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CHAPTER FIVE THE AGENCY PERSPECTIVES
Introduction
5.1 This chapter presents the results of in-depth interviews with 74 professionals from the major agencies involved in the Scottish justice system. By speaking to those involved throughout the justice process, from the time of initial report of a crime (or a referral to the Reporter on non-offence grounds) to final disposal and aftercare, the researchers aimed to explore the co-ordination of agencies, and issues arising from the implementation of the Act, and existing before the Act.
5.2 While the professionals for interview were selected from the study court areas, the sample of 74 interviewees is not necessarily representative of their colleagues in those areas, nor across Scotland. Information from these interviews provides evidence of individual experience and understanding of support for vulnerable witnesses; taken together interview data suggest how implementation of the Act might be progressing more widely.
5.3 Evidence from professional interviewees on implementation of the Act in this chapter is presented under headings that parallel the justice process timeline. These follow a summary, and a section describing the 3 areas of widespread concern raised by interviewees during the research.
Interviews with professionals - summary
5.4 Table 5.1 shows the breakdown of interviewees by professional group. The researchers had planned an additional 2 interviews for children's reporters, but these were based on misconceptions of the role of the High Court in referrals from Children's Hearings, and one national agency was unable to be effectively contacted. Annex 2 on research methods gives more information on interviews where professionals were interviewed in pairs.
Table 5.1 Professionals interviewed
5.5 All members of the judiciary are referred to in this chapter as judges, and all solicitors and advocates in private practice as defence agents. Prosecutor is used for procurators fiscal, Crown precognition agents and advocate deputes. Interviewees in the national agency group are referred to as having a strategic position in their organisation.
5.6 The Act itself is in the early stages of implementation, even though the provisions for children began to come into force in April 2005. The interviews were undertaken mainly between September 2006 and March 2007, and there were still signs of low awareness among professionals involved with witnesses in the justice system. For example, several practitioners were not aware that the Act was in force for adults, and more were unaware of correct procedures for applying for special measures. The location and availability of remote sites remained a mystery to most professionals and although this is partly because SCS seek not to publicise locations, many professionals assume there are very few sites.
5.7 Children and vulnerable adults are still presenting to agencies (notably WS and social workers but also to court staff) at court without prior warning, and nearly all witnesses, vulnerable or not, are kept waiting for long periods before giving their evidence or being told they are free to go. Many vulnerable witnesses have to return to court on consecutive days before their role is over. Interviewees raise this as one of the main problems for witnesses ("It's the waiting that's the killer"), and several said that professional witnesses were treated far better in the court process.
5.8 These findings are detailed in this chapter, yet overall the Act was viewed very positively by most interviewees; the provision of special measures and 'automatic' qualification for standard special measures by children is seen as a long-needed move by many groups. The police were particularly supportive of the Act; for them it highlighted vulnerability, and made prosecutors more likely and able to act when police flagged a potentially vulnerable witness. For example, one police officer said:
"It's soul destroying for us when you personally put a lot of work and hours in and the force has spent money on a case and it falls down because someone is too scared to go to court or they don't want to go or have been intimidated and feel there's no way they can stand up and face this person again. The Act seeks to combat some of those fears and facilitate someone giving evidence competently".
5.9 On the other hand, the interview findings show 3 areas of widespread concern among professionals. These focused on the inability of current court technology to support the new provisions; the failure of the system of mandatory CWNs to identify every child witness cited to give evidence in court proceedings; and the Act's removal of most judicial discretion in deciding whether or not individual child witnesses are able to use SMs in giving evidence. These themes are discussed in this section. Of these by far the most criticism was of the court technology.
Areas of concern
Court technology
5.10 Inadequacies of court technology, in terms of lack of reliable functioning of equipment, and lack of suitable remote sites, was a clear message from nearly all professionals interviewed for the research, across all interviewee groups. Concerns were particularly expressed about the lack of infrastructure needed for the provisions; there is a wide gap between expectations and needs and the pace at which infrastructure can be economically put in place. One interviewee found it difficult to reconcile the Act's encouragement of high expectations among witnesses with the current difficulties in making its provisions work:
"I think what angers me in my particular job is that with all these promises being made to the public- we are being held up as the knights in shining armour who will provide all this- we are also the ones who when it doesn't work out will get the tearful phone calls from people saying 'I thought I would get all this support' even in the build up to court".
5.11 These inadequacies are discussed in detail below; however, concerns that inadequate infrastructure undermined proper implementation of the Act's provisions might have been expected, given the low levels of provision across Scottish courts in the years immediately before implementation (see chapters 2 and 4).
Child witness notices
5.12 It is clear that the system of CWNs is not yet working properly to ensure that all children in court proceedings are identified. Clerks of court, WS, and defence agents all report that children are still arriving at court to give their evidence with no advance notice. (This reflects the findings of the data collection from court records that CWNs were being submitted for only around 80% of children cited by the Crown in the study sheriff courts, even by year 2, and patchy although increasing numbers of applications by the reporter.)
5.13 Implementation of the Act from 1 April 2005 was for child witnesses in cases reported to the fiscal, and for child witnesses in children's hearings court proceedings in respect of hearings of relevant appeals and applications, which have been lodged on or after that date. The Act's requirement to lodge a CWN for every child cited as a witness in a case, whether or not special measures are being sought for them, inevitably takes some time to make an impact on court proceedings.
5.14 Views among professionals varied about the system of CWNs. No particular professional group held unanimous views on the new system, although many individuals believed that CWNs introduce unnecessary bureaucracy, when no special measures are being applied for. For some this requirement has introduced an additional, if implicit, SM of 'no measures'.
5.15 Others took the view that the newly 'automatic' nature of the system may be reducing both the potential and perceived need for individual detailed assessments to be made of each child. Concerns were that children would be treated 'superficially', now that reports from social workers, teachers, GPs and other child welfare professionals, which had regularly accompanied applications for SMs before the new system was put in place, were no longer needed. Yet others welcomed the reduction in the need for reports in support of applications, mainly because the previous arrangements were seen as providing little useful information, and often on pro formas resulting in near exact copies of reports in cases where more than one child witness made an application to use SMs.
5.16 Increases in paperwork needed were also noted by some professionals: " Changes since the Act? Mostly in terms of more paperwork". Conversely, other professionals see CWNs as introducing extra 'checks and balances', ensuring that the needs of all child witnesses in court proceedings are considered: " Basically with the Act now, you are struggling to skip steps, which is as it should be". Interviewees also report that CWNs are not being lodged in large numbers of cases, or are lodged late when an application for SMs is decided on. In particular, defence agents were seen by many professionals as having low levels of awareness of their responsibilities towards the child witnesses they cite.
5.17 The third main area of concern is the extent of judicial discretion.
Judicial discretion
5.18 Concerns about loss of the court's discretion were voiced by some prosecutors, children's reporters, and (especially) the judiciary. While judges were generally supportive of the Act, the identification of all children aged under 16 as vulnerable witnesses and entitled to use the SMs was a disappointment. One said; " This is my cri de coeur- the provisions are welcome, but not the automatic entitlement".
5.19 There was little support among judges for this move away from judicial discretion, and its implication of a lack of trust in professionals. This was related to a general belief among judges that child witnesses had been treated well before the Act, with those needing special measures to give evidence having their applications granted in nearly all cases. This was also the view of many other professionals, yet nonetheless, these same interviewees commonly reported that the Act had made a significant difference in raising awareness of the needs of child witnesses.
5.20 Children's reporters had mixed views; some highlighted reduction of judicial discretion as a positive aspect of the Act, whereas others felt it made little difference in practice: " The Act really is a codification of good practice". Reporters, and some other groups of interviewees, notably judges and prosecutors, pointed out that most measures could already be taken before the VWA took effect. Clerks of court also indicated that the main difference made by the Act was to "Cement the system for children, which was discretionary before and special measures depended on how organised everybody was, particularly the clerk".
5.21 Some professionals viewed the removal of much judicial discretion in the Act as a necessary development. One said: " It helps to persuade the whole judicial system that children should have the benefit of giving evidence with the use of SMs or indeed outwith the court environment. They need more legislation or encouragement". Prosecutors accepted that the Act was Widening the net" as well, from mainly children before the Act, to adults too. They also said that applications for children were now routinely granted, with defence opposition less likely, and this was echoed by some children's reporters. Several interviewees were quite scathing of previous practice by many defence agents. Clerks of court noted that the Act had clarified responsibilities: " Now the measures are compulsory and universal and everyone knows how children must be dealt with" and " Before the Act things were a bit 'grey and hazy' but now it's much more formal, and for children the approach is opt out".
5.22 Defence agents in turn were generally of the view that the Act was unnecessary (" Sheriffs are not daft"), although on the other hand, several pointed out that judicial discretion and sheriffs' individuality lead to inconsistency. The interviews indicate that defence agents would feel more strongly if the balance swung further (in particular, any moves to circumvent cross examination of witnesses, or 'indiscriminate' identification of adult vulnerable witnesses). They seldom objected to applications but they had little direct experience of making applications.
5.23 One judge put it quite strongly, but echoed general judicial views:
"No doubt there is the occasional case but presumption of 'all child witnesses and disabled people' is not necessary. But this is the legislation, and it doesn't matter if the judiciary don't agree with the policy, they have to give effect to it by interpreting the language of the Act using an objective approach- i.e. doing what the Act says, regardless if that's not what Parliament thought it was saying".
5.24 These overarching findings indicate general approval for providing SMs for child and vulnerable adult witnesses to give their evidence in court; and at the same time lack of overall consensus about the degree of compulsion necessary.
5.25 Some interviewees (judiciary, defence agents, and some children's reporters and prosecutors) did not think that automatic entitlement for all children to use standard SMs was necessary. Others (police officers, clerks of court, WS staff, court social workers, other representatives from voluntary organisations, VIA, and some other children's reporters and prosecutors) thought that automatic entitlement was required to ensure the provisions were widely and consistently available for children. Even within this positive group, however, as noted above, concerns were expressed about the value of a 'superficial' CWN in every case, creating an administrative burden, while reducing the availability of detailed information from a thorough assessment of each child's need.
5.26 These findings are not surprising, given past research findings and also that many interviewees believed there was still a need to change attitudes among legal professionals towards a more vulnerable witness-friendly approach, despite recent improvements in support for witnesses in court proceedings. This was particularly pronounced among professionals involved at strategic level within their agencies. For example:
"Shifting cultural preconceptions about victims and witnesses is the biggest challenge currently. There will always be individual problems re validity; the traditional view that witnesses need to feel the 'full majesty of the law', and stress the serious and important role of giving evidence. Protection is seen to potentially undermine this tradition".
"The difficulty you face is to encourage all parties involved to recognise the value of the support provisions in there; you can say, 'well, you could do it anyway, you had the common law applications, you could always make those', but the evidential requirements required for the section 271s, e.g. psychological or educational reports, or reports from someone who could say 'this child definitely needs this'- produced a convoluted way of doing it and involved a number of professionals who shouldn't necessarily need to be involved."
Implementation of the Act
Phased introduction of the provisions
5.27 The Act is being implemented in phases and the entitlement for many witnesses aged under 12 in criminal cases to use remote sites was one of the first to be implemented. Several interviewees from voluntary organisations were concerned that some children in summary cases would not benefit from the provisions as soon as those in solemn proceedings, echoing concerns raised in evidence to the parliament's Justice 2 committee ( SPOR, 2003.)
5.28 In terms of successful implementation of the provisions, one interviewee, working at strategic level within a voluntary organisation said:
"It would have been better to have had increased phasing of measures for children due to the complexity of remote sites/getting CCTV in enough courtrooms. Firstly, from April 2005 children should have been entitled to use in-court CCTV, and from September 2005, where appropriate, court-to-court CCTV. Remote sites could have been set up during this time to begin operation in April 2006".
5.29 Several interviewees noted that phasing in of the provisions had been successful in allowing learning from each stage. This again was particularly true of professionals at strategic level within agencies, both statutory and voluntary. While they recognised this was partly intended, they also viewed the Act as " A big change", and one interviewee said that phasing ' Has really, really helped with SCRA/ SLAB/police/Crown/ SCS/voluntary organisation relationships'.
5.30 Chapter 2 described how the Bill's memorandum attempted to cost its proposals, and how phased implementation was intended partly to allow further budget allocations following future spending reviews, where need became identified as the provisions were rolled out.
Guidance
5.31 The Executive is generally perceived by most groups to be doing well in providing guidance on the Act. All professional groups interviewed were aware of and had access to copies of the SE guidance, although many used their own internal versions instead, finding the SE guidance too lengthy.
5.32 In many cases interviewees referred to the length of the guidance or even pointed to the folder ("Gathering dust") in the corner of the room or on a shelf. Most interviewees were, however, complementary overall, with one Judicial interviewee saying: " Act and guidance is very clear", and another that " There is the guidance book for more detailed referencing".
5.33 On the whole however, most professions seemed to make more day to day use of their own organisation's guidance. For Judges this was the Act itself and Rules of Court; for COPFS staff Crown Office circulars, and for VIA staff internal guidance. There is also a Vulnerable Witness homepage on the COPFS intranet and a discussion forum which allows COPFS staff to share experiences and raise issues of concern. Children's reporters were aware of the SE guidance, and several found it helpful for reference, but they mainly used the internal guidance produced by SCRA.
5.34 Clerks of court received the SE guidance but also internal SCS circulars, and described a shared knowledge system: " What tends to happen is that the clerks work together in trying to understand the various new initiatives, they learn from each other mostly, there's always someone who knows most about the different Acts and procedures coming on stream. It's a kind of 'can do' organisation, and we all somehow manage to get by". The police have their own succinct force guidance. More than one mentioned being sent links to documents on their forces' intranet sites on the VWA, which they appreciated for being short and to the point (" Bullet points on what the prosecutors need to know"). One officer summarised:
"Info comes through but it's blended with 20,000 other things coming through each week. Unless it's made quite brief officers across the board including uniformed response, CID officers don't have time to read 22 pages- it all needs to be short and sharp to be digested for guys to take it on board."
