The Scottish Government

Section

Comments/issues

Action

Paper issued - VWSL/6/04

• The group was thanked for comments received on the draft request for an Act of Adjournal and comments were then invited on each section of the revised document.

• New Child Witness Notices (paragraph 6)

• A number of points included in the original draft document had been removed from the request as they were felt to be not relevant to rules of court and more appropriate for guidance.
• It was agreed to delete "identification of the court…" and to substitute "Case reference number".
• Discussions arose around whether the notice should contain a box to signify the defence's agreement to the use of special measures although this was dismissed as it would also signify defence's non-agreement. The conclusion was reached that there should be no such box.
• It was clarified that a hearing would only be required if
  • A child did not want automatic special measures to be applied and the judge wished to be satisfied that this was in the child's best interests.
  • A child witness notice was lodged late
  • The Court was not satisfied about the appropriateness of a special measure
  • The arrangements for a vulnerable witness needed to be reviewed

• Summary of child's views (paragraph 6)

• The use of a "Summary of child's views" field in the notice was discussed and points raised were that any views given by a child in this instance
• may be considered as evidence
• may cause an adjournment of the trial for clarification of views
• It was agreed that since the Act requires a summary of the child's views to feature in the notice or accompany the notice it might be appropriate for the judiciary bench book to contain guidance on how this requirement might be met. This would be the subject of Crown Office guidance for Crown witnesses.

• Susan McLaughlin suggested that this and other matters related to the Rules of Court might well be considered by the Judges when they comment on the draft Act of Adjournal.

• Intimation of notice (paragraph 7)

• Intimation of the notice was discussed and points raised were
  • Intimation of a copy of the notice and supporting materials on defence agents could disclose vulnerability issues that they were previously unaware off
  • Potential for further investigation/focus on that vulnerability, and suggest relationship to credibility/reliability. Witness could be further victimised because of this

• It was agreed that intimation of the full notice was required to meet the Crown's disclosure duties and to avoid inevitable challenges. Highlights need to balance disclosure duties with fairness to the witness in the framing of a notice/application. The conclusion was reached that the notice should only contain basic information fields and that additional documents lodged as an addendum containing more detailed supporting information and may not require to be intimated. The Crown Office would be issuing guidance to prosecutors about the drafting of notices/inclusion of supporting material

• Consultation with judiciary required for guidance on intimation of notices.

• Address of witness (paragraph 7)

• It was agreed that this field may in many instances still be completed c/o police station.

• Consultation with judiciary required to decide if these information fields are required.

• Date of trial and Age of Child

• It was agreed to delete "Date of Trial" and insert "Date of Indictment" and to insert "Age of child at date of indictment

• Clarification on this point to be sought by the Victims & witnesses unit however, 271(3) of the 1995 Act as inserted by the VW Act makes it clear that proceedings shall be taken to have commenced when the indictment or, as the case may be, complaint is served on the accused.

• Provenance & record of child witnesses views
• (paragraph 7)

• It was considered that these two fields would mean that too much information is contained in the notice and that the judiciary would be best placed to decide the relevance and level of detail required.

Offence type

• The requirement for additional field on the notice for age of witness at the date of indictment or something similar would negate confusion over children aged just over 12 and their entitlements

• Consultation with judiciary required for guidance their preferences on disclosure of offence types on the notice.

• Support for particular request; Supporting material and presumption that evidence would be given out with Court

• The term nomen jurus was discussed and it was agreed that some reference to type of offence was required.
• The relevance of an additional field containing info about support, supporting material and the presumption that evidence should be given from outwith the Court were considered. It was agreed that although this information (i.e. about the location/arrangements) may be unavailable at this stage those concerned should have at least considered the possibilities. The requirement for a list of accredited sites and commissioners to take evidence to be in place was agreed upon as the only method open to allow tight deadlines to be met. Practice notes would be required for practitioners with guidance on identifying a commissioner & remote site - to the satisfaction of the judiciary.

Special measures (paragraph 8)

• Use of prior statement in chief (paragraph 9)

• Concerns around transcription of Video recorded evidence, particularly evidence in chief were raised. The requirement by law and preferences of practitioners regarding transcription and the cost implications for SLAB were discussed. The possibility of the issue of transcription on request only was considered.

• Lord President's views to be sough on the requirements for transcription of video-recorded evidence.

• Evidence on commission (paragraph 9)

• The sensitive nature of recorded evidence was highlighted and issues surrounding onward distribution were discussed although no conclusion was reached about how this could be avoided other than continuation of the current arrangement for viewing such recording at the PFs office. Recommendations being explored by the Working Group on Visually Recorded Interviews - relevant too for prior statement provisions.

• The lack of instruction on how to deal with challenges to admissibility was also discussed as well as potential difficulties around editing of recordings in the event they are to go before a jury. Points to requirements for instructions in this area re. deletion of scenes from recorded material etc.

• Lord President's views to be sought on these areas.

• Prohibition on accused to conduct precognition on child under 12 (paragraph 10)

• The possibility of a generic statement on all citations stating the Prohibition on accused to conduct precognition on child under 12 was discussed. The point that a solicitor for the accused in these circumstances would automatically be appointed by the court was raised, and Philip Shearer (SLAB) pointed out that it would be useful if some mechanism could be put in place to alert SLAB to this appointment as they would be liable to pay legal aid automatically in these instances.

Other points made

• Philip Shearer (SLAB) drew the group's attention to the financial implications of the use of professionals as supporters and called for clarification on who supporters would be.

• The group were invited to make any further comments on draft request by email within 1 week.
• Victims and Witnesses Unit to re-draft request for an Act of Adjournal incorporating comments made.

• The group discussed the possibility of inviting a criminal solicitor nominated by the law Society to review the early drafts of both the request and the Act of Adjournal and comment with a view to hastening progress towards final drafts

• Unit to approach Law Society.

Section

Comments/issues

Action

VWSL/7/04

• It was agreed that draft Rules of Court were required as soon as possible.

• The group were invited to make comments by email.