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CHAPTER TWO BACKGROUND

Introduction

2.1 This chapter outlines the context into which the Vulnerable Witnesses (Scotland) Bill was introduced, including the international context and evidence-based policy development in Scotland. By considering the financial memorandum to the Bill, it outlines the costs anticipated, which indicate how the SE and others expected the legislation to operate in practice and the scale of related preparations made. Annex 5 describes the Bill's parliamentary proceedings, because issues raised during the Bill's passage may indicate possible areas of interest during implementation.

2.2 This chapter goes on to outline the guidance issued to support the legislation, and other reforms within the Scottish justice system that have direct consequences for the VWA. Finally it considers the legislative framework for vulnerable witnesses in England and Wales, and recent evaluations of these, to help draw some comparisons and constructive advice.

2.3 An accompanying report on the VWO pilots considers some related areas, including research on partnership working in the Scottish justice system and reviews of service provision to Scottish victims and witnesses (Morris et al, 2008).

International context

2.4 There has been increased recognition of the needs, interests and rights of witnesses in many jurisdictions in recent years (Mackarel et al, 2001). The European Court of Human Rights recognised witnesses' rights in 1996 ² when it was stated that these were to be balanced against those of accused persons, in accordance with the principles of fairness (Ellison, 2001).

2.5 The Council of Europe Recommendation No R (97) 13 on Intimidation of Witnesses and the Rights of the Defence (Council of Europe, 1997) was a major step in addressing the needs of vulnerable witnesses in court proceedings. It states that it is unacceptable that accused persons are not brought to trial because witnesses are not able to use effective legislation and practical measures to allow them to speak freely and truthfully (Ellison, 2001). The recommendation places a duty on the criminal justice system to provide such legislation and measures for witnesses, where appropriate.

2.6 International law does not provide a definition of 'witness'. However, it can be inferred from the text of treaties and from case law that this accords with that which is commonly understood in Scots law (Mackarel et al, 2001). For example, the definition in Recommendation No R (97) 13 is broad:

"any person, irrespective of his/her status under national criminal procedural law, who possesses information relevant to criminal proceedings".

2.7 This clearly extends to people who do not go on to give their evidence in court proceedings. The recommendation also provides a broad definition of 'intimidation' as:

"any direct, indirect or potential threat to a witness, which may lead to interference with his/her duty to give testimony free from influence of any kind whatsoever".

2.8 Measures stipulated in the recommendation indicate that intimidation is viewed primarily in the context of physical threats, in its inclusion of witness protection programmes, and professional intervention to provide legal, social, financial and psychological assistance.

2.9 Article 68 of the Rome Statute (United Nations, 1999), which established the International Criminal Court, gives the court a duty to protect witnesses both physically and psychologically, although this states that measures are not to prejudice the rights of accused persons. The Court is to take into account age and gender of the witness, and the nature of the offence in granting applications for measures to allow witnesses to give evidence throughout proceedings (from investigation to trial). Measures include 'in camera' proceedings, and use of electronic links, and these are to be used by child witnesses and in cases of sexual violence (with regard to the views of the witness). The Court has a Victims and Witnesses Unit, which works with the prosecutor to provide protective measures in such cases, and also to arrange counselling or security where necessary.

2.10 Fairness to the accused person, and the need for justice " to be done and to be seen to be done" are paramount in international law (Mackarel et al, 2001), and this is the case for both inquisitorial and adversarial systems. The general rule is that " in all but the most exceptional circumstances" witnesses should be identified and give evidence in open court; judge and jury should hear witnesses give oral testimony; and there should be a right to cross examination on behalf of the accused person. Nevertheless, it has been established by case law ³ that the right to a fair trial does not automatically grant the defence the right to cross examine witnesses.

2.11 However, importantly, the explanatory memorandum to the 1997 Council of Europe Recommendation 97 (13) states:

"The welfare of the child witness must, in general, be the paramount concern over other interests, even the interests of justice". (para 100)

2.12 Internationally, despite increasing awareness of issues for vulnerable and intimidated witnesses in many jurisdictions, by 2002 there was still no consensus about how support should be provided. One review (Reid Howie Associates, 2002) found that:

• measures are most commonly directed towards child witnesses;
• inconsistency in the use of measures, and discretion accorded to the judiciary and other practitioners tend to undermine the effectiveness of measures;
• lack of clarity about the measures, and practical constraints can also reduce their effectiveness;
• evidence suggests that measures are compatible with the rights of accused persons, although they may not be universally seen as such, and
• while progress towards acceptance of measures is evident, " there is still some way to go before the potential benefits are widely felt".

Scottish research and policy on victims and witnesses

2.13 In Scotland, witnesses have been long able to expect (although have not been entitled to) certain considerations in giving their evidence in court, in particular to have the court cleared in cases where justice demands this, and to be protected by the judge from bullying, harassing or abusive cross examination (Macphail/Scottish Law Commission, 1979). In 1986 the Lord Advocate referred the law governing children's evidence to the Scottish Law Commission ( SLC), and the Scottish Office commissioned research (believed to be the first of its type in the UK) into sources of stress for young witnesses involved in criminal proceedings (Flin et al, 1988; 1993).

2.14 The SLC found that practice and procedures for dealing with child witnesses during trials was overly discretionary, and proposed judicial guidance to " promote some desirable uniformity of approach in judges' treatment of child witnesses" ( SLC, 1990). It considered that children could give evidence by conventional means provided they received careful preparation beforehand, and sensitive handling at court. Lord Justice General Lord Hope's 1990 Memorandum on support for child witnesses in court provided swift guidance to the judiciary, suggesting the removal of wigs and gowns; clearing the court; use of a supporter for the child witness and positioning the child at the table in the well of the court rather than in the witness box. It provided a checklist of factors to be considered by the judge before adopting these approaches.

2.15 A range of statutory measures also followed quickly. For example, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 allowed for children to give evidence by means of a television link. From October 1991-December 1993 petitions were lodged for over 10% of 1,152 child witnesses. Of 143 lodged, the vast majority were in the High Court; many were in sex-related cases; only one was by the defence. 32 were opposed, 3 were refused outright by the judge and 13 refused 'in hoc statu' (at that stage). 50 child witnesses gave evidence using the link (Murray, 1995).