5.35 It seems apparent that the "[ SE] guidance has been provided and disseminated to 'saturation point'- every judge and legal practitioner has received a copy personally", as one SE representative noted. Although some professionals indicated the guidance was useful for reference, most were relying on in-house materials summarising the SE guidance pack. The exception was defence agents, who had received the pack but were not in possession of other more succinct guidance on it.
Training
5.36 Training (road shows) was also put in place jointly by the SE, the Law Society of Scotland, and the Crown. These were designed to be multi agency events to generate discussion among local practitioners. These had been attended by a number of interviewees who had found them helpful, although defence agents had found them hard to fit in with other priorities and were unimpressed generally by Law Society seminars. Some local bar or faculty associations had arranged seminars on the Bill, but since for many this is perceived as a minor area in criminal practice, experience was seen as the best form of training.
5.37 Many interviewees had received training on the Act specific to their agency, including the WS (although lack of additional funding g meant that resources were diverted from training courses on children) and VSS which includes the VWA on its standard induction course. Others may have not received any formal training (e.g. court social workers).
5.38 COPFS has run phase 1 training which most prosecutors interviewed had attended, and during the research period was rolling out 2 day Phase 2 local training. One Crown Office interviewee said that "With a lot of training for VWA phase 1 and 2 what they've done is they've targeted people they think will be involved, so lots of them have been missed. If you're not a precognition officer or a depute involved in precognition, perhaps you've not had it. Yet that might be the very depute who is marking a case". Some Crown interviewees had completed a Phase 2 'training for trainers' course and had then delivered practical training such as letting local prosecutors practice using live link. Training on the Act is also provided on the compulsory 'core course' for all new fiscals 62.
5.39 VIA has run VIA-specific training lasting 2 days, plus 2 days with on the Crown Office courses. Advocate Deputes ( ADs) attend weekend seminars once a year and in 2004 one covered the VWA. SCRA provided training for all reporters on phase 1 and phase 2. Reporters felt they had been well trained, but mentioned having to 'refresh' themselves for relevant cases, because the provisions are used very little, if at all, by them in practice (since it is SCRA policy to avoid citing child witnesses wherever possible). No police officers interviewed reported being aware of any training specifically on the VWA although VWA awareness was included in line management or child protection courses. Some senior managers had attended one of the SEVW road shows.
5.40 Generally, judges reported that training " Is fairly minimal for Scottish sheriffs and judges. The main issue with judicial training is not the quality of it, but the difficulty in carving out time for training ". Another said: "There is no specific training for the judiciary on the Act; judges are expected to interpret the legislation in consideration of cases". One mentioned a practice note written by a colleague used in preparing for a CCTV case; "Just as well; there was no other guidance and the clerks had no clue".
5.41 Nevertheless, judges reported receiving some training relevant to dealing with child witnesses, particularly highly specialised courses on child interviewing, targeted at judges dealing with lots of child witnesses and using role play scenarios, with actors playing the parts of children. These were rated highly: " All sheriffs have to have training in how to talk to children, and this is a key skill that some sheriffs are better at than others, but they all still need to talk to children in court". A few mentioned an intense (3 day residential) refresher course where someone from SEVWU took a session on the Act.
5.42 SCS provided training on the Act for clerks of court, although one interviewee noted this was felt to be too late for them to benefit. Several clerks reported receiving training on the equipment used for special measures, and others in dealing with vulnerable witnesses.
5.43 Only clerks of court mentioned aspects of training to promote equality and tackle discrimination; recent training in diversity awareness has been added to the standard induction for new staff in SCS. Crown interviewees reported that the protocol between VIA and WS has been reviewed recently, since; "'Equality action group' has diversity-proofed the work and said 'how do you identify people who don't class themselves as vulnerable since that's their everyday life?'".
5.44 Training has been generally widespread. Not all have been able to take up all training opportunities, because of time pressures. A number of professionals, notably prosecutors, defence agents and the judiciary see self education on new initiatives as part of their individual professional responsibility. Defence agents and police officers seem to have attended the least training specifically on the VWA.
Identification of vulnerable witnesses
5.45 It was a common misconception among many interviewees that the Act had not yet come into force for adults. In addition, courts were not always forewarned that child witnesses and adults with disabilities had been cited. Examples of vulnerable witnesses presenting on the day are especially common for those with mental health issues or learning difficulties, but also for adults who had more obvious disabilities and children.
5.46 The nature of the test and the system for identifying vulnerable adult witnesses are complex. Practitioners perceive some checks and balances due to the variety of staff who have some locus for prosecution witnesses, notably several professionals within Crown Office. However, even after this, few adult vulnerable witnesses are being identified. Vulnerable persons who may well be vulnerable witnesses are being identified at court by the WS and social workers; WS reported that vulnerable witnesses could be identified by almost a 'gut feeling' when looking around waiting areas or during pre-court visits, and SW reported that their training helped them pick up less obvious vulnerabilities, such as hearing difficulties.
5.47 There have been specific examples given of precognoscers conducting interviews with witnesses without identifying apparently overt vulnerability indicators, later picked up at court. These have included, for instance, witnesses with quite severe learning difficulties, a selective mute and people with physical disabilities such as mobility or hearing impairments. One precognoscer gave the opposite example, of the police not noticing that a person had learning difficulties. One prosecutor implied that the lack of a VW application was 2 adult witnesses' fault for not saying at precognition that they were intimidated by the accused, requiring a late application after the WS had raised this just as the trial was to start.
5.48 Judges discussed the lack of vulnerable adult witnesses being identified. One felt that " The culture may not have reached the stage of confident ID of vulnerable adults". Another said that identification of vulnerable adults had not been developed in the same way as for children before the Act, and that although he had dealt with a few applications in the past, most vulnerable adults with mental disabilities had to give evidence in open court without any measures.
5.49 One judge agreed with " The concept" of vulnerable adults, but suggested that low identification rates are associated with the fact that " Scots don't like to be seen as vulnerable". Echoing most judges' dislike of blanket identification of children as vulnerable, this judge added " Even children are not all happy to be treated as vulnerable just because of their age". Some prosecutors agreed; even after adults were referred to VIA, they generally did not want special measures, in one prosecutor's opinion. On the other hand, one seemed to acknowledge the need for formal measures:
"Years ago we had a case about […] ; they were historical abuse cases; they were clearly vulnerable witnesses, but before the Act we would have had to do that on a case by case basis. If it had been a few years later they would have required vulnerable witness applications".
Identifying child witnesses
5.50 The police reported that it was straightforward to identify a child witness and record their age in the SPR. Children are of course the easiest vulnerable witnesses to identify. It is clear from the statistics supplied by COPFS (see chapter 3) that the police are identifying many (although perhaps not all) child witnesses by flagging up them in the SPR, leading to over 22,000 children being flagged on the COPFSPROMIS system in a year.
5.51 Young people nearer the age of 16 seem to be the most likely to slip through the net. Interviews with judges indicated that children aged over 14 were least likely to be seen as automatically meriting vulnerable status, and several referred to children aged around 14/15 who presented as fully mature, both mentally and in terms of their appearance and bearing.
5.52 Despite 'straightforward' identification of child witnesses, defence agents especially were able to describe many recent occasions when child witnesses turned up unexpectedly at court. In one area the defence agent thought the prosecutors were too pressed with service targets and workload to look properly at cases in advance. (The WS made exactly the same suggestion in another area.) Clerks and judges who might have provided a safety net later in the process were not provided with information to let them do that. In one case:
"The prosecutor hadn't realised there were child witnesses in the case, so they heard another case first; they adjourned in the morning and the kids were just waiting around the court until the afternoon - the clerks had no reason to think there would be children from the complaint."
5.53 In another:
"[One of the sheriffs] has often commented that he finds it highly inappropriate that only on the morning of a trial are people identifying that there are child witnesses or vulnerable witnesses and that no arrangements have been made in advance for that. But at the end of the day he will always adjourn and let them be shown about but he lets it be known that he's extremely unhappy about it- that it eats into valuable court time whenever there's a busy court."
Identifying adult vulnerable witnesses
5.54 The police recognised difficulties in identifying adult vulnerability but seemed very aware of potential pointers to this. For example, they spoke of asking SW colleagues about prior involvement with support agencies, of using the police casualty surgeon or other health professionals in assessments, and of using anecdotal evidence from relatives and friends. One officer mentioned that people with mental health disabilities could have good days and bad days. Often individuals would "Come to us via social services so their social workers will tell us". If there had been no prior involvement with agencies then:
"It's harder and often a judgement call. Some cases are more serious like [a recent] case when we contacted social work in case [the witness] was already known - we could have needed an appropriate adult - but it's a balance of continuing to ask questions and privacy - we can't just ask at the doctors for medical records".
5.55 Factors that might indicate an adult vulnerable witness can also be recorded in the SPR. Yet this was currently being done in a two line remarks section, with "Nothing specific; you could amend the software to make it mandatory; that would be good to make sure you couldn't forget at least to consider it." Others expanded on this:
"There's been a 'Force Order' on what is to be included in the SPR following the Lord Advocate's guidelines on that- it's quite specific- for example, if they are not a vulnerable witness you must indicate that - it's not enough to leave it blank. That's been going on since pretty soon after the Act, it's not a recent thing. It says 'So and so is vulnerable because of …' or, 'This person did not present as vulnerable'".
"That should be in the remarks section of the current SPR, pending SPR2 which is meant to be an all-singing all-dancing reporting system, due September next year which will include everything on it in its rightful place, so we're led to believe."
5.56 Several other officers acknowledged that being in specialist units probably led to higher levels of awareness and resources which helped them to identify vulnerability. One head of a unit extended this argument to possible future issues with the roll-out to summary cases when 'routine cops' might be involved:
"These officers are doing it all the time … It may be related to the size of the force, with specialist units. I think the quality of reports could be diminished in other forces. If they aren't I could see issues in the future, with summary - issues with quality when routine cops are reporting on these matters. But at moment it's not an issue; we don't get negative feedback from the prosecutors on the quality of solemn reports. We do get some on summary but we try to deal with them".
5.57 The police said that the prosecutors did sometimes contact them to check vulnerability of adults, for instance to request medical reports. The police also thought that with the VWA, there was a greater chance that their flagging might be acted on by the prosecutors:
"One good thing is, with this legislation in place, if we say the witness is vulnerable then there is more onus on the PF to do something".
"I thought [the special measures] were already in place - but it's beholden to the prosecutor - we can just make aware to the prosecutor what should be happening in any particular case".
"Previously, we would highlight to the prosecutor, without knowing what power he had to implement the measures. Now the VWA has implemented that power to say right, you can do this".
5.58 Crown Office handles the next stage of the criminal justice process, after the police report the crime to the prosecutor. Prosecutors said that identification of vulnerability for adults falls primarily to the marking prosecutor, although it can be done at various stages in the process; by the police, the marking PF, the solemn manager, the precognoscer or the trial prosecutor.
5.59 One prosecutor pointed out that 'vulnerable' is now a legal term that does not have the same meaning as understood by lay people, and this point was also made by WS. The police, of course, have the advantage of meeting witnesses in person, and in being asked to flag up rather than 'legally define' vulnerability. Many prosecutors interviewed were clearly relying heavily on the police to flag up vulnerability. For instance, they said:
"[We need] … early identification of vulnerability, from the police ideally.
The police don't seem to be trained properly and they don't flag up potential adult vulnerable witnesses. The police generally don't know much about it; they will not flag up the cases; as far as I know they haven't been trained yet."
"The police are not brilliant- they're getting better but are still not great- that is one of the things that has to improve if we're to do this properly. If they're not flagged, the depute at the marking stage won't order an ID parade. Therefore there is no bail condition attached by the time it lands on my desk. Once the new SPRs are available that they can't get past it without filling in, that will make a huge difference. But [a specialist unit] are very good on the other hand and a huge proportion of my cases come from them."
"[After having had training] we recognise the importance that when the police report it and highlight it, that this is someone vulnerable."
"We're relying on the police to identify it in the police report- children will anyway be listed in the list of witnesses in the police report."
5.60 One Crown interviewee pointed out that although the police might be flagging, "It's the role of the solemn legal manager to make sure the PFs are getting it right". One precognoscer said she was passed cases by her manager, who might identify cases not already flagged by the police. Part of the reason that prosecutors are so reliant on the police is that witnesses are not always met face to face. Generally, only the precognoscer may meet the witness before the prosecutor handling the case at court on the day: "We don't always precognosce, and some don't turn up for this and you still cite them, so how can you discuss any vulnerability or the need for SMs?"
5.61 Several prosecutors, clerks, police officers and voluntary organisations discussed the dynamic nature of vulnerability (in that a witness may become more or less vulnerable over time) meaning that identification can take place at any time and applications made, right up to the day of the trial. Some said that judges would generally allow these (even under common law, if necessary), while others said that late applications would not be allowed, and examples were given of at least one case where this happened. It also seems plausible that rather than 'changing' vulnerability, vulnerability is more often not identified until very late in the day (often at a court familiarisation visit, by the WS).
5.62 It is very rare for reporters to cite children as witnesses; however, they recognise that many adults in cases referred to the sheriff from Children's Hearings may be vulnerable, especially because of learning difficulties, or substance misuse. Like prosecutors, children's reporters also noted their reliance on the police to identify vulnerable adults; they talked about getting " Clues from the police report", but felt that " There is no sense that [the police] do identify them". Reporters also had opportunities to identify adult witnesses as vulnerable when they spoke to them during preparation for court proceedings.
5.63 There was acute awareness among court staff and the Witness Service that many people with disabilities, such as wheelchair users or those with hearing impairments, are not necessarily or at all vulnerable. One police officer spoke of generally seeking social work involvement in the investigative stages if called to a case with an ' Elderly, confused' person and yet there were very few examples of age being a vulnerability factor in case papers.
5.64 One clerk of court said:
"It's not for the clerks to [identify vulnerable witnesses] . They might see a witness in the waiting room who seems a bit off, but then most people are nervous in these places so we can't jump to conclusions. It's up to others to make sure any VWs get the help they need for coming to court. Also some witnesses don't like to be deemed 'different', e.g. don't want to use separate entrances when offered."
