in court should have the opportunity to visit the court in line with this document, in advance of giving their evidence. Any person responsible for citing a child should keep a record that a visit has taken place or if not, the reason why.
- It is crucial to the integrity of the visit that any person conducting a court visit understands the needs of child witnesses and the importance of the visit not influencing or being perceived to influence any evidence that a child may ultimately provide. The visit must be set in a context of complete neutrality regarding the evidence that the child may give. In keeping with all court preparation and support work, there will be no discussion of the evidence.
Purpose of the Visit
8. Court visits are a vehicle for relieving anxiety and are an essential part of reducing the stress felt by any witness, especially children. The principal purpose of a court visit is:
- for the child to see the courtroom or a similar room to that where the child will give their evidence
- for the possibilities of how the child will give evidence in that room to be explained to the child
- to identify and attempt to resolve measures of support not already identified and to ensure that future arrangements are clear to the child.
9. The visit may have other benefits for the child, for example, meeting court personnel or providing an opportunity for other issues about giving evidence to be resolved with the child.
Responsibility for the Visit
10. It is commonly Crown Office and Procurator Fiscal Service and Children's Reporters who cite or ask children to be witnesses and as such the responsibility lies with these organisations. However, legal representatives for the accused in criminal matters and parties in civil proceedings may also cite children to be witnesses. The legal representative can conduct or can arrange for a suitable person to conduct the visit. For example, the court-based Witness Service or local authority social work could conduct the visit for a defence child witness, or a social worker involved with a child could conduct a visit on behalf of a child cited in civil proceedings - see para 17 below.
11. No matter who conducts the visit, it is for the professional citing a child to be responsible for ensuring that the child is given an opportunity to visit the court in accordance with this guidance.
12. Some cases may have multiple child witnesses. Combined visits for all the child witnesses can be considered if this is in the best interests of the individual child witnesses.
13. Where no opportunity has been given to a child or their family or carer/s, the child or their family/carers may request such a visit of the person citing the child and it is the responsibility of that person to organise a visit.
14. Child witnesses should receive information at the point when the child is cited or asked to be a witness about the availability of a court visit.
15. The person conducting the visit should contact the Scottish Court Service 5 to facilitate a visit, including arranging suitable times and equipment and accompanying the person conducting the visit if required.
16. Bearing in mind the principles and purpose of the visit, where a legal representative is not conducting the visit, it would be unusual, and indeed contrary to the purpose of the visit, to have legal representatives observing or any unnecessary attendance at the visit. This would also apply in cases with multiple co-accused or parties and/or multiple child witnesses.
Persons Conducting Visits
17. Persons who presently conduct visits include Procurators Fiscal, Children's Reporters, the court-based Witness Service, the Victim Information and Advice Service, and local authority social work services. There may be local arrangements in place regarding which agency will conduct court visits.
18. A person conducting a visit must have knowledge of:
- the detail of the court process or processes that the child is a part of
- the expected layout of the court and the positioning of persons in the court
- the measures of support that have been available to the child and are intended for the child
- this guidance.
19. The person conducting the visit must have some discussion with the person responsible for calling the witness to ensure that they are fully aware of any relevant needs of the child and any measures or arrangements to be used at court. If relevant to the conduct of a visit, the person may require some basic information about the subject matter of the court case.
20. Responsibilities of the person conducting the visit include that:
- the person has information before the visit regarding support available to the child
- the child is told about the layout of the court and personnel who may be present (except where an accused person or alleged perpetrator is - see paras 33 and 38-42 below)
- the child's anxieties or questions are responded to by the person most appropriate to do so
- any issue 6 arising during the visit (as referred to at para 29) is fed back to the person calling the witness and any other appropriate person, including defence agents
- to ensure that no aspect of the visit influences, or could appear to influence, the child's potential evidence or the case in which the child is a witness
- not to raise expectations for the child that cannot or are unlikely to be delivered when the child gives evidence.
Types of Visit
21. A court visit will usually be a physical visit to the court or room where the child is to give their evidence or to a similar room.
22. However, where geography or the needs of the child dictate that a physical visit is not possible, alternative familiarisation should be considered, for example the availability of pictures, computer images and other information.
23. Where special measures in relation to the giving of the child's evidence (for example CCTV) are being considered, a visit may be arranged specifically for the child to see and experience the measure and so that the child can provide an informed view on the use of the measure.
Preparation for the Visit
24. Children may have different needs and to ensure that the visit is a meaningful and helpful experience for the child, persons conducting a visit must be aware of any needs of the child. 7
25. Court visits should occur in advance of the case, preferably at a time that is not too early in the process for any benefit to the child to be forgotten but not too late in the process for the child to have sufficient time to digest information given and raise any issues that may be resolved before the case is heard. It should be noted that children sometimes require more than one court visit.
