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CHAPTER FOUR A MONITORING FRAMEWORK FOR THE ACT

Introduction

4.1 This chapter describes the attempts being made by Scottish justice agencies to put in place systems to count the number of witnesses in the justice system, and more ambitiously, to flag up witnesses who may be vulnerable so that information about their needs can be passed on from agency to agency with that person's records, as they travel through the justice system. Such systems would also be able to address undertakings given during the passage of the Bill that its provisions would be monitored. Development of such systems, that do not stand alone but pass information electronically between one another, has long been anticipated, through the project known as ISCJIS, the Integration of the Scottish Criminal Justice Information Systems.

4.2 However, the findings indicate that the agencies are starting from a low base. SCRA collates no information on witnesses and has no witness database system, although SCRA reports that due to scoped changes made to its referrals administration database ( RAD), this will not be the case in future. ( ISCJIS is not relevant to non-offence referrals to the Reporter or Children's Hearings.) SCS statistics are currently collected manually and are low level. Only COPFS is in the process of implementing a system, fed by information received from the police in the standard prosecution report ( SPR), which may prove able to provide comprehensive information (on prosecution witnesses alone).

Background

4.3 The Lord Advocate's Working Group, which worked from 1995 to 2001, noted that;

"A key feature of any child witness strategy is the ability to identify cases when they are reported to the police and at all stages as they progress through the justice system. At present, there is no mechanism to do so in either criminal or children's hearing court proceedings. Flagging up is important in order to facilitate planning and to prompt the consideration of appropriate measures.

"Information is also needed about the volume and type of cases dealt with in order to determine resource requirements. In the future, the Integration of Scottish Criminal Justice Information Systems ( ISCJIS) Project will allow all criminal justice agencies to share the same information from the stage when a complaint of a crime is first recorded until final disposal and release from prison." (Plotnikoff & Woolfson 2001, p.129.)

4.4 Little has changed. ISCJIS has long been held up as being the solution to information needs and witness flagging, but it is not yet a reality. The researchers in the current evaluation have been through an extensive process of extracting information about what ISCJIS can deliver, only to find that the perception of what ISCJIS should do and comprise is held by some to be far less ambitious than that envisaged by the Lord Advocate's Working Group (above).

4.5 The information which often originates in the SPR and is collated and added to by COPFS is used by VIA from where it feeds the WS, but it does not yet appear to flow in any systematic manner into SCS. For instance, although guidance exists within COPFS which seeks to enforce the legislation (e.g. that CWNs or VW notices or applications at the bar should be submitted) sheriff clerks talked of child witnesses still frequently turning up at court when the fact that there were child witnesses in the case had not been communicated to them. Witness Services also reported children being unexpected by the court. One simple remedy that was suggested, for example, was that the daily witness lists received by the courts from the fiscals could usefully show the age of (child) witnesses. The mechanisms in place (submission of notices, notification of ESDU) rely on individual adherence to guidelines rather than electronic or mandatory systems.

4.6 This is despite recommendations of the Lord Advocate's Working Group, made over 5 years ago, that statistics should be collected on young witnesses, including the number of young witnesses in the criminal justice system and in Children's Hearings court proceedings. More ambitious requirements included data on delays, rescheduling, medical examinations, and mechanisms for flagging up young witness cases, to help achieve a culture of urgency.

4.7 The Working Group asked the Glasgow procurator fiscal's case marking unit to count children in police reports for a 4 week period, which suggested several hundred children being cited annually in criminal proceedings in Glasgow. The Group asked SCRA to undertake a similar exercise:

"The Scottish Children's Reporter Administration agreed to monitor the number of child witnesses in reporters' referrals in Glasgow beginning in April 1998 but no figures had been supplied at the time of writing this report." (Plotnikoff & Woolfson 2001, p.93.)

4.8 This lack of information was seen as a serious deficiency in the system; indeed, one of the Working Group's conclusions was that "More needs to be known about Children's Hearings court proceedings" and a recommendation was made to that end. One of the pilots initiated for the Working Group considered resource needs, and noted that "Estimating the number of child witnesses requiring support and preparation was handicapped by the lack of information about numbers in the system" (Plotnikoff & Woolfson 2001, p.92).

4.9 By the time the Vulnerable Witnesses Bill was introduced into the parliament in 2003, the situation had not changed ( SPCB, 2003), although the explanatory memorandum to the Bill was able to make some estimations (see chapter 2). Around the same time, a scoping study on information on victims and witnesses (Reid Howie Associates, 2004) found:

• Lack of clear distinction between definitions of victims and witnesses;
• Gaps in the information collected about victims and witnesses; and
• Unclear procedures for tracking victims through the criminal justice system.

