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Turning up the Volume: The Vulnerable Witnesses (Scotland) Act 2004

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ANNEX 2 EVALUATION DESIGN AND METHODS

46. The evaluation was commissioned by SEJD. Methods selected to address the research objectives were a mix of quantitative and qualitative techniques. MorrisRichards Ltd, an independent research company, was responsible for all aspects of the work, including design, desk-based research, fieldwork, analysis, and reporting. The work was managed for the SE by Mark Connelly of SEJD Analytical Services, and overseen by a research advisory group ( RAG). This comprised representatives from SEJDVWU, ACPOS, COPFS, SCS, VSS, WS, SCRA, SLAB and the Law Society; representatives are listed in annex 4.

The specification

47. The principal aim of the study was to evaluate the implementation of the Vulnerable Witnesses (Scotland) Act 2004, its impact on child and adult vulnerable witnesses, and its impact on High Court and sheriff solemn proceedings, including those relating to Children's Hearings. Because of the phased implementation of the Act and the timescale for the evaluation, the evaluation was restricted to a 3 year study period; the baseline year before the Act came into force plus phases 1 and 2. It did not cover the extension to summary cases (see table 1.1).

48. The evaluation was commissioned to begin on 9 August 2005, to end on 31 August 2007, with submission of the final report. Phase 1 implementation of the provisions for children had already begun (on 1 April 2005). Phase 2 implementation of the provisions for adults took place during the research period, from 1 April 2006.

49. 4 specific objectives were set out in the specification:

Monitoring Framework

  • To assess the information currently gathered on the numbers and characteristics of vulnerable witnesses and the nature of their involvement with the relevant court proceedings, and make recommendations on how to improve this taking account of the recently published Victims and Witnesses Scoping Study commissioned by the Scottish Executive.

Establish baseline

  • To use information on the numbers and characteristics of vulnerable witnesses and the nature of their involvement with court proceedings to establish and map a baseline against which implementation of the provisions of the Act can be measured.

Implementation Evaluation

  • To establish the extent to which the legislation has been implemented effectively, and to identify facilitators and impediments to effective implementation in court proceedings.

Outcome Evaluation

  • To establish the impact of the legislation on vulnerable witnesses, and on court proceedings.

50. Identifying the necessary elements of a monitoring framework was to be a fundamental aspect of the work, to meet commitments regarding annual reporting on the implementation of the Act. This was to include identifying inconsistencies in the quantity and quality of information collected on vulnerable witnesses between and within organisations, and how these can be rectified.

51. Establishing and mapping baseline measures was to cover the periods April 2004-March 2005 (retrospectively) for child witnesses, and April 2005-March 2006 for adult vulnerable witnesses (during data collection for year 1 of implementation for child witnesses), and these baselines were to provide pre implementation information, including:

  • an estimate of the numbers of child and adult vulnerable witnesses;
  • the numbers of child witnesses aged under 12 and under 16 and the incidence of use of special measures provided for in statute and in common law;
  • the number of adult vulnerable witnesses and the incidence of use of special measures as currently provided for in statute and in common law prior to 1st April 2005;
  • how, if at all, child and adult vulnerable witnesses and their needs are identified and met for the purposes of giving evidence at trial and proof hearing;
  • satisfaction of witnesses and support groups with the present systems;
  • practitioners' views on the quality of evidence given by vulnerable witnesses;
  • the incidence of abandoned proceedings due to lack of evidence from vulnerable witnesses;
  • the incidence of the use of prior statements;
  • the incidence of the use of competence tests;
  • the incidence of the use of character and sexual history evidence in court proceedings arising from Children's Hearings.

52. The implementation evaluation was to establish how well the processes associated with the legislation are working, and was to include critical analysis of the following processes:

  • In relation to the formalisation and extension of the definition of "vulnerable witness":
    • the identification and assessment of child and adult vulnerable witnesses
    • the collection and sharing of information on vulnerable witnesses (e.g. with parties citing the witnesses)
    • the identification and assessment of vulnerable witnesses who are also accused persons.
  • In relation to the formalisation and extension of "special measures" available to vulnerable witnesses at each stage of implementation:
    • applications for special measures
    • use of special measures
    • the reviewing by the court of arrangements for vulnerable witnesses
    • the gathering and use of the views of children and/or parents/carers on the use of special measures, including where the measure did not match the request
    • cases where no special measures were requested or authorised.
  • In relation to other provisions within the Act:
    • the use of reports of identification prior to trial
    • the use of expert evidence as to subsequent behaviour of complainer
    • the prohibition of personal conduct of defence in cases involving vulnerable witnesses
    • the prohibition of precognition in certain cases
    • restrictions on use of character and sexual history evidence in court proceedings arising from Children's Hearings
    • the use of unsworn evidence and other results of the abolition of the Competence Test.
  • In relation to general implementation:
    • training for practitioners
    • deployment and use of guidance
    • tracking and monitoring systems used
    • the provision of advice to witnesses
    • systems that promote equality and tackle discrimination.

