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EXECUTIVE SUMMARY
The Act
1. The Vulnerable Witnesses (Scotland) Act 2004 (the VWA) introduced a range of measures intended to help child and adult vulnerable witnesses give their best evidence in court. Many of the 'special measures' ( SMs) set out in the Act were already available for witnesses through application to the court, alongside non-statutory measures such as clearing the court and removing wigs and gowns. Yet the legislation was seen as necessary because vulnerable witnesses were not always being offered the support they needed before, during, and after court appearances. The Act aimed to make it more straightforward for SMs to be granted, particularly for children (aged under 16).
2. 'Standard' SMs under the Act are the use of a live television link, screen, or a supporter in conjunction with one of these, to which children have an almost automatic entitlement. 'Non-standard' SMs are the taking of evidence on commission, and the use of prior statements (e.g. visual recordings), which have a higher test applied to their use. The Act introduced the use of child witness notices ( CWNs) to accompany all child witnesses, to inform the court of their presence and specify which SMs (if any) are sought. It created a new definition of adult vulnerable witness ( VW), including persons affected by fear and distress, subject to a test on the effect of vulnerability on their ability to give evidence in open court. It introduced VW applications to seek the use of SMs for adult vulnerable witnesses, and aimed to reduce the need for reports from specialists to support SM applications.
3. The Act says that children aged under 12 in certain cases should not be required to be present in any part of the court building, and subsequent advice has clarified that this extends to requiring the child to attend any court building. Appropriate SMs in such cases are evidence on commission or a live TV link to a remote site which is not within a court building. The Act also abolished the much criticised 'competence test' for witnesses.
4. The Act was the culmination of many working groups, consultations and research in Scotland over the past 2 decades, notably the influential Lord Advocate's Working Group on child witnesses. It sits alongside non-statutory policy measures such as the rolling out of the Witness Service ( WS) and Victim Information and Advice ( VIA) within Crown Office.
5. Within a context of increasing international awareness, similar legislation providing for special measures was passed in England & Wales in 1999. The use of special measures there has become widespread but possibly at the expense of some witness choice, and there are also difficulties in identifying vulnerable and intimidated witnesses ( VIWs), so the system is not without its issues. Two current major differences in details nationally are the use of intermediaries and 'refreshing' the witness using their prior statement in England & Wales, where intermediaries pilots have recently been extended.
The Act's phased roll out and the research period
6. The Act came into force in April 2005 and was implemented in phases. This research examined a 3 year study period from 2004 to 2007, which included the first 2 phases of rollout, plus a baseline year before implementation.
7. From April 2004 to end March 2005 was the study 'baseline' year before the Act came into force. Phase 1 of implementation or 'child year 1' ran from 1 April 2005, when measures came into force for children in High Court and sheriff solemn proceedings, and in hearings by the sheriff to establish the grounds for referral to Children's Hearings. Phase 2 ('child year 2' or 'adult year 1') ran from 1 April 2006, when measures were extended to adults in solemn proceedings. The evaluation specifically excluded phase 3 which followed, and which was the Act's extension to summary proceedings.
8. The Act referred to children aged under 16 on or after 1 April 2005, and the expectation of many professionals interviewed for this study was that all children cited in cases indicted after 1 April 2005 would have been accompanied by a CWN. However, it is important to note that it was not the indictment date that was the trigger. The commencement orders for the Act brought its effects into force for solemn proceedings commenced on or after 1st April 2005, 'with proceedings being taken to have commenced when a report of the case has been received by the procurator fiscal' ( PF). Similarly, adult provisions referred to cases 'received by' the PF after 1 April 2006, rather than all cases indicted involving vulnerable adult witnesses after that date. This meant it was impossible to define a time after which all child witnesses should have been accompanied by a CWN, or a vulnerable adult witness by a VW application. So although the study periods were specified in relation to implementation dates of 1 April each year, CWNs or VW notices did not begin to be seen until later in those years.
Summary of research
9. The research specification was to;
- Establish baselines for both child and adult witnesses, against which implementation could be assessed
- Assess the monitoring framework for vulnerable witnesses and propose adjustment where necessary
- Undertake formative evaluation, including the identification of factors which facilitate or impede effective implementation
- Undertake outcome evaluation, including impact on vulnerable witnesses, and on court proceedings
10. The research took a number of approaches. Detailed data collection was undertaken from case papers, covering over 10,000 indictments at 6 study sheriff courts including Edinburgh and Glasgow and all High Court cases; justice professionals and vulnerable witnesses or their representatives were interviewed; data held by the major Scottish criminal justice agencies and the Scottish Children's Reporter Administration ( SCRA) were explored to recommend a monitoring framework for the Act, and a literature review was undertaken.