Identification at court, or by judges
5.65 Witnesses with mental health issues are off the bottom of what has been termed the 'hierarchy of identification' of vulnerable witnesses (Burton et al, 2006 p.32, see chapter 2). Examples were given of cases where such witnesses had been missed by a range of professionals, and of their identification only when they arrived at court to give evidence. Several examples were given of such cases where the judge or sheriff determined it was too late to apply for special measures for such witnesses.
5.66 Only one judge interviewed mentioned intervening to identify a witness as vulnerable, when a witness's belief that they had been told they could use a SM to give evidence was brought to his attention by the WS on the day of trial. The Crown denied this had been the case; however, the judge delayed the trial to allow determination of vulnerability, and any applications for SMs to be made. One judge said they would prefer to make the identification, by allowing a potentially vulnerable witness to start giving evidence in the normal way, and to intervene if there were clear signs that the witness could not cope:
"Usually in cases like that, the court is cleared and the witness starts giving evidence, and in most cases people manage fine. Where it is obvious that they are struggling, then you can adjourn and allow for SMs to be put in place."
5.67 One interviewee considered that sheriffs had " Totally accepted" the provisions for children, and it seemed usual for sheriffs to ask about CWNs. Prosecutors did not go that far but said they had very little if any experience of judges refusing applications. On granting applications late or on the day, this was seen to depend on the individual sheriff; some were "Absolutely fine" about it.
5.68 Most judges interviewed talked about their ability and willingness to 'informally' identify children and vulnerable adults at trial, and to use non statutory measures in these cases. Others were less confident about how far judicial discretion could go in helping vulnerable witnesses in court, and several cited examples of successful appeals because action taken during the trial to help a witness was seen as influencing the verdict. Examples were also given of cases where judges did not intervene, where grounds for intervention were perceived by other professionals in the court.
Defence witnesses and accused persons
5.69 Although levels of awareness are high among the police and some court practitioners, the treatment of defence witnesses and vulnerable accused persons at court remains especially problematic. Chapter 4 showed that very few special measures applications are being made for vulnerable accused persons, even when they were clearly vulnerable through being aged under 16.
5.70 The police explained why this might be. If they interviewed someone who they thought might be a vulnerable accused person, they would take action such as having an appropriate adult present and after the interview might encourage that person to visit a GP, or push the case to come up quickly, by using a liberation on undertaking to appear at court. However, they would not inform the accused person's defence agent, since:
"The defence aren't allowed into a detained person's interview, only after arrest; after arrest there may be some discussion at the police office if he asks pertinent questions for his client, but we don't routinely phone the defence agents. Indeed, they could be being dealt with by the duty solicitor only".
5.71 So in essence, there is no 'system' for vulnerable accused persons as there is for Crown witnesses; although the defence agent may meet his or her client, there is no 'heads up' such as the remarks on vulnerability that the police may include in the SPR to flag up vulnerability to the prosecutor.
5.72 On the other hand, one prosecutor felt that "Defence agents are pretty pro-active re the accused - they'll say 'you should be reconsidering prosecuting him' … they're not slow to tell you the accu sed shouldn't stand trial for whatever reason." This view was also taken by some witness supporters, who felt that despite WS working in close co-operation with many defence agents, some lawyers try to use 'technicalities' to undermine Crown evidence, for example, by arguing that a witness has been influenced by WS support.
5.73 The defence agents interviewed had very limited experience of making special measures applications, even though they seemed highly aware of vulnerability. There was little perception among them that the Act had impacted upon vulnerable accused persons; one felt that the position was:
"A nonsense. You've got him in the dock all during the trial, but if he's going to give evidence then he'll jump behind a screen, or go off to a CCTV room? Then he'll come back to his place in the dock? What is all this about?"
5.74 With hindsight, some of the defence agents interviewed felt that in the past, they or their firm had dealt with defence witnesses or accused persons who, in retrospect, might have warranted a special measures application. Evidence from court records shows that very few applications were made by the defence for special measures both before and after implementation of the Act began ( chapter 4).
5.75 Judges said that the system meant that the Crown had by far the larger role in citing child or vulnerable adult witnesses, and hardly mentioned vulnerable accused persons. Other professionals mentioned that most witnesses in traumatic cases are Crown witnesses. One judge said that the Act has meant applications on behalf of the accused person, usually accompanied by psychological reports, and another mentioned the pertinence of the provisions in relation to referrals from Children's Hearings where the child who is the subject of the application is alleged to have committed an offence.
5.76 Children's reporters had little experience in citing children or vulnerable adults as witnesses, consistent with SCRA policy to keep children out of court proceedings. However, they were concerned that defence agents, who regularly cited children, were not working to the Act. One reporter, who did not want to be " Over critical" nevertheless said: " The defence have no sense of the VWA at all, even with care and protection cases the defence will put VWs on their witness lists but do nothing about them."
5.77 For accused persons as much as with prosecution witnesses, it was matter of knowing how far to press questions of vulnerability, and some people did get offended when use of an appropriate adult was offered to them. One police officer in a specialist unit pointed out that having social workers and doctors on hand made assessment of vulnerability easier. Even so:
"Identifying adult vulnerable witnesses is the big difficulty and some children with specific issues - can you just ask them directly? Probably not."
5.78 Generally, among professionals with a strategic position in their organisation it was believed that more awareness raising among defence agents and the judiciary is needed; and most interviewees perceived defence agents as the least aware of the Act (often citing anecdotal evidence), with examples given of some judges having to instruct defence agents on their responsibilities under the VWA.
Information
5.79 Information is not always flowing smoothly and crucial facts are often not passed on. There are vast pools of information that are not being shared, including information held by the police and by social work area or specialist teams (many witnesses and victims are already known to social workers because of the 'target groups' for the VWA). Court social workers cannot even always access other social work records, and nor is police information always made available to them on request.
5.80 The information situation for SCRA is particularly problematic; currently they are not in the information sharing loop because they work on a paper basis and collate and pass on little information on witnesses. Their data system for witnesses was still under development during the research period (see chapter 3), and children's reporters appear to collect very little information locally that would support a national database. For example, interviewees indicated that there was no requirement for reporters to record CWNs, nor any applications made for SMs in these cases, nor any vulnerable witness applications made so this information is not held at all. For example, interviewees indicated that there was no requirement for reporters to record CWNs, nor any applications made for SMs in these cases, nor any vulnerable witness applications made so this information is not held at all. Few reporters interviewed were able to provide information about data collection during the research, and one was quite critical of SCRA practice on this, saying " It's just terrible, just terrible".
5.81 Where information sharing is in place, this is sometimes problematic (e.g. from VIA to witnesses, the WS, or to court social workers). However, generally the in-court agencies, particularly the WS, are receiving referrals from VIA, and court familiarisation visits play an important role in identifying further examples of vulnerability and needs.
5.82 One interviewee suggested that for witnesses whose first language is not English, if the police do not obtain an interpreter at the outset, this misses the main chance to obtain vital information that may relate to vulnerability, and the information will not be able to flow to the prosecutors and along with referrals from VIA to the WS or elsewhere. Yet almost all of the police officers interviewed mentioned having used interpreters, and the importance of doing so, without being prompted. Another interviewee said that VIA were particularly good at picking up witnesses who have interpreter needs.
5.83 Generally, the Data Protection Act 1998 has been cited as a problem by several interviewees, notably police officers and staff from voluntary organisations providing witness support; it can be used as a false excuse to hinder data sharing:
"The Data Protection Act has caused some issues when health organisations have tried to say because of it we can't have access [to information] but there are a lot of myths around it - criminal offences have exemption - but it can be difficult to get through to people".
"It's a touchy subject, but care of children negates all data protection needs- as soon as you say 'child protection' you can do anything, but as soon as it comes into the realm of adults it's all 'oh, should we share that info?'"
5.84 Several other interviewees also felt that some organisations are " Hiding behind the DPA", using it as an excuse not to share information, although there were reports that this was becoming less pronounced as implementation went on.
Information held by the police
5.85 The police were among the most aware of vulnerability and reported that passing on this information electronically in the SPR to give the prosecutors "An early heads-up" was not difficult. The police also have well developed databases including the Police National Computer ( PNC) and access to the Scottish Criminal Records Office ( SCRO) computer. These hold details of convictions and warrants, but the information held was described as 'quite basic'. SID, the Scottish Intelligence Database, is a national system and now has links into English systems.
5.86 Fife, Grampian and Central Police operate 'Crimefile', which is the system onto which they record crimes, and which is used to transfer SPRs to the prosecutors. One force reported that as well as submitting SPRs they completed 'vulnerable persons reports' or VPRs. A 'vulnerable persons' database had been developed in house as an immediate solution, rather than adding this to Crimefile. It was thought that the revised SPR would remove the need for VPRs, since it would include more of the 'soft' information which officers were adding to VPRs. By inputting a name to the database, previous VPRs would come up on screen, highlighting possible issues, and while designed for children, the system had been adapted for use for adults. Strathclyde has its own vulnerable persons database but this was described by more than one officer as very restricted (to domestic abuse, racist and homophobic cases), although children could be added, if the child was a victim of domestic or racist abuse.
5.87 Forces not using Crimefile record crimes on their own systems. One police officer in a force using Crimefile said:
"If other forces want to know something, they can search on SID if we've inputted info into SID, but not for VPRs; they would have to call us. It would make perfect sense for all eight forces to operate on the same thing but they have all gone their own way; it's a huge huge financial thing. But possibly, there's talk that Strathclyde might join in with Crimefile, and if they did, because they're so large, it would add clout to it and might encourage the remainder to join in".
5.88 Another officer agreed:
"They keep hitting us with new systems; the vulnerable persons database has only been in a few years. There are just so many databases to use; there is STORM, the Strathclyde command and control computer linked to PNC - also the intel logs - we can contact the force if a person is on the PNC to find out more - also the Crime Management System - so there are lots of systems to log onto - in this day and age there should be one".
5.89 Forces without a vulnerable person database said that although it was possible to add markers to SID or PNC personal records, for a vulnerable person this would not be justified since a person "Could be vulnerable today and not next week", echoing professionals involved in witness support that vulnerability, and therefore need for support, was not necessarily a 'fixed factor' throughout legal proceedings. (Their experience was that witnesses' support needs change over time, often in response to pre trial triggers such as " FLO leaves, or the citation arrives or a Preliminary Hearing comes up, or intimidation". One WS interviewee explained that "the family dynamic" can also trigger needs, or reduce these, and that support needs are often triggered in the post-trial period, on sentencing or appeal for example.)
5.90 Police said they might add 'markers' to PNC or SID only if a person had, for example, schizophrenia, and it was a safety issue for officers. Several officers said that they might check SCRO, PNC or SID records before interviewing someone, but not usually; there was no time. It is likely that the police are very aware of the importance of collating, keeping and comparing information because of the nature of their work; they described how reports might mean nothing on their own but someone able to access information across sources might draw a conclusion.
What happens to information passed on by the police?
5.91 Some reporters mentioned that police reports are received in hard copy (and several mentioned the large volumes; one " armfuls"). One force described how every referral they made on their VPR system was routinely sent to reporters in hard copy, although this was about to end; SCRA wanted most of the referrals screened out, apart from those fitting criteria for compulsory care measures, because of the volume they receive from the police.
5.92 The police had major concerns about this, since:
"Traditionally, we've always been under the impression that the one person who was the source of all information, from the police, from social work, was the reporter, and everyone else was firing in these reports and they held it all; but that would appear not to be the case; so there is no one holder of all the info coming in from all these agencies. It's not our job to examine all that info, collate information and carry out child protection work; we presumed that was what the reporter was going to do. Therefore all the agencies will now have to play a bigger role to dispose of cases themselves before they get sent on; we're going to have to get agencies together round the table and say 'we've got this case, what are we going to do with it' prior to forwarding it on to the reporter- which is a difficult concept. I don't know how it's going to work- it's a massive undertaking. It makes perfect sense to have one person holding everything so that informed decisions can be made."
5.93 The fiscals relied heavily on the police to flag vulnerability; police reports populate the COPFSPROMIS system, but then the prosecutors are not yet fully using this IT system, as chapter 3 indicated:
"[The VWA training] was useful….but the thing about it was it had to concentrate a lot on the technology side- the IT side, how to collect statistics, etc- I think that's all fallen by the wayside and has never been filled in. [A senior manager] was on the phone to me asking 'does anyone complete PROMIS?' I had to say no-one does. No-one can get stats. There's a field in PROMIS - solemn legal managers were responsible for making sure it was all done but that's a hoot- they're all lawyers and half don't know how to use the computer system anyway so it was never going to work. We're still on the ' SOS' IT system- it is all supposed to be on FOS - FOS has been promised for phase 3 but I wouldn't know what it was if it jumped up and bit me- I don't even have an icon [on my PC] for it".
5.94 This may help explain why few VW applications are being recorded by COPFS so far; this is referring to the COPFSIT system that allows staff to record whether an adult is vulnerable and record the type of special measures applied for. Children are flagged automatically by PROMIS if the age is in the SPR, but CWNs are not automatically generated. VW applications and CWNs are the means by which COPFS informs SCS of a vulnerable witness, as well as by applications at the bar. Referrals pass internally from COPFS to VIA, who are sent all domestic abuse, solemn cases and victims of racist cases.
5.95 Need for information was not raised by most judges as an issue, and across all interviewee groups, they seemed least likely to suggest they lacked information in relation to child or vulnerable adult witnesses. One explained this saying:
"A sheriff is at the top of a pyramid, and doesn't see all the machinations that go on behind the scenes, only what comes to court when the work is at an advanced stage. […] Lots of cases involve argument for ages, then the Crown and defence agree the charges and the case is pled- the sheriff sees none of that, they just get presented with the package."
Pre-trial support
5.96 Smooth handovers of witnesses between agencies are difficult to achieve since the justice process can be long and punctuated, and has no pre-defined end. There was a fairly widespread impression of mutual lack of appreciation across the wide range of agencies involved about each others' roles and responsibilities.
