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CHAPTER ONE INTRODUCTION TO THE EVALUATION
Background
1.1 The research was commissioned by the then Scottish Executive Justice Department ( SEJD). Its principal aim was to evaluate the implementation of the Vulnerable Witnesses (Scotland) Act 2004 ( VWA), its impact on child and adult vulnerable witnesses, and its impact on court proceedings, including those relating to Children's Hearings.
1.2 The research was to take many approaches, seeking both witness and criminal justice agency viewpoints, and providing basic information on numbers of witnesses in the Scottish justice system. These many facets in effect combined for Scotland what were two major recent pieces of work for the Home Office on the impacts of vulnerable witness legislation.
Research period in relation to implementation
1.3 The Act came into force in April 2005, and the fieldwork period started some six months after this.
Table 1.1 Research period in relation to Act implementation timetable
1.4 The research period did not include the extension to summary proceedings, and indeed consideration of this was specifically excluded in the research specification. By the time fieldwork ended, the provisions had been in force for adults for a year and for children for two years. However, many of that year's cases were still on-going and so when case files were examined at courts, it was estimated that perhaps only two thirds of that year's cases had completed.
The evaluation
1.5 The main aim of the work specified was to monitor and evaluate the implementation of the Vulnerable Witnesses (Scotland) Act 2004. In particular, the evaluation was to assess the Act's impact on people who are vulnerable witnesses and on court proceedings, including those relating to Children's Hearings.
1.6 Because of the phased implementation of the Act and the timescale for the evaluation, the work was restricted to proceedings in the High Court, solemn proceedings in the Sheriff Court, and cases where the sheriff considers applications to establish the grounds for referral to Children's Hearings. The research specification outlined the overall objectives, 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
Evaluation approach and research methods
1.7 Annex 2 includes a full description of the research design and methods. In brief, the evaluation report is based on the following sources of evidence:
- Interviews with 74 justice professionals and with 11 vulnerable witnesses or their representatives
- Data collection from case papers at courts, covering over 10,000 indictments at 6 study sheriff courts and all High Court cases
- Exploration of data held by the major Scottish criminal justice agencies and SCRA to make recommendations on a monitoring framework for the Act
- A review of literature
Associated research
1.8 MorrisRichards Ltd was commissioned by the SE to undertake 2 related pieces of work, and the research periods partly overlapped. One project (on the visual recording of joint investigative interviews of children) finished in June 2006 (Richards et al, 2007), and the other, on the Vulnerable Witness Officer ( VWO) pilots (Morris et al, 2008), was contemporaneous with this research. The SE asked that the projects should inform one another, and the reports have been designed to complement one another.
Visual recording pilots
1.9 A related evaluation by MorrisRichards Ltd has examined the use and development of one special measure in detail (Richards et al, 2007).
1.10 The admission of a pre-recorded statement as evidence in chief is one of two 'non-standard' special measures under the Act, along with taking evidence on commission. Statements may be recorded audibly or visually, and their admission was possible under the Criminal Procedure (Scotland) Act 1995 before implementation of the VWA.
1.11 This evaluation can serve as a 'micro-evaluation' of one of the VWA's special measures, albeit in only 2 pilot areas where police and social workers began recording their joint investigative interviews ( JIIs). Even though the provisions have been in force for some time, the use of this special measure has been, and remains, exceedingly rare.
1.12 Even in the pilot areas where JIIs were being recorded and some local publicity and awareness building had occurred, the use of recorded statements in court was extremely low. This was perhaps partly because the initiatives were a 'ground-up' process, instigated by child protection practitioners themselves (police and social work interviewers and their managers) seeking to improve the interview process and record. The evaluation found that Scottish Court Service ( SCS) involvement was a notable absence from the local steering groups, for instance. SCS centrally however were monitoring developments in relation to the nature and compatibility of relevant IT equipment. Understandably, as local initiatives, there had been no national publicity aimed at court practitioners to encourage the use of recordings in court. Nor had funding been available initially to invest in good quality equipment for uncertain pilot periods.
1.13 This can be contrasted with the VWA road shows that the SE has taken part in with the Law Society, and the relatively greater involvement of SCS with the rollout of special measures under the Act. This is largely because SCS has to be involved for operational reasons, ensuring that court facilities are available.
1.14 At the same time, facilities in courts did not appear to be a limiting factor in the use of visual recordings, since the sheriff courts in both pilot areas had the necessary facilities, and sheriffs in those locations were conversant with the courtroom technology. The major factor limiting use was perhaps the recordings' quality and suitability for purpose.
1.15 Since pre-recorded statements are one of the VWA's special measures, their use across Scotland would require the establishment of perhaps 30 recording suites, like those in Glasgow E division and Dundee, and indeed this was included in the compliance cost assessment for the Act. It would also require the roll-out of bespoke guidance, and increased investment in training and on-going practice development, and in high quality equipment.
