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FOREWORDS

FOREWORD BY THE DEPUTY MINISTER FOR JUSTICE

We are committed to modernising the justice system in ways that improve support for victims and witnesses.

For many vulnerable witnesses, the whole legal process from the start of an investigation to giving evidence can make an already traumatic experience even more upsetting and stressful. We know that this is even more likely to be the case if the victim or witness is a child or a vulnerable adult.

The Vulnerable Witnesses (Scotland) Act 2004 is one of the building blocks in our commitment to improve the support available to vulnerable adult and child witnesses. The special measures and other important provisions contained in this Act, aim to reduce the distress and anxiety that, until now, has meant that many witnesses were unable to give their evidence.

The Act requires significant procedural changes throughout the court system. That is why the introduction of the Act is being phased in over the next three years to make sure we get this right.

On 1 April 2005, we introduced the provisions in the Act which apply to children in High Court and Sheriff Court solemn cases reported to the procurator fiscal on or after that date. From that same date, the Act and its provisions also applied to Children's Hearings court proceedings in respect of relevant appeals and applications under sections 51(1), 68 and 85 of the Children (Scotland) Act 1995.

In April 2006, we will commence the provisions relating to vulnerable adult witnesses in High Court and Sheriff Court solemn cases. During 2007 we plan to implement the Act in relation to Sheriff Court Summary cases, although this will partly depend on the reform of summary justice in general.

The final phase of implementation will extend the Act's provisions to Civil cases including Fatal Accident Inquiries both in the Court of Session and in the Sheriff Court.

We can't remove all the stress of giving evidence in court, but the support provisions within the Vulnerable Witnesses Act will help to make a difference for many of the most vulnerable people who are called to give evidence. I am convinced that, with the support and commitment of all the agencies involved, we will help improve the experience of being a witness.

Many agencies have lent their valuable support and assistance to the production of this guidance and I thank them for this. I know they, like me, welcome this guidance. Together we strongly encourage all those who work with vulnerable adult and child witnesses to apply it to ensure that they receive the support that best meets their individual needs when they are giving their evidence.

HUGH HENRY, MSP
Deputy Minister for Justice

FOREWORD BY SOLICITOR GENERAL FOR SCOTLAND

The provision of special measures in court introduced by the Vulnerable Witnesses (Scotland) Act 2004 represents a significant development in enabling vulnerable witnesses to give their evidence in a way which is best suited to their individual needs. Consequently, vulnerable witnesses will be better supported during court proceedings and will be more able to give their best evidence.

The Crown Office and Procurator Fiscal Service welcomes the implementation of this innovative legislation along with the publication of this accompanying guidance pack.

The onus to consider the best interests and welfare of vulnerable witnesses is one that all practitioners across a range of specialisations and agencies within the criminal justice system bear. As such, the endorsement of this guidance by the key agencies in the criminal justice process is especially reassuring. It clearly demonstrates the collaborative approach that has been taken towards the preparation of the guidance and it is hoped that it will provide useful instruction as to how the new provisions will operate.

COPFS is pleased to have been involved in developing this guidance and looks forward to the improvements it will bring for vulnerable witnesses when they are called upon to give evidence.

Elish Angiolini, QC
Solicitor General for Scotland

FOREWORD BY THE PRESIDENT OF THE LAW SOCIETY OF SCOTLAND

The Law Society of Scotland has a unique role in the administration of justice in Scotland. It is involved with the administration of justice from the perspectives of both the legal profession and equally the public. Individuals in Scotland are stakeholders in the justice system whether as victims, witnesses, accused persons, employees, administrators, judges or lawyers. We are all aware of its importance and its significance for Scotland. That is why the Society is committed to working with others to continually improve and modernise the Scottish justice system as a whole.

This concept is at the heart of the Scottish Strategy for Victims. Implementing that strategy has meant that for the first time there is a new law which focuses principally on the rights of witnesses. The Vulnerable Witnesses (Scotland) Act 2004 aims to ensure that vulnerable witnesses can give their best evidence and participate effectively in the justice system.

As President of the Law Society of Scotland, I welcome this important development which means that potentially vulnerable witnesses are identified at a very early stage in cases and ensures that information is communicated to all involved. Identification of vulnerable witnesses is a practical as well as a legal issue and must be tackled through increasing awareness and sensitivity and by enhancing the knowledge and skills of everyone involved in the justice process. That is why the production of this guidance is so important. It has been produced on a multi-agency basis to provide generic guidance for practitioners and in so doing, ensure consistency in the operation of the Act across Scotland.

The Society was delighted to be involved in the drafting process. One of the most encouraging aspects of this reform has been the willingness of those organisations working at the heart of the system to come together and share experience and expertise to make these reforms work in practice.

The Society will continue its involvement and its commitment to working together to ensure that victims and witnesses are treated appropriately and with the dignity and respect they deserve.