Proceedings at courts
11. Because data are not collected centrally, case papers were examined at 6 study sheriff courts and for all High Court locations, to determine from indictments, witness lists and court minutes the number of vulnerable witnesses being cited, giving evidence and using special measures in Scottish courts. When the fieldwork had to finish in April 2007, not all of the cases that had come to court during that year had completed, so it is estimated that the data collection covered around two thirds of child year 2/adult year 1.
12. The research suggests that around 280 children are being cited each year in the High Court of whom around 15% are aged under 12, and just over a quarter go on to give their evidence. Around 60% of children cited were accompanied by CWNs in the first 7 months of child year 1, but the sampling method did not allow a comparison to child year 2.
13. In the first year of adult implementation, over 50 VW applications had been made in the High Court for adults in the first two thirds of the year. By this time, at least 9% of High Court cases included a vulnerable witness; either a child witness, or an adult witness for whom a VW application had been submitted.
14. In 6 study sheriff courts (one in each sheriffdom), around 200 children were being cited in solemn cases each year, including up to 60 under-12 year olds. Around 40-50 of these children went on to give evidence each year. In the first two thirds of adult year 1 of implementation, very few VW applications indeed had been made for adults in the study sheriff courts. In summary then, some 5-6% of the sheriff and jury cases examined involved vulnerable witnesses, and in the Act's early implementation period, these were all children.
15. In the study sheriff courts, there was a drop in the number of children without notices or other applications, from around 80% with no CWN or application in year 1 to around half with no CWN in year 2. The proportion of children giving evidence without SMs fell from the baseline period (two thirds of children who gave evidence did so without any SM) to child year 1 (around half did so) and again to child year 2 (14% did so).
16. The use of CWNs has made information on SMs sought more standardised, including when no special measure is required. Of the standard special measures, CCTV and 'a supporter with another special measure' were more often applied for and used than screens for children, and CCTV was particularly popular in the High Court. For adult vulnerable witnesses screens were used more often than CCTV however. Screens became less common after the baseline period in all study courts. The use of supporters increased by year 2, although this may be in part related to improved recording practices (on CWNs).
17. Very few defence vulnerable witnesses were identified throughout the study period, and there were very few applications made by the defence for their witnesses or for vulnerable accused persons. The proportion of witnesses with applications for special measures in referrals to the sheriff from the Children's Hearing System is not known. Applications from the reporter were low in year 1. Data collected by the study sheriff courts suggests that by year 2 reporters in some areas were making increased numbers of applications for SMs, suggesting that the provisions had started to be more widely adopted by reporters in some areas.
18. By many measures the first year of the Act's implementation resembled the baseline; there was a gradual change from the previous system of petitions towards CWNs, rather than a sudden switch after the Act came into force. This may be partly due to the effect of the commencement order, and time period between the reporting of a case to the fiscal and the indictment.
19. Submission of specialist reports to justify special measures gradually tailed off in line with the switch from petitions to CWNs, and this has reduced drastically the total amount of time spent by the courts waiting for specialist reports. By child year 2/adult year 1, only a small number were still being produced, almost exclusively for some adult applications. So some resource demands (the need for specialist reports, and hearings to determine applications), have been lower than allowed for in the Bill's financial memorandum.
20. Two years after implementation began however, some of the Act's provisions were in effect still not available. Nationally, there was only one example of a prior statement being played in court in place of evidence in chief and it was outwith the study courts (Richards et al, 2007). Delays in implementation of evidence on commission meant it was still only a partially implemented provision. Some attempts had been made, but no remote sites had been used successfully in the High Court to enable witnesses aged under 12 to give their evidence away from the courthouse.
21. Very few SM applications were refused, even before the Act. Generally, the courts were flexible and accommodating to vulnerable witnesses on the day, but arrangements made at a late stage meant only a restricted choice of special measures was usually available.
22. Overall, the Act is likely to have been a major factor, along with changing court cultures, in the decreased number of children giving evidence without SMs in the study sheriff courts. This research has been unable to show such clear effects in the High Court, because the sampling method used did not identify the total number of child witnesses being cited, apart from in one 7 month period.