53. The outcome evaluation was to address the impact on those affected by the legislation, to involve assessing:

  • the impact on vulnerable witnesses in terms of their satisfaction with the processes associated with the legislation; and
  • the impact on various aspects of court proceedings, including:
    • whether support agencies feel that the new system is more supportive of their clients
    • whether the quality of evidence provided by vulnerable witnesses has improved in terms of completeness, coherence and accuracy
    • whether new provisions affect trial or proof hearing outcomes in any way, e.g. has the application of any of the special measures led to a reduction in the incidence of abandoned proceedings and/or an increase in guilty pleas or agreed grounds of referral.

54. Soon after the research began, the RAG requested that the baseline work for adults be brought forward to help prepare for implementation, but in the event, it proved impossible to form an adult baseline (see below).

Evaluation design

55. Proposals for research to meet these aims and objectives included both desk-based and field work:

Desk-based work

  • Review of the Scottish and international literature on vulnerable witnesses, including child witnesses.
  • Analysis of documentation (including protocols and other formal mechanisms for inter-agency communication; Executive policy documentation, current Executive guidance, and good practice guidelines for dealing with child and other vulnerable witnesses; and relevant research findings)
  • Particular analysis of the passage of the Vulnerable Witnesses (Scotland) Bill and its pre-legislative stages, notably analysing responses to the Executive's consultations and submissions to the Justice 2 committee
  • Statistical analysis of existing monitoring data and current statistics on child and other vulnerable witnesses in the civil and criminal justice system, including court proceedings related to Children's Hearings. This was to build on a scoping study carried out for the Executive (Reid-Howie Associates, 2006), and on COPFS information.

Fieldwork

56. The research tender proposed:

  • Data collection from records held by the police, local authority social work departments, procurators fiscal, and courts, across the study areas
  • Observation of the use of special measures (where possible) and review of commissioned evidence
  • Interview study with those involved in the sampled cases, and with vulnerable witnesses

57. This approach had to be adapted in several ways, after exploratory discussions with the research manager and RAG early in the research period showed that far less information was available from key agencies than had been envisaged in developing the proposals. Records were not held in any form by any agency that could be used to track cases from police/social work investigation, to fiscal/reporter records, to courts. These discussions also identified that court records in the form of case papers would provide the only source of information required for the research. The decision was taken to monitor the provisions for the purposes of the evaluation by examination of case papers kept by SCS. The researchers are very grateful for the access granted by SCS, and the invaluable assistance provided by clerks of court, in facilitating the primary data collection exercise.

58. Early discussion also identified that it was unlikely that many special measures applications would be subject to court hearings; and that delay in fully implementing the provisions for evidence to be taken by commissioner, as well as lack of use of this provision in the past, meant that the observation element of the research would not be able to be achieved. Also, because primary research involving collection of data from court records is time consuming, the 8 days allocated to observation were reallocated to data collection.

59. Monitoring of implementation for the evaluation therefore was based solely on data from court records, and the interview data (see below).

60. Fieldwork as finally carried out was based on the following:

  • Primary research at courts covering over 10,000 indictments
  • Visits to agencies collecting information on the justice system to supplement efforts to try to develop a monitoring framework
  • Interviews with professionals working in the justice system and others representing agencies with wider interest in vulnerable witnesses; and
  • Interviews with witnesses, and their parent/carer, whose cases had come to court.

61. This had implications for the results, in that they focus only on provisions made for child witnesses and adult vulnerable witnesses whose cases had been indicted; it was not possible to track those witnesses back through the system to investigate how decisions had been made about them, nor when and how they had been identified in the system. Interviews conducted with the police formed the main source of information on treatment of witnesses in the early stages of the justice process.

Sampling

62. The evaluation aimed to provide a national picture of implementation of the Act, yet was required to be small scale. Time for fieldwork was allocated to collecting data from all High Court cases involving applications to use special measures made for child and adult witnesses across the study period (the 3 years April 2004 - March 2007, comprising the 'child baseline' year before the Act came into force, child year 1 and adult year 1/child year 2).

63. In addition, time was allocated to identifying cases in a sample of sheriff courts, where cases involving applications for SMs or vulnerable witnesses could be identified only by reading the case papers. The problem was to identify sufficient numbers of cases for analysis using this method, while evaluating nationally. This meant selecting study courts for data collection to reflect the national picture.