2.16 Most child witnesses were relieved to able to testify using TV links; both children and parents wanted greater support and fewer delays. Giving evidence, TV users were significantly less likely to answer in detail and, during cross-examination, were significantly less resistant to leading questions on peripheral matters. But when the prosecutor focused on the main actions of the accused the TV users were significantly more likely to answer than non-users. While judges interviewed accepted the value of the link, concerns were expressed about its "limited perspective, remoteness and the artificial quality of the evidence".

2.17 Concerns regarding quality of evidence were considered by an evaluation of videotaped prior statements in England and Wales (Davies et al, 1995) which found that of some 1,200 trials in England and Wales involving child witnesses between October 1992-June 1994, over half were accompanied by applications to show a videotaped interview. In 202 cases it was possible to show that the tape had been played in court. There was no significant difference between the proportion of guilty verdicts delivered for videotaped evidence as opposed to live evidence-in-chief.

2.18 HMA v Brotherston, which arose under the 1990 Act, provides authority for use of a live TV link to pan the court so the child witness can be asked to identify the culprit, so long as this would not cause the child distress.

2.19 The Criminal Procedure (Scotland) Act 1995 included for the first time in Scotland a statutory definition of "vulnerable" in relation to witnesses, and set out the measures available for use in giving evidence in court:

• Before a commissioner (s271 (1));
• By means of a live TV link (s271 (5));
• From behind a screen (s271 (6));
• Clearing of the court in cases involving children (s50 (3)); and
• Clearing the court in rape cases 'and the like' (s92 (3)).

2.20 No specific entitlements to such measures were provided in the Act, however, and court statistics (reported in Mackarel et al, 2001) showed that with the exception of screens, these were not commonly used. In 1998, numbers of petitions for TV links were low; 13 applications were made in only 3 sheriff courts to use live TV links, the vast majority (11) in Glasgow. Only one application to give evidence before a commissioner was made in this year. No statistics were available, however, on use of measures in High Court cases, where the majority of petitions for use of TV links had been made in the introductory period.

2.21 Section 271 of the 1995 Act was amended by the Crime and Punishment (Scotland) Act 1997 to extend the conception of vulnerability further than children, so that witnesses aged over 16 who were subject to a court order under the Mental Health Acts or who had 'significant impairment of intelligence and social functioning' were covered and might be able to use the statutory measures. As with the 1995 Act, the use of protective measures was entirely at judicial discretion. Criteria to be taken into account in assessing applications for such measures included the nature of the alleged offence, the nature of the evidence to be given, and the relationship (if any) between the vulnerable person and the accused.

Towards a Just Conclusion

2.22 In November 1998 the then Scottish Office issued the consultation paper Towards a Just Conclusion on vulnerable and intimidated witnesses in Scottish criminal and civil cases (Scottish Office, 1998). This brought vulnerable adult witnesses into increasing focus alongside child witnesses. It acknowledged that in summary cases where the fiscal would not interview the child before the trial, any assessment of measures needed was heavily dependent on information from the police, support agencies or the child's family.

2.23 The multi-agency working group that produced Towards a Just Conclusion gave a great deal of consideration to defining vulnerable and intimidated witnesses, and outlined two broad categories: children (people aged under 16) and adults with some form of mental incapacity. It specifically excluded adults with physical disabilities, referring to measures already in place to help such adults give evidence as witnesses in court.

2.24 According to the consultation paper, by this time, evidence by live TV link from another room in the court house was " routinely" used for child witnesses, who were treated with " particular care" before and during the trial, and Lord Justice General Hope's memorandum had had an influential effect on the treatment of child witnesses. The group considered the treatment of vulnerable and intimidated witnesses at each stage of the justice process, and made 26 recommendations, including:

• extensive roll out of existing pilot witness support projects in the Scottish courts;
• production of national standards for witnesses and of various guidance for practitioners dealing with vulnerable witnesses;
• early identification of potentially vulnerable witnesses by the police; and
• enhancement of provisions for the use of methods of giving evidence other than in court.

2.25 The group noted that the number of child witnesses giving evidence using screens or a live TV link rose from 23 in 1995 to 94 in 1997, and was unaware of any recent cases in which a court had refused an application for a child to give evidence by alternative means. The group commended the arrangements which were already in place for child witnesses, and considered that they had no obvious deficiencies, subject to a more comprehensive review being carried out by the Lord Advocate's Working Group on Child Witness Support.

Lord Advocate's Working Group

2.26 This group had been established in January 1995 to consider arrangements to support children affected by criminal or children's hearing court proceedings. It was supported over three years in its deliberations by commissioned research, and the findings were published together with the working group's recommendations (Plotnikoff and Woolfson, 2001). The research was in 2 phases; mapping of current child witness policies and practice, and study of 5 pilot exercises designed to test different aspects of a proposed child witness support structure. Inconsistencies in approach were found, suggesting to the group that a Memorandum on its own had not delivered the " desirable uniformity of approach" demanded by the SLC.

2.27 The study also challenged some views held by professionals, particularly the " underlying assumption" that the system would make adequate provision for the needs of most child witnesses so that only a few would require special measures. This view was based on several premises, including that child witnesses and their carers would be routinely advised about alternative ways to give evidence; that a child's needs would be communicated to those making decisions about evidence-giving, and _that the child's views would be taken into account . Instead, it was reported that:

"The picture presented by this study, both in evaluation of pilot cases and from the wide range of interviews conducted over the past three years, suggests that none of these premises is well founded. […]

"The views of professional participants as to children's abilities to cope often differ from those of the children and their carers. While it is true that many young witnesses appear unaffected by their court involvement, many others are deeply distressed even though this is not always apparent in the courtroom. Trauma is not related exclusively to the nature or seriousness of the offence. Without routine feedback from children, their carers and those supporting them, the claim that the current system allows most young witnesses to give evidence 'without suffering undue trauma and stress' cannot be substantiated." (Plotnikoff and Woolfson 2001, pp.97-98)

2.28 The Lord Advocate's Working Group's 16 recommendations were published in 2001 (and are shown in annex 1). The group considered that strategic implementation of its package of recommendations as a whole would " again put Scotland in the forefront of child witness policy and practice"..