Monitoring the Act
23. Numerous research studies and working groups have unsuccessfully sought the most basic statistical information on the Scottish justice system, such as the number of child witnesses cited each year. Such data are not routinely collected as yet. Perhaps more importantly, there are no comprehensive mechanisms for ensuring that information is passed on with adult vulnerable or child witnesses as they proceed through the justice system.
24. A project known as ISCJIS, the integration of Scottish criminal justice information systems, has been anticipated for years as a means of collating and managing information held on witnesses in the justice system. It is in essence, a series of data sharing protocols, to standardise code lists and data to enable information to be transferred efficiently. In terms of outputs so far, it has extended to all police forces being able to submit standard prosecution reports ( SPRs) electronically to the fiscals, but to little else.
25. It is clear that SCS and SCRA did not fully appreciate the resource implications of monitoring the Act. Only COPFS realised that it would require a capital outlay to adjust its IT system. SCRA does not have a detailed database system on vulnerable witnesses, nor does it currently seek information from reporters on applications made. However, it holds comprehensive information on its workload in terms of referrals to the reporter and the process of these cases 1. SCS collects much information for publishing against its targets, but these are simple counts collated manually by individual courts.
26. COPFS has adapted its IT system and is in the process of improving staff training in the use of that system particularly to record VW applications; it has acknowledged that more needs to be done. This would clearly make a large contribution to the information that might be transferred through ISCJIS; although currently SCRA cases on non-offence grounds would not be included as they are not criminal proceedings. For child prosecution witnesses at least the police are passing information to COPFS including children's dates of birth, and COPFS are passing this to VIA and the WS in some form. But major databases are being developed by organisations in isolation from one another, so it is not surprising that sheriff clerks and Witness Services reported that during the study period children continued to arrive at court without the court expecting them in advance.
Views of professionals
27. Overall, the Act was welcomed by those interviewed; strongly by some agencies, but with some reservations notably by the judiciary, who felt it limited the court's discretion.
28. Identification of VWs, particularly adults, is an issue. The police should flag up vulnerable witnesses for the PF, with information in the SPR flowing electronically from police databases into the Crown database. This is largely happening for child witnesses where the flag is a simple age, but not for adults, where it is a series of remarks that the system cannot handle. It is anticipated that SPR2 should improve the flagging of adults.
29. The police interviewed were concerned that the PF did not always act on their flags; the PFs interviewed were concerned that the police did not always flag up vulnerability. Prosecutors have particular responsibilities to identify adult vulnerable witnesses since the process includes a judgement on their part rather than a simple test of age, but this is hard if witnesses are not precognosced (and this was mentioned by many as a possible issue for the rollout to summary cases). In 2006, the police flagged up over 22,000 children in SPRs, but by year 2 of implementation CWNs were not yet being submitted by the Crown for all children who were cited, to inform SCS that that child witness was coming to court.
30. There is no 'system' to ensure that a defence agent is informed of an accused person's or defence witness's vulnerability even if this is identified by the police (as in the system of the police using the SPR to inform fiscals, for example). The police cannot submit reports electronically to SCRA, although reporters receive hard copies of these.
31. Electronic identification ( VIPER) parades (which are a pre-requisite for the use of SMs unless other identification methods can be used) were not identified as a resource issue by the Bill's financial memorandum. Yet this burden, which falls largely on the police (and Crown and defence agents, to some extent), has been more resource-intensive than anticipated. Several professionals including some prosecutors and reporters raised concerns about increased paperwork (particularly CWNs when no special measures are required).
32. Further unexpected resource demands have fallen on SCS. Notably, SCS has not yet established a network of good quality remote sites. Therefore some professionals were simply not offering the use of remote links, and the Act's intentions for under-12s in certain cases of giving evidence away from the court were not being met. This was partly because the Act's intentions were unclear on remote sites (until advice was sought), and partly because local authorities, not SCS, were expected to be responsible for remote sites. Several professionals also thought that the SCS electronic services delivery unit ( ESDU) was too small to support the potential uses of live link and remote sites.