64. In the sheriff courts, as is well recognised, it is difficult to identify individual courts to form a representative sample of all 49. Six courts were selected to provide cases for the study, the bare minimum needed to consider the results as reflecting all 6 sheriffdoms and 49 sheriff courts across Scotland. Airdrie, Edinburgh, Glasgow, Greenock, Peterhead and Stirling were selected so that the study included:

  • one court from each of the 6 sheriffdoms;
  • a spread geographically across Scotland, including urban/urban with rural hinterland;
  • larger and smaller courts, (to some extent; those with very low levels of business had to be excluded due to lack of sufficient relevant cases for analysis, and sampling had to include areas where provisions for SMs to be used were available 74).

65. This sampling approach was also reflected in the interview studies (see below).

66. Few differences between sampling approaches and between solemn procedures in the High Court and sheriff courts affected the data to be collected, so the pro formas used for this in each court type differed only slightly (the data fields collected are shown in annex 3). Methods for the data collection from cases referred to the sheriff from Children's Hearings are discussed separately below. Methods for case sampling, data collection and data analysis are discussed in detail in the following sections, beginning with the High Court.

Commencement arrangements and their implications

67. Phase 1 of the Act came into force on 1 April 2005 for child witnesses in solemn cases reported to the fiscal, and for children involved in children's hearings court proceedings lodged on or after that date. Child witnesses in cases reported before that date did not come within the ambit of the provisions. Provisions for adult vulnerable witnesses came into force on 1 April 2006 in the same way. Using the advice of the RAG agencies, the research sample was drawn from cases indicted after the relevant date, since it was not possible to distinguish in court records cases reported to the fiscal before or after implementation, except by presence of a CWN or VW application.

68. This means that the research sample includes the periods when agencies were processing cases using both pre- and post-Act approaches to vulnerable witnesses. The effect of this on the research results is that it is not possible to draw firm conclusions from the data about how quickly the new provisions were being implemented for child witnesses from the start of phase 1, or for adult vulnerable witnesses from the start of phase 2.

69. COPFS timelines from reporting to indictment indicate that the vast majority of cases involving child witnesses indicted from 1 April 2006 (in child year 2) will have been reported to the fiscal after 1 April 2005, therefore coming within the ambit of the Act.

70. It is not possible to estimate the proportion of year 1 cases however that were reported before the Act came into force. COPFS estimate 75 that a period of some 8-11 months between reporting and indictment is average for the majority of cases, which is where an accused person is on bail. However, a proportion of bail cases will be indicted within custody time limit periods or at a date prior to the 8-11 month period. High Court custody cases must be indicted to a preliminary hearing within 110 days of the full committal of the accused (unless extended by the court). A custody sheriff and jury trial must commence within 110 days (unless extended by the court). Indictments in respect of all custody cases must be served by the 80th day following full committal 76. While COPFS estimate that by 1 April 2006 most cases will have been reported to the fiscal after 1 April 2005 because of the statutory timelines 77,78, the number of cases in which this is not the case is not known.

71. COPFS provided data 79 in February 2008 to set the research sample of solemn cases in a broader context; unfortunately, these do not help to bring the situation with early implementation of the Act into focus. Unlike the research sample, COPFS data distinguishes cases reported to the fiscal before or after 1 April 2005, but these data cannot be used to draw any conclusions about the research sample. This is because the COPFS data do not show whether a child or adult VW was involved in each case, and nor were data periods or definitions comparable.

High Court

Sample cases

72. Data collection took place at the High Court at Edinburgh. The Justiciary Office there keeps records for all cases heard by the High Court, including cases held outwith Edinburgh. The sample therefore was drawn from all indicted High Court cases in Scotland during the study period. (The High Court does not deal with referrals from Children's Hearings, and it is the Court of Session (supreme civil court) which deals with appeals arising from sheriffs' decisions in cases referred from Children's Hearings.)

73. Before implementation of the Act, applications for a vulnerable witness to use special measures in giving their evidence were recorded in a log of all 'miscellaneous petitions or applications' lodged. This log was used to identify cases involving applications for SMs before the Act came into force. Because it included the name of accused person, the electronic Case Management System ( CMS) could be used to search on this to identify the indictment number to locate the case papers.

74. CWNs began to replace petitions for SM applications from 1 April 2005, and CWNs were not recorded in the log, because measures were no longer being sought via miscellaneous applications. From November 2005, High Court administrative staff began keeping a spreadsheet of CWNs and other (including any adult) SM applications, partly for this evaluation, and partly for High Court records. From 1 November 2005 the case indictment number was recorded by staff in their spreadsheet, so case papers could be located directly in the books of Adjournal and sitting papers without recourse to CMS.

75. This left a gap, however, when no applications were being recorded. For the 7 month period April-October 2005, it was not possible to identify which cases included applications for child witnesses to use special measures, so for this period, the researchers examined all case papers.