4.10 The report found differing practices in data collection across the 13 statutory and voluntary agencies that gathered information about witnesses. There was no agreed standard for data collection, no core dataset, nor was there a method for reliably counting the total number of witnesses in the system.

4.11 Recent research (Reid Howie Associates, 2006) has found that information about witnesses remains a significant gap in Scottish criminal justice data; current information systems do not allow victims and witnesses to be tracked through the justice system except through primary research. It was still not possible to calculate what proportion of victims and witnesses are supported, nor is there information on the effectiveness of support, notably because of the difficulties in obtaining witnesses' and victims' views (partly because of the methodological difficulties in investigating issues relating to victims and witnesses).

ISCJIS

4.12 An ISCJIS Project Board was formed in 1994 (Scottish Executive, 2001b) to co-ordinate work on automatic data transfer between the computer systems of Scottish criminal justice organisations. The board initially comprised ACPOS, COPFS, the Scottish Courts Administration ⁴², the Scottish Prison Service ( SPS) and the then Scottish Criminal Record Office ( SCRO⁴³). It was later joined by District Courts, SCRA, SLAB, DVLA and ADSW members, with the Central Computer and Telecommunications Agency and Home Office also represented.

4.13 The aim is improved communication between criminal justice organisations, so that agreed information can be passed from one organisation to another to save repeated data entry, increase speed of communication and improve data quality. ⁴⁴ISCJIS is in essence, a series of data sharing protocols, to standardise code lists and data to enable information to be transferred efficiently. It envisages links between the various systems of the Scottish criminal justice organisations creating a unified network with SCRO's 'Criminal History System' ( CHS) database at the hub ⁴⁵.

4.14 An ISCJIS 'primary loop' (which linked police, COPFS, SCS, District Courts and SCRO) was launched in 2001 in Aberdeen. The primary loop is a basic link between the police, Crown, courts and SCRO. It enables the SPR to be sent to both the fiscal who marks the case and forwards it to the relevant court, and to SCRO where a pending case is created. Once the case is complete, the disposal is sent to SCRO where it is recorded on CHS.

4.15 Little information is available concerning progress on ISCJIS, but all Scottish police forces now submit SPRs to the fiscals automatically. According to the Scottish Justices Association, all sheriff court summary disposals automatically update SCRO, as do Aberdeen, Dundee, Glasgow and Edinburgh district court disposals. Next steps include: ⁴⁶

• local authorities 'being pressed to participate';
  
• SCRA is working on system enhancements which will enable its full participation;
• work to include sheriff solemn and high court business is progressing;
• pilot in Aberdeen Sheriff Court to assess the impact on sheriff courts accessing police rostering information when setting trial dates;
• ISCJIS pilot projects … complete or underway in a number of local authorities; and
• Eight ISCJIS regional implementation groups which meet every 8 weeks, which include local authority ISCJIS lead officers, COPFS, SCS and the police.

Commitments to monitoring and evaluation

4.16 Commitments have been made regarding annual reporting on implementation of the Act ⁴⁷, so assessing the monitoring framework for vulnerable witnesses and proposing adjustment where necessary was a key objective of the current research. These commitments were made at each stage during the passage of the Vulnerable Witnesses (Scotland) Bill.

4.17 Members of the Justice 2 committee expressed concerns during stage 1 about how the provisions (particularly the special measures) would work in practice, not least because it was widely recognised that enactment would need a change of attitudes. Submissions to the committee were concerned that practice would need to be monitored. Arranging training, producing guidance and the phased implementation also led to questions about monitoring.

4.18 The committee took evidence from the Executive's Bill team at its meeting on 2 September 2003, where firm assurances about monitoring were made. Responsibility for monitoring was to be a joint responsibility, with the Executive working:

"with the agencies involved in implementation to find out how best we can build monitoring systems into the processes that they are putting in place. Monitoring will be a joint responsibility, but we will be keen to gather information about implementation as the plans roll out. […] We want to implement procedures for monitoring as soon as we can so that we can constantly gather information about how implementation is working". ( SPOR, Justice 2 committee, 2 September 2003, col 58)

4.19 During stage 2, amendments were introduced regarding monitoring. Arguing that these were not necessary, the Deputy Justice Minister said:

"I give a commitment to Karen Whitefield and the committee to keep the operation of the legislation under review. We are as determined as anyone to ensure that the legislation works, and works well.