2.29 In 2001, a Child Witness Implementation Group was established to implement the working group recommendations, and in January 2004 the SE Vulnerable Witnesses Unit ( VWU) was established. The main role of the SEVWU child witness branch was to co-ordinate the Lord Advocate's recommendations, and on completion of the majority of its work the branch was subsumed within the VWA implementation branch of the VWU. The VWU sponsors VSS, and is responsible for the Scottish Strategy for Victims (Scottish Executive, 2001a), as well as a number of other current initiatives. The Unit now produces a newsletter, Vital Voices, and sponsors the website Witnesses in Scotland (launched in December 2006 ⁴).

Vital Voices

The Executive issued further consultation on support for child witnesses in 2002 (Scottish Executive, 2002), and an analysis of responses (Fitzpatrick, 2002). Respondents felt that a child could still be treated in an intimidatory manner through coming to court or defence questioning. There had been technical problems and problems for people with disabilities. Opponents argued that screens or evidence on commission were preferable to CCTV, but supporters urged that the facilities be extended to all courts.

2.30 The consultation resulted in a policy statement (Scottish Executive, 2003a). It noted the measures already available but proposed further steps, including

• Automatic entitlement to use of special measures by child witnesses (aged under 16), to include those who were aged under 16 at the start of criminal proceedings who have turned 16 by the time of the court hearing.
• No requirement for a child aged under 12 to attend court to give evidence and
• A notification procedure for child witnesses, with a duty on the court to identify any vulnerable witnesses in a case.

2.31 The Vital Voices policy statement (Scottish Executive, 2003a), formed the basis of the Vulnerable Witnesses (Scotland) Bill. Annex 5 outlines the Bill's passage through the Parliament.

The Vulnerable Witnesses Act

2.32 The Vulnerable Witnesses (Scotland) Act 2004 (the VWA) is in 3 parts, covering criminal (Part 1) and civil (Part 2) evidence and procedure, and abolishing the competence test for all witnesses (Part 3). Section 1 of the VWA amends the Criminal Procedure (Scotland) Act 1995, so that the new section 271 of the 1995 Act defines a vulnerable person in 3 main ways:

• Where they are aged under 16
• Where they are aged 16 or over and there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of-

o mental disorder (within the meaning of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)), or

o fear or distress in connection with giving evidence at the trial

2.33 The 2003 Act defines mental disorder to include any mental illness, personality disorder or learning disability. People who are vulnerable witnesses will be able to apply to use special measures in giving evidence in court proceedings, and these are designed to protect the witness from the presence of the accused person in court, and in some cases to protect the witness from questioning by an alleged sexual abuser.

1 The special measures available in criminal proceedings, listed in section 271H, are:

• the taking of evidence by a commissioner;
• use of a live television link;
• use of a screen in court;
• use of a supporter;
• taking evidence in the form of a prior statement (e.g. visual recordings); and
• any other measures that Ministers may introduce by statutory instrument.

2.34 Under section 271A, the use of a live television link, screen or supporter in conjunction with one of these, are all defined as " standard special measures". Children have an " almost automatic" entitlement to these. The court is to make an order authorising these, unless it is satisfied that this will give rise to a significant risk of prejudice to the fairness of the trial, or otherwise to the interests of justice, and that risk significantly outweighs any risk of prejudice to the interests of the child. [This is not in line with the Council of Europe's Recommendation 97 (13) on intimidation of witnesses, which makes the welfare of the child the paramount consideration (see above).]

2.35 Any party citing a child as a witness shall lodge a child witness notice ( CWN), whether or not special measures are sought for the child to give their evidence. The CWN shall specify the special measure ( SM) or measures they consider appropriate, and shall also specify if no SMs are required, informing the court about the views of the child in either case. The CWN is to be lodged with the court a fixed period before the trial diet or preliminary diet (the time limits as passed in the Bill for solemn proceedings in the High Court and Sheriff Court were subsequently amended by the Criminal Procedure (Amendment) (Scotland) Act 2004; see below). At the same time the party citing the child witness must also intimate the CWN to the other parties to the proceedings.

2.36 Applications for the use of the non-standard special measures must be authorised by the court " if satisfied on the basis of the notice that it is appropriate to do so". This means that the use of prior statements or evidence on commission have a slightly higher test applied to their use.

2.37 Part 2 of the VWA provides that the same SMs apply to civil proceedings, with the exception of prior statements. This is not to say that recorded evidence cannot be used as evidence in civil proceedings, including children's hearings, since these routinely use prior statements, hearsay being admissible in most but not all children's hearing applications.

2.38 New section 271B makes further special provisions for children aged under 12 acting as witnesses in cases concerning certain serious offences, including offences of a sexual or violent nature, abduction, and plagium (theft of a child). The court should not in effect require the child witness to be present in any part of the court building unless satisfied that the child has expressed a wish to do this and it is appropriate, or if the court determines that there is a significant risk of prejudice to a fair trial.

2.39 Subsequent advice sought by the SE clarified that this referred to requiring the child to attend any court building, because the intention was that children should not have to meet persons who might be habitués of such places (Scottish Executive, 2004e). In other words, it is not enough to use a TV link room from another court building.

2.40 Appropriate SMs in such cases are evidence on commission or a live TV link to a remote location which is not within a court building. The Act makes it no longer possible for an accused person to conduct their own defence in these cases involving a witness under the age of 12. This applies also to any proof relating to a victim statement and to precognition.

2.41 For all witnesses aged over 12, the Act enables the court to use its discretionary power to prohibit the accused person from conducting their own defence in cases where this will protect the interests of a vulnerable witness. The Act also restricts the admissibility of evidence in establishing the grounds for referral to Children's Hearings in certain cases involving sexual abuse, by providing a general rule that evidence or lines of questioning about character and sexual behaviour are no longer admissible in such referrals. This applies to a child who has been referred or any other witness whose evidence is to be admitted.

2.42 (Adult) vulnerable witness ( VW) applications are introduced by section 271C under a similar framework to child witness notices. Adults for the purposes of the Act are aged 16 and over, and under section 271 are to be treated as vulnerable witnesses where there is a significant risk that the quality of their evidence will be diminished, either because they have a mental disorder or because of their fear or distress about giving evidence at the trial.

