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ANNEX 5 THE VULNERABLE WITNESSES (SCOTLAND) BILL'S PROCEEDINGS
144. The Vulnerable Witnesses (Scotland) Bill was introduced by the Minister for Justice Cathy Jamieson to the Scottish Parliament on 23 June 2003. The Justice 2 committee began taking stage 1 oral evidence on general principles on 2 September 2003, and produced its stage 1 report on 13 November 2003 ( SPOR, 2003). The stage 1 debate took place on 19 November 2003 and following the committee's stage 2 deliberations the Bill was passed following the stage 3 debate, which took place on 4 March 2004. The Act received Royal Assent on 14 April 2004.
The need for legislation
145. In its stage 1 report, the Justice 2 committee stated that it - and those who gave evidence to it - considered that the Executive had conducted a wide and adequate consultation on the policy intentions. On balance, the committee felt that "subject to the comments made in this report, that the Executive has struck the right balance between the protection of vulnerable witnesses and the rights of the accused to a fair trial".
146. In their written submissions VSS, ENABLE, the Justice for Children group 80, and the Scottish Child Law Centre ( SCLC) broadly welcomed the legislation, while calling for it to go further. The SCLC said that "institutional inertia in [the] court system means change must be mandated". This was an area also addressed more generally by other submissions. Without mandated changes for all children, changing the mindset away from trying to discredit witnesses in criminal cases by cross-examination might be too great a task; the special measures available were used patchily (particularly CCTV links) or not at all (evidence on commission).
147. The Faculty of Advocates recognised that measures were required to protect vulnerable witnesses, saying that procedural change could be achieved either through legislation or through the court's inherent jurisdiction or both. It also thought that any further special measures should not be introduced by statutory instrument (as provided in the Bill), but by primary legislation.
148. Fourteen witnesses or their representatives returned questionnaires to the committee and a further 4 were interviewed. They told the committee of health problems related to deferments, public disclosure of personal details, the trauma of giving evidence in an unsympathetic and formal court, and not being called or kept informed.
Mandatory measures for children, and age limits
149. The Justice 2 committee was concerned about the discretionary application of special measures, and it warned against inconsistent application.
150. In its written submission to the committee, the Justice for Children group welcomed the Bill as a first step. But it argued that the failure to guarantee the use of special measures, through either right or resource, was a crucial weakness. This was because children could still choose to give their evidence in court, and because of the test of significant risk of prejudice. Two further major omissions from the Bill were a 'Child Witness Support Service', as recommended by the Lord Advocate's Working Group, and a statutory 'Children's Justice Section' within the justice department to protect the interests of children and co-ordinate the conduct of cases.
151. The group also noted that there was no system for identifying or flagging of cases involving children, and felt that the Bill acknowledged the need for a significant cultural shift, but without mandated standards the courts might "continue to regard evidence given in any other way than live and unaided in the witness box as inherently suspect and […] be reluctant to order special measures". Current measures were insufficiently used; automatic entitlement would also cut the pre-hearings needed, backlogs, and delays.
152. On the other hand, the Faculty of Advocates said it was wrong to deny the party against whom the witness was being called the opportunity of being heard before special measures were ordered. It considered that applications for special measures, which were already available, were rarely (or successfully) opposed. The Faculty also raised concerns, echoed by the Law Society, concerning fair trials. If the court had to weigh the perceived prejudice to a fair trial against the risk of prejudice to the interest of the vulnerable witness, the court was being asked to legitimise a trial when there was already a stated significant risk that the trial would be unfair. The committee supported these concerns and asked the Executive to address them.
153. The Executive argued, and the committee accepted, that the test would be sufficiently 'high' as to be only used in exceptional circumstances. Patrick Harvie MSP introduced amendments at Stage 2, seeking to remove the court's discretion. The Deputy Minister for Justice, Hugh Henry, accepted that some people thought judicial discretion may be a back door route to deny a child's rights to special measures, but reiterated that the test would be strict; he and the Executive were not saying that it would be used very often; they were trying to protect both the right to a fair trial and the special measures. The amendment was rejected.