[…]

Part of that on-going work will be to keep under review the effectiveness of special measures, so that the aim of meeting witnesses' needs is achieved. The [ VWU] will seek the views of witnesses as well as pursuing formal research into the effectiveness of the measures. I am not convinced that a new section is required to make that happen. I hope that there are already sufficient mechanisms under which the Parliament can hold the Executive to account and scrutinise the implementation of legislation." ( SPOR, Justice 2 committee, 2 December 2003, cols 293-294)

4.20 Assurances were accepted. Monitoring was again addressed in the stage 3 debate:

"It has been stressed time and again this morning that we are committed to ensuring that the bill is implemented successfully. Early identification, training and monitoring of the provisions will be vital in ensuring that the bill is as effective as we want it to be." (Justice Minister, SPOR, 4 March 2004, col 6316)

4.21 Indeed, one of the last remarks made before the Bill was passed emphasised this point:

"I am convinced that the potential for realising the bill depends on the need to encourage the culture change to which the Minister for Justice referred, whether through training or guidance or by involving witnesses. What is important is monitoring the effectiveness of implementation." (Jackie Baillie, SPOR, 4 March 2004, col 6325)

Costs of adapting IT systems

4.22 The financial memorandum to the Bill ( SPCB, 2003) included a one off cost of £50,000 estimated by COPFS as needed to build a vulnerable witness tracking system into their existing IT facilities. This cost was met from existing COPFS spending plans ⁴⁸. No other agency estimates included additional resources for monitoring purposes. The SE and Crown Office told the Justice 2 committee ( SPOR, 2004) that they were " content with the overall costings" but stressed that the phased implementation of the Bill would allow for additional funding to be secured from future spending reviews should the costs prove higher than in the Financial Memorandum.

4.23 In its submission to the Justice 2 committee, SCRA was " confident that the £200,000 represents the best estimate of the additional costing of the Bill" even though this included no costs for developing a database and this research has shown that the SCRA system was not yet able to monitor its involvement in the Act. Similarly, SCS was " confident that the costing estimates in the Financial Memorandum are robust", although this could mean that it had already budgeted for adaptation to its IT systems.

Implementation steering group work on monitoring

4.24 A multi agency Vulnerable Witnesses Implementation Steering Group ( VWISG) was created to take forward measures to implement the Act, with one of 5 objectives being:

• To advise on the establishment of a system for monitoring, evaluating and reviewing periodically the impact and effectiveness of the Act, including the setting of performance indicators and the collection of information and specific research.

4.25 The group was chaired by the SE head of Criminal Justice Group, with VWU providing secretariat, and membership comprising additional representatives from SE ( VWU, Education Department, Development Department) and from VSS, VIA, Lord President's Office, SLAB, ADSW, COPFS, SCS, ACPOS, and SCRA. The first VWISG meeting took place 14 May 2004 ⁴⁹, where it was agreed that:

• there had to be a way of capturing robust information on numbers of vulnerable witnesses through electronic data transfer, and that there needed to be a mandatory field in the standard police report on vulnerable witnesses, though how this would impact on ISCJIS would have to be considered; and
• as a priority a survey should be carried out to establish likely volume of child/adult vulnerable witnesses going through the system as this would inform implementation issues, including timetable.

4.26 Several sub groups were formed, including for equipment and accommodation, which also had in its remit ⁵⁰ to " consider how the effectiveness of the Act once implemented, can be monitored and evaluated." However, the sub group identified this as a "medium priority work due to other pressures identified" ⁵¹.

4.27 Most of the sub group's work on monitoring and evaluation was drafting the research specification for the independent monitoring and evaluation of the Act, although the group noted the need for SCSESDU to be informed about applications to use CCTV and remote sites " in order that a clear picture of the demand […] be maintained and monitored. ⁵².

4.28 The sub group implicitly acknowledged the lack of existing data in developing the research specification ⁵³: " Priority tasks will include establishing a baseline for numbers of child witnesses and adult vulnerable witnesses which will help inform us as to levels of vulnerability and potential numbers eligible for special measures".

4.29 As late as September 2005 ⁵⁴, VWISG phase 2 members were advised by SCS " regarding existing data in sher iff courts and regretted that there had been no agreement as to what new data would have been helpful to the monitoring and evaluation process to allow members to start collecting from the implementation of phase 2 in April 05".

4.30 The state of readiness audits undertaken by the VWISG (in August 2004, February 2005, and June 2005), did not indicate that any work was being done or considered by the range of agencies included regarding monitoring of the Act.