Duncan Murray
President of the Law Society of Scotland

FOREWORD BY HEAD OF PRACTICE, SCOTTISH CHILDREN'S REPORTER ADMINISTRATION

The Scottish Children's Reporter Administration ( SCRA) is very pleased to have contributed with other key agencies to this Guidance on the special measures available to assist vulnerable witnesses present evidence in court. These measures have wide application. They relate to a range of proceedings that assist not only those witnesses involved in criminal court proceedings but they also equally assist the many victims and witnesses appearing in Children's Hearing court proceedings where child protection and welfare is the principal focus.

Witnesses for all participants in the court process must be able to provide vital evidence to the court in a clear and coherent manner. The effective use of the new special measures will help to ensure access to their evidence. By matching the measure to these needs and using a measure that has taken account of the witness's own views, the proceedings will benefit from the best evidence available and the witness will participate more effectively in the process.

In due course the special measures will also be available to vulnerable witnesses in both private and public law civil proceedings where equally important issues, for example concerning contact or adoption, may be at issue.

This guidance is therefore welcome and timely. It is designed to promote a consistent understanding of each measure among practitioners and a wide range of agencies. It clarifies how each measure operates; where a measure may or may not assist a particular witness; what the particular advantages of each measure may be; in what circumstances a measure may not be appropriate and the potential difficulties in the use of a measure. All of this is crucial to assist those involved in the use and application of the measures.

As the use of special measures gradually becomes embedded across all court proceedings, the ability of witnesses to deliver their evidence clearly, coherently and above all effectively will be significantly enhanced.

JACKIE ROBESON
Head of Practice, Scottish Children's Reporter Administration

INTRODUCTION

This guidance pack is designed to provide practitioners with information about the use of special measures for vulnerable adult and child witnesses. It also provides information about applying for special measures and some examples of circumstances where the use of each special measure may be most helpful.

For the purposes of the guidance pack, 'practitioners' are understood to include Crown Office and Procurator Fiscal Service staff, other legal practitioners, children's reporters, the police, court personnel, social workers, Victim Support Scotland volunteers and workers in other support organisations.

The guidance contained in the pack is relevant to both child witnesses and adult vulnerable witnesses, although there are specific references to child witnesses where provisions differ.

It is non-statutory and is not an authoritative statement of the law but aims to ensure a commitment to practice, which does not discriminate on the grounds of race, religion, disability, gender, sexual orientation or age.

It is expected that application of the guidance should assist consistency in the use of special measures across Scotland.

This guidance pack contains separate guidance on each of the special measures in addition to guidance on applying for special measures and on identifying the most appropriate special measures for child witnesses.

Guidance on taking evidence by a commissioner as a special measure will be available for inclusion in the pack later in 2005.

This guidance complements the Supporting Child Witnesses guidance pack already available on the Scottish Executive website at www.scotland.gov.uk/Topics/Justice/criminal/18245/12291 . Practitioners may find it helpful to refer to this guidance when dealing with proceedings involving child witnesses.

The guidance on special measures for vulnerable adult and child witnesses will be available on the Scottish Executive Vulnerable Witnesses website at www.scotland.gov.uk/Topics/Justice/criminal/17416/8451

In making use of this guidance pack, practitioners should have particular regard to the guidance on the use of special measures for vulnerable witnesses with special needs.

BACKGROUND TO THE ACT

Under the Vulnerable Witnesses (Scotland) Act 2004, witnesses under the age of 16 are regarded as vulnerable and have the right to give evidence by the use of standard special measure(s). The degree of vulnerability will determine which special measure(s) are most appropriate to use.

For all children under the age of 16, the party citing the witness must complete a child witness notice notifying the court of the intended use of standard special measure(s) or request to use any of the other special measure(s).

The party citing an adult vulnerable witness must make a vulnerable witness application to the court for the use of special measure(s).

The Act also widens the definition of "vulnerable witness" to include any adult where there is a significant risk that the quality of the evidence may be diminished because they are suffering from a mental disorder, or fear or distress in connection with giving evidence at the trial or hearing.

The provision of these special measures aims to maximise the quality of evidence provided, in terms of its completeness, coherence and accuracy, in that vulnerable witnesses will be better supported to give their evidence.

VULNERABLE WITNESSES (SCOTLAND) ACT 2004 INFORMATION GUIDE

The Vulnerable Witnesses (Scotland) Act 2004 Information Guide, contained within the front cover of this pack, provides practitioners with a detailed guide to the Act, its provisions and the phases of implementation.

A CD will be made available for vulnerable witnesses to see what a court might look like, who they might see there and how the special measures will work.

Booklets for child witnesses and their parents will also be produced.

The Victims and Witnesses Unit of the Scottish Executive Justice Department can be contacted by e-mail through Clare Collin at clare.collin@scotland.gsi.gov.uk or Bill Moore at bill.moore@scotland.gsi.gov.uk or by telephone on 0131 244 3332 or 0131 244 2690.

We hope you find this guidance helpful.

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