5.97 Several interviewees described how a witness may report a crime, and then hear nothing more until a citation comes to the door. While an investigation is on-going in serious cases, a witness may have a police Family Liaison Officer ( FLO) who stays with them night and day. Several interviewees pointed out that the primary role of the FLO is investigative, rather than supportive, however.
5.98 All police interviewed were frustrated that once they had passed a case on, then they could give a person very little more information about what was happening. In less serious cases, CID officers described how they would usually give people their cards and numbers if they needed to talk. If people contacted them however, they could tell them very little:
"I think of the witnesses as how I would like my mum to be treated if she were to be involved - I wouldn't like them to be sitting at home waiting, worrying about something".
"We can submit report after report to the prosecutor but they are not duty-bound to tell people what's happening; someone can phone and ask, but why should a member of the public have to continually phone to find out something, particularly if the prosecutor has marked it as no further action from the word go? That would give them some closure rather than having the case hanging over them. I think perhaps the reason why we don't do it is that people would then ask 'why is it not going ahead'- and isn't that a valid question too?"
"[The prosecutors] are not answerable to us at all- so we can't even answer questions if people do get in touch with us about a case. It would be useful".
"If the prosecutor drops a case for the time being or until later, it won't automatically go to VIA. That's an issue … when the prosecutor takes a decision in a case, they're not bound to inform the witness. That should happen whether it's solemn or otherwise. They should be required to feedback to the public, so they can put an end to the worrying- is there going to be a case coming along here to court or not?"
5.99 The police appreciated however that this was a difficult call for the prosecutors. One example given was of the police often being asked by the prosecutors to let a victim know a case was not going ahead, but not to let the accused person know, in case the case was later resurrected if further evidence came to light.
5.100 Although the police and other agencies may provide a contact name and number, there seems to be little pro-active contacting or informing of witnesses. The intention is that VIA has taken over the liaison role (of providing information and of acting as a contact or source of information concerning the case) that the police may have been doing informally, so that cases passed on after police enquires were complete were considered essentially "case closed".
The role of VIA before court
5.101 The police in one force reported that workers within one specialist unit acted as liaison officers, in essence, since they handed over their business card and made phone calls to inform people, "But the work of VIA has taken over that work to a large extent now, where a case is going forward". However, some officers expressed reservations about the level of support that VIA was able to offer. One said he would tell witnesses that their main point of contact was now VIA, " But whether it's on the same level once VIA takes over …" Another officer described a specific example:
"I think VIA can be seen as being a bit faceless until there is a personal visit. For example we had the rape of a foreign national staying in [this area] . I had emailed [ VIA] saying you'll need an interpreter and let me know if you need help, but a pro forma letter went out from VIA. I saw the victim a wee while later, taking an interpreter again, and she had no idea even of what the letter said. That should never have happened. So it can be seen as a faceless thing if they're just sending out pro forma letters; you don't hear of good results coming back from VIA".
5.102 The VIA system does not seem to be working smoothly in all cases. According to one prosecutor, " VIA are supposed to do things with witnesses once they are referred- bless their hearts, they try". The WS gave several examples of VIA letters to witnesses saying that the case was going to court arriving long after citations ( VIA's target is to send out letters within 3 working days of an event 63). There is reported confusion for witnesses in terms of the VIA officer, WS and prosecutor's roles. In some courts WS and social workers said that earlier referrals from VIA, or more referrals for vulnerable adults (which of course depends on the identification of more vulnerable adult witnesses by the Crown), would help.
5.103 VIA officers in turn have a very difficult job in contacting witnesses. Many do not answer letters or return phone calls, and there are not the resources for individual personal visits. VIA letters come on COPFS headed paper and people may not realise that VIA are there to act as support in helping keep them informed and in helping to choose SMs, etc., rather than just being part of the official legal process. VIA staff recognise this can cause confusion, and one noted that COPFS probably sent out the lion's share of case paperwork and additional information to witnesses, within which VIA communications can become submerged.
5.104 Centrally, VIA staff recognise that more personal contact would be preferable but resource levels demand letters in most cases, with personal contact a priority for children, and for witnesses in the most serious cases.
5.105 During the research period the VIA/ COPFS structure was realigned, so that VIA officers came within COPFS line management and became a more integral part of COPFS offices. This was reported to have improved matters. For example, examples were given of best practice being the VIA officer talking to a witness immediately after the precognition interview. At one study location the VIA officer and precognition officer described how they worked closely together. When a witness was cited for precognition, the VIA officer was immediately informed to put that in their diary. Then, at the end of the precognition interview, the VIA officer would talk to the witness about special measures and perhaps show them the SECDROM.
5.106 But even although this may be the preferred option given system demands, witnesses often report how long and tiring these interviews can be ( chapter 6) so this may not be the best time for them to consider how they might give evidence. One VIA officer stressed the 'information giving' nature of these meetings with witnesses, recognising that it is not a good time for people to quickly decide whether or not SMs might be required.
Support agencies
5.107 The police said that they frequently referred people to other organisations including providing leaflets for organisations such as Rape Crisis or telling people to see their GP or manager at work, since the effects might be long-term. One officer in Strathclyde felt that "There are lots of organisations to help and some of the leaflets have a lot of organisations on them". The police said they referred people to VSS for serious crimes unless the person said they didn't want this, and pointed out that 'general witnesses' were less well cared for than victims. Witnesses were just given phone numbers by the police, even though witnessing a crime could be " A terrible traumatic thing, but since they're not directly victims the support mechanisms don't apply".
5.108 One defence agent in premises close to a sheriff court described how people would drop in to see him off the street because they had to go to court and wanted advice. They also thought they needed a lawyer, even though they were Crown witnesses. He had taken to stocking SE leaflets to give to people.
5.109 VSS and WS adopt a pro-active, opt-out approach. Once a referral is made by VIA or VSS to the WS, the WS will contact that person and invite them to a court familiarisation visit ( CFV). Of course the WS is mandated to cover only solemn cases at present. Not all witnesses (or child witnesses' parents or carers) will take up this offer. But for those who do, CFVs seem to be one of the most valuable activities associated with pre-trial support. This is not only for witnesses, but enables court agencies to assess needs. As one interviewee pointed out "The best evidence is when the child has had a court visit and is feeling relaxed, confident and happy. They are then unlikely to be so easily led". Judges were generally aware of the work of the WS, and many highlighted the usefulness of its role in the court, and high standards of service provided.
5.110 Likewise, clerks of court were very appreciative of having the WS in place in courts, providing a strong focus on vulnerable witnesses. They were glad that the WS had taken over court visits which previously often fell to court staff, and they realised that the WS has strong referral system in place with VIA. More than one clerk thought that they missed little:
"Very few children or truly vulnerable people get past them nowadays, they're even in the waiting rooms on the day watching out for people who need help, or just a bit of company for a while; we were never able to provide those levels of service".
5.111 Another clerk felt that the volunteers were well trained and met high standards of service. The police were also grateful that the WS had taken over court visits, which they also used to carry out sometimes. Prosecutors in one area were offering visits themselves, rather than referring witnesses to the WS.
5.112 As the guidance states, and several interviewees have pointed out, a CDROM cannot substitute for a CFV, especially with very young children. But even then, others have noted that an empty courtroom is very different from the full one on the day. The CFV also plays an important role in helping witnesses decide about special measures.
Meeting legal professionals beforehand
5.113 Witnesses often expressed surprise (to the WS or others) that the prosecutor who dealt with their case early on was not the one who came to court on the day. One defence agent described how prosecutors in one area sometimes went to court to handle cases seeing the papers for the first time at court that morning. Similarly, some defence agents may not have actually met their client before the day at court. One interviewee mentioned that it is possible for the witness and WS to have a meeting with the court officials including the AD and judge before the trial. This was seen to have a very positive effect on the witness where such meetings had taken place, but these meetings appear to be uncommon. One prosecutor felt it was 'fine' for the prosecutor to meet a child beforehand, but not a defence agent (who would later " turn nasty" on them), and not the sheriff, since that might undermine impartiality.
5.114 However, several judges talked about arranging to meet child witnesses before the trial, to reassure them that the judge was there to look after them while they were in court. However, in no case did they suggest there was a role for the judiciary in pre-trial support. Rather, such arrangements were made to help make witnesses more comfortable about giving evidence in open court.
5.115 Abolition of the competence test was not raised by many judges as an issue, although a few did regret its passing, because it gave the sheriff the opportunity to speak to the child for a formal purpose, but also allowed them to establish some rapport, and reassure children that they would be looked after in court. No other professionals expressed any concerns about abolition, although it was noted that during the consultation period, " proposing to abolish the competence test brought a lot of representations from judges- they just like to do this test".
Delays
5.116 There is some evidence that cases involving children are being prioritised by sheriff clerks. Children's reporters highlighted this; while reporters lodge few CWNs, they said that when they did, these cases were given priority by the court: " The sheriff clerk puts you up the queue- you are given priority by them". Yet according to one prosecutor, " Cases are often 10-11 months old before they are indicted". A custody sheriff and jury trial must commence within 110 days (unless extended by the court), and indictments in respect of all custody cases must be served by the 80th day following full committal. The majority of bail cases are likely to be indicted within 8 to 11 months but some will be indicted within custody time limit periods or at a date prior to the 8 to 11 month period. 64 (In criminal cases the prosecutor rather than the clerk determines the order in which cases are called 65.)
5.117 Length of time for cases to come to court was also raised by interviewees from voluntary organisations, both as an issue for the victims and witnesses they support, and also for their organisation's workload. Defence agents too mentioned time lags, with one noting that if someone pled guilty that day at the local sheriff court, their case would not be fixed until 6 months later.
5.118 All witnesses are reported to get " Fed up", including professional witnesses attending court. One interviewee spoke about the impact on police officers' personal lives of giving evidence in court, in a system characterised by frequent delay: " Our lives used to be chaos- we couldn't book holidays or days off". Although disclosure of statements had reduced the number of court appearances for professional witnesses in this person's opinion, it was not clear that this had had the same effect for civilian witnesses. Defence solicitors are seen to get more and more money for every appearance that occurs, and many cases reach the 4th, 5th or 6th calling. Interviewees stressed that professionals, such as police officers, are paid to come to court, in addition to their salaries, even if they are not called to give evidence.
5.119 Yet witnesses do not get paid to attend court, and many interviewees report that when witnesses have been taking days off work to attend, and their children taking time out of school, then eventually " They just won't participate any more". This leaves the prosecutor having to think hard about how far it is justified to issue a warrant compelling witnesses to attend, " Bearing in mind we've just messed them around 6 times and they've not appeared on the 7th?" On the same issue, one clerk of court said: "You have to remember who's the bad man- it's not the witness here". Of course, failure to attend is a criminal offence, and the court can seek a warrant but will only do so when the public interest justifies such action 66.
Choosing SMs
Public awareness of the provisions
5.120 A recurring theme in the interviews is that the Act, or the literature produced by the Executive and others, does seem to be raising awareness of the availability of special measures among a much wider range of agencies, and importantly, among the general public. When witnesses are sent or pick up the 'Being a Witness' leaflet, it does imply that SMs will be available to them. One WS co-ordinator pointed out that the caveats in the leaflet saying that witnesses 'might' be able to use SMs were just too subtle.
5.121 One judge was somewhat scathing of the leaflets produced for witnesses coming to court: " full of wigs and gowns and token people". Conversely, others found the leaflets helpful, and one children's reporter said that these were " useful to leave with parents". Some defence agents also reported handing out the SE leaflets and CDROM to people who dropped in off the street seeking advice before going to court (even Crown witnesses). One VIA officer highlighted the CDROM: " Quite impressed- pretty good and straightforward, easy to use".
5.122 Some agencies, notably prosecutors, were concerned that the police were raising witnesses' expectations unrealistically. One prosecutor talked of "A growing perception that witnesses can get SMs just because they want it" and another of "grumbles that witnesses tell precognition officers that they want to use SMs because the police told them they could, or that after pre-court visits, witnesses declare they want to use the CCTV facilities". This meant that expectations were being raised that could not be met under the law, "Even if it is pretty automatic for children".
5.123 It was not only the police who were accused of this by prosecutors, since:
"Particularly with historical sexual abuse, the social work department are very guilty of telling parents 'your child will get CCTV'. We're the ones who have to explain this is impossible ….and I know [a voluntary agency has] been quite bad with Phase 2, telling everyone that they are entitled to screens/automatic special measures".
5.124 WS staff, and also to some extent VIA staff, described the difficulties in treading a fine line between ensuring that witnesses who were truly vulnerable received some support, but without the ability to guarantee that their preferred options in giving evidence would be granted by the court. There was recognition that some lack of clarity was inevitable when expectations of what SMs may be available have to be balanced against the realities of a court setting. This is not within the control of witnesses, nor of COPFS/ VIA/ WS staff, with applications made for vulnerable adult witnesses reliant on judicial decisions to a large extent, in line with their views about how a court is run, and appropriateness of particular measures to be used in their court.
5.125 The police confirmed that they did seek to reassure witnesses but most said they always qualified offers of special measures. It is interesting that one head of a unit was the most clear on this; officers on the ground all suggested that measures might be available, and one did admit 'crossing the line':
"We will provide a leaflet … but it doesn't cover ways of giving evidence. VIA/ COPFS have some leaflets that are more specialist devised by the SE. Our instructions were not to hand out those … and my staff certainly don't bring up these topics, such as screens, unless they're asked about it, since it could raise expectations".
"Obviously it's a big deal when we speak to witnesses … we will do our utmost to encourage a witness to participate and assure them of what we can do, but it's down to the prosecutor whether that's taken on board and all we are are reporters to the prosecutor".
"It's useful to be able to say to witnesses that they are available; we can get them on side and also we can say we will speak to the PFs and highlight concerns e.g. intimidation, or whether the witness has said they would prefer CCTV or screens, but we cannot promise".
"We try to take the worry out of the situation; sometimes they will phone in and we can also have a chat with them in a sort of informal family liaison role. When we interview them we do say they will be able to use these SMs giving evidence".