33. During the research period it was reported that VIA was not sufficiently integrated with Crown Office (it was aligned closer within COPFS during the study period) and many examples were given of impersonal letters being sent out, late, by VIA. At court, witnesses are reported as still being left with very poor information, and to be treated far worse than professional witnesses. The problems include the stresses of waiting with no information, and overt intimidation at court and outside. The main help to witnesses at this stage is the WS, which is highly valued by other agencies since it carries out work that the police or SCS used to do, but has more time to devote to witnesses at court. The design of many courthouses was raised as unhelpful by many interviewees including the judiciary, including some more modern courthouses and annexes being inadequate when it comes to separating witnesses and meeting vulnerable witnesses' needs.
Views of vulnerable witnesses
34. This research focused on witnesses in criminal proceedings since the researchers were unable to gain access to SCRA witnesses. Despite considerable efforts interviews were undertaken with only 11 vulnerable witnesses or their representatives, but others were met in waiting rooms. Witnessing a crime, or being the victim of a crime as several of the vulnerable witnesses interviewed were, can have profound effects upon witnesses and their families. Generally, witnesses felt the police were supportive immediately afterwards and during the investigation, but when their involvement ended, information was cut off.
35. Several witnesses had to wait a long time for citations without being kept informed; some telephoned several times to seek information. The parents of one very young witness were her only source of support and information before court and another young witness would have welcomed someone to talk to about her feelings, and pre-trial counselling.
36. Victims do not understand the difference between VSS, VIA and WS, which may hamper them seeking help from VSS, believing themselves to be already in contact. Witnesses were extremely appreciative of the service offered by the WS, both at court and in keeping them informed through telephone calls, and contrasted this with a rather impersonal and slower service from VIA.
37. Most of the witnesses interviewed who attended court came into contact with either the accused person or their associates in the courthouse. Several mentioned matters at court that made things worse, such as being placed in a waiting room with defence witnesses, told to sit in a corridor while the jury had a coffee break, or being asked to come back next day.
38. Several of the witnesses had court familiarisation visits and some used SMs. One adult witness, for whom a VW application was not made, found defence cross-examination particularly upsetting. One use of CCTV link by a very young (under-12 year old) witness went well, although the link was from within the same courthouse, where she and her parents saw the accused person.
39. Precognitions were not unduly upsetting for the witnesses in this sample, and more help after the trial was over was not seen by the witnesses interviewed as a high priority.
Overall themes
40. The Act is contributing to an increasing awareness of the needs of vulnerable witnesses and was generally welcomed by interviewees. Agencies also report increasing public awareness of the existence of SMs, to the extent that the expectations of people arriving at court often cannot be met (especially, during the study period, for those in summary criminal cases not then covered by the legislation).
41. Use of CWNs had increased by child year 2 of implementation, although still not all children cited in solemn cases in the sheriff courts were accompanied by CWNs. There is a need to ensure that after child witnesses are flagged by the police this information travels with them to court. There are strong concerns about the identification of vulnerable adults, especially since many vulnerabilities are not visible. Many examples were given of adults who may well have been vulnerable witnesses but received no offer of special measures.
42. The number of total witnesses cited or giving evidence in the justice system remains unknown, including the number of child or adult vulnerable witnesses. ISCJIS has long been anticipated as being the solution to information needs and witness flagging, but little integration of systems has occurred as yet.
43. A monitoring framework is important and the systems that should underpin such a framework are vital if information relating to vulnerable witnesses is to be passed from one agency to another, rather than being lost or not acted upon. Early in the research period the researchers proposed that, as a minimum, the number of CWNs and VW applications submitted and SMs granted should be recorded centrally. At the end of the research period, the agencies involved were still not able to collect these data. COPFS had adapted its IT systems, but practitioners were not yet using the system to record the necessary data, and SCRA does not yet have a database for vulnerable witnesses.
44. Both the professionals and the witnesses interviewed for this study perceive that many witnesses attending Scottish courts continue to be treated poorly, although it was not possible to interview witnesses in referrals to the sheriff from the Children's Hearing system. Many of the measures that would improve matters for witnesses do not require legislation and could be addressed by simple actions, especially provision of information before coming to court, while waiting to give evidence and afterwards. The personal service provided by the WS is highly valued by agencies and by witnesses.
45. The participation of witnesses is essential to the delivery of justice, and in these early days of the Act's implementation this evaluation shows that witnesses are beginning to be treated more considerately and properly within the system. Many outstanding issues cannot be addressed by legislation alone. But fuller implementation of the Act would help to ensure that child witnesses do not remain unidentified in the system, and that more vulnerable witnesses are offered the support that the parliament intended for them.
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