2.43 Adults who are recognised as vulnerable witnesses have no automatic entitlement to use of the measures, but are able to apply. In determining whether a witness should be treated as vulnerable because of fear and distress and be eligible for the special measures, judges are to take account of the external circumstances of witnesses. These factors are set out in section 271. They are wide-ranging and include:

• the nature and circumstances of the alleged offence and of the evidence which the person is likely to give;
• the relationship between the person and the accused person;
• any behaviour towards the witness by either the accused or other relevant persons and
• any personal characteristics of the witness that may render them vulnerable in a specific case, for example their age and maturity, their ethnicity, sexuality, religious or political views and their domestic and employment circumstances.

Part 3

2.44 Part 3 of the VWA abolishes the competence test for all witnesses. The test was used mainly to establish whether a child could understand the difference between truth and falsehood, and understand the need to tell the truth in court. The abolition of the competence test means that there is no longer a need for preliminary judicial examination of witnesses to determine ability to testify, although the court will still be able to use discretion about whether to place a witness under oath.

2.45 Abolishing the competence test for all witnesses (it was possible to challenge the competence of an adult witness as well as of children) was a measure generally supported by respondents to the consultation on the Bill, with a few notable exceptions, primarily from the judiciary. Section 24 of the Act states that for criminal and civil proceedings the court must not, at any time before the witness gives evidence, take any step intended to establish whether the witness understands the difference between truth and lies, or the nature of the duty of a witness to give truthful evidence. The use of the competence test had been removed in 2000 for civil proceedings (TvT 2000 SCLR 1057) and the Act confirmed this judgement.

2.46 It is widely believed that such a test did not ensure the truthfulness of a child witness. This argument was repeated during debates accompanying the passage of the Bill. For example, the Deputy Justice Minister Hugh Henry said that;

" The bill contains many other supplementary provisions that complement the aim of ensuring that witnesses' voices are properly heard, such as the abolition of the competence test. The court should have the best evidence, and the barriers that many regard as artificial and which prevent a vulnerable person from speaking up must be removed. The voice of a vulnerable person is every bit as valid in a court as any other person's voice is. It is not right that vulnerable people should have to subject themselves to a competence test for their voice and evidence to be heard" (Justice 2 committee meeting no. 8 2003, 30 September 2003; col 172).

2.47 The abolition of the test means that it is now for the judge or jury to determine reliability and credibility of witnesses in the context of the case and the evidence led. The Guidance Pack on the Act's special measures states that:

"While the Act prohibits the use of the competence test in criminal and civil court proceedings, this may raise the question for practitioners about its application to other stages of proceedings, in particular the investigative interview. It is no longer expected that a child or vulnerable adult (for example an adult with a learning disability) needs to demonstrate their understanding of the need to tell the truth or the difference between telling the truth and telling a lie. However, the court will still have to make a judgement of the witness's truthfulness and reliability, therefore any interview should still clarify, in age appropriate ways, the witness's level of understanding. This exploration will assist the court in determining issues of credibility and reliability.

"The guidance on "Interviewing Child Witnesses in Scotland", paragraphs 66-71 will be reconsidered, to take account of the change in legislation". (Scottish Executive, 2006; chapter 11)

2.48 This has not yet been done, and recent research for the Executive (Richards et al, 2007) has shown that the situation has resulted in confusions about whether investigative interviewers should still be testing a child's understanding of truth and lies at all, and to what degree if so.

Memorandum to the Bill; financial implications

2.49 The Explanatory Notes and other accompanying documents, including the financial memorandum to the Bill ( SPCB, 2003), outline the Executive's intentions and best estimates at the time of the Bill's costs and consequences. The financial memorandum states:

"Of particular financial relevance is the fact that more witnesses will give their evidence from outwith the court building, by way of a live television link, or by video recorded evidence on commission. There will be a presumption that a child witness under 12 who has to give evidence in a sexual or violent case will give his or her evidence by one of these methods.

"The costs on the Scottish Administration associated with these provisions will fall mainly on the Crown Office and Procurator Fiscal Service, the Scottish Court Service, legal aid, judicial salaries and the Scottish Children's Reporter's Administration. There will also be some additional costs for the police and local authorities, and individuals in civil cases." ( SPCB 2003, p. 12)

2.50 To estimate costs the SE drew upon a research study of High Court witnesses, WS statistics and Crown Office figures, using the highest in each case.

2.51 The costs were based on 6,700 child witnesses being cited to give evidence each year, of whom around 2,000 would go on to give their evidence, plus perhaps 250 uses each year of evidence on commission, and 400 uses of remote live television link. This was on the premise that " Child witnesses under 12 in sexual and violent cases will automatically give their evidence away from the court building, either by evidence on commission or a remote live television link".

2.52 For adults, the memorandum worked on the basis of Home Office calculations suggesting vulnerable witnesses in around 5% of cases, supported by WS statistics which broke the 5% down to 12% of High Court cases, 7% of sheriff solemn cases and 4% of sheriff summary cases. This led to estimates of " 150 adult vulnerable witnesses each year in the High Court, of whom 50 will go on to give their evidence, 370 vulnerable witnesses each year in sheriff solemn proceedings of whom 175 will go on to give their evidence, and 1,500 vulnerable witnesses each year in sheriff summary proceedings of whom 400 will go on to give their evidence".

2.53 COPFS provided estimates of the costs of preparing CWNs or VW applications (around £150 in the High Court and £90 in sheriff and jury trials). It also provided estimates for the cost of preparing specialist reports to support applications, of around £300 in all cases. To estimate overall costs, the Memorandum assumed that specialist reports would be produced for all witnesses cited in the High Court, and for all children and half of vulnerable adults cited in sheriff and jury trials. Including sheriff summary cases, where the memorandum allowed for specialist reports for a quarter of all VWs, and the cost to COPFS of hearings to deal with applications, adjusting its IT system, and uses of each special measure (over £400,000 a year for evidence on commission for example), this gave an estimated cost to COPFS of £2.7 million a year. SCRA also included staff costs (£200,000 annually) for preparing applications and arrangements for SMs.