5.126 One prosecutor pointed out however that nothing was new under the sun; for years the police had been reassuring witnesses regarding the likelihood of compensation orders "or saying don't worry, you won't have to appear in court", and the prosecutors had to deal with the fall-out. The WS, too, said they were generally the ones who had to deal with the witnesses who turned up at court expecting special measures on the day, even in summary cases.
5.127 There is some trepidation concerning the extension of the Act's provisions to summary cases for this reason. Several interviewees thought that extension to summary cases would entail 'overwhelming' numbers of applications, and also increase the logistical problems already experienced by some courts. (Others await the extension to summary cases eagerly, and do not appreciate the reasons for a staggered implementation.)
5.128 Interviews suggest that public awareness of the special measures had been raised to the extent that many witnesses were self referring to support agencies. One interviewee summed this up: " My biggest concern is public expectations being raised- we're like too many people like hamsters going round in a wheel- by the SE but also in the media, every time someone reads about a case or sees the words 'vulnerable witness' in the media they think that will apply to them".
Submission of CWNs and VW applications
5.129 Specific examples were also given by interviewees of instances where special measures were not applied for, in cases where that would have been expected, and of cases where confusion about the process meant that applications were " chaotic".
5.130 In a recent case, witnesses included 2 boys (14 and 15 years old) with no application for SMs. There were also 3 girls aged over 12 and under 16. Screens were applied for and use granted for 2 of the girls, but 1 had asked for CCTV, and the other had never specified what she wanted. For the other, no application for screens or CCTV could be made because dock ID was required. The professional describing this case was unable to understand how this situation had arisen: " So how was the decision made about who got what?"
5.131 Another example given included WS feedback from a CFV where a child asked to use a SM, but was told that applications could only be made at the PH stage. The professional gave this specific example to illustrate lack of understanding of the process. In this instance, it was the clerks of court who had misconceptions, but they also had examples of such misinformation coming from prosecutors. This interviewee said:
"One point of the Act is that SMs can be applied for right up to when the witness is in the box- this may be strategically inadvisable for the prosecutor, but there's no cut off point".
5.132 Judges commonly noted that their role in choosing SMs was negligible; applications are rarely opposed, and where parties agree, there is no need for judicial decisions. One explained that there was discretion to intervene, but they would be very reluctant to do so because the prosecutor and defence have been doing all the work and are better placed to make these decisions: " Sheriffs don't really get to know about issues, the system is all about gett ing things sorted by the time you come to court". Other judges appreciated that the clerks may experience difficulties. One said " by the time [we] get them the clerk has them in shape"; and another " for all I know they've been back and forward to the prosecutor 6 times to get them right".
5.133 However, there were examples of judges intervening in specific cases. One children's reporter provided the following illustration:
"The CWN from the defence applied for a supporter only but at the hearing [the judge] said that because of the strong evidence, plus productions, and the accused being at court, [the child] should give evidence via CCTV from a different location; the case was heard at [the court] and the child gave evidence via CCTV link from [another] court".
5.134 One prosecutor described a case where a child did not want to use measures in court, although the social worker and parent wanted a screen, so the prosecutor applied for a screen. The sheriff noted that the child had not wanted measures, so none were granted.
5.135 Nor is the CWN system fully implemented in practice in solemn criminal proceedings yet. Defence agents said they did not always get copies of CWNs or accompanying documents. Defence agents themselves cite relatively few children, and the perception among other professionals is that defence agents sometimes omit to submit a CWN. As mentioned, some defence interviewees admitted that with hindsight, some witnesses or accused persons they had dealt with in the past might have warranted applications. But this formed a very small part of their work generally, and with the time lags involved in bringing cases to court, they were unlikely to be making many applications yet or in the future.
5.136 The system requires that special measures applications involving a TV link be intimated to ESDU. Although guidance is available on the SCS website ( SCS, 2005) and in the SE guidance pack on this, there seems to be general ignorance of the existence of ESDU. The method used by most practitioners interviewed was to " Let the sheriff clerk know" and ensure that the Sheriff Clerk informs the other party.
5.137 Clerks of court themselves indicated that there were no real problems with CWNs in terms of administration, although it had taken some time for prosecutors to " Get used to the new applications, they often phoned us at first to confirm what they should do". They report that notices frequently " Come in very late and very near trial date so it can be difficult to plan CCTV requests into the court programme. Also some prosecutors forget to apply in advance and so applications may be lodged and heard on the day".
5.138 One clerk gave an example of a case involving inappropriate behaviour towards a number of children, which was " Badly handled from the start- not proper applications, not in the proper form -the sheriff threw them all out. People hadn't thought through the whole ramifications of what had to be done. The kids all wanted special measures ..." The parents of the children had been quite upset, because they had been told early in the process that these measures could be put in place, and so had told the children they would not be sitting facing this person in the court.
5.139 Examples were also given from court practitioners of judges refusing to consider applications for SMs because they were "out of time", and when one clerk was asked what happened if applications were sought to be made at trial, said " Sheriffs won't do it". On the other hand, examples were also given of sheriffs granting applications late in the day.
Specialist reports
5.140 Judges generally saw reports supporting applications for children to give evidence using SMs from teachers, GPs, and social workers as a formality, and several noted that where more than one child was making an application, these reports often appeared to replicate each other, with only the names of the witnesses differing.
5.141 Many professionals welcomed the fact that specialist reports are no longer required to obtain standard special measures for children. Interviewees from across a range of agencies pointed out that they were little more than pro formas or templates into which someone who was unqualified to do so added comments.
5.142 One Crown Office interviewee said they were trying very hard not to start having to put in supporting documents for special measures applications for adults; they were purposely putting notices in without these if satisfied that the vulnerability justified this. At the same time, this person was being discerning about putting in applications, and was not putting them in for every victim of a sexual offence for instance, despite this being questioned by some colleagues.
5.143 Despite this, one defence agent felt that there were " Signs that the provisions are starting to be used for adults even more than the Act suggests", and if this continued then supporting documents would be sought and objections made more frequently. Most defence agents had experience of using specialist precognoscers or psychologists to assess child or adult witnesses, and felt that these are a well-recognised aspect of the criminal justice system, with SLAB refunding expenses relating to these costs without issue. Prosecutors also realised that there might be problems if vulnerability changed, and a later notice was met with "You said this person wasn't vulnerable back then"; which might open the door to defence objections.
5.144 One unintended by-product of not having reports is that court social workers, for instance, may be being asked to become involved in fewer cases, so fuller assessments of children are not always taking place. If a child, who may not understand what special measures are, says they do not need a special measure and this is taken at face value without full discussion or assessment with the parent or carer and care professional, there is a possibility that the child's needs are not being fully met.
Added bureaucracy
5.145 Another drawback identified by several prosecutors and defence agents was that CWNs need to be submitted even if no special measures are required, and they were time consuming to fill in. So while this had reduced the need for specialist reports;
"Really, the way the system is working now is that the category 'no measures' is as much of a special measure as the others!"
"You have to do it even if they don't want any special measures. Which is ludicrous having to put in a CWN if none are wanted … Why do you have to put in a notice to do that? We have enough forms to fill in. The deputes can stand up at the trial and say 'No application is being made because the child does not want…' instead of us having to fill these in with all the reasons."
5.146 Several prosecutors made points to this effect. They felt that a simple tick box approach of 'no measures' would be reasonable, but the way the forms were designed to fill in, views had to be given so it was not a simple tick-box exercise.
5.147 Children's reporters cite relatively few VWs and those interviewed had relatively little experience of using special measures as yet ("In fact I have a minor panic attack when I think about it"). However, they too had concerns about the amount of paperwork needed to support a system that had already been in place, and the requirement to lodge notices whether SMs were applied for or not: " In practice it has been good to expand the range of options but could be simpler, e.g. getting the sheriff to look at the case rather than the business of writing to all the witnesses to inform them of SMs, that's not working." One reporter also felt that the bureaucracy involved in the Act could have adverse effects, citing one case where the defence had not lodged a CWN for a 14 year old child witness, who wanted to give evidence without SMs. This came to light on the day, and the judge refused to allow the child to give evidence until the CWN had been lodged, and considered by all parties, as set out in the Act.
5.148 Some defence agents pointed out that for summary work, where numbers of applications might increase most, SLAB paid a fixed fee. They felt that if much extra work was involved with making applications and supporting evidence then even more would be being demanded for the same price (although others pointed out that applications could be made for extensions and that many cases were simpler than others).
Seeking children's views
5.149 Children's views are often being sought, although sometimes in a hurried manner by prosecutors early in the process (this was reported by several interviewees and was certainly the case for one child witness interviewed).
5.150 Problems that VIA have in obtaining answers to letters or telephone calls have been discussed, as well as some fiscal offices where VIA officers meet witnesses immediately after precognition. If witnesses do not attend for precognition or are not cited for this at all (which will happen in summary cases), then either VIA officers or the defence agent need to try to contact that witness to discuss choices. An example was given of a CWN being submitted as 'no special measure required' because a child had not attended for precognition, yet when the child attended at court, they did want special measures. The data collection ( chapter 4) identified some further examples like this.
5.151 Time and again interviewees noted that people approaching a court appearance may be in denial and put all official-looking letters in the bin, unopened. VIA are not the only organisation with problems in this respect; SCRA for instance relies on parents or carers replying to letters, and may have less leverage than the Crown for making them communicate with them. If parents or carers of child witnesses do not respond to letters, this can hinder the decision making process.
5.152 A substantial amount of decision-making regarding which special measures (if any) to use seems to take place at court, notably following a CFV, and several professionals also report examples of children changing their minds about whether to use special measures. Also, often children may say they are 'fine' but observations by trained social workers or evidence from speaking to their parents or carers can indicate signs that they are not. VIA officers report that commonly children are relieved when they hear about SM options, particularly CCTV links: " If you've said to them they wouldn't be in the court, you can see the child's eyes thinking 'that'll be much better' if it means they will not be in the courtroom".
5.153 In terms of the 1995 Act "the witness shall be presumed to be of sufficient age and maturity to form a view if aged 12 or older", and indeed it is a moot point among professionals whether a child aged under 12 should be asked to decide on whether they should give evidence from a remote site or within a court, since in effect remote sites are currently largely unavailable. The CFV may make witnesses feel more confident, as does support from the WS.
5.154 Some judges felt that although children were supposed to have input into the decision about use of SMs, in practice this meant that others, particularly parents and teachers, were discouraging the option of giving their evidence in open court. Judges commonly cited examples of their efforts to address the needs of child witnesses giving evidence in open court, and also of children who were able to cope with this very well. Other interviewees did note that often the preference for SMs was made by the parent rather than the child, and one VIA officer said: " Very often if it's up to the parents of a child witness- they will say without even having looked at [a leaflet or CDROM], 'we want CCTV'." Another felt that establishing what the child's wishes are " can be tricky", giving an example of a parent of a 14 year old who tried to insist on CCTV without asking the child, because " my daughter will do as she's told".
5.155 Clerks of court are not involved in decisions about special measures: " It's up to the prosecutor or defence to apply for particular measures and to justify why they're needed, the clerks have no locus here, we just have to get the arrangements in place if the sheriff grants the applications".
The special measures
5.156 The use of all three 'standard' special measures (screens, TV link and supporters) is relatively common. Most clerks reported little effect on them of the entitlement to standard SMs for child witnesses, and the increased awareness of provisions for vulnerable adults, leading several to conclude that not much had changed in terms of numbers and patterns of SM applications made. Overall, the judiciary reported experience of hearing cases where supporters, screens and CCTV links were used both before and after the Act came into effect, although most experience was for child witnesses.
5.157 Some interviewees mentioned SMs that were notable by their absence; several representatives of voluntary organisations felt that the use of intermediaries to help children give their evidence had been overlooked. (As chapter 2 explained, this is an option being kept under review and while new SMs can be created, there is no intermediary SM in Scotland at present.)
5.158 Several professionals felt that SMs had not addressed one of the common reasons for witnesses' reluctance to give evidence, that they were afraid of the consequences. SMs may all be helpful while witnesses are giving evidence, but do not address post-trial fears. Examples were given of witnesses who failed to turn up to give their evidence, and one children's reporter said " another case where the [child] didn't turn up, she was assaulted by other girls who then intimidated her. [We] did offer her a supporter and CCTV but she still refused - the girl has to leave court and face her attackers."
5.159 Defence agents' views on special measures were tailored to their case and cause at the time but overall views were mixed. One felt that "informality is not the route we should be going down in court" but another said "I don't think having special measures reduces a witness's sense of the gravity of the situation". One said that with their ' officer of the court's hat on', they wanted witnesses to be comfortable. Another said:
"You don't want to start off a case by alienating the sheriff by messing young people or vulnerable people about. I would rather have them as comfortable as possible, then when they're answering a suddenly difficult question they may suddenly look very uncomfortable- that's the kind of thing that can be noticed. If they're very uncomfortable and on the verge of tears from the start it can be difficult to make an impact."
5.160 Indeed, special measures were thought advantageous to the defence's case by more than one defence agent, and one summed it up:
"When evidence is given by special measures the prosecution is less likely to convince the jury of their case, so that's one reason why you don't find many objections to using them from defence agents; it's more worrying to know you're going to face a child witness in court because there's a more powerful effect on the jury. But it is hard to know what a jury is thinking; you can only go by the feelings you get".
5.161 All defence agents confirmed that they seldom objected to applications, and when they had, there was a specific reason. One felt that special measures might have implied that the child was scared of his client, even though the child was still living with this client. Some other interviewees felt that such defence objections might become rarer as special measures become more commonplace.
5.162 The police reported relatively little direct experience of many SMs, since they generally were not aware of when they were used, having passed the case on to the prosecutor. In the very rare cases where they gave evidence, this was usually straight after the vulnerable witness in a case, so they never spoke to them.
5.163 Court staff offered few opinions about the success of special measures: "Whatever happens the court system just plods on, somehow getting through the business, we just make what has to work work, that's the way it's always been". Those clerks commenting on special measures spoke approvingly: " The decision that they're needed to make a witness more comfortable is a good one, because anything that helps a witness must be OK".
