VULNERABLE WITNESSES ACT IMPLEMENTATION
STEERING GROUP
SUBORDINATE LEGISLATION SUB-GROUP
VWSL/12/04
RULES OF COURT IN RESPECT OF CHILDREN'S HEARINGS
REFERRALS TO THESHERIFF COURT
1. Following the meeting of the sub-group on 25
October a revised set of instructions in respect of an Act
of Sederunt was sent to OSSE. A copy is attached for
information.
2. Also attached for information is a copy of a
memo to Access to Justice Division which responds to a
number of points in the revised instructions mentioned
above and clarifies when the arrangements in respect of
phase 1 of the Vulnerable Witnesses Act will take
effect.
3. Next steps.
SEJD
Victims and Witnesses Unit
November 2004
ANNEX 1
Secretary to the Sheriff Court Rules Council
27 October 2004
Helena Janssen
John St Clair
Paul Cackette
Karen Stewart
Bill Moore
Frances Roberts
Marilyn Riddell
THE VULNERABLE WITNESSES (SCOTLAND) ACT 2004
CHILD CARE AND MAINTENANCE RULES 1997
1. The Vulnerable Witnesses (Scotland) Act 2004
received Royal assent on 14 April 2004. The Act assumes
that all children under the age of 16 are vulnerable
witnesses (section 11 (1) (a), extends the range of adults
who can be classed as vulnerable witnesses to include those
for whom there would be a serious risk that their ability
to give evidence would be diminished through fear or
distress. It formalises existing
special measures, introduces new ones and
contains other provisions aimed at making it easier for
witnesses to give their evidence.
2. The Vulnerable Witnesses Act will
require Rules to regulate practices and procedures
under the Act. Section 14(2) of the Act extends
Section 32 of the Sheriff Courts (Scotland) Act 1971 by
adding powers to regulate procedure in connection with the
making of orders in relation to
special measures under this Act.
3. The policy intention is that implementation
of the Vulnerable Witnesses Act should be phased in as
follows:-
- From April 2005 - Introduction of measures
applicable to child witnesses in High Court and Sheriff
Solemn cases and consideration of grounds of referral
to Children's Hearings by the Sheriff Court requiring
an Act of Sederunt . (At the implementation
working group on 25 October there was discussion on the
possible need to delay implementation of the special
provisions relating to Evidence on Commission and
Evidence by TV link from a remote location.)
- From April 2006 - Introduction of
measures applicable to adult vulnerable witnesses in
High Court and Sheriff Solemn cases.
- From April 2007 - Introduction
of measures applicable to child and adult vulnerable
witnesses in Sheriff Summary cases (this will depend on
timetable for implementing the McInnes Report on
Summary Justice)
- From autumn 2007 - Introduction
of measures applicable to child and adult vulnerable
witnesses in Court of Session and Sheriff Court Civil
cases (this will require an Act of Sederunt).
4. The
special measures identified in the Act
are:-
- live TV link - sec 20
- use of screens - sec 21
- presence of supporter - sec
22
- the taking of evidence by a
commissioner - sec 19
5. Such
special measures will, in time, be
available in all Courts. As can be seen from 3 above,
implementation is staged throughout our various types of
Courts. The secretariat has already asked policy holders
and the implementation team to consider the desirability of
the necessary forms and procedures in the various courts to
be prescribed by Acts of Adjournal and Sederunt being,
where at all possible, similar if not identical.
The Sheriff Court Rules Council having
considered this issue on 10 September is firmly of the
view that, where at all possible, efforts should be
made to ensure that prescribed forms and procedures
required through the implementation of this Act should
be similar if not identical. The draftsperson is
requested to liaise with those who will be drafting the
forms and rules for inclusion in the necessary Acts of
Adjournal in order to accomplish this.
CHILDREN'S HEARINGS IN THESHERIFF COURT
6. For the purposes of implementation of the Act in
relation to Children's Hearings in the Sheriff Court rules
will be required for the following:-
6.1 CHILD WITNESS NOTICES (SEC 12). This
notice is the foundation stone for the
provisions of the act. Where a child is to give
evidence the court must make an order before the hearing,
authorising the use of a
special measure or declaring that the
child witness is to give evidence without the benefit of
any special measure.
The party citing the child witness must lodge with the
court a child witness notice.
A form will require to be prescribed for such a
notice. The form will require to specify the
special measure or measures which the party considers to be
most appropriate or a statement to the effect that they
consider that the child witness should give evidence
without the benefit of any special measure.
The court can only make an order stating that the child
witness is to give evidence without special measures where
satisfied that this is the child's wish or, where the use
of such special measure would give rise to significant risk
of prejudice to the fairness of the proceedings, or the
interests of justice, and that risk outweighs the risk of
prejudice to the interests of the child witness, if the
order is made. The court is required by section 15(2)(b)
when considering making an order and by section 12 (1) (b)
when considering if it is not appropriate to make such an
order, to take into account any views expressed by the
child and the views of the child's parents (with the
presumption that a child of 12 and over is of sufficient
age and maturity to form a view).