76. The overall effect in the High Court was that all cases indicted in the study period containing an application to use SMs formed the sample, supplemented by a full examination of all witnesses cited during one 7 month period. Cases were identified either because they were being monitored by clerks for SM applications or CWNs or because the researchers found vulnerable witnesses in case papers during the 7 month period when all cases had to be examined individually. In all, over 3,500 indictments were either monitored or examined by hand.

77. The problem remained throughout of identifying vulnerable witnesses for whom no application had been made. Because cases where one child witness is cited often include other child witnesses, examining witness lists identified many child witnesses for whom no application had been made. During the 7 month period, any children identified in indictments or witness lists were recorded, and any accused persons aged under 16 were also noted.

Adult vulnerable witnesses

78. Because of the subjective nature of the Act's definition of vulnerable adult witness, there is no objective indicator for vulnerable adults, as age is for children. The only solidly reliable indicator is that a vulnerable witness application has been made in a case. Using that indicator to establish a baseline for evaluation of the Act in relation to vulnerable adults would be entirely based on cases where applications were made. This is not useful in measuring the impact made by an Act that intentionally widens the definition of 'vulnerable adult witness'.

79. Sampling for the adult baseline on the grounds of type of case, or on available data about witnesses in case papers was considered. The potential to use age of over 60 as one proxy existed, because witness lists and indictments provide this. Cases involving sexual offences, and domestic or racist abuse may also involve vulnerable adult witnesses as defined by the Act. There was no way to determine whether these witnesses would have been identified as vulnerable in the absence of SM applications, however, and very few if any of these were being made. Therefore, after extensive discussion with the research manager and RAG, these possible proxies were discarded as inadequate and the decision was taken to abandon any 'adult baseline'.

80. Applications were used instead as a proxy for the presence of adult vulnerable witnesses following implementation of the Act's provisions for adults. This means the sample for year 1 of adult implementation is based largely on those for whom 'vulnerability' meant that special measures were sought. (Occasionally, vulnerable adults were identified through other means such as being children whose cases had continued into adulthood.) While this is unsatisfactory, no meaningful way forward could be identified.

81. As a quality control mechanism a number of boxes of indictments were checked blind by two researchers. All cases checked showed later agreement in recording of data.

82. The case record data were entered directly into an Excel workbook on laptops at courts. Data collected by researchers were later combined so that data for each year and group of witnesses (adult/child) were on separate spreadsheets. Adults and children were recorded separately because the bases for the samples were so different; after the Act, all children involved in cases reported to the procurator fiscal from 1 April 2005 should have had CWNs submitted, whereas adults were still being identified as vulnerable only on the basis of applications.

Analysis

83. Analyses were made using Excel, after data spreadsheets were cleaned and coded. Standard statistical tests were performed for significance where possible, and advantage was taken to make some separate analyses of data from the 7 month data set described above.

84. Cases that were re-indicted (e.g. because of being not called or needing a warrant to apprehend) were included in the data collection as separate cases, and are included in the resulting totals for cases examined or registered indicted.

85. On the other hand they were removed from the analysis of vulnerable witnesses to avoid double counting; any net effect on the results would be to reduce the preponderance of VWs, but in the wider context of 'court proceedings' this is likely to be a negligible effect. The data collection proposals of the evaluation had to be restricted to court records, which record only those witnesses whose case reaches this stage in proceedings. Evaluation results cover only this stage; they do not provide information about witnesses in cases that do not proceed beyond investigation by the police/social workers, nor reports to Children's Hearings, nor beyond precognition.

86. Whatever the preponderance of child and adult vulnerable witnesses found in court records this will be smaller than those involved in overall court proceedings. There is no reason to suppose that cases that do not come to court involve fewer vulnerable witnesses than those that do.

Sheriff Courts

Sampling

87. In the sheriff courts, almost 6,500 case papers were individually examined; these were all solemn case papers indicted in the 6 sheriff courts during the 3 year study period. This section explains why.

88. The research proposals envisaged sampling cases involving applications for special measures to be used in sheriff's solemn proceedings, and referrals to the sheriff from Children's Hearings. This would have been the same approach as in most of the High Court data collection; however, there were no separate registers which could identify such cases.

89. Registers were kept by some of the courts, or applications counted in statistical returns made to SCS headquarters using the court Management Information System ( MIS), these were of little practical use in locating case papers.

90. For example, at Glasgow sheriff court a register is kept of all 'Appeals and special summary applications under statutes, etc.', in which all applications for special measures (adult and child) were recorded before the Act came into force. This in theory provides a full key to all SM applications, but there was no means of linking these applications to case papers since the accused person's name was not reliably recorded in the register, and nor was the indictment number. If they had been, they could perhaps have been used to find the case papers in the filing system, via the courts' electronic records (although the researchers were not given access to COP).