Attempts to develop a monitoring system for the VWA

4.31 Analyses carried out by the researchers during the inception period showed that data to underpin a monitoring framework were very patchy. In an attempt to resolve this situation, the inception report of September 2005 identified collection of 3 main data fields as a minimum for monitoring the Act. The report noted that:

" Fewer, better quality data are more likely to be collected and useful than in-depth, resource-expensive data. We would envisage as a minimum:

• The numbers of child witness notices each year by court
  
• The numbers of adult vulnerable witness applications made each year by court
• The numbers of special measures granted" (MorrisRichards 2005, pp.52-53)

4.32 The report also noted that action was a matter of urgency, since the Act had already come into force. Since CWNs were to be submitted for all witnesses under 16 in cases reported to the fiscal from 1 April 2005, that field was also intended to provide the number of child witnesses in cases falling within the ambit of the Act; similarly, VW applications being made were thought to be the only proxy for numbers of vulnerable adult witnesses in the system.

4.33 The researchers also identified other highly desirable data collection fields:

• The type of adult vulnerable witness;
• The age of the child witness;
• Witness status (prosecution or defence, victim or accused);
• The type of special measure/s granted; and
• Applications heard in private (since removed, because fieldwork found that this was not happening in practice).

4.34 On the basis of these requirements, sources of data that could potentially be used for a monitoring framework were suggested:

• The police standard prosecution report ( SPR);
• COPFS flagging of court records for children (which was then for ages 16 and under);
• COPFSIT system to flag all cases involving vulnerable witnesses in the High Court (mentioned in the Bill's financial memorandum);
• Child witness notices and vulnerable witness applications after implementation;
• SCS annual reports - which had included information on use of special measures ( CCTV);
• Any returns made to SE by SCS on use of special measures;
• ESDU data on the use of CCTV facilities and any other special measures data;
• ISCJIS (whatever form it took);
• Witness Service database records;
• Children's Hearings System records; and
• COPFS statistics, including VIA statistics.

4.35 These possibilities were identified early in the research period, and the issues were considered by agencies represented on the research advisory group ( RAG) in October 2005 including SCS, WS, COPFS, VIA and SCRA.

4.36 Agencies agreed to consider how to progress the data collection proposals, and in the meantime a primary data collection exercise by COPFS was recommended by the researchers to provide data for the adult pre-implementation phase. This was to begin in November 2005, with the main purpose of forming an 'adult baseline'. Ultimately, however, COPFS did not find it feasible to undertake this exercise, which had a knock-on effect for the baseline work and meant that a co-ordinated monitoring framework became even more urgent.

4.37 The researchers again made proposals to address the situation in November 2005, including revised data requirements after agencies' comment. Because SCS reported inability to ascribe vulnerability to the categories in the Act covering adults, it was suggested that instead, identification of people who were adult vulnerable witnesses because of a mental disorder, and 16 and 17 year olds, while not ideal, would go some way to providing information about these more easily identified vulnerabilities.

4.38 In addition, the lists of essential and desirable data requirements were slightly recast. By February 2006 when a progress report was submitted and no further agreement had been reached by agencies, the researchers held discussions with the WS, SCS and COPFS (a meeting had already been held with SCRA) to progress a framework and submitted a further paper in May 2006. Several candidate sources were now ruled out as insufficiently robust:

• SCS annual reports;
• Any returns made to by SCS to the SE on the use of special measures;
• ESDU data;
• ISCJIS; and
• WS database records (since the WS does not come into contact with all witnesses).

4.39 SCRA at that time reported that they were still progressing their new data collection arrangements for measures under the Act, and it was hoped that additions to SCRA's Referrals Administration Database ( RAD) could include the required fields.

COPFS data

4.40 COPFS holds the most comprehensive figures on witnesses, with the major drawback for monitoring purposes that it deals only with prosecution witnesses. By 2006 its IT system had been adapted to define child witnesses as under-16s, in line with the VWA.

4.41 In March 2006 the researchers met with a COPFS representative who explained how the COPFSIT system was being adapted to record figures for the VWA. The COPFS database is known as PROMIS, and the system is in 2 parts; a witness and case information side, and a document side. The COPFS Future Office System ( FOS) was to amalgamate these 2 parts from April 2006 but still reside on top of the main PROMIS database ⁵⁵.

4.42 The system would rely on fiscals identifying and adding adult vulnerable witnesses, but not for adding children, which would rely on the police entering a date of birth in the SPR. The COPFS system now sets the child witness flag when it takes witness details from the SPR. If the period from the witness's date of birth to the date when the report arrives onto the system is lower than 16 years, the system sets the flag. If the police have not provided a date of birth in the SPR, no flag will be set ⁵⁶.