Screens
5.164 Drawbacks of using screens include the fact that the witness can still be seen by the accused (via a monitor) and the court (directly). Professionals involved inCFVs noted that when this is pointed out during a visit it sometimes changes a child's mind about using screens. One clerk of court gave an example of this happening at the start of a trial, and the judge responding by also clearing the court. In other cases, however (examples have been given from Children's Hearings proceedings) it may be enough that a child does not have to look their parent in the eye as they give evidence concerning them, and in these cases screens are the preferred option. This emphasises the importance of fully seeking the child's views, since in other examples witnesses have wanted to see ('confront') the accused as they give evidence, and so may opt for no screen.
5.165 It is wrong to think of screens as a technology-free measure. Applications for screens used to state 'screens and a camera' because the way that this works is to have a screen in front of the witness, keeping them from seeing the accused person but allowing them to see everyone else, and only the accused person is unable to see the witness directly. A camera on a tripod is trained on the witness, so that they can be seen on a monitor set in front of the accused. SCS report that all courts have a monitor and a camera on a tripod for this purpose but some courts do not realise that they have these 67. One study court reported that there was only one shared between courts within the sheriffdom, so even applications for screens had caused consternation when only discovered on the day.
5.166 On the whole, use of screens causes little difficulty. Where clerks perceive problems this is generally " because of the courtroom architecture, they weren't designed with screens in mind". An issue for larger courtrooms is that several screens have to be taped together for adequate coverage, and this may result in gaps in screening, whereas for smaller courtrooms screens can be cumbersome, and positioning may result in the witness being able to "reach out and touch the lawyers".
5.167 Use of screens does not seem to raise issues for the judiciary, and there was general approval for their use in court. One said " Very useful device". Use of screens is in accord with the general view of the judges interviewed that where it is at all possible, witnesses should give their evidence in the court room so that juries have 'the best evidence', i.e. the opportunity to see how witnesses conduct themselves in court while giving their evidence.
5.168 One judge had experience of screens only in cases where undercover police officers were involved, and although it was acknowledged that these were not VWs in the sense of the Act, this judge felt that these cases proved screens were suitable for VWs.
CCTV link
5.169 Concerns raised about the principle of CCTV evidence were primarily about reducing juries' opportunities to assess the witness and their evidence fully, and potential reduction in conviction rates in some cases because of this. These concerns were often related to cases relying heavily on one witness, mostly sexual abuse cases; one judge pointed out that these are the most difficult cases to effectively prosecute, and that " the conviction rate in serious sexual offences … cannot be a reflection of actuality".
5.170 Judges were much less happy with CCTV links than the other standard special measures, although use of this SM was accepted as necessary in some cases by all those interviewed. Two main reasons were given for this lack of enthusiasm.
5.171 Firstly, the need for juries to make decisions based on the best evidence was stressed by several judges, who felt that evidence from witnesses using CCTV links did not provide this opportunity. In particular, the two-dimensional, head and shoulders view of the witness on the courtroom monitor did not allow full assessment of a witness's demeanour, nor of their height and build, both of which were seen as important for juries to determine the credibility of the witness and their evidence. Several judges felt that entitlement to CCTV drew attention away from promoting other ways that children could be made more comfortable when giving their evidence in court.
5.172 Secondly, judges were highly critical of the standards of the equipment used, and evidence was given of widespread and serious deficiencies in CCTV technology. Judges cited links that failed to work, breakdowns during evidence giving, inadequate sound and pictures, and poor design. Energy saving lighting systems used in some courts meant that movement was needed to maintain lighting, and an example was given of the lights suddenly going off in the CCTV room when one child witness (with psychological problems) was at a difficult stage in giving evidence. Several raised concerns that CCTV reduced the witness's ability to concentrate, when removed from the court context.
5.173 One judge (perhaps understating) spoke for them all: " the danger is that the aspiration of the Act is being undermined because technology can be less than perfect". Yet judicial response was not to call for this measure to be abandoned, but to offer suggestions for improvement. These included upgrading and giving more consideration to adjustable equipment, for example allowing cameras and microphones to be placed specifically for each witness, including use of radio microphones for very young or softly spoken witnesses. One judge suggested that the 'whole room view' afforded the judiciary could be made available also to the jury, since this view increased ability to judge demeanour. As one summed up: " The key issue is to make the system adequate, to use imagination re facilities, not to just say it's not good enough. We've got to do something about it, and that's not too hard in this day and age".
5.174 As with screens, using CCTV does not mean the court and public gallery cannot see the witness, and witnesses report both to this research and to court agencies feeling worried about being intimidated after the trial has finished. Because witnesses using CCTV cannot see the courtroom, they have told the WS this means they do not know "who to avoid".
5.175 One interviewee noted that CCTV is not very helpful for children who may be hyperactive, because they become too interested in the technology. Conversely, others may drift in their attention. It was noted that some child witnesses, especially young teenagers, sometimes wish to see 'what's going on' in the court, and people's reactions to the evidence they are giving. Giving evidence in open court was viewed by some interviewees as potentially having a therapeutic function in some instances.
5.176 Some prosecutors clearly favoured CCTV over screens, however. Using CCTV was better for a child than "rattling round in a big courtroom" according to one prosecutor. Another prosecutor said they had " Always opted for CCTV - found screens intimidating for the children to be in court and to sit there with the 15 people on the jury and bench and legal staff looking on as well as being in the court. Whereas they quite like being on television with a support person".
5.177 But others described further technical problems. In one domestic abuse case, a sound link had gone down and took 24 hours to be remedied, and the prosecutor concerned had to consider using screens for her witness. Another disadvantage was that "Court practitioners act and speak quickly, sometimes too quickly for the camera to pick it all up as it pans".
5.178 One prosecutor took a personal view that the jury did not get the full impact of a child using CCTV. Another said that he used to take the same view, but had recently had a revelation after having seen a child give evidence on CCTV, " The image of this on 10 screens beaming around the courtroom got to everyone, it was electrifying to see this huge image of a little boy obviously upset and trying so hard- it got to everyone." (The case which included this example is set out in detail in a case study below.)
5.179 Defence agents reported very similar issues with CCTV; children seemed more easily distracted, some body language was lost, and one example was given of a child storming out of the CCTV room when confronted with discrepancies during cross-examination. Several interviewees mentioned restrictions on their own movement, but while one felt this was very difficult, others just felt it took them out of their 'comfort zone' or took experience:
"You have to think more about what you're doing, i.e. look at the camera and not the monitor. If you don't do that, the witness thinks the defence agent isn't looking at them, and you have to make sure you stay in front of the camera, no moving around. So it can be difficult, but the witness often gets caught up in the cross examination and forgets they're talking to a camera and with experience the defence agent shouldn't find it too different from usual".
5.180 Overall, if there were any effects on witness credibility, this worked in the defence's favour. One noted however that "It's always harder to cross examine if you can't engage the witness, for whatever reason".
5.181 Many illustrations could be given, but the researchers collated information about 2 particular cases, from the perspectives of the judge, prosecutor, and defence in one of these, and in the other perspectives from the prosecutor, defence, and clerk of court. For both cases, documentary evidence of the cases including CWNs lodged/applications made and outcomes were obtained at courts during the data collection exercise. These are set out as case studies, here and on page 145 (some aspects of these cases have already been described in passing).
Case study 1
This case involved a large number of child witnesses, ranging from very young (under 12) to teenage, with several of the children having either learning disabilities or psychological difficulties. CWNs were lodged for each child cited, and applications made to use CCTV links in the court house for some of the children, and CCTV link from a remote site for the very young witnesses, all combined with a supporter. These were granted without opposition. A late application was made for the only child witness not to have applied, due to oversight, and this was granted, again without opposition. The nearest remote link required these children (aged under 12) to travel a long distance to the location. On testing of the remote link the day before the trial (at the judge's insistence, indeed, persistence) the link between the site and the court kept breaking down, and the quality of sound was deemed too bad for use in any case because of a persistent echo. There were also problems with the picture producing pixellated images. The applications were reviewed at the bar, and these children gave evidence using CCTV link in the court house, as did all the older child witnesses. All had supporters, varying among family members, WS, specialist support services, and social workers. The judge was described as being "excellent with the children", getting them together before the trial started, explaining what was going to happen, including not to worry if the screen went blank (it was just something that a judge had to do now and then); the judge was in charge of the equipment, and the people in the court room. The children got shown how the CCTV would work, and the judge made a joke on appearance on the monitor, making fun of the fact that what the child sees is in fact a big head. This made them laugh, and they seemed to be " quite secure with the judge". CCTV equipment was successful in that all the child witnesses' evidence was given via the in-court link. However, those involved were quite critical of the facility. One professional had previously experienced problems with this equipment and had expected upgrading to have taken place since then: " If all courts worked as well as Edinburgh High Court then CCTV would be fine". A particularly annoying problem with the facility was that the CCTV room has an energy-saving light system. It was noted that " Of course it's instilled in the child that they have to keep still so they stay in view of the camera", but there had been no warning about this and the light suddenly went out, unfortunately as one child was giving a difficult part of their evidence. The judge had to ask the supporter to wave their arms around from time to time to keep the lights going. Lack of flexibility of the CCTV equipment also caused problems. For instance, it was set up at a height to suit younger children, so older children and adults had to hunch over to stay in view. Only the head and shoulders were in view, obscuring body language, even though one professional recalled that previous equipment used to show a head to waist view (this may be related to judicial discretion). Professionals involved in this case all agreed on the appropriateness of the applications made, and the usefulness of CCTV links in the circumstances, and all agreed that both in-court and remote links had to be upgraded, and some redesign of the CCTV room in the court needed. |
5.182 CCTV facilities are not available at all courts, as one police officer pointed out:
"Stirling and Falkirk sheriff courts allow use of the facilities, but unfortunately Alloa is a very old court building, so it's still got a bit of work to do to catch up; perhaps a new building is what's required. But they could always move trials to Falkirk."
5.183 Prosecutors and VIA officers concurred, saying that if they had a child witness at Alloa wanting CCTV they had to be indicted at Stirling, and they knew of other similar places. This is why CCTV links require more notice than screens (which can normally be arranged on the day); not all courts are permanently equipped with a TV link room and camera. TV links need more notice, up to " Two weeks' notice … if the child turns up and says they want CCTV, then the [Crown] will normally say they can do without that child's testimony". Remote links need even more notice (see below).
5.184 One interviewee reported that one of the busiest courts in the country did not have a fully functioning TV link room, because of budget restrictions.
Supporters
5.185 Supporters seem to be a much valued special measure even though it is explained to those who act as supporters (such as parents) that they cannot touch or comfort the witness. There are some issues with children being allowed to make the choice of supporter, with examples of children choosing inappropriate persons, for example, a father or mother when the evidence is to be of a sensitive sexual nature, or when they are also involved in a case. WS staff are often chosen as supporters too, and thought more appropriate in such cases.
5.186 There are sometimes objections to the choice of supporter and a WS supporter is 'imposed' by the court. Parents were reported as sometimes feeling quite "put out" that they could not be the support person in court for their child, but after talking through the reasons for this at a CFV they were more understanding. One defence agent said he had objected to a father being a supporter since the father had encouraged the child to press charges against his client, and he thought the child would say what her father wanted her to, if he was sitting behind her. This was especially problematic because the father did not learn of this until the day of trial.
5.187 Use of supporters was uncontroversial among judges, the only issue being that they prefer non family members in that role. Judges gave 2 main reasons for this; family members were seen as too close (making it harder for a child to say embarrassing things), and also it was seen as harder for a parent to not act on parental instinct and reach out to help a child. Some prosecutors are concerned that certain judges do not allow family members as supporters under any circumstances and in essence refuse the applications, saying that the WS must be used.
5.188 Evidence to be given at a remote site had caused several problems with supporters. If a family member is also a witness, they must stay at the courthouse where they will give evidence, so this often means separating families. Social workers gave examples of "Mothers going up the wall" at being separated from their child. If the WS is to act as a supporter, they will have to travel to the remote site too, and this was recognised as an important factor for future WS planning (in anticipation of increasing use of this measure as facilities become available). Whereas witnesses at court can have access to a range of WS supporters throughout the day, this will not be possible at remote locations, and because WS relies on volunteer supporters, there are logistical issues of travel time, time commitment, and costs to be taken into account. A different supporter is needed for each witness in the case, since once a supporter has acted as the support person for one child, they cannot act again in the case. This increases potential costs of WS support at remote sites. It also indicates consideration of post evidence-giving accommodation and support arrangements, because those witnesses who have given evidence cannot mix with those still to do so.
Identification
5.189 'Dock identification' is perceived strongly as a continuing issue that potentially interferes with the successful use of special measures. The possible need for dock ID is one of the reasons why the WS cannot suggest the use of screens to a witness during a CFV, even if they think this might help. Children's reporters were particularly concerned about this, and one remarked: " For SCRA, identification [in referrals to the sheriff where the child is alleged to have committed an offence] is always an issue, trying to prove the offence has occurred beyond reasonable doubt. If behind a screen, they can't identify; are they meant to pop their head out?" Another spoke about a case from before the Act, when 2 young witnesses had to do precisely that to make a dock identification. One of the witnesses in chapter 6 had been taken out into a corridor to point at the accused person.
5.190 This is an issue foreseen by both the SE and SCRA guidance, which urge early or alternate identification procedures to ensure that special measures can be used. Yet there may be some problems when there is no locus for requiring accused persons to attend a parade or to have a standardised photograph taken for VIPER identification. This is generally the case with some reporter proceedings, whereas it can be made a condition of bail by the Crown.
5.191 All police interviewees were vociferous in their support for VIPER. It was considered a far better tool than the old ID parades which could be a 'scary situation'. With VIPER, witnesses were more willing to take part, had no chance of coming into contact with the accused person and the whole process was easier. Officers described how some intimidated witnesses (e.g. in drugs cases) would not go anywhere near a police station, but VIPER could be done "anywhere, anytime" by an officer with a laptop. The use of VIPER was a decision for the prosecutor, however, and there was a suggestion that a dock ID was still preferred:
"The best evidence is someone standing in court and pointing their finger and saying 'he did it', of that there's just no doubt. It's down to the prosecutors' judgement whether he feels that's of detrimental effect to the witness".