91. From October 2006, the criminal office at Glasgow sheriff court instigated a spreadsheet showing applications for special measures. This shows who made the application (Crown, defence, SCRA), the date it was submitted, the SM sought, whether the application was for an adult or child and whether it was granted. Again, there was no way of linking this to case papers.

92. Despite exploring several avenues then, all solemn indictments in the sheriff courts had to be examined individually to identify adult vulnerable witnesses for the purposes of the research.

93. This was very time consuming at Glasgow with over 1,000 indictments a year, and each set of case papers folded for storage, often with separate bundles for the indictment, secured with several rubber bands. The High Court has also adopted this storage method, using pink ribbon rather than rubber bands to bundle individual case papers, whereas previously papers in each case had been stored in flat bundles, which are far easier to search. Otherwise the courts in the study stored case papers flat in boxes, as the High Court had done in the past.

94. Edinburgh sheriff court kept a manual register which the researchers began by using, but again with little means of linking to case papers all papers had to be examined by the researchers. The smallest courts did not keep registers but made simple statistical returns to SCS each month. These again were counts (i.e. the number of applications made during a month with no PF number, accused person's or witness's name or date to help trace the case), but since the numbers of indicted cases were much lower, examining all case papers at these courts was less time-consuming than at Glasgow or the High Court.

95. The search of case records involved scanning indictments and witness lists for the presence of child witnesses, identified by an age or their date of birth. The age of the accused was also examined to find any vulnerable accused persons. By further reading of the case papers all applications for special measures for adults and children, or child witness notices stating no special measures required, were identified. For cases that potentially seemed to involve vulnerable witnesses, the (handwritten) minutes of proceedings were read to identify any applications made orally at the bar on the day of a preliminary hearing, and whether these were granted.

96. As in the High Court, for quality control, a number of boxes of indictments were checked blind by two researchers (in Edinburgh and Glasgow). Again, all cases checked showed agreement in recording of data.

Referrals to the sheriff from Children's Hearings

97. This proved to be the most opaque aspect of data collection from court records. The miscellaneous applications registers kept or MIS returns made by clerks at the study sheriff courts included counts of applications made by the children's reporter for special measures to be used in referrals to the sheriff from Children's Hearings. Investigation at one court suggested that the information needed for the research was not included in case papers.

98. A detailed case study was made of the court papers in referrals to the sheriff from the Children's Hearings System at one of the study courts (Peterhead) to identify what information court papers were likely to yield. This was done by searching all referrals during 2004 and 2005 at this court. These exercises showed that court papers were of limited use for examination of referrals; for example, they did not show whether the child was present (see chapter 4).

99. Because of the lack of information included systematically in case papers, the decision was taken to rely on any information SCRA could provide centrally. However, SCRA's database proved to be under development for the study period, and so data were collected on special measures applications recorded by the sheriff courts, sometimes in miscellaneous applications registers or MIS returns, which were simple counts.

100. The researchers collected some of this information from registers or by speaking to court staff during visits. Sheriff clerks were also asked to provide updates to end March 2007, towards the end of the study period and also to fill some gaps in referral counts made by the researchers.

Important assumptions made during data collection and analysis

101. Where a witness was related to the accused, this was noted in the indictment or case papers, and always in any petition or witness notice present. This included non-blood relationships such as stepparents, school friends, friends/partners of parents, and carers of looked after children. Because of this, an assumption built into the analysis is that if none of the sources identified a relationship, then 'none' was recorded between the witness and accused person.

102. Some results rely upon clerks of court noting in the minutes of proceedings any applications made at the bar, indicators of vulnerability and use of special measures when evidence was led. In the Sheriff Court, minutes were handwritten and clerks reported that events often occurred very quickly. It is possible then that some oral applications were not noted.

103. The date of the indictment was frequently not shown in sheriff court case papers, even though the Act provides that in relevant cases the date of service (commencement of proceedings) is the one which determines whether a witness is a child witness for the purposes of the Act. Instead, the date of the first diet/preliminary hearing or when the application was made was used was used to judge whether or not a case was likely to have been indicted on or after 1 April 2005.

The interview study

Design

104. The research proposals targeted three groups, to collect information about their views and experiences to inform the evaluation about operation of the new provisions:

  • Vulnerable witnesses
  • Professionals who are involved in implementing the Act
  • Representatives of organisations with an interest in implementation or particular vulnerable groups

105. People for interview were to be identified from the following populations:

  • Child witnesses of different ages ranges, and in different types of court proceedings
  • Adult witnesses with different types of vulnerabilities, and 16-17 year olds
  • Parents and carers of child witnesses
  • Professionals involved in implementation of the Act (witness supporters, police officers, social workers, children's reporters, procurators fiscal, advocates deputes, solicitors, advocates, sheriffs, sheriff clerks, High Court clerks, and judges)
  • Professionals with wider interests in implementation or in particular groups ( VIA, Victim Support Scotland, Witness Service, Children 1st, Childline Scotland, Scottish Association for Mental Health ( SAMH), SCS, SEJD)

106. Interviews were to provide in-depth information about people's experiences and views of the provisions for vulnerable witnesses, before and after the Act, as needed to achieve the research objectives. Selection of interviewees was also to allow exploration of local and agency cultures. For these reasons, interviews were to be conducted on a face to face basis, and to be semi-structured, and to take 45 - 60 minutes to complete.