26. A person may already have been identified as the person who will support the child witness whilst the child gives evidence and, if so, the support person should be present at the court visit where possible.
27. If a support person has not yet been identified, a suitable person to accompany the child for the visit should be identified by the person who has cited the child or the person conducting the visit, and this suitable person asked to accompany the child to the visit. This person may be the child's parent or carer but may not be. The child should be involved in the process of identifying a support person and may express a preference not to have a support person for the visit.
28. It should be explained that the support person will usually sit alongside the child while s/he is giving evidence, although sometimes the support person will sit elsewhere in the court. The judge is the person who will decide this. 8
29. It may become apparent during the course of the visit that a person accompanying the child has anxiety about the process. Where assurance cannot be given to this person at the time, the issue should be passed on to the most appropriate person to deal with the anxiety after the visit. This would usually be the person who cited the child, for example the case Procurator Fiscal or Children's Reporter but if not, the Procurator Fiscal and Reporter should also be informed.
30. Where facilities such as CCTV or screens are agreed or intended, the facilities should be used during the visit. Where CCTV is to be used, the child should be given the opportunity of seeing how the equipment works, what the equipment will look like when the child gives evidence from the child's, the judge's and the legal professionals' perspective and how the child will sound using the facility.
31. It will be important on any visit of the child to the court that the acoustics in the court are tried so that not only does the child have an opportunity to hear his/her voice in court but any difficulties with acoustics or audibility of the child can be identified and additional provision made. For example, the distance of the examiner from the child may need to be assessed or microphones introduced.
Information Given to the Child on the Visit
32. It is often not possible to provide certainty to a child about what will happen on the day that the child gives evidence. Any person who intends to examine a child at court should make all attempts to clarify in advance what will happen. A person conducting a visit must be aware of any agreed or sanctioned measures or the possibilities of what can occur.
- The Vulnerable Witnesses (Scotland) Act 2004 will significantly improve on the settling of measures for children before the day of evidence.
33. Information that may be important to the child includes:
- who will be in the courtroom?
- what is their function/job? 9
- where will people sit? (be careful not to identify where the accused sits)
- where will I sit?
- will I sit?
- will people be wearing wigs and gowns?
- where will I wait?
- who can come in with me?
- how will I know when I am finished?
- who will question me?
- how long will I wait?
34. The person conducting the visit should ask the child what they would like to know.
35. The court visit provides an opportunity for the child to ask questions about his or her court appearance. A child witness should be advised that the Sheriff or High Court judge should explain what the child should do if the child feels unwell, or wants to ask a question, or does not understand a question. The child can be provided with general information by the person conducting the visit about how a child would usually do this. It is important that the child understands what should happen when he or she gives evidence to the court. Often a child witness can be very worried that he or she will not know something or forget something important. If this matter is raised during a visit, the child can be reassured that it is alright to say if he or she does not know or has forgotten. If a child identifies broad worries about questioning these can be addressed at the visit or at a later date. It is important that the child understands the parameters of questioning and is informed about how to indicate difficulty with any question that occurs.
36. The child should be given the opportunity to see the court from different perspectives and to sit or stand in areas where he or she may be asked to be when giving evidence.
37. The child should be shown the waiting areas and where toilets can be found and, if and where refreshments are available.
Identification of an Accused Person or Alleged Perpetrator
38. If identification of a person is an issue in a case and will require a child being asked to identify in court, it is essential that no person gives the child information that could influence, or be perceived to influence, the child making any identification in court.
39. Often children will ask at a visit to a court whether a particular person will be there and where the person will be in the room.
40. Persons conducting the visit must attempt to answer such queries in a manner that:
- does not inform the child that an accused person or alleged perpetrator will or will not be in the room and in particular where an accused person or alleged perpetrator will be in the room; 10 and
- reassures the child that the court is a safe place, structured to ensure that all witnesses are protected and that all personnel in the court have some responsibility to ensure that no one intimidates or hurts a child or any other witness.
41. It is helpful for those conducting a visit to explain to the child that it is important that if the child does speak about things that the child has seen or experienced the child may be asked to see if the person who did these things is in the court, and if so, to point the person out. This is an important part of what will happen and therefore the person conducting the visit cannot say if, and where, the person will be on the day.
42. If a child has any fears about his or her safety at court these fears must be responded to in an appropriate way. Information about the presence of a police officer in court may be reassuring to the child. This message must be delivered in a careful manner to avoid having the opposite effect to that intended.