4.43 Although adult vulnerable witness applications would be recorded (using the guidance to define such witnesses), no 'category of vulnerability' would be recorded. COPFS reported that all CWNs would be recorded, including no special measures required, to ensure a notice was lodged in line with the legislation. In effect then, all applications are recorded irrespective of whether they are a CWN or VW application. Special measure applications would be recorded by 'primary' type (with the choices supporter/screen/ CCTV/remote link), and result (granted/refused/whether a hearing held). COPFS has options to record uses of prior statements and evidence on commission ⁵⁷. The system would be able to generate the following information:

• Number of cases with VWs;
• Number of VWs; and
• List of cases with number of VWs per case and PF numbers.

4.44 On a local fiscal office basis, managers would be able to obtain:

• Case (one entry per VW);
• Date of first hearing;
• By case; VW yes/no; and
• Type of 'primary' special measure, date of SM application (with ability to determine whether this was for an adult or child) and result of SM applications.

4.45 In March 2006 COPFS thought that these data fields might be extended to cover summary criminal proceedings, from April 2007 when provisions for witnesses in these cases were due to come into force. No IT changes would be necessary; only an extension of the system's use.

Information collected by SCS

4.46 In the High Court, the electronic case management system ( CMS) records details of each case including charge, the accused person's name, the PF and indictment numbers, and also electronic documents, notably the minutes of proceedings in the case. The search screen can be used, for example, to search on all or part of an accused person's name.

4.47 The High Court also keeps a miscellaneous applications register, and for cases in the register, CMS can be used to search on the accused person's name to provide the indictment number, and thus locate case papers in the books of Adjournal and sitting papers. In April 2005 administrative staff stopped adding applications for SMs to the miscellaneous applications register in the light of the High Court reforms and VWA; applications for children no longer needed to be made via miscellaneous applications to be heard at separate hearings. For the purposes of this research and for court data needs however, court staff again began recording in a separate spreadsheet all special measures applications made from November 2005. The indictment number is included on the spreadsheet, so these papers can be located directly without using CMS. This system relies on clerks in all High Court locations manually adding information to an Excel file, rather than a comprehensive database solution, however, and SCS indicate that anyone travelling with the High Court on circuit would not be expected to update the spreadsheet.

4.48 In the sheriff courts, all courts make monthly Management Information System ( MIS) returns to SCS; MIS is not a database but a means of compiling simple counts. When an application for SMs is lodged in a case, a member of staff notes this on an electronic template, forming the MIS return. Concerns were also raised at the RAG and by interviewees concerning the accuracy of these returns.

4.49 The sheriff court IT system for criminal proceedings is called COP, but researchers were not given access to this system. During the research period COP2 was being adapted for roll out from June 2007 and was in all sheriff courts from that date. It records some case management information including information for fines collection. In the High Court, all Sheriff Courts and the District Courts, it forms part of the 'primary loop' of ISCJIS by passing information back to the SCROCHS system. SCS has confirmed that the system has the potential to be extended for VWA purposes although it currently records no VW data and extension will not take place until after COP2 rollout.

4.50 Annex 2 describes the 'miscellaneous applications' registers kept by some study sheriff courts. In brief, these vary; the larger courts keep manual registers or ledgers, which provide counts of applications for SMs by the Crown, defence or reporter. Some of the entries vary and there is little quality control. None provide a means of linking to case papers, or of extracting data in a useable form; they provide simple counts only. Smaller courts make MIS returns only. Some courts had recently been transferring SM applications to spreadsheets, as well as or instead of ledgers, and this was the case in Glasgow from end September 2006. Courts were asked to keep details of case reference numbers to facilitate the research from October 2006, but during the research period these records did not include information (e.g. indictment, PF or case reference numbers or accused person's name) to enable linkage to case papers.

SCRA

4.51 Interviews with reporters for this and related evaluations indicate that little central information on witnesses is collated by SCRA. One reporter described that after a CWN had been lodged with the court and confirmed as intimated to the other side, the process was finished; the CWN was not kept for SCRA records, and this reporter had never been asked to tell SCRAHQ how many applications were being made. Nor was there any SCRA system that flagged up 'submit a CWN' although this is covered in the substantial internal guidance pack on child witnesses for reporters ( SCRA, 2006).

4.52 The researchers visited SCRAHQ in December 2005 to explore monitoring capability. At that time SCRA reported that its database ( RAD) was being reviewed, and the researchers were able to indicate fields that would be useful to include for VWA monitoring. The researchers were not able to have sight of the RAD database, however, since the information held on RAD is personal information, and SCRA does not allow access to this because of data protection and ethical reasons.