154. On the definition of a child, the Scottish Human Rights Centre and the Justice for Children group had suggested that the Bill's definition be brought in line with the United Nations Convention on the Rights of the Child, which defines a child as anyone under the age of 18. The committee on balance agreed with the Executive that the age of 16 coincided with other important age limits. It accepted the Executive's assurance that there was sufficient flexibility to protect those who were older than 12 or indeed 16, and who required additional support.
155. The Faculty of Advocates considered that if some children under 12 (involved with certain offences) were too young to come to a courtroom, then all were; the measures for under-12s should apply to all cases. At stage 3 the Minister moved amendments to add the offences of plagium (which involves the theft of a child) and abduction to the list of cases where child witnesses aged under 12 would receive extra protection.
Automatic entitlement for some vulnerable adult groups
156. Calls for automatic entitlement for some categories of adults (those with a mental health disorder, witnesses with a learning disability, and victims in cases involving sexual offences or domestic abuse offences) recurred at each stage of the Bill's proceedings. A number of voluntary and statutory organisations put the case for this in their submissions to the committee. The committee acknowledged that overall, the Bill's intention was to consider every case and witness on their own merits to ensure that the broadest range of witnesses gained access to special measures. However, because non-visible disabilities were so hard to assess, it thought the Executive should consider automatic entitlement for those with a mental health disorder or witnesses with a learning disability, and for victims in cases involving sexual offences or domestic abuse offences.
157. Addressing the committee's views during the stage 1 debate, the Minister for Justice said she wanted to guard against a " tick-box approach to dealing with vulnerability". Amendments were moved in committee during stage 2 to add to the list of people who were automatically entitled to special measures those with a learning disability or a mental disorder, and victims of alleged sexual offences or domestic abuse. After the Deputy Minister for Justice (Hugh Henry MSP) gave an assurance to reconsider this before Stage 3, the amendments were withdrawn.
158. During the Stage 3 debate Jackie Baillie MSP said that while she supported the Executive's desire to avoid checklists that might unwittingly exclude people, the committee was much taken by the views of Enable and the Law Society of Scotland, that 'automatic' entitlement to special measures should be available to people with a learning disability or a mental disorder. Rape Crisis Scotland and others recognised that victims of alleged domestic abuse and alleged sexual offences could benefit in similar ways. The Deputy Minister for Justice agreed that the system needed to be " sensitised" to make it better at identifying people who need additional help to give evidence, but still disagreed that " simply labelling people as vulnerable" could do this; instead, the Executive had made commitments on the record.
159. These included the Lord Advocate's commitment to issue instructions to the police on the identification and reporting of vulnerable witnesses; and Crown Office commitment to updating its guidance. Crown Office would enlist the experience of voluntary groups to equip prosecutors with the skills and information required to identify or recognise different types of vulnerability, including latent non-visible disabilities.
160. At stage 3 the Executive moved an amendment changing the reference to physical disability in the Bill to disabilities and impairments. This, together with the Executive's stage 2 amendments, was to ensure that any other factors relevant to an individual witness's vulnerability could be taken into account.
Timings and resources
161. The committee heard from one witness who had waived special measures to reduce delay in the trial, so it stressed that the Bill should not be allowed to contribute further to this. It noted that this issue was being addressed generally by the concurrent High Court reforms and review of summary justice. Stage 2 amendments to require a hearing at which all parties could address the court were rejected by the Minister and on division. Such an automatic right to object would introduce potential for delay through procedural technicalities. (Similar amendments were also rejected by the Parliament, at Stage 3.)
162. Ensuring the earliest possible identification of vulnerable witnesses was a general area of concern. The Justice 2 committee felt that establishing a child witness support service would help in the early identification of child witnesses, but would have to be carefully integrated with existing support services including VIA and the WS. The committee recommended that the Executive should consider placing a duty on agencies, notably the police, to co-operate in identifying vulnerable witnesses.