5.192 The police also had serious resource concerns, with one manager describing the issue as "massive", particularly when the roll-out to adults was in prospect. In fact, VIPER was thought to have been the biggest impact of the VWA so far by this manager. At the same time, the police recognised that the extra work had provided extra flexibility, in being able to run parades in peoples' homes or even 'down south'; a CD can be sent to local police to carry out an identification.
5.193 One force was considering setting up a dedicated VIPER team since operators have to be trained in its use and requests were increasing month by month. Other ways of making identifications (such as using forensic evidence) were mentioned. Another force felt that the number of parades had evened off because the prosecutors had devised a system to categorise cases: "Category A is all serious cases; they all get VIPER. Category B there will be a further review needed, on if the witness is indeed vulnerable or not before we do VIPER".
5.194 It appears that the Crown is addressing the issue of dock identification by encouraging prosecutors to use alternative means where possible. For example, one interviewee said a third party can be used for this, e.g. by using a 'Muldoon ID' where the police turn up and lead evidence that this is the person identified by the witness. This interviewee felt that going for VIPER without exploring alternatives should not become a knee jerk reaction.
5.195 The use of 'undertakings' has been mentioned for summary proceedings, in which identification is an issue because not all accused are remanded in custody or on bail. There is therefore no opportunity to get a condition of bail that the accused must attend an ID parade. If there is a child witness, cases are now reported as undertakings, which means that the accused is released for report to PF, but on an undertaking that he or she appears at the court on a specific date. On that date, if the accused pleads not guilty, a trial will be fixed and the accused person released on bail pending trial, giving the prosecutor the opportunity to seek special conditions of bail that the accused must participate in an ID parade. If such conditions have not been set, then there are circumstances where the need for dock ID has effectively ruled out the use of screens or CCTV link in some cases, or might even mean not citing a witness.
5.196 As interviewees noted, the situation is further complicated by the human rights issues implicit in asking someone to identify an accused person already standing in the dock.
5.197 Some confusion exists concerning the use of CCTV to make dock IDs. Children's reporters believed that this was a possibility, and several prosecutors could not see why this was not being used. A Scottish case from 1995 (Brotherston, see chapter 2) seemed to set a clear precedent for doing this, but one prosecutor had been told recently that this was not allowed, and it was not clear why. Yet:
"The Holland and Sinclair cases show that dock ID can't be carried out without prior ID of the accused, so dock ID is a formality now. ID of accused will always be an issue, and must be addressed as a priority if we are to limit ourselves by not using camera panning, which will mean witnesses are deprived of the chance to use CCTV. This is a big issue- and in my view camera panning is even better than standard dock ID, so what on earth is the problem?"
5.198 Identification via a live television link is not recommended by Crown Office because of a fairness issue, in that the child may be distressed by being shown a picture of the accused by means of the live television link and will in consequence be less able to give evidence in cross-examination. This consideration led the court in Brotherston to say that where such distress is likely, the child should not be asked to identify by this means 68.
5.199 Some defence agents reported being initially sceptical about VIPER parades, but having seen the results were no longer so. All felt VIPER was fairer and one noted that "Dock ID is actually objectionable in certain cases". Their level of enthusiasm for attending depended on the attitude of their local police force however. They accompany their client for the initial 'clipping' (stage 1) and later to agree the comparators are fair (stage 2) before the witness is shown them (stage 3). One said that his police force would reschedule for him if need be (although the witnesses were once not informed of this and were kept waiting much of the day). Another said that the local force had taken to running stages 2 and 3 together, always at 10am; "Now you try getting hold a criminal lawyer who's free at 48 hours or less notice to turn up at a police station at 10 o clock in the morning". Witnesses ( chapter 6) also reported inconvenient or short notice for VIPER parades.
5.200 As chapter 2 mentioned, police resources for ID were not raised in the financial memorandum or in the committee stage 1 report. All defence agents were aware of the resource implications for the police however, and potentially for SLAB. Several thought that many ID parades were unnecessary. A typical comment was:
"But here, we need to go to [certain police station] for the VIPER suite. The police need to arrange an Inspector and another officer to be there for the clipping to be taken, and it's at least two visits each time (one for the initial photo to be taken). SLAB need to pay us for it since we accompany clients, so there's a cost implication too. In many cases it's unnecessary- but it's a panic measure."
Non-standard special measures
5.201 The 'non-standard' special measures (evidence by commissioner and prior statements) are very rarely used; indeed implementation of the provision for taking evidence by commissioner was delayed to allow issues to be resolved ( chapter 2). Interviewees generally were aware of this, and " Plugging these gaps in the law" was reported during interviews as being undertaken by the Executive.
5.202 No interviewees had experienced use of evidence on commission or of prior statements; however, professionals suggest that evidence on commission is unlikely to be a much-used special measure under the Act. More than one interviewee suggested that because the witness " would still have to go though it all", albeit just not in a courtroom, it could be argued that doing this might be more intimidating than giving evidence in court with standard special measures. Another question raised by interviewees is who would be appointed to take evidence on commission, and whether or not such a suitable person would have appropriate training and experience to take evidence from child witnesses. This was of particular concern to children's reporters. One reporter said:
"[The Act] doesn't go far enough, it's watered down. They should get prosecution with defence to draw up questions they want answered and then appoint a person to take the evidence on video so the child doesn't have to go through all this".
5.203 This is done in some other countries (Richards et al, 2007). One judge mentioned that evidence on commission is a common technique in civil trials, and saw this as potentially a much more desirable SM than prior statements. For this judge, the key difference is that the judge appoints an experienced advocate (or him/herself if necessary) to take the witness's evidence, and this includes reporting not just what is said, but providing some interpretation or analysis. This interviewee felt that since evidence on commission is given away from court, and because the VWA is encouraging this, it could perhaps be used more as a SM in criminal matters.
5.204 Police officers gave examples of cases where prior statements had been taken. These included a statement taken by a GP from an elderly witness at the request of the PF, which the police were going to read out, before a plea was accepted. In a case in Strathclyde, a child was visually recorded and "It was clear the child wasn't lying and the accused's lawyer didn't have any come back". This case also resulted in a plea being accepted. One police interviewee felt that nothing much had changed because of the VWA apart from being able to use videos as prior statements. One officer who regularly took part in joint investigative interviews with children and social work colleagues was keen for visual recording to be introduced:
"To be able to video the interview will also be useful especially to see the child's demeanour. To use it as a prior statement in court will be welcomed. In a recent case in the Borders they used a camcorder to record the interview so in my personal opinion we're just waiting to go - the sooner the better".
5.205 Richards et al (2007) described a related evaluation of visual recording pilots and recommended that these be extended, even if few visual recordings are used in court, because they provide a full record of an interview and best evidence, closest to the time of the incident. A national steering group has now been established to investigate feasibility for national roll out, and benefits envisaged by the Executive include use of such recordings as prior statements 69.
5.206 Use of prior statements garnered no support at all among those members of the judiciary interviewed. The main reason for this was because witnesses still needed to be cross examined on their statement, and it was not considered good practice to expose vulnerable witnesses to this without first having the opportunity to be 'warmed up' by having their evidence led.
5.207 Defence agents concurred, and would be concerned if any moves were made towards removing the right for cross-examination, of course. A typical comment was:
"We're operating at the limits of what can be done, we need to be very careful about how we sort out prior statements and make sure the result is not potentially damaging to the accused, because cross examination is the only way that these statements can be challenged and it is only right that if you're accused of a crime or offence, you have the right to tough questioning of witnesses".
5.208 Nor were prosecutors generally in favour of prior statements. Two prosecutors who had seen some videos said these were of poor technical and interviewer quality. One considered that " It can take years to build up court craft to get the evidence you need, that the police are never going to have. Sometimes you look at the videos and you realise how many follow up questions are missing; it can be very frustrating". A further prosecutor said that evidence on commission or prior statements would never get away from the need for cross-examination; "So that hasn't been thought through properly either".
5.209 SCRA reports lots of experience of using prior statements in the referral cases where hearsay evidence is admissible and where the policy aim of avoiding citation of child witnesses can be met. In the other referral cases, (offences by child) there is no legislative basis to use prior statements as they are only applicable in Part 1 of the VWA which relates to criminal proceedings and not referrals. SCRA has asked the Scottish Government to amend the Act to extend this measure to CH proceedings 70. Although no children's reporters interviewed had experience of using prior statements, they were more likely to see them as a positive measure. As one reporter said: " It's a good idea […] it's almost an abuse to keep putting the child through the process. The child's interest is paramount and there should be as much protection as possible for the child".
Remote sites
5.210 Most criticism from interviewees was reserved for remote sites. Some believe that provisions relating to them have not yet come into force; certainly they are very little-used, and the locations are little-advertised by SCS in the interests of security. More than one interviewee mentioned an SCS list of 76 remote sites. But there are conflicting reports of the number fully up and running, and the belief of most professionals interviewed who are involved in making applications to use these is that there are none nearby, or none at all, to use. SCS guidance, approved by major stakeholders including COPFS and the Law Society, states that ESDU should be contacted to ascertain locations and availability of facilities including mobile equipment.
5.211 Several interviewees felt that they detected "a sense of creating the illusion of success" from SCS, despite continuing problems in obtaining suitable venues, and inadequacy of facilities at some of those identified for use. Some blame for this was attributed by prosecutors to misunderstandings about the additional facilities needed for non-court remote sites when SCS were preparing for the Act. SCS, however, inherited responsibility for remote sites at a late stage, and undertook to provide non-court sites in each sheriffdom.
5.212 The wording of Section 271B says simply that children under 12 in certain offences should not have to give their evidence from the court room or from within the courthouse. The Act was therefore interpreted to always include court-to-court links, according to these interviewees. However, subsequent advice sought by the SE clarified this in June 2004 to mean that, although not explicitly stated in the Act, a child in such circumstances was not to give evidence in any court-room or courthouse, so as " not to expose the child to the type of clientele who are habitués of these places" (Scottish Executive, 2004e). As mentioned above, SCS also came late in the day to this responsibility, which was originally envisaged would lie with SCRA.
5.213 Several interviewees felt that the provisions in the Act for remote sites should not have been brought into force until the infrastructure was in place. For example, one defence agent said that the lack of use of remote sites was inexplicable in terms of the Act and current thinking. One interviewee working at strategic level within a voluntary organisation provided a list of examples where children aged under 12 in eligible cases did not use a remote site to give their evidence, a situation seen as indefensible under the Act, and related to lack of suitable provision.
5.214 Some current uses of 'remote sites' are in fact CCTV rooms within another courthouse, which some interviewees saw as against the spirit of the Act. One defence agent noted that "In Glasgow you've got the bizarre situation that if you are giving the evidence in a sheriff court and via this camera thing you've got to go to the High Court to do it because it's the only other appropriate place. Now I do not see how walking into the High Court as a witness is going to be less scary or intimidating than walking into the sheriff court which in general is a less scary building".
5.215 One police manager noted that "Falkirk is one of few remote sites in the country I believe". A prosecutor said that "I know the SCS is going around trying to identify some and will publicise on the internet when they do". Evidence from this research and the evaluation during the same period of vulnerable witness officer pilots (Morris et al, 2008) indicates that lack of remote site provision is a national rather than local issue.
5.216 Some sites have been reported to be unsuitable on inspection, for example regarding access, and have been taken out of use. One prosecutor reported wanting to use a local remote site, before finding it had been deemed to be too much like a courtroom, so it had been taken out of commission. This prosecutor had been told to use a link from within the sheriff court, and had subsequently seen " Quite a few young witnesses" at the local court. Another Crown office interviewee said:
"I think that the options of CCTV and screens are always there. Remote sites I wouldn't even mention because I know that it is such a problem".
5.217 Another prosecutor gave an example of a recent case involving a 5 year old "Where nobody had even thought to ask for a remote site". An interviewee from a voluntary organisation told of a case recently when a child was due to give evidence using court-to-court CCTV link. But the mother was also giving evidence and she had to go to the court where the trial was being held. The mother had not understood the implications of choosing a court-to-court link, and would have been happier for the child to use in-court CCTV rather than be separated from her over a large distance.
5.218 Examples were also given of witnesses having to travel so far to a remote site that they decided that an in-court CCTV link nearer their home town was more suitable instead; these were backed up by the findings of the data collection exercise (see chapter 4).
5.219 Cases were cited by interviewees (and again confirmed by data collection) of attempts to use remote sites that ended in failure because of technical difficulties. This meant that the witnesses had to attend again the following day at the court and typically give evidence by CCTV link within the court. Such examples have contributed to some unwillingness among members of the judiciary and Crown Office to attempt to use remote sites.
5.220 One judge whose only experience of remote sites was in a case involving 2 young children using the Office of the Public Guardian had found the system excellent: " No practical difficulties at all; there was clear sound and a good view". This judge also said that the witnesses were " Terrific" and that as far as they could tell all those involved in the case had been comfortable with the provision, including the defence counsel. The second case study follows, as an illustration of a successful use of remote link.
Case study 2
This case involved 8 child witnesses, all aged under 12. CWNs were lodged for each child cited, with no accompanying specialist reports. Applications were made to use CCTV from a remote site for each child, all combined with a supporter, although the CWNs noted that 2 of the children thought they might want no SM, and one a screen. The requests were granted without opposition. The remote site was more readily accessible for these children than those in the previous case study, and after a couple of 'blips' during testing the link between the site and the court room was found to be functioning well. The supporters varied among WS, specialist support services, and family members. Court records for this case could be taken as an example of best practice, both from prosecution and defence, and of case recording and filing. All elements of the court records were available, and the parties' paperwork was complete, and in the correct form, with all procedural stages completed timeously. Despite this, there was some delay in bringing the case to trial. The disposal was almost 2 months after the case first called. Interviews with professionals involved with this case indicated that a good deal of work had gone on behind the scenes to prepare for this case, including early flagging to SCS of the need for a remote site, and a familiarisation and training session at the remote site and linked court for a clerk of court. The remote site, which is an ad hoc facility maintained by the hosts, was seen to have high standards of equipment and good facilities for witnesses. The accused person was convicted. |
5.221 Otherwise, judicial examples of their experiences of links from remote locations form little more than a list of disasters. Judges' views focused on the unreliability of the equipment, and it seems as if the norm is for remote links to be unusable, even where these are identified. In all other cases described, equipment failure meant that children had to come to court to give their evidence, albeit by CCTV link in the court house, and expensive delays in trials occurred.
