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CHAPTER SEVEN CONCLUSIONS AND MAIN POINTS
Introduction
7.1 This short final chapter draws together the evidence from the preceding chapters; from data collection at courts, information collected by agencies and the views of professionals and of witnesses, and highlights the most significant findings and conclusions from this research.
Main findings
7.2 Early implementation of the Act was assessed by primary research at courts. In the High Court, the research identified around 200 children being cited each year, of whom around 30 were aged under 12, and 50-60 gave evidence. At least 9% of cases in child year 2/adult year 1 included child or adult VWs. However, sampling was based on cases where applications had been made only, so the true numbers are higher. A 7 month period at the start of child year 1 during which all indictments and witness lists were examined indicated that up to 280 children are being cited each year in the High Court and that CWNs were being submitted for around 60% of children.
7.3 In 6 study sheriff courts including Edinburgh and Glasgow, indictments and witness lists were examined for all solemn cases indicted over the 3 year study period. Around 200 children were being cited to give evidence each year including up to 60 under-12 year olds, with some 40-50 children giving their evidence each year. Vulnerable witnesses (largely children) were identified in around 5-6% of sheriff and jury cases each year.
7.4 The Act requires that all children cited in solemn cases reported to the procurator fiscal on or after 1 April 2005, and witnesses in children's hearings court proceedings which were lodged on or after that date, should have CWNs submitted for them. In child year 1 around 80% of children in the study sheriff courts had no CWN or other application for SMs, but by child year 2 this had fallen to around half.
7.5 In the year before the Act came into force, two thirds of children who gave evidence in sheriff and jury trials did so without any special measure. This fell to half of all children who gave evidence in child year 1, and further to 14% by child year 2.
7.6 There are concerns about the identification of vulnerable adults, especially since many vulnerabilities are not visible, and many examples were given of adults who may well have been vulnerable witnesses but received no offer of special measures. Adult vulnerable witnesses proved largely impossible to identify in case papers in the absence of VW applications being made for them. In the High Court in the first two thirds of adult year 1, over 50 VW applications for adults had been made. In the sheriff courts very few adult VW applications were being submitted.
7.7 The number of specialist reports being submitted to support applications for SMs has fallen drastically, and as a direct result of this, the total length of time courts spend waiting for such reports has been decreased. Applications were rarely refused before the Act, and this remains the case. The courts were also flexible in allowing late applications, and the number of hearings to determine applications has not been as high as allowed for in the Bill's financial memorandum.
7.8 Of the standard special measures, CCTV seems consistently popular and screens became less common after the child baseline period in all study courts. There were very few applications for the non-standard special measures, apart from remote links and supporters alone. However, there were no examples of remote link being used successfully in the High Court. Some non-statutory measures were highly valued (cleared courts, WS help) but some seemed less important to witnesses (the removal of wigs and gowns). For adult vulnerable witnesses, screens were more commonly used than CCTV.
7.9 The police are flagging up to COPFS over 22,000 children a year in the SPR, but because CWNs are not always submitted, children continue to attend at court unexpected by court staff or Witness Services, with frequent examples cited by these professionals.
7.10 As would be expected given SCRA policy not to cite child witnesses wherever possible, there were few SM applications from reporters. However, in some courts applications from reporters rose sharply in child year 2, suggesting either that the provisions of the Act had started to be more widely adopted by reporters in some areas or that citations by reporters had risen. Very few defence vulnerable witnesses or vulnerable accused persons were identified by the researchers. No system exists for the police to notify the defence of a person's vulnerability, even if the police identify this.
Conclusions
7.11 The Act is contributing to an increasing awareness of the needs of vulnerable witnesses. Agencies also report increasing public awareness of the existence of special measures. However, the adversarial nature and culture of court proceedings, and indeed the design of many courthouses, are not conducive to improving witnesses' experiences.
7.12 Both professionals and witnesses interviewed for this study perceive that witnesses attending Scottish courts continue to be treated poorly, although witnesses interviewed had experience of solemn proceedings only. Some of the measures that would improve matters most for witnesses do not require legislation and could be addressed by provision of information before coming to court, while waiting to give evidence and afterwards.
7.13 Some relatively recent policy developments have worked well in this regard; the personal service provided by the WS is highly valued by agencies and by witnesses. VIA has a key role in keeping witnesses informed, yet provides information mainly by letter, often with a considerable time-lag, and may need greater resourcing.
7.14 By the end of the field period, when around two thirds of cases in child year 2/adult year 1 of implementation had completed, the Act's provisions were increasingly being used. Nevertheless, there were still children attending at court without having had CWNs submitted on their behalf, and there remained concerns about the identification of adult vulnerable witnesses, and vulnerable defence witnesses or accused persons.
7.15 There were also serious concerns about the extension of the Act to summary criminal cases, when the number of cases covered would rise greatly, and witnesses would not necessarily be precognosced. Such issues caused concern for many of those interviewed who were working within the justice system.
7.16 One of the most often raised problems in implementing the Act was the state of readiness and small number of remote sites, away from courthouses. Therefore the Act's intentions for under 12s to give their evidence away from a courthouse in certain cases were not being met. Interviewees also reported that links from within other courthouses were being used as substitutes for true remote sites, and also problems with CCTV equipment rooms within even some of the busiest courts. Several professionals thought that the SCS electronic services delivery unit ESDU was too small to support the potential uses of live link within courthouses and remote sites. Such resource issues currently fall mainly to SCS (although this was not envisaged at the time of the Bill, when it was thought that local authorities would meet the cost of remote sites), and may need reassessing and addressing.
7.17 It would probably surprise an outside observer that the total number of witnesses cited or giving evidence in the justice system remains unknown, including the number of child or adult vulnerable witnesses. To monitor the Act effectively, further information would be needed including the number of CWNs and VW applications submitted and SMs granted. This would help show whether information relating to vulnerable witnesses is being passed from one agency to another, or being lost or not acted upon. But by the end of the research period, the agencies involved were still not able to collect these data, and, for instance, the police still had to pass information to SCRA in paper form, not electronically. This implies that greater investment in electronic information systems and information standards is required.
7.18 The participation of witnesses is essential to the delivery of justice, and in these early days of the Act's implementation this evaluation shows that witnesses are beginning to be treated more considerately and properly by the justice system. Many outstanding issues cannot be addressed by legislation alone, but the Act is having an effect both on attitudes and through introducing mechanisms designed to ensure that witness needs are addressed.
7.19 Fuller and continuing implementation of the Act will help to ensure that child witnesses do not remain unidentified in the system, and that more vulnerable witnesses are offered the support that the parliament intended for them. This may require greater resourcing, notably to support remote sites and of several agencies to improve information management and sharing, but most of all it requires that court culture continues to change. Overall, the effects of the Act are beginning to be seen.
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