2.54 Costs to SCS included capital outlay costs. These did not seem alarming:

"Currently, nine of the 52 courts are equipped with CCTV. There may need to be a further modest provision for improved CCTV evidence in a number of key court locations, to which cases involving child witnesses could be directed. Ten courthouses could be equipped at a cost of £55,000 each. The total capital cost to the Scottish Court Service resulting from the provisions of the Bill is therefore estimated at £550,000." ( SPCB 2003 p. 16)

2.55 The annual additional resource costs to SCS were estimated at £774,000, the vast majority of which was for judicial salaries (£620,000, mainly concerned with hearings to deal with applications) with only £154,000 falling to SCS, mainly concerned with officials being required to be at remote locations or commissioners' hearings.

2.56 The additional cost of legal aid was assumed to be around £225,000 per annum and SLAB consequently said it had not been consulted about this figure and doubted its veracity.

2.57 Additional costs to SCRA were based on SCRA figures for 2,000 cases being referred from the children's hearing system to the sheriff in the previous year, and evidence being heard in 600 of these. Giving the more informal nature of the proceedings it was thought that there might need to be only an additional 200 hearings to deal with special measures. SCRA did not include any estimates for improving or implementing IT systems so its total costs were estimated at "additional staff costs in respect of making applications and arrangements for special measures totalling around £200,000 per year".

2.58 The costs of establishing rooms from which a witness's evidence could be visually recorded during joint police and social work interviews was allotted to local authorities; the Executive estimated that 30 such rooms might be needed across Scotland, and costs are further discussed in Richards et al (2007). In addition;

"There will also need to be extra rooms which can be joined via a live television link to court buildings. Fitting such rooms will cost around £20,000 per room. If 10 are equipped around Scotland then this will cost £200,000". ( SPCB 2003, p.19)

2.59 Including training costs and maintenance agreements for the equipment, this led to a total of £610,000 as an initial capital cost to local authorities of implementing the provisions of the Bill, and annual resource costs of £60,000.

2.60 In practice, the remote sites are being established by SCS, not local authorities, and no police/ SW interview suites have yet been established for the purposes of the Act outwith 2 pilot areas. Responsibility was envisaged to rest with local authorities during the Bill's passage because the intention was to use facilities provided by SCRA, but this was seen to be inappropriate, given SCRA's role in referrals to the sheriff from Children's Hearings. In February 2005 responsibility for establishing the remote sites was accepted by SCS⁵. This had implications for SCS budgets and responsibilities that were not appreciated when the Bill was produced.

2.61 In conclusion, the SE noted that it had erred on the side of caution, and hoped that there would not be as many hearings to decide on the matter of special measures at it had allowed for. It also hoped that;

"In addition, it may not be necessary in practice for specialist reports to be supplied with every notice or application, especially for children, who will have an automatic entitlement to special measures. These may be required more frequently initially, but the Executive hopes that over time the use of special measures for child witnesses will become more routine and decisions to award certain special measures will be made without the need for as many hearings or specialist reports". ( SPCB 2003, p.20)

2.62 The SE view is that phased implementation would allow costs arising to April 2006 to be absorbed within current spending plans with other capital and resource costs identified to be taken into account in budget allocations following the next spending review (at the time of writing spending plans ran from 2005 to 2008).

2.63 Bearing in mind the uncertainties involved, and assuming full implementation, the financial memorandum estimated the total costs of all agencies involved as being £1.2 million in one off costs (largely in setting up remote sites and court equipment) and some £3.95 million in running costs annually.

Other estimates of witness numbers

2.64 It is widely acknowledged that both the research and statistical bases for policy on child and vulnerable witnesses are not well developed (Reid Howie Associates, 2004; 2006).

2.65 The estimations made for the Bill's financial memorandum were outlined above. Some COPFS data for 2003-04 were made available soon afterwards (Scottish Executive, 2004d) but at that time child witnesses were recorded by COPFS as aged 16 and under, inflating the figures. In February 2006 ⁶COPFS Management Information Division made some further data available, in which the definition of child witnesses had been changed to match the VWA one of under-16s.

2.66 These indicated some 4,000 Sheriff and Jury cases per year ⁷ involving some 1,000 child witnesses, of whom one fifth were under 12s. Of these, around 150 under-12s and some 600 witnesses aged 12 to 15 were actually being cited. During the same period, some 43,000 adults/witnesses of unknown age were cited. Of course not all will have proceeded to court, still less have given evidence, and the vast majority would have been non-vulnerable adult witnesses.

2.67 Data were also given for summary trials. Grossing up a one-month count ⁸ there may be around 150,000 summary cases per year involving some 10-11,000 child witnesses, of whom around a fifth, again, are under-12s. Over 1,000 under-12s may go on to be cited, and around 6,000 12-15 year olds. Some 300,000 adults/witnesses of unknown age may be cited in summary trials each year; these figures include all witnesses both professional and civilian.

2.68 In other words, a useful rule of thumb might be that Crown citations of child witnesses covered by the Act might increase ten-fold with the extension to summary cases. These are not firm figures, being based on a count from just one month, but they nevertheless form a useful and relatively reliable indicator of the scale of proceedings and citations.

Implementation

2.69 Implementation of the VWA was in four phases from 1 April 2005, when it came into force. There have been some changes to the implementation dates, but implementation was completed by April 2008 in stages outlined in table 1.1.

2.70 Implementation of the provision for taking evidence by a commissioner was due to take effect alongside other provisions from 1 April 2005, but was delayed " to allow further consideration to be given to a number of complex legislative and procedural issues" (Scottish Executive, 2005e). These issues concerned legislative intentions to exclude accused persons from conducting their own defence in certain cases involving sexual offences, or involving children aged under 12, and in certain other cases involving vulnerable witnesses; and to restrict questioning on a witness's character or sexual history. In terms of the Act, these intentions could not be realised if evidence was taken by a commissioner, therefore partial implementation of this provision began for certain cases involving non sexual offences from 30 November 2005 (for child witnesses) and 1 April 2006 (for adult witnesses).

2.71 There had also been some consideration of whether evidence take by a commissioner is worthwhile, if the only method available requires traumatised children to be in the same room as all the other commission parties. Applying for a combination of evidence on commission and CCTV link is not competent under the Act, but since a particular method of taking evidence on commission is not stipulated, it is thought that CCTV may be sought as the preferred method of taking evidence on commission on a case by case basis ⁹.

Commencement

2.72 The 2004 Act set out that the relevant date for identifying child witnesses whether aged under 16 or 12 is their age when proceedings commence, stating that ' proceedings shall be taken to have commenced when the indictment or, as the case may be, complaint is served on the accused'(Part 1, s271(3)).