Identification of professionals for interview

107. Across eight locations (six sheriffdoms and two High Court locations) a variety of professionals were targeted for interview. Police officers and social workers were to be interviewed in pairs, both to minimise the effects of inability to attend at the last minute because of operational reasons, and to maximise coverage of views. These would result in 8 paired interviews for both police and social workers across the eight locations (i.e. 16 individuals of each group). Other professionals were to be interviewed singly; witness supporters (8), procurators fiscal/advocates depute (8), children's reporters (8), sheriff clerks (6) clerks of court (2), sheriffs (6), judges (2) and solicitors/advocates (8).

108. The planned sample for this group was 80 individuals in a total of 64 interviews, and a further 8 interviews with representatives from agencies with wider interests.

109. In the event, a total of 74 professionals were interviewed for the research. Interviews carried out were face to face unless interviewees requested otherwise; SCRA access arrangements had stipulated telephone interviews with the children's reporters, to minimise impact on reporters' time, and only a further 3 professional interviews were conducted in this way.

110. There were no children's reporters associated with the High Court, so only 6 interviews with reporters took place. Practically no paired interviews took place; it soon became clear that many social workers worked alone in the post of court social worker, and at some arranged joint police interviews, only one officer attended on the day because of operational duties. One police area was unable to refer officers to take part and some officers could not be contacted in the time between receiving referrals and the end of the research.

111. Research for the Home Office (Burton et al, 2006) also found that some police forces in England & Wales had problems identifying police officers with responsibility for VIWs. This research experienced the same access difficulties. When officers (often from specialist units) were interviewed however, they had more experience of dealing with vulnerable witnesses than they had supposed. It may be that the police put a very literal interpretation on the term 'witness' as involving court proceedings, or perhaps it is so part of their daily job that vulnerability is recognised only on reflection.

112. These shortfalls were allocated to some additional interviews to bolster the sample. These included 2 VIA Officers (to address their omission in the original proposals), one extra Crown Office and WS representative, 2 additional High Court judges, and one sheriff. Two solicitors were unable to set dates for interview.

TABLE

113. Prosecutors in the pilot locations were nominated by COPFS, and local children's reporters by SCRA. Defence agents were selected either with the help of the Witness Service, or through identification in court records, or at random by the researchers using the White Book. The head of the Witness Service provided local contacts for co-ordinators. National agencies were contacted by letter or telephone in the first instance, and the 8 interviews which took place were;

  • SE Vulnerable Witnesses Unit (1);
  • SCS (1);
  • VIA (1);
  • COPFS (1);
  • VWISG (1);
  • Victim Support Scotland (1);
  • Witness Service (1), and
  • Children 1st/ NCH (1).

Identification of vulnerable witnesses for interview

114. Interviewing vulnerable witnesses was an important element of the evaluation, because views of witnesses are a significant gap in previous research in Scotland.

115. Interviews were planned with 12 children who had given evidence using special measures during the evaluation period, and also their parent or carers. Interviews were also planned with 18 vulnerable adult witnesses. Interviewee selection aimed to include witnesses from each of the 8 study locations, based on a range of factors, age (under 12, over 12 and under 16, aged 16-17), type of case, type of witness (victim witness/witness only, and a range of adult vulnerability factors) and type of special measure used.

116. Ethical considerations were discussed fully in the research tender, and it was planned to ask agency staff in the study locations to approach witnesses on behalf of the researchers, with referrals to the research made only where a witness agreed to provide contact details, and ability to opt out at any point after contact. To address these considerations, the research team engaged 2 MorrisRichards associates who are specialist interviewers, to undertake interviews with children, and with any vulnerable adults with mental health disabilities identified, following approval by the research manager.

117. The aim was also to maximise flexibility and the availability of a specialist interviewer for interviews undertaken at short notice, at times to suit witnesses. In the event, no vulnerable adults interviewed needed specialist interview skills, and the child interviewer undertook 2 of the interviews with children, accompanied by one of the research team to interview parents and carers. One 15 year old male was interviewed by one of the research team alone.

118. In the event only 11 interviews were carried out. These were with children (3), their parent or carer (3), and vulnerable adults (5). The approach was complicated in this research not only by the restriction to High Court/sheriff's solemn proceedings (i.e. to the most serious cases) but by the need to interview witnesses only after they had given evidence, to avoid risking contaminating their evidence or influencing the outcome of the case.