4.53 SCRA later reported that it could provide only total figures in cases that were referred to the sheriff court for proof or appeal, and that its database was at the development stage in regards to vulnerable witnesses prior to seeking funding from the SE for additions to RAD for collation of data on vulnerable witnesses. ⁵⁸

4.54 The published figures from SCRA indicate that in 2005-06, there were 3,435 applications from Children's Hearings to the sheriff court to establish the grounds for referral, and 508 appeals ⁵⁹.

Monitoring and evaluation sub-group

4.55 The SE convened a Monitoring and Evaluation sub-group of representatives from SE, SCS, COPFS and SCRA in July 2006, since asking agencies to provide on-going monitoring data was a matter for the SE (the researchers were to assess the framework and propose adjustment only). Although the researchers were not present, the researchers' May 2006 recommendations and understanding of the data available, following meetings with agencies, were put to the group by the SE. The table presented shows what the researchers thought would be available once the new COPFS system was implemented.

Table 4.1 The researchers' understanding of the state of readiness by May 2006

4.56 The group was to agree on means of providing short term outcome evaluation data for the Act (providing some data for this report) and on work towards a longer term monitoring framework, with which, for instance, SE statisticians might become involved. The SE minutes of the meeting show that in the short term and pending development of IT systems, it was agreed that collection of minimum data on child and adult vulnerable witnesses would begin across all courts from 1 October 2006. SCS and COPFS would collect and make available to the researchers short term monitoring data for the six month period starting October 2006. The SE produced a table of the meeting's agreements;

Table 4.2 The SE's table of the monitoring framework agreed

4.57 The minutes of the meeting expand further on some points;

• COPFS could collate information relating to applications made. SCS could collate information on what happens in court, i.e. special measures applied for (defence witnesses), special measures granted and special measures used. The data between COPFS and SCS could be cross referenced using case reference numbers. SCRA would need to collate information consistent with these systems.
• Clerks to record in court minutes special measure(s) used. Researchers could then use case reference numbers to cross refer applications to the court's record of proceedings.
• SCS agreed to pick up information on defence witnesses. In the short term, this will be on a manual basis.
• Consistency of manual and MIS returns could be improved if current template is scrapped and new template is introduced with a clear rationale to what information is required, why information is needed (outcome evaluation purpose) and for how long it will be required. All agreed it would be useful to have a clear template [ SCS would develop] setting out minimum data requirement.
• Issues such as applications being withdrawn should be picked up by researchers through interviews with those across the justice system.
• SCRA expressed their difficulty collating data manually due to resource issues [ SCRA would discuss IT system being extended; a detailed costed proposal would be put to the VWU].
• SCS agreed to ask clerks to manually collate SCRA minimum data in the short term.
• Statistical information collated would go to the Scottish Executive Justice Department statisticians. This could be done on a quarterly basis.

4.58 Use of SMs by witnesses was already being recorded in court minutes, but SCS were unable to confirm whether this was being done uniformly in all the study courts. Also, this was not as beneficial for monitoring purposes as having 'flagged case papers' or having cases 'flagged in the application registers'. When the researchers returned to the study sheriff courts for the final data collection exercises it was still not possible to track SM records to case papers, so the fieldwork still required individual examination of all case papers.

4.59 In the meeting COPFS also highlighted difficulty in collecting consistent information on the category of vulnerability for adult vulnerable witnesses and numbers of adult vulnerable witnesses cited (given that vulnerability was identified at a later stage and was for judges to decide once an application is submitted to the court). COPFS also queried the feasibility and value of recording numbers of child witnesses for the prosecution given that child witnesses for the defence would be unknown.

4.60 Since data on defence witnesses are a key gap, the researchers subsequently recommended considering whether SCS and COPFS data sources could be used together. For example, if child witness notices were lodged for all children as the Act requires, then by starting with the total numbers of CWNs from SCS, and subtracting prosecution numbers cited from COPFS, the numbers of child witnesses cited by the defence might be identifiable.

4.61 In September 2006, SEVWU raised the need to consider further how to collect information on witness category of vulnerability identified ⁶⁰ and the SE Equality Unit raised the need to collect information on faith and ethnicity. (The Race Relations Act places a statutory duty on public sector organisations to consider the impact of their policies on race equality.) The Equality Unit also advised of the need to collect information on gender and disability. Since the system was unable to provide information even on numbers of witnesses, the feasibility of meeting such needs seemed remote. Collecting information on category of vulnerability would not provide data on disability, since a physical or mental disability does not necessarily make a person a vulnerable witness, and there is also a test of whether any identified vulnerability will effect on quality of evidence, for the court to decide.