2.73 The Vulnerable Witnesses (Scotland) Act 2004 (Commencement) Order 2005, Scottish Statutory Instrument 2005 No. 168, however, made on 17 March 2005, set out that phase 1 provisions of the Act's implementation for child witnesses ' apply only to 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'. It also set out that phase 1 provisions for child witnesses in children's hearings court proceedings ' shall apply only in respect of hearings of relevant appeals and applications which have been lodged on or after 1st April 2005'.

2.74 The Vulnerable Witnesses ( Scotland) Act 2004 (Commencement No. 3, Savings and Transitional Provisions) Order 2006, Scottish Statutory Instrument 2006 No. 59 set out the same savings and transitions for implementing the phase 2 provisions for vulnerable adult witnesses from 1 April 2006.

2.75 These commencement orders meant that witnesses in solemn proceedings where the case reports were received by the procurator fiscal before 1 April in the relevant year would not fall within the ambit of the 2004 Act. Their cases would proceed instead under the previous legislation for child and adult vulnerable witnesses.

2.76 So for example if an indictment was prepared after 1 April 2005 for a child aged under 16 but the report had been received before 1 April 2005, that case did not fall within the ambit of the Act. Similarly, witnesses in children's hearings court proceedings which were lodged with the court before 1 April in the relevant year would not be subject to the 2004 Act. The same arrangements applied to each phase of implementation of the Act, for example for adults.

2.77 This was not appreciated by any of the professional interviewed for this research, whose common expectation was that all indictments prepared after 1 April 2005 would be accompanied by a child witness notice. In fact, there was no such clear start point according to indictment date. This had implications for monitoring and evaluating the Act, since there was no way of distinguishing from court records which cases had been received by the procurator fiscal before 1 April, but COPFS was unable to suggest a more suitable means of sampling than using indictment date.

Other reforms to the Scottish justice system

High Court reforms

2.78 The Criminal Procedure (Amendment) (Scotland) Act 2004 (' CPAS Act', sometimes called the Bonomy Act), provided for new preliminary hearings in the High Court. These were intended to dispose of all preliminary matters including applications for special measures for vulnerable witnesses, and these provisions came into force on the same date as the Vulnerable Witnesses (Scotland) Act 2004.

2.79 The VWA was amended by the CPAS Act so that child witness notices should be lodged no later than 14 clear days before the preliminary hearing in the High Court, no later than 7 clear days before the first diet in the sheriff court, and no later than 14 clear days before the trial diet in any other case.

2.80 Another major effect of the High Court reforms was that Crown productions should be disclosed to the defence. The CPAS Act amended the 1995 Act to provide that the copy indictment served on the accused shall include (as well as previously a list of witnesses to be cited) a list of the productions to be put in evidence by the prosecution. The situation has since been addressed by the Privy Council and Crown practice guidance, to produce, in effect, full disclosure of Crown statements, including police statements. Judgments made by the Judicial Committee of the Privy Council in the cases of Holland (2004) and Sinclair (2004), had the effect of confirming that the Crown must disclose statements of witnesses who may be called at trial, including police statements.

Summary Justice Reforms

2.81 Summary criminal procedure deals with cases that are not sufficiently serious to be prosecuted in solemn procedure and these cases form 96% of all criminal cases in Scotland (Scottish Executive, 2005d).

2.82 These cases are heard by a sheriff sitting alone in the sheriff court, or by magistrates in the district courts. A key element of summary justice reform is to bring administration of the district courts within the SCS, rather than the current separate management by local authorities. District courts will start to be replaced by Justice of the Peace Courts in 2008.

2.83 Reforms to the summary justice system are progressing under the Criminal Proceedings etc. (Reform) (Scotland) Act, which received Royal Assent in February 2007. The reforms are based on the SE's 2005 report, Smarter Justice, Safer Communities (Scottish Executive, 2005d) itself a response to the recommendations made by the Summary Justice Review Committee in its report (McInnes, 2004). Systematic improvements to the court process outlined in the Criminal Justice Plan included in the 2005 report aim to promote greater speed and reduce wasted effort, particularly on the part of witnesses.

Witness support services

2.84 After piloting in 3 sheriff courts in 1996, the Witness Service ( WS) was rolled out in Scottish courts, covering all 49 sheriff courts by August 2002, and the High Court by July 2003 (Scottish Executive, 2003d). The WS provides practical information and emotional support to witnesses in solemn cases at court, helping them deal with unfamiliar surroundings and in giving their evidence, for example by WS staff or volunteers acting as supporters. It is managed by Victim Support Scotland ( VSS), and is fully funded by the Executive.

2.85 The Victims Information and Advice ( VIA) service has been introduced within COPFS, and roll-out of the service throughout Scotland was completed in December 2004 (Scottish Executive, 2005c). VIA officers are not prosecutors, although they work alongside them, providing a service to certain victims, witnesses, and to next of kin in cases of sudden, unexpected or crime-related deaths. In 2006, SCRA introduced its Victim Information Service, to provide victims of youth crime with information on the Children's Hearings System and on the progress of their case.

SE guidance

2.86 The SE in collaboration with all key agencies has issued a range of non-statutory guidance which has been issued both on-line and as folder inserts to all key agencies over a period of years. The Supporting Child Witnesses Guidance Pack (Scottish Executive, undated) includes several documents, each targeting a particular aspect of the system dealing with child witnesses. The series comprises guidance on:

• interviewing child witnesses;
• questioning children in court, including Lord Justice General Hope's 1990 Memorandum as an annex;
• conducting court familiarisation visits for child witnesses;
• therapeutic support for child witnesses;
• information on child witnesses, and
• conducting ID parades with child witnesses.

2.87 There are also supporting booklets aimed at child witnesses and their parents, in the 'Being a Witness' and Your Child is a Witness' series. Not all will be described here.

2.88 The first guidance issued in the child witness pack was the Guidance on Interviewing Child Witnesses in Scotland (Scottish Executive, 2003b), aiming to address recommendation 7.1 of the Lord Advocate's Working Group. It covers specifically investigative interviews undertaken by police officers and social workers in criminal cases but can be applied more widely by others in the criminal justice system. It seeks to improve the quality of investigative interviews and reduce the number of times a child is interviewed. It stresses the need for pre-planning, for a structured interview and for the use of highly skilled interviewers who hold post-interview briefings. Richards et al (2007) have considered how it might be adapted for the visual recording of investigative interviews.