119. Previous work for the Executive, and results of research in England, Wales & Northern Ireland, have shown how difficult it can be to access vulnerable witnesses for interview, particularly those involved in the most serious cases.

120. Plotnikoff & Woolfson (2004) planned to interview 90 young witnesses across England, Wales and Northern Ireland, but many organisations felt unable to make referrals for the study and interviews with 12 witnesses who had consented to this did not take place. After widening their approach to over 60 Witness Services plus other support organisations and extending the fieldwork period, the final sample comprised 50 young witnesses, referred by 23 organisations. As in the current study, gift vouchers were offered as a 'thank you' following interviews.

121. In recent work for the Executive in just two areas of Scotland, Richards et al (2007) researchers found that police and social work teams felt able to refer just 6 witnesses to the research team. These teams were dealing with cases where the children were often victims, of very serious offences often of a sexual or violent nature. Of those referred to the research, 2 refused to be interviewed when contacted, 2 did not return calls, one cancelled the interview on the day and just one interview took place. In this case the use of incentives had been discussed but ruled out.

122. Learning from these experiences, in May 2006 MorrisRichards sought advice from the RAG on the possibility of offering incentives, and on the best way to approach witnesses. SCRA noted that they had carried out a project where offering £10 gift vouchers had resulted in 28 children taking part. Contacting witnesses retrospectively via Crown Office was ruled out by the RAG, since the research needed to hear from witnesses at the end of the justice process and consent cannot be sought retrospectively, but the RAG discussion clarified that incentives were not against Executive policy in this instance. This was with the proviso that they should be mentioned only after initial opt-in, and not as an incentive to take part beforehand. £10 gift vouchers were given to children at the end of their interviews; this was appreciated but could not affect recruitment to the study.

123. Victim Support Scotland offered at the RAG meeting to help in the approach to witnesses, through the WS. MorrisRichards met with the head of the WS to develop a strategy for approaching witnesses in June 2006. One option was to approach witnesses during the post-trial assessment carried out by the WS, but discussion indicated that these were not yet taking place comprehensively. Therefore, an approach was made by the head of the WS via the WS Operations Managers in each area, following a meeting between them and the head of the WS at which the research was outlined. Operations Managers were asked to request that staff and volunteers at each study court refer witnesses, where they felt this was appropriate, to the research team. MorrisRichards drafted, with advice from the WS, a leaflet for Witness Services to provide to witnesses, explaining the research.

124. This approach required a great deal of effort and goodwill on the part of WS co-ordinators and staff, to judge which witnesses were approachable and which adult witnesses were vulnerable, and to make initial approaches on the researchers' behalf. The WS also undertook to inform the researchers when on-going cases finished, when the researchers would approach the witness to ask whether they were still willing to take part in the research.

125. The initial approach was made to Witness Services in June 2006, and by September a total of 5 referrals had been received. In addition, the researchers visited Glasgow Sheriff Court and, at the suggestion of WS staff there approached witnesses personally, with the help of WS staff. This required altering the access requests to Sheriffs Principal to allow approaches to be made by the researchers to witnesses in waiting areas at the court. Under this strategy, an initial approach was made by the WS to the witness or their parent and carer, and then the researchers met the witness face to face and took their contact details. This means that the follow-up call to schedule the interview came from someone that the witness had met. This was not interviewing the person at the court but essentially meeting them twice. However, this did not result in any further interviews taking place; some cases remained on-going.

126. In early September 2006 the researchers began to contact Witness Services from whom no referrals had yet been received. As a result, visits were made to 2 Witness Services to discuss strategies for approaching witnesses; and some referrals were received from 2 other Witness Services. Some of these cases did not end during the study period however, and some witnesses were involved in summary cases. One Witness Service suggested posting the summary of research on the wall of the waiting room, so that volunteers could refer to that when they asked witnesses about taking part in research. Approval was given for this by the sheriff clerk.

127. The fieldwork highlighted how few child witnesses come to court in some areas especially in solemn cases, and how few adult vulnerable witnesses the system identifies. In the High Court on the other hand, a higher relative proportion of vulnerable witnesses may be involved in very serious cases, and this may have meant that WS staff were understandably reluctant to approach them to take part in research. Judgements were made on an individual basis by the experienced WS staff and volunteers.

128. In Hamlyn et al's (2004) survey of Vulnerable and Intimidated Witnesses ( VIWs), the approach to witnesses was very similar to that which has been adopted in this work, and that work was re-examined, to try to identify any possible improvements in approach.

