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CODE OF PRACTICE TO FACILITATE THE PROVISION OF THERAPEUTIC SUPPORT TO CHILD WITNESSES IN COURT PROCEEDINGS
EVIDENTIAL ISSUES
34 In criminal proceedings an accused person can only be convicted of a criminal offence on the basis of evidence that allows a judge or a jury to be satisfied, beyond reasonable doubt, that he/she is guilty. In children's hearing court proceedings facts relating to concerns about a child are established on the basis of evidence that allows a sheriff to be satisfied on a balance of probabilities (unless the facts relate to an offence committed by a child). These facts may name the person responsible for the acts or behaviour.
35 Evidence is that which tends to prove or disprove any fact or conclusion.
In the context of these guidelines, evidence refers to any verbal, written or pictorial account of events given by a child, or given by an adult in the form of a hearsay account of what a child is alleged to have said, written or produced.
36 The tradition in the Scottish courts is largely an oral one. Great reliance is placed on the oral testimony of witnesses. The accuracy, credibility and reliability of each witness's evidence are tested under cross-examination. Cross-examination can, among other things, address the possibility that the evidence may have become contaminated during the provision of therapeutic support or that the witness was coached. The jury (in solemn proceedings), the judge (in summary proceedings) or the sheriff in children's hearing court proceedings decides on the weight to be attached to the evidence when assessing whether guilt or a fact has been proved.
37 Contamination, in the context of these guidelines, means any change in a child's recollection of events which comes about as a consequence of:
- Questioning by an adult, where such questioning contains misleading information, is in the form of leading questions, involves the repetition of questions already answered or indicates that previous answers might not have been believed, or
- Discussing the events with other people in a group therapy situation.
38 Therapeutic support providers should also be aware of the risk of contamination of evidence by co-witnesses out with the group setting and should take steps, where reasonable, to manage co-witnesses within the whole therapeutic setting. If contamination of evidence appears to have taken place, the therapeutic support provider may be asked in court to explain why certain steps have not been taken. Should contamination of evidence be believed to have taken place, the court may have no option but to discount the testimony of the witness(es) involved.
39 Coaching means any activity carried out by an adult in relation to a child which involves the discussion of the questions which might be asked of the child and/or the rehearsal of the answers the child ought to provide in any proceedings in which that child might be a witness.
40 The possibility that evidence has been contaminated and/or the witness coached is of particular concern in relation to child witnesses. This is because children have been found to be disproportionately more vulnerable to suggestive influences than adults. 6
41 What has taken place during therapeutic support sessions is only likely to become a matter of evidence if a new or as yet unreported incident, that
can have a bearing on the legal matter under investigation, arises during the therapeutic support sessions or if there has been a change to the child's story or version of events.
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