163. Neither ACPOS nor local authorities made written submissions or gave evidence to the committee, so although there was much discussion of the police role in early identification of witnesses, there was little consideration of how resource issues might impact on the police, and there was no discussion at all about possible implications of increased use of VIPER parades.
164. During the committee's Stage 2 proceedings probing amendments seeking to place a duty on the police to identify vulnerable witnesses were introduced, to clarify how the Executive intended to identify such witnesses early on in the process. The Deputy Minister was sympathetic to the aims of the amendments and gave assurances concerning monitoring of the provisions, the then new VWU, the proposed vulnerable witness officers, and training for all agencies, not just the police, to change culture and attitudes.
165. Proper training, guidance and resources were considered crucial by the committee if the Bill was to be properly implemented. The Scottish Legal Aid Board ( SLAB) had expressed concerns relating to the Bill's financial memorandum, about which it was not consulted, and the potential number of cases using special measures. The Executive's position, which was not fully accepted by the committee, was that phased implementation would allow for additional funding to be secured from future spending reviews. The committee still had concerns regarding monitoring of the provisions, and the need to confirm what mechanisms were available to the Executive to monitor the numbers and costs of cases utilising vulnerable witness protection during the phased implementation.
166. During the stage 1 debate Mike Pringle MSP pointed out that as well as funding for the VWU and WS, resources would also need to be put into the courts themselves; " Many courts are very old and will need to be adapted so that the bill can be implemented fully".
Details of special measures
167. The Justice 2 committee examined the proposals on special measures and, in relation to witness supporters, recommended that people who had already given evidence should also be allowed to be supporters, as the two could often overlap. During the Bill's stage 1 debate the Minister accepted this, and the Executive made amendments to this end.
168. On evidence-in-chief in the form of a prior statement, about which the Faculty of Advocates had voiced serious concerns, the Deputy Minister confirmed that any such statement would be tested by the defence in the normal way; the witness would be available in court to be cross-examined. This was later clarified by the Minister, to say that any necessary cross-examination could be done by live TV link.
169. The committee welcomed the prospect of evidence on commission, and believed there should be no circumstances when the accused would be present at such evidence taking. In its evidence to the committee SCS noted that some costs of implementing the Bill " could be higher if, for example, an advocate is used to take evidence on commission, in reality the costs will be lower as sheriffs may take on this work". At this stage (see below), the financial memorandum considered that costs of establishing and running remote sites would fall to local authorities. No mention was made therefore of needing to increase resources for ESDU (the SCS Electronic Service Delivery Unit), for example.
170. During the committee stage 2 proceedings Patrick Harvie introduced an amendment inspired by the Justice for Children group to enact the principle that all children aged under 16 would give their evidence away from court on commission. The Executive's view was that such blanket provision was not needed, and this amendment was ultimately rejected, on division.
171. Jackie Baillie introduced and withdrew amendments allowing for intermediaries, as used in South African courts, to be introduced. While the Executive was not against this in principle, England and Wales was shortly to pilot this. (Intermediary recruitment has since been extended following successful pathfinder projects in England and Wales.) At stage 3 the Deputy Minister repeated his stage 2 assurances that the Executive did not rule out intermediaries as a special measure in the future. The provisions would be monitored and further special measures could be introduced.
172. Following the final debate on the motion to pass the Bill, in which there was general welcome for its provisions from all sides of the chamber, it was passed without division. The Minister for Justice said:
"When it is fully implemented, thousands of Scots will have access to extra support to help them speak up in court. In some cases, because of the abolition of the competence test, vulnerable witnesses will be heard for the first time".
173. It had been stressed time and again that Ministers were committed to ensuring successful implementation of the provisions; early identification of vulnerability, training, and monitoring would be vital. The issues of resources, training and the balances to be struck recurred throughout contributions.
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