129. Witness Services in 86 Crown Courts and 94 Magistrates' Courts (180 courts in all) were asked to help in identifying and approaching witnesses during two periods. Following an initial approach at a more centralised level, letters were sent to Witness Services at each of the 180 courts.

130. The WS asked witnesses if they were willing to take part in research and if so obtained their contact details, which were passed to a field force of interviewers. Over 1,700 witnesses were approached by the WS, and 1,121 interviews took place, after ruling out those whose cases were still on-going, or those who could not be contacted. In phase 2, for which full figures were collected, interviews took place for 72% of referrals made by the WS.

131. Some of the most significant differences between the two projects included:

  • The seriousness of the cases and numbers of witnesses involved. Witness Services have advised that for this research, they would be able to refer on far more child and vulnerable witnesses if the evaluation was including summary cases. Hamlyn et al found that agreement to take part was lower among witnesses involved in the more serious Crown Court cases, yet in Scotland the Act and current evaluation did not extend to summary cases (the equivalent to the Magistrates' court cases included in Hamlyn's work); only High Court and sheriff solemn cases.
  • The court population size or pool (180 compared to 8 in the present study, extended to 12 later in the research period). 104 of 180 witness services made referrals in the first tranche; the current research received referrals from 4 of 8 Witness Services.
  • Hamlyn et al accepted proxy views. If a witness felt unable to take part, interviewees such as relatives were asked instead. As well as this, in all cases for children under 14 the interview was conducted with a parent or carer instead of the child. For those aged between 14 and 16 the interviewer in the field had discretion whether to interview a parent or the child. For all child interviews (under 17s), the parent was present rather than interviewed separately.

132. The evaluation could not be extended to summary criminal cases, although altering the research strategy to include proxy views without the witness's too was considered, and some representatives of child witnesses were included. However, this did not increase referral rate or agreement rate for witness interviews. In all, 18 referrals were received and of these, 11 witness interviews took place with either witnesses or a family member. In early 2007, the Witness Service offered to include 4 additional areas outwith the study courts in the research, using the same methods to approach witnesses. These areas participated until end April 2007, but resulted in no additional referrals.

133. Evidence from the Glasgow Sheriff Court Witness Service was that around 80% of the people approached at courts declined to take part in the research. This emphasises the amount of work that Witness Services put in to help with the research. If the Glasgow WS estimate of 80% is representative, then with 18 referrals received, perhaps 90 or up to 100 witnesses were approached by the WS on the researchers' behalf. Four of the 8 Witness Services approached made referrals to the research.

Conduct of interviews

134. Interviewees received a copy of short topic schedules in advance. Those used by the researchers included added checks and possible probes, and were designed to help the interviewer stage the interviews appropriately. Piloting took place for witness interviews, and a tailored research summary was produced by the child interviewer for young witnesses, shown at annex 3. This was provided to children in advance of any interview, seeking to reassure them regarding the conduct of the interview, confidentiality, and informed consent, in appropriate language.

135. Most interviews were audio recorded, apart from telephone interviews and a small number of interviews where the interviewee requested note taking only for the record. Most audio tapes were complete records, although recording was interrupted during several interviews at interviewee request. Telephone interviews were recorded using written contemporaneous note taking, as were face-to-face interviews when audio recording was not possible. In these cases the interviewer's aim was to provide as near verbatim an account as possible of the interview, asking for time to write as necessary.

136. Transcriptions of notes and audio recordings were made by the interviewer, and by the researchers for the witness interviews undertaken by the MorrisRichards associate. These records were used by interviewers to inform subsequent interviews, although in no cases were topic guides revised for further interviewees in the same grouping. The interview material also informed the desk based work, as information provided by interviewees was recorded for follow up.

Desk - based work

137. Time allocated to desk based work was limited, and focused on contextual information for the evaluation. The review of international literature was brief, and based on recent SE reports (Mackeral et al, 2001; Reid Howie Associates, 2002); however, the situation in England and Wales was covered in more depth since this jurisdiction was of most interest to the RAG. This element of the literature reviewed current legislation for England and Wales, and policy leading up to this, and research commissioned by the Home Office to evaluate the impact of the special measures introduced.

138. More time was focused on review and analysis of policy documentation for Scotland, including guidance, in particular the SE guidance packs produced in support of implementation of the Act, which are wide ranging and dense, and also of guidance produced by the key justice agencies for their staff.

139. Time was also spent providing detailed analysis of Scottish policy development and research evidence on the situation in Scotland before the VWA came into effect, and part of this exercise involved review of parliamentary proceedings during passage of the Bill. Analysis of VWISG implementation planning for phases 1 and 2 of implementation was also undertaken.

140. In the absence of a sound statistical base for the evaluation, and indeed for concurrent monitoring of the impact of implementation, a great deal of time was allocated to identifying statistical sources, and analysing data from a range of sources in attempts to address these gaps.

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