2.89 The Guidance on the Questioning of Children in Court (Scottish Executive, 2003c) states that children should only be called as witnesses where this is necessary in the interests of justice; questioning should cause the minimum of anxiety and distress for the child. It sets out the duties of the court and practitioners in ensuring this and highlights the powers of the court in enforcing appropriate questioning. The guidance summarises basic elements of good practice including the "tone, content and manner" of questioning of children in court.

2.90 The Guidance on information about child, young and vulnerable adult witnesses to inform decision-making in the legal process (Scottish Executive, 2005a) advises the police on best practice standards in recording information through the SPR. This seeks the capture of vital preliminary information, while not expecting the police to assess vulnerability.

2.91 The guidance pack for child witnesses was supplemented in March 2006 by another, the Special Measures for Vulnerable Adult and Child Witnesses guidance pack (Scottish Executive, 2006). This includes guidance on applying for SMs, on taking the witness's views into account in choosing SMs, and detailed guidance on the use of each measure in turn, including circumstances where each may or may not be helpful. The pack includes a section (Part 10) on identifying adult vulnerable witnesses, and a Part 11 on the 'stand alone provisions', which include the new rules on the competence test, expert evidence and personal conduct of defences by accused persons.

Other guidance and standards

2.92 SCRA has also issued separate internal guidance to children's reporters entitled ' Child and Vulnerable Witness Pack', which includes a statement of SCRA policy on child witnesses, and guidance for reporter practice in relation to child witnesses, and vulnerable adult witnesses ¹⁰.

2.93 The Lord Advocate's Guidelines to the police providing information on vulnerable adult witnesses was finalised in March 2007 (Crown Office, 2007). This enhances the role of the police in the process of identifying vulnerability and sets out how this should be communicated to the fiscal. It says that this should be done in the 'remarks' section of the SPR until a revised SPR is available. A child witness's date of birth must also be given in the witness list. It also implies (p.5) that the use of the appropriate adult scheme may rise.

2.94 National standards for victims of crime set out the levels of service that victims and their families should expect when they are in contact with the criminal justice system, or with Children's Hearings and any subsequent court proceedings. The Executive's Scottish Strategy for Victims (originally published in 2001, updated in 2004, and reviewed in 2005) outlines national policy on better access to information; increased support; and greater participation in the criminal justice system.

2.95 The Crown works to its 2005 statement on the treatment of victims and witnesses ( COPFS, 2005), and to its disclosure announcement of February 2005, which provides that victims and next of kin can routinely obtain information on reasons for COPFS decisions. Solicitors are expected to follow codes of conduct, including the Code of Conduct for criminal work (Law Society of Scotland, undated) which sets out standards for members in dealing with victims and witnesses in criminal proceedings including precognition.

2.96 SCS has published a Court User's Charter ( SCS, undated) which states that people attending at a courthouse can expect the following provisions:

• A clearly marked reception/information point;
• Clear signposting;
• Adequate and comfortable accommodation;
• Reading material in witness rooms;
• Access to a public telephone;
• Sufficient clean toilets, and
• Refreshment facilities and toys for children (except in smaller courts).

2.97 SCS undertakes large scale surveys of court users to establish levels of satisfaction and the results of the 2004 (Progressive Partnership, 2005) 2005 and 2006 surveys ( MVA, 2005 and 2006) show consistently that improved time management (including not being obligated to wait at the court when not needed) and better provision of information are two issues that witnesses would most like to change.

Legislation, practice and evaluation in England and Wales

2.98 In 1998 the Home Office published Speaking Up for Justice, the result of a multi-disciplinary group set up to improve protection for vulnerable or intimidated witnesses ( VIWs). It made 78 recommendations, and its legislative requirements were implemented by the Youth Justice and Criminal Evidence Act 1999 ( YJCE Act).

2.99 The YJCE Act set out a range of special measures to assist VIWs including children (defined as under the age of 17) to give their best evidence in criminal proceedings. Under the 'primary rule', the court starts from the assumption that the child will normally benefit from the admission of video as evidence-in-chief, unless this is against the interests of justice. The rest of the evidence is normally given via CCTV link. Some child witnesses (defined in section 21, giving evidence in sexual offence, violence and abuse cases) were given 'special protection' over and above the primary rule. Under s.21 it was virtually automatic that in such cases a special measures direction would be granted for a video recording to be admitted as evidence-in-chief (subject to interests of justice tests, normally considered at the preliminary hearing) and for any other evidence to be given via CCTV link.

2.100 Guidance on the YJCE Act was issued in 2001. Achieving Best Evidence (Home Office et al, 2001) ( ABE) replaced an earlier 1992 Memorandum of Good Practice, and draws together guidance not only on using the Act to help witnesses throughout the criminal justice process, but on interviewing vulnerable witnesses.

2.101 The Act had provided (section 28) that children could pre-record their cross-examination, but a Written Statement in 2004 (Hansard, 21 July 2004) announced that this section would not be brought into force. The Statement also announced that section 21 would be reviewed, which was having the effect of removing choice for witnesses under 17 in cases of sex or violence by having certain special measures (such as visually recorded evidence-in-chief or live TV links) applied to them, whether they wished for them or not.

2.102 Plotnikoff & Woolfson (2004) had interviewed 50 young witnesses in England, Wales & Northern Ireland. 44 of these had given evidence by TV link at court, one from behind a screen and 5 in open court. 39 had made a videotaped statement. Of the 44 who used TV link, only 9 said they had chosen to do so, although 28 preferred this method. 18 said they had not been given a choice about anything associated with being a witness, and only 10 felt they had had a choice about how to give evidence. In December 2004 when this report was published, the UK Government announced a review of how children give evidence in court proceedings. ABE has not yet been revised.

2.103 A Code of Practice for Victims of Crime (Office for Criminal Justice Reform, 2005), or the Victims' Code, came into force in April 2006. Joint police/ CPS Witness Care Units ( WCUs) provide local support to victims and prosecution witnesses post-charge under the Victims' Code, and at the time of writing there were 165 units across England & Wales.