Non-statutory special measures
5.222 The 'non statutory special measures' are highly valued. These include actions that the judge or sheriff can take, such as clearing the court. Closed courts were said to be particularly popular with children, since a full public gallery would amount to public speaking, which would daunt many adults in a normal situation. One judge allowed child witnesses to sit beside them on the bench, and another left the bench to sit with the child, while they gave their evidence. Several interviewees gave examples of judges coming down off the bench.
5.223 On the other hand, although they had no problems with doing so, several judges felt that removing wigs and gowns was neither necessary nor desirable: " Sometimes everyone would be without wigs and gowns, and some children are disappointed about this or confused, asking if we don't have to wait for the man with the wig to arrive."
5.224 While removal of wigs and gowns seemed commonplace, a number of other interviewees noted that children expect and like to see the judge with a wig on, and the WS described using jokes about these to help put children at their ease. One defence agent said:
"I have been involved in a case before where the children specifically said they wanted to see the judge in his wig- I'm not sure why but they're given leaflets, where the judge is shown in a wig- they've always got a judge in a wig. So anytime that a judge has said that I have taken to my feet, and pointed this out. To take it off might in fact confuse the child more than anything- and so I have suggested that they should be asked."
5.225 Some professionals said that sheriffs are either generally 'very good' or 'variable' about matters involving children, and some members of the judiciary have been named as being particularly good at communicating with child witnesses. Certainly levels of formality vary, with typical comments being "Certainly Sheriff [x] is really quite proactive there - sheriff [y] will do that as well…" or "Here they are quite mindful of the needs of vulnerable witnesses; they apply the law, but in the main are sympathetic" or "Sheriff [y] used to be particularly informal; [one new sheriff] is less inclined to get off the bench; he likes to keep his aura. I'm not saying for one moment he's not helpful to child witnesses, but he is more concerned that he gets respect".
5.226 The support of the WS is highly valued by witnesses (see chapter 6). Those witnesses encountered by the researchers, including short conversations in waiting areas, were unanimous in their appreciation of the WS. Without the WS, there is often no-one telling the witnesses (particularly defence witnesses) what is happening, and the WS can help to arrange for witnesses to enter the court by a different entrance, if one exists (see below). They have instigated simple measures such as directions provided in advance (e.g. " Skip the queue at reception and go straight to the waiting area") or signs (e.g. to the defence waiting area).
5.227 Clerks of court in particular rated the service highly, speaking of how well trained supporters tended to be, and how well they performed what was a difficult task. Before WS was rolled out in courts, care of witnesses had been primarily the responsibility of clerks, and they were unanimous in their relief to have been freed up by WS involvement, with several pointing out that WS volunteers provided a much higher standard of service than had previously been able to be met. Judges too generally welcomed WS presence in the courts. The only reservations expressed about the WS were by social workers in some areas who felt that volunteers sometimes lacked specialist skills and training in identifying and dealing with vulnerable people.
Design of courthouses
5.228 The design of smaller and older courthouses was raised at interview by many interviewees, including judges, who were well aware of the limitations of court buildings in providing good accommodations for vulnerable witnesses, and in keeping prosecution witnesses separate from the defence. One judge mentioned that witnesses had to " run the gauntlet through the constant crowd outside" to enter by the main entrance and professionals commonly mentioned instances where large numbers of friends or family members on opposing sides of a case congregate at the court. Interviewees gave examples relating to sheriff courts across Scotland, not just the study courts.
5.229 Some courts have separate entrances and in some courts special arrangements are made for some witnesses. For example, WS report arranging to meet witnesses at side doors that are locked to the general public, or arranging to meet them some 15 minutes or so earlier than the citation time. In many courts the provision of separate areas and entrances is not practicable, but there are examples of them not being used where they do exist.
5.230 A range of interviewees reported that intimidation of witnesses was not uncommon, both inside and outside courts, citing examples where aggression by the accused person or their friends and relatives had been serious enough to warrant charges, and to be featured in local newspapers. There is a police presence in courts, and it seems that the police are able to increase their presence at very short notice, but there is no general police protection outside court houses, and it is not the responsibility of the police officers assigned to the court to personally address aggression outside.
5.231 The problem is exacerbated by having all parties cited to arrive at the same time. Court arrival times may also mean that all those involved in a case are likely to be on the same bus or train, with no alternative route from the stations.
5.232 Limited waiting places in courts makes separation of witnesses an issue. Where there is no defence waiting room at court, accused persons may be very visible in the public areas . The judiciary appreciated the efforts made by court staff and the WS to keep defence and prosecution witnesses separate, but the waiting systems at court are geared to the Crown and their witnesses and not the defence (and several interviewees pointed out the innocent status of accused persons). For example, where separate defence waiting areas exist, sometimes these are forgotten when a case adjourns, and the defence witnesses are left waiting and not sent home.
5.233 Whether or not there are separate waiting areas, the sharing of common areas including corridors, public refreshment areas and toilets also cause problems. A defence agent noted that "Once the trial starts they know they can go for a fag or go to the tea room- there are no problems- they tend not to hang about the corridors so much". Witnesses who are smokers have an additional problem, since all Scottish public buildings are smoke-free, and witnesses have to leave the court house to smoke.
5.234 For those who go to court to give evidence the act of attending on the day can be extremely stressful, and if the case is adjourned, or carried over to the next day, the experience must be repeated. Both these experiences happened to some of the witnesses interviewed in chapter 6.
5.235 While most interviewees felt that constraints because of building design were inevitably "just part of the court system",several were particularly critical of the newer buildings: " You'd think if you were designing a new court you would think about [these issues]. One interviewee from a voluntary organisation said:
"It's not about tipping the balance in favour of the witness- just getting more equity and balance back from being tipped in favour of the accused. One example I like to use is Hampden Park, the national stadium- when it was designed, they designed it to keep opposing sides apart- separated entrances, changing rooms, everything- yet all victims and defendants go into court through the one door."
5.236 On the other hand, some of the more modern courts were described as well-run:
"I was at [a District Court] today and it is like being at a badly organised amateur wedding, whereas [the local sheriff court] is very good; it has been done up for the High Court so the witness rooms are all very good; they've all got TV and magazines and the Witness Service is extremely competent, the bar officers good. There are 6 or 8 witness rooms and rooms for vulnerable witnesses; I've never seen any incidents involving the witness and accused".
5.237 Witnesses encounter other difficulties at courts, and relatively simple suggestions for improvement were made by some interviewees. For example, the police described one case with a non hearing and non speaking witness who used a sign language interpreter throughout the case, including at a VIPER parade. But when the witness went to court they could not hear the tannoy and were reliant on someone coming to get them, and problems arose. In that case, a vibrating pager would have been useful.
5.238 'Court culture' may have a role to play in addressing needs of those with physical disabilities. For example, if facilities are not made available at court (e.g. the hearing loop is switched off or microphones are avoided so lawyers can confer, or there is no space for wheelchairs) then they become disadvantaged. One witness interviewed ( chapter 6) said that the defence agent turned away while asking questions of a deaf person, making it hard to lip-read.
Referrals from the Children's Hearings System
5.239 For children cited by the reporter, reporters rather than the WS or VIA are responsible for carrying out CFVs and preparing the child for court. Children's Hearings court proceedings may take place in chambers or in SCRA rooms (one reporter said that " Examples of sheriffs declining to come down from the bench are rare"), but this varies around the country. In Edinburgh, for example, disputed SCRA cases will be heard at the Sheriff Court in closed court.
5.240 Few examples were given by the judiciary of children giving evidence in these cases, and nearly all judges said that it was unusual for children to be cited as witnesses by children's reporters: " It's very rare for child witnesses to be called in Children's Hearings cases", reflecting SCRA policy not to cite child witnesses, where possible. This met with general approval; several judges stating that where it was necessary to speak to a child in such cases, they would see the child in chambers. Only one judge reported that applications by reporters were the most common source of applications for SMs in their court.
Witness treatment overall and afterwards
5.241 Interviewees from WS, VIA and VSS who have the key roles in witness support in criminal cases stress that people need options and choices of support all the way through proceedings. One professional working at strategic level within a voluntary organisation said: " that's what makes them feel in control and people need that and that's why fiscals shouldn't make choices for them".
5.242 Perhaps the most pressing issue for most witnesses is the need for information, about proceedings, about their particular case, and while they are waiting at court to give their evidence. Another representative from a voluntary organisation spoke about this issue, which was well recognised before the Act " I always say information is power, therefore people were left powerless since they didn't know what was going on. We felt that acutely for people, since we were struggling ourselves as an organisation to get info on what was going on". Information channels between professionals and witnesses were also seen as important, since witnesses need to be able to communicate particular concerns, sometimes serious concerns, for example instances of intimidation or harassment because their role as a witness is known in the local community.
5.243 Several interviewees, notably the police and voluntary agencies, thought it important that people were kept informed not only about whether but why their case was or was not going ahead. One said "It's a huge issue. If people are given more info, they don't feel re-victimised". The police said "The majority of complaints that come to us is because they're not getting updated". For example, car break-ins or burglaries might not be pursued until enough had happened and enough evidence had been gathered for the fiscals to proceed. But the effect was that people heard nothing, until months later a citation appeared through the door: "They're left with a bitter taste in their mouth. The police were the first people they spoke to, so as far as they're concerned it's not the prosecutor's fault; it's the police's fault".
5.244 It is also common for witnesses who attend not to be asked to give evidence, because sufficient evidence may have been heard and a plea is entered, and the Crown is trying to 'save' a child from having to take the stand, or because the trial is postponed at the request of the defence. While is probably welcomed by the majority of witnesses, this is not always the case if a witness has geared themselves up to give evidence (possible therapeutic effects of doing so were mentioned). Evidence both from witnesses and the WS have indicated that this happens frequently; and witnesses also experience anxiety during the often lengthy period before a trial date is set.
5.245 VIA are responsible for informing witnesses who have been referred to them about the outcome of the case, and seek to send that information to people within one working week 71. VIA do not normally telephone unless it is a high profile case and it is known that a particular witness is awaiting the information. After VIA itself has received the information through a variety of means and a letter has been sent there can be delays however; the researchers received numerous examples of information being received after weeks rather than 5 days. VIA officers report that often witnesses are in court on the last day, and so they are directly informed of the verdict. Nonetheless, VIA are concerned to provide information as quickly as possible: " In a particular case if someone indicates that they would like the info we would endeavour to get it out to them".
5.246 The WS makes assessments of post-trial needs for clients, and as part of VSS is well placed to make referrals to VSS community services. While VIA and the WS will make referrals for post-trial support, any such support is 'dependent on its availability' and the witnesses wanting and seeking such support; SW departments and the NHS are likely providers. Lack of availability of specialist services for vulnerable witness support, and especially for therapeutic support is well recognised, and social workers and professionals working in child welfare stressed the importance of providing this.
Summary
5.247 Overall, the Act was welcomed by those interviewed; strongly by some agencies, and with some reservations by others, notably the judiciary who felt it limited the court's discretion. The guidance pack provided by the SE has been well distributed, although many professionals rely on their own agencies' internal, shorter, guidance. Similarly, training has been attended, and although sometimes this is more concerned with general vulnerability (police, VSS) or talking to children (Judiciary) than specifically the Actthis probably does not make it any less valuable.
5.248 Some resource demands (specialist reports, hearings to determine applications) have not been as high as expected, with the notable exception of VIPER parades, which are a pre-requisite for the use of SMs unless other identification methods can be used, and which are a burden that fall onto the police.
5.249 There are however hidden resource demands that have not yet been realised, because SCS has not been able to put in place a comprehensive network of good quality remote sites or even the within-court CCTV links required to implement the Act. Information from the professional interviews suggests that many professionals are simply not offering the use of some SMs, so witnesses are not being offered options to which they may be entitled. Notably, the Act's intentions for under-12s in certain cases of giving evidence away from court are not being met.
5.250 VIA was not sufficiently integrated with Crown Office during the period of this evaluation; there are many examples of impersonal letters being sent out, late, while witnesses want information quickly and personally. It is very hard for VIA to seek witness views and the system works best where VIA officers work most closely with precognoscers. The re-organisation of VIA/ COPFS should help in this regard and there were signs that this was the case during interviews.
5.251 Identification of VWs, particularly adults, is an issue. The way the system should work in practice is that the police flag up vulnerable witnesses for the PF; with information in the SPR flowing electronically from Crimefile or an equivalent into PROMIS. This is largely happening for child witnesses where the flag is a simple age, but not for adults, where it is a series of remarks which cannot be handled automatically by the system.
5.252 The police interviewed were concerned that the PF did not always act on their flags; the PFs interviewed were concerned that the police did not always flag up vulnerability. The real situation lies somewhere in-between; this research interviewed police in specialist units who the Crown acknowledged were among the best at flagging. Prosecutors do have responsibilities to identify as well though, but this is hard if witnesses are not precognosced. SPR2 should improve flagging of adults.
5.253 At the same time, the police were certainly flagging up over 22,000 children a year in the SPR; however, by year 2 of implementation CWNs were not yet being submitted for all children who are cited to appear in court. Flagging a case is not enough; once the Act is fully implemented a CWN needs to be submitted and the Crown must take responsibility for this and thereby for informing SCS that a child witness is coming to court.
5.254 There is no 'system' to ensure that a defence agent is informed of an accused person's or defence witness's vulnerability, since even if the police identify this the information is not passed on to defence agents systematically. Defence agents seem to be among the least-trained in terms of the VWA among the agencies interviewed.
5.255 The WS is highly valued by other agencies. It carries out work that the police or court staff used to do, but it has more time to devote to witnesses at court. At the same time, witnesses are still reported to be being left with very poor information, and to be treated far worse than professional witnesses. The problems outlined extend beyond the stresses of waiting with no information, to overt intimidation at court and outside.
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