4.62 The researchers also asked COPFS in January 2007 for the data run as discussed previously and flagged up in interim steering group reports for the research advisory group. The data provided by COPFS and SCS are described below.

Data provided by SCS to the researchers

4.63 In April 2007, SCS reported to the SE that their understanding was, on the basis that details of Crown applications lodged would be generated from an automated COPFS system, that they had agreed to record defence and SCRA applications only. These of course form only a very small proportion of the SM applications handled by the courts, or SCS workload arising from the Act. Although the meeting minutes did record the desire to avoid duplication of effort, and that SCS would pick up defence applications, both the SE and the researchers had understood that SCS would record all applications.

4.64 SCS provided two tables, with all defence and reporter applications for special measures for the 6 month period 1 October 2006 - 31 March 2007. Only those courts that were not nil returns were included. There were no applications for adults from reporters or the defence in any sheriff court during this period, and no applications from reporters or the defence were refused. These data have been reformatted but otherwise unaltered;

Table 4.3 SCS records of defence SM applications nationally, Oct 2006-Mar 2007

Table 4.4 SCS records of reporter SM applications nationally, Oct 2006-Mar 2007

4.65 These are applications; it is not possible to identify which measures were used in court. Table 3.32 in the chapter on data collection at courts shows similar data, for reporter applications in the study sheriff courts only, for the past 2 year period. This shows that much of this information was already collected by the sheriff courts.

4.66 However, the MIS returns made centrally contain less information than do the courts' registers; they do not show the source of applications (defence or reporters or Crown). Nor did MIS returns during the evaluation period show whether special measures were granted (the monitoring meeting did not agree that SCS would record this, but rather that it would be explored by the researchers during interviews). Since the vast majority seem to be granted, it might be more helpful for the monitoring regime, if adapted, to simply record any refusals, which are very rare.

4.67 The former MIS returns have been discontinued by SCS on the basis that COPFS would be collecting data automatically, so applications by the Crown are no longer being counted by SCS, which is now collecting defence and SCRA figures only ⁶¹. These would, if added to COPFS figures, provide figures for all applications made, split by applicant (Crown, defence, reporter), which would be the most useful measure for any on-going monitoring regime.

4.68 During the research period, COPFS was not able to supply figures for Crown applications, as the next section discusses, and since SCS has ceased to collect these, this leaves a large gap in application records.

Data provided by COPFS to the researchers

4.69 In response to the researchers' request for the COPFS data run, in May 2007 COPFS provided a note to the research manager on the state of implementation of adaptations to their IT system FOS, supported by the PROMIS database. As noted, the system relies on human input for adult vulnerability so guidance was required.

4.70 COPFS reported that guidance had been issued to relevant managers to update the PROMIS system when cases were allocated for precognition, so as to record the number of adult vulnerable witnesses. The system would automatically record child witnesses as noted above (relying on information entered by the police in the SPR), and fields had been developed to show type of SMs sought and the outcome of applications, which could be manually recorded on the system.

4.71 During the first year of adult implementation, 302 adults were recorded by staff as vulnerable on PROMIS. This is fewer than 5% of the number expected for vulnerable adult witnesses cited in solemn proceedings as estimated by COPFS from a range of statistics including VIA referrals and case sampling to be in the region of some 6,750 a year.

4.72 For children, in the calendar year of 2006 approximately 22,360 witnesses were recorded on PROMIS with a 'child' vulnerability type. Being automatically generated, COPFS consider this to be a reasonably accurate record of the number of child witnesses reported, i.e. identified by police in the SPR.

4.73 This is of course before the marking stage so there is no way of knowing whether these cases will result in solemn, summary or no proceedings. Also, COPFS cannot tell from the system what proportion of those child witnesses were actually cited to give evidence nor the number of CWNs that were or ought to have been lodged with the court (it estimates, again using VIA referrals and case sampling, that some 2,050 child witnesses are cited in solemn proceedings in the course of a year).

4.74 Since April 2005, i.e. for the first 2 years of implementation, 146 applications were lodged on the COPFSIT system. As COPFS points out, this is clearly an under-recording of the numbers, since there should be over 2,000 CWNs a year alone and an exercise within COPFS has shown 'numerous cases' in which CWNs have been prepared but not recorded on PROMIS. The system cannot show which of these applications were for children or adults. As yet then, despite developing the IT system and putting in place systems, training and guidance, the PROMIS system has not been fully populated.