2.104 A consultation was launched on a Witness Charter to complement the Victims' Code in November 2005 (Home Office et al 2005). The police will identify VIWs, and offer special support. The witness statement form has been revised to provide space for this on the final page, including the need for special measures. For prosecution witnesses, this is passed by the police to WCUs or, if a defence witness has given a statement to the police, to the defence. For defence witnesses who give a statement to the defence only, it will be for defence lawyers to assess and meet their needs. The draft Charter proposed that the police keep the witness informed about the progress of the investigation, and the WCU after the defendant has been charged.

2.105 An analysis of the 85 responses to the consultation (Office for Criminal Justice Reform, 2006) indicated broad welcome but there were some concerns about operational capacity, or raising expectations. In response, the UK Government said that some of the draft standards would be reviewed, in particular to reduce the burden on police forces arising from keeping witnesses informed, by phasing implementation in pathfinder areas. This will include a cost/benefit evaluation to inform national implementation, which was planned to be complete by April 2008, rather than 2007 as originally proposed.

2.106 In January 2006, following successful pathfinder schemes, a recruitment campaign for further witness intermediaries for VIWs in England and Wales was launched ¹¹.

Special Measures evaluations

2.107 There have been two major pieces of work for the Home Office evaluating the measures introduced by the YJCE Act. One focussed on the views of criminal justice agencies; the other on the views of witnesses.

2.108 In 2006 the Home Office published an evaluation of special measures for VIWs which indicated that the system was not working in practice as well as it should be. Burton et al (2006) interviewed 69 justice professionals, in two phases between 2000 and 2003. This evaluation found that the proportion of agency-identified VIWs was around 9%, although in a series of telephone interviews, 45% of the samples of 500 witnesses contacted self-identified as VIWs, leading to a conservative estimate that perhaps 24% of witnesses were VIWs.

2.109 While early identification of VIWs was 'vital', the police continued to have difficulties in identifying VIWs, especially those with learning disabilities, learning disorders or who were intimidated. Some VIWs, particularly children, were more likely to be identified, leading to a 'hierarchy' of witnesses. The police often did not flag up VIWs and the CPS rarely picked up those the police had missed, even those that were categorically VIWs. Many VIWs were instead identified for the first time by the WS at court, by which time it was too late for them to benefit from special measures.

2.110 The report concluded that while some areas of practice were capable of improvement without radical change, others need significant cultural change or even major legislative and structural change. While the focus of policy and practice tended to be the courts, effort needed to be directed at the investigation and pre-trial processes as much as the court processes, for more court cases to be successful. The collection of data for monitoring across and between agencies was also variable.

2.111 Research examining witness views (Hamlyn et al, 2004) was based on interviews with over 1,100 witnesses from two national survey phases. Results were compared to the national Witness Satisfaction Surveys ( WSSs) carried out with all witnesses. Although the research concluded that efforts to improve services for VIWs had improved witness experiences from 64% overall satisfied to 69% across the two survey phases, this was at a level of probability which is generally taken to be statistically non-significant.

2.112 Compared to the WSS 2002, VIWs were less satisfied with their experience of the criminal justice system than witnesses in general, so a gap remained. When special measures were used, they were valued highly, but 68% of VIWs were still not being consulted about special measures and anxiety levels remained high. There was therefore some way to go before the needs of VIWs were fully met.

Summary

2.113 The VWA was implemented in phases, beginning on 1 April 2005 when its provisions came into force for child witnesses (aged under 16) in High Court and sheriff solemn cases, and in referrals to the sheriff from the children's hearing system. A year later on 1 April 2006 its provisions were extended to vulnerable adult witnesses in solemn proceedings, and the final phase was extension to summary cases, although consideration of this was specifically excluded from this research.

2.114 The Act, and guidance issued in conjunction with it, seeks to fulfill some of the recommendations of the influential Lord Advocate's Working Group. It introduced a range of 'standard special measures' which were the use of a TV link, screen, or supporter in conjunction with one of these. It also allows for non-standard special measures, of using prior statements, a supporter alone, giving evidence via a remote link away from the courthouse, and giving evidence to a commissioner. Simultaneously, other non-statutory policy measures such as the rolling out of the WS and VIA were taking place.

2.115 Much of this support was already available within the Scottish justice system, but the Act seeks to remove much discretion, so that all witnesses aged under 16 are entitled to special measures, and those aged under 12 in certain cases should not attend a courthouse. It aims to reduce the need for specialist reports to support applications for these measures, and make it more straightforward to apply for measures for adult vulnerable witnesses.

2.116 The Act also abolished the use of the competence test for witnesses; a measure widely welcomed. Several working groups, consultations and research over the past 2 decades helped the Bill reach the form in which it was introduced, including work on definitions of vulnerable witnesses. Many child protection and other groups representing adults with vulnerabilities felt the Bill did not go far enough; but the Parliament considered that overall it struck the right balance between the needs of witnesses and the rights of an accused person.

2.117 The financial memorandum to the Bill was generous in allowing for hearings to determine special measures applications, and specialist reports to support applications, but relatively conservative regarding the number of in-court CCTV links and remote sites required. Also, the cost of establishing these was allotted to local authorities, whereas SCS has become responsible for setting up and running remote sites. SLAB also had reservations about the costings. Only COPFS included costs for monitoring of implementation, despite many assurances by Ministers that this would come into effect with the Act. The costs to the police of running VIPER parades so that SMs could be used were not included in the financial memorandum. The Bill's accompanying documents also pointed out the difficulties there are in estimating the numbers of witnesses within the Scottish criminal justice system.

2.118 Scotland is not alone in extending the use of special measures for vulnerable witnesses. Within a context of increasing international awareness, equivalent legislation providing for special measures was passed in England & Wales in 1999. While the use of SMs there has become widespread, this has possibly been at the expense of witness choice and there are also difficulties in identifying VIWs, so the system is not without its issues.

2.119 There are however current differences in details nationally (e.g. use of intermediaries, refreshing the witness using their prior statement, the Witness Charter and WCUs). Scottish Ministers gave assurances during the Bill's passage that the intermediaries pilots would be kept under observation, and those pilots have since been extended. Since the current research ended, the Scottish Government has consulted on matters concerning disclosure, including refreshing witnesses, in response to the Coulsfield Report (Scottish Government, 2007).

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