1.16 The evaluation also showed that initiatives in courts do not happen in isolation. For example, it was impossible to tease out any effects of visual recordings on rate of pleas, because this coincided with the High Court reforms which included statutory provision for early guilty pleas to attract a discount in sentence length.
1.17 At the time of writing the Act has been in force for children for just over 3 years, but there had been no discernible increase in admission of (visually recorded or other) prior statements during the fieldwork period. Given that they could be admitted before the Act in any case, this emphasises that legislation alone will not cause changes in practice.
1.18 On the other hand, the admission of a pre-recorded statement is a more complex special measure than the use of a CCTV link or screens on the day. It requires action at an early stage, in cases that may well not result in legal proceedings. It is a visible 'product' that can be criticised by the defence and others; it requires far more investment and changes in practice than the provision and use of screens alone. It may then continue, at least for now, to be a lesser used special measure, given also that there is less presumption towards use in court than there is under the legislation in England and Wales.
1.19 Nevertheless, the evaluation found that there were many good reasons to record JIIs to provide a full interview record even if use in court did not rise, and also noted that the use of recordings was welcomed by young witnesses in England and Wales, where more widespread use is common.
Vulnerable witness officer pilots
1.20 Simultaneously with the current research, MorrisRichards Ltd assessed 2 vulnerable witness officer ( VWO) pilots in Aberdeen and Ayrshire, in a joint evaluation with the VWOs themselves (Morris et al, 2008). Results suggest that there are gaps in service provision or what might be termed ' VWA infrastructure' for vulnerable witnesses.
1.21 The VWO pilots were established to try to improve inter-agency communication and facilitate better, more co-ordinated services for witnesses. They were also to raise awareness of witnesses' needs, but the intention was to work strategically rather than to get involved in casework, except in exceptional circumstances. The pilot periods coincided with the implementation of the VWA however, and so inevitably the VWOs became 'trouble shooters' and information sources for the new Act's provisions.
1.22 Each pilot established a local steering group, comprising the main justice agencies, and also carried outreach work, to agencies not usually involved in the justice process (eg some voluntary agencies, or health service agencies). Early in the pilot periods, the VWOs undertook an audit and mapping exercise of local service providers, to identify issues of concern and gaps to be addressed with the agreement of the steering groups.
1.23 The independent parts of the evaluation included a survey of the agencies involved in the pilots, interviews with some of these, and a questionnaire administered to some 450 witnesses by agencies, including sheriff courts, in the pilots. The questionnaire was able to provide a baseline of witnesses' experiences only, rather than assess any effect of the VWOs, but it indicated that of 49 witnesses who answered the question, 9 (18%) considered that they were 'especially vulnerable'. Some others did not think that they were 'especially vulnerable', but ticked other factors that might indicate vulnerability, either because of their age group or disability. Two of these were under-16s and would have been deemed vulnerable by the Act. This means that at least 11 of 49 respondents (22% of witnesses) either self-identified as vulnerable or would be deemed vulnerable under the Act. Considering oneself to be 'especially vulnerable' was significantly associated with being a victim of crime.
1.24 Evidence for VWO effectiveness was difficult to discern within the time period of the pilots, although agencies, especially those outwith the justice system, were grateful for their advice, particularly on VWA implementation, and the forum of the local steering group was thought valuable in bringing agencies together to discuss witness needs.
Report structure
1.25 This report has 7 chapters. After this introduction, chapter 2 outlines the policy background to this research, including some developments in England and Wales. ( Annex 5 describes the Bill's passage through the Parliament.)
1.26 The research was to provide data to assess the initial impact of the Act, and chapter 3 describes the primary data collection exercise undertaken at courts which covered over 10,000 indictments, and the results of this. It includes details of the numbers of vulnerable witnesses in the court system, the numbers who gave evidence, and how they did so. One of the evaluation objectives was to make recommendations on a monitoring framework for the Act, and Chapter 4 describes attempts to do this, including an inventory of the data held by the major justice agencies ( SCS, COPFS and SCRA).
1.27 Chapter 5 presents the results of interviews with 74 professionals working within the Scottish justice system, including their views on the need for the Act, its impact on witnesses, and barriers and facilitators to implementation. Chapter 6 presents the findings from interviews undertaken with 11 witnesses or their representatives after intensive efforts with the help of the WS to contact witnesses for interview. The numbers were small, but these witnesses were able to give valuable and detailed information about their experiences of the justice system. Their views are augmented with witnesses' views collected in waiting rooms and from the related VWO evaluation.
1.28 Finally, chapter 7 highlights the main points arising from this research.
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