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REPORT OF THE SUMMARY JUSTICE REVIEW COMMITTEE: SUMMARY OF RESPONSES TO THE WRITTEN CONSULTATION - FINAL REPORT
CHAPTER NINE SUMMARY CRIMINAL PROCEDURE (ii): WITNESSES
INTRODUCTION
9.1 This chapter deals with recommendations made by the Report with a view to ensuring that:
- citation procedures for witnesses are as effective as possible; and
- witnesses are only called to give evidence in court when it is necessary to do so.
9.2 The consultation response form asked:
"Do you agree that only witnesses whose evidence is disputed should be required to attend the trial?"
Witness Statements
9.3 The main subject in this area on which respondents felt moved to comment was in relation to the Report's proposals that signed witness statements should be produced for summary criminal cases and, where possible, these should be relied upon rather than calling witnesses to attend court.
9.4 Although a minority of respondents indicated concerns, many agreed that if the only witnesses required to attend the trial were those whose evidence was disputed, this would help to speed up court process and keep delays to a minimum. The Association of Scottish Police Superintendents felt that accepting witness evidence prior to trial would reduce the stress and effects on victims and witnesses alike.
9.5 The majority of those within the legal profession commenting on this issue welcomed the recommendations. There was also a proposal that signed statements should be deemed to be uncontroversial evidence, unless and until they are challenged. It was suggested that this would save time, particularly in cases where numerous civilian witnesses were speaking to facts of an uncontroversial nature.
9.6 Others, although in agreement with the recommendations detailed, thought that only simple or formal evidence should be agreed. Many also supported the recommendation that the defence should retain the option of calling a witness to challenge or question statements previously made. Some respondents stated that they would like justices to have the ability to request that a witness is cited in order to test their credibility and reliability, or if any issues requiring further clarification are raised in the statement. In addition, many commented that there would need to be strict guidelines regarding how such statements were obtained, to ensure that they provided a balanced and accurate report of witnesses' evidence.
9.7 A minority of respondents commented on the recommendation that the police should prepare full signed witness statements whenever a summary trial has been fixed. Dunbartonshire Faculty of Solicitors were concerned that what would be prepared by the police would not be statements but precognitions. It stated that this would be far too time-consuming for the police, and would cause inconvenience to witnesses. The Faculty were also concerned about recommendation 95, relating to the admissibility of verbatim signed statements, especially in circumstances where, despite opposition from either Crown or the defence, the judge had directed that a statement should be admissible. The Faculty argued that the fact that the statement had been made should simply be evidence which could be challenged in the normal course of cross-examination.
9.8 Several respondents also questioned how anyone could know whether a statement had been recorded verbatim and read over to the witness, without the witness giving evidence in court. Another respondent stated:
"In any event, to whom are such statements to be intimated? Such statements are important and should be intimated direct to the solicitor acting for the accused person and not to the accused himself, who rarely collects such information from the Post Office and, if he does, has no idea what it means in any event ".
(Confidential Response)
9.9 A few respondents felt that these recommendations would put an intolerable burden on the police and that a great deal of unnecessary statements would be prepared. For example, the Scottish Law Agents' Society commented:
"There are many instances in which Fiscals consider the evidence of a witness, although relevant, unnecessary for the purposes of proving the case. The Fiscal may choose not to cite the witness or alternatively not call that witness to give evidence. The time involved in obtaining that statement will have been wasted".
Witness Citation
9.10 Amongst those that commented, the majority believed that the Report's recommendations concerning witnesses, and particularly their citation, would be best addressed by the agencies most involved with witness citations, namely COPFS and ACPOS.
9.11 A minority of respondents, however, including the British Transport Police, wholeheartedly agreed with the recommendation to cite witnesses by e-mail. The Law Society of Scotland added that consideration should be given to the use of text messages in the citation process - but that appropriate safeguards would need to be developed.
9.12 The Association of Sheriffs Principal welcomed the recommendations, and noted that the current long delays in the system of witness citation were inconsistent with the concept of a truly summary system of criminal justice.
9.13 However, some respondents - although supporting the proposals - thought that not only should there be monitoring of new protocols for the handling of witness citation, but that the results should be published and Local Criminal Justice Boards should have the opportunity to comment on any issues of concern.
9.14 A number of respondents agreed that there should be a national centralised system for the citation and countermanding of witnesses, making the best use of information technology. Such a proposal would, however, need to be fully tested against value for money criteria.
9.15 The Scottish Legal Aid Board believed that the review of the means by which witness citations were served presented an opportunity to extend provisions to allow defence solicitors to make similar citation arrangements. At present, it stated, the majority of courts compel defence solicitors to cite witnesses by sheriff officer, at considerable expense. Addressing the problems that this entails could save the Scottish legal aid fund a considerable amount of money. On the other hand the Society of Messengers at Arms and Sheriff Officers (and a minority of other respondents) felt that sheriff officers could be used to assist the Crown in the service of citations and that this would lead to more effective citation methods, as well as freeing up police time.
9.16 There were a number of respondents (particularly those with experience of the summary justice system) who were not convinced that the new system for citing witnesses would be efficient. Reasons given included the observation that there would be no knowledge of whether citation had effectively taken place or not at the trial diet, and the fact that non-appearance of a witness can be for a number of reasons that centralised arrangements would not address.
9.17 A number of respondents noted that the agents in a case would find it difficult to 're-cite' witnesses who were present when a case did not go ahead before they left court, due to the pressure of other work often faced by the defence and Crown.
9.18 The concept of 'e-citing' witnesses resulted in a number of negative responses. Amongst those local authorities for example who commented upon this area many were against the idea because they felt there were too many uncertainties with e-mail. For example:
- E-mails may not reach the intended person for reasons such as cancelled accounts, household computer abuse or accidental deletion;
- There would be no automatic or valid signature on any return message;
- The witness may not wish to disclose their e-mail address;
- Older people may not have access to e-mail; and
- E-mail addresses change frequently.
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