Other possible data sources explored by the researchers

ESDU intimations

4.75 The Electronic Service Delivery Unit ( ESDU) of the SCS is based within the High Court at Glasgow. SCS guidance states that ESDU should receive notifications of any witness applications involving live links, whether these are from within the courthouse ('in-house') or from another courthouse or a designated remote site. It is especially important that this happens in practice, because rooms within courthouses are being (incorrectly) used as 'remote sites', with live links from one courthouse to another, more often than the designated non-court ('true') 'remote sites'. There is potential for double booking therefore, and if courthouse CCTV rooms are in use for whatever reason, then ESDU must book them out as unavailable.

4.76 Guidance on intimating applications to ESDU is available on the SCS website and in the SE guidance pack with more detailed requirements in SCRA's guidance for reporters ( SCRA, 2006). ESDU reports that many intimations are made to them via email rather than on a CWN, although of course a CWN may still be being submitted to the court. Intimations to ESDU do not, by any means, form a comprehensive record of all applications for TV links, since ESDU staff reported that many arrangements are simply being made 'in-house'.

4.77 Using the ESDU Outlook diary into which applications are entered to avoid double-bookings, ESDU staff estimated that over a one year period (September 2005 - September 2006) they handled some 120 cases. The researchers' estimate, eliminating any duplicates (for example pre-trial diets and trial diets relating to the same case) was some 95 cases, plus some 11 links between Scottish courthouses and courthouses in England or elsewhere.

4.78 Nevertheless, it is sufficient to say that around 100 cases annually were being reported to ESDU, rising steadily month-on-month over the period. Some courthouses featured more frequently than others, notably Glasgow and Kilmarnock, followed by Dumbarton, Dundee and Aberdeen. As well as this, the diary records which remote sites were used on some occasions.

4.79 ESDU records cannot be relied upon as records of CCTV and remote site applications because not all applicants are contacting ESDU as required by the guidance. It was thought likely by some SCS interviewees that when many (especially defence) applications are made late in the day to sheriff clerks, clerks see little point in booking the room through ESDU. On the other hand, since these data are needed and also require to be collated by ESDU for sound operational reasons, then it might be worth SCS considering whether systems could be put in place to take advantage of this, both to ensure that facilities are available for witnesses and to meet their monitoring undertakings for the Act.

Witness Service data

4.80 WS data were explored but discarded as a possible monitoring source. This was because the WS data include summary cases, and the WS does not come into contact with all witnesses at court. For such reasons WS database records cannot be used to help form the Act's monitoring framework.

Summary

4.81 Numerous studies and groups considering child and adult vulnerable witnesses 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. While such data would be important for the major agencies involved ( SE, SCS, COPFS and SCRA) for their own resource planning, perhaps more importantly, there are no mechanisms to ensure that information is passed on with adult vulnerable or child witnesses as they travel throughout the justice system.

4.82 ISCJIS, which has been anticipated for years as a means of collating information held on witnesses in the justice system, has so far extended to all police forces being able to submit SPRs electronically to the fiscals, but to little else. Through this, we know that over 22,000 child witnesses were reported to the fiscals in one year (2006) by the police.

4.83 It is clear that SCS and SCRA did not appreciate the resource implications of monitoring the Act. At the end of the research period SCRA did not yet have a database system that includes vulnerable witnesses; nor during the research did it seek information from reporters on applications made, although it holds comprehensive information on its workload in terms of referrals to the reporter and the process of these cases. SCS collects much information for publishing against its targets, but again, there may be sound operational reasons for it to also know about numbers and patterns of SM applications.

4.84 There were 2 reasons for seeking data for this research; to evaluate early implementation of the Act, and for on-going monitoring (to see whether the needs of vulnerable witnesses are being met).

4.85 Regarding the short term, the primary data collection exercise undertaken by the researchers at courts provides some robust data, but there remains no way of systematically identifying cases involving vulnerable or child witnesses, or identifying and monitoring vulnerable witnesses in the system. This remained the case even late on in the research period and for the last tranche of data collection (April 2007) in the sheriff courts.

4.86 Regarding on-going monitoring needs, COPFS has adapted its IT system and is in the process of improving staff training on that, particularly to record VW applications. This is the kernel that might one day form ISCJIS for vulnerable witnesses. For child prosecution witnesses, the police are passing information to COPFS including dates of birth, and COPFS are passing this to VIA and the WS in some form. But it appears still that databases are being developed by major agencies in isolation from one another. It is not surprising, then, that sheriff clerks and Witness Services report that children continue to arrive at court without the court expecting them in advance.

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