Timing of the lodging of such a notice is crucial given
the already tight timescales for lodging of applications to
the court under Part VII of the Child Care &
Maintenance Rules 1997 and the assigning of a hearing. The
Rules Council is of the view that where at all practicably
possible the notice should be lodged at the same time as
the application and grounds of referral or at a later stage
where this is not possible when it should be accompanied by
a copy of the application and grounds of referral. Rules
should provide that the applicant should, at the time of
lodging the application certify that he has copied the
application to other parties to the case.
A prescribed form of intimation and execution
thereof would be useful. (Note to draftsperson:
Are such forms being prescribed in the Act of
Adjournal?)
Policy advice is that the form will require to contain
provision for inclusion of :-
Child's name and date of birth.
The grounds for referral giving rise to the
proceedings.
The date of the hearing and the case history where there
have been prior callings.
Whether special measures are required.
If none, information to satisfy the court that this is
the child's wish.
Details of the special measure considered most
appropriate.
What the child's view are and how these views were
obtained and what the views of the parents are and how
these were obtained.
Rule 3.5 of the 1997 rules makes provision for the
taking of the child's views.
This rule should be amended to link it to the
sheriff's consideration of an order under sections 12(1);
12(6) or 13(2)(Review of arrangements). It would be
helpful if rules could provide for such procedures to be
executed prior to lodging the notice in court to assist
with timescales but it is recognised this will not always
be possible.
Procedure on lodging of the form of
notice Time will always be of the essence in
these cases. I think we should avoid being overly
prescriptive in making provision as to how each case will
be dealt with. I had thought that the Sheriff would
require to give parties the opportunity to be heard on the
notice and of course to obtain the views of the child to
which the notice relates and that in these circumstances
proximity of the lodging of the notice to the referral
hearing date would dictate the timing of the hearing on the
notice if there was to be one. I had thought too that the
date and time of the hearing could however be intimated to
parties simply by a telephone call from the Sheriff
Clerk.
However, having sought advice from policy holders I am
advised as follows:-
"There is no equivalent in Part 2 to Part 1's s
271A(5A) and s 271(9) which specify the circumstances in
which the court will appoint a diet "giving parties an
opportunity to be heard" on an application.
Nor is there any provision (either in Part 2 or Part 1)
for other parties, once intimated, to make written
representations opposing the application; the sheriff is to
come to his decision on the basis of the material
presented by the applicant in the child witness notice
(CWN). Once the order is made the measures specified
become, for the time being, the current arrangements.
The Sheriff has no discretion, in the case of the
standard special measures; there is no hearing on the
merits; these are deemed to be the most appropriate
measures.
In the case of additional measures, the Sheriff reaches
his decision on the basis of what is before him in the CWN,
( and see (3) below).
This decision ( the "current arrangements") may
subsequently be reviewed via s13, on the application of
the party citing or intending to cite the witness, or on
the court's own motion, and the order may be varied or
revoked. The legislation here, unlike it's Part 1
equivalent, makes no specific reference to the court
appointing a diet for the purposes of hearing parties. (In
any event it is unclear whether s13 is intended to refer
solely to adult witnesses whose vulnerability emerges at a
later stage in proceedings). It is not clear how an
opposing party could challenge the measures if neither the
court nor the party citing the witness avail themselves of
s13.
Clarification of what was intended would be helpful. If
it is assumed that some opportunity for a hearing was
intended (and if it is legitimate for rules to implement
intentions not given foundation in primary legislation)
then it would be necessary to ensure any rules provided
the kind of protections incorporated in Part 1 ( eg
standard measures could not be challenged; any hearing
would only be triggered in the same special circumstances
identified at 271A(5a) and (9))"
I will seek further clarification from those leading the
implementation exercise and thereafter seek the views of
the Rules Council on how this issue should be handled.
Personally I am of the view that the court must have the
power where it considers appropriate to fix a hearing in
any application put before it.
It would be helpful if you couldgive the Rules Council the benefit of your advice
on this matter.
In the meantime, the draft Act of Sederunt
should remain silent on the procedure to be followed on
the lodging of the form of notice.
6.2 REVIEW OF ARRANGEMENTS FOR VULNERABLE
WITNESSES (Sec 13).
This section gives the court the power
at any stage of the proceedings to review
the arrangements for the taking of the child's evidence, on
its own motion or on the motion of the party citing the
child.
Given the many permutations, the Rules Council is of the
view that it may be helpful to again
prescribe a form of application for use
prior to the commencement of the hearing where the party
citing the child wishes to make a motion to the court to
review the arrangements. The form of application should
be lodged where at all practicably possible prior to
commencement of the hearing and should be accompanied by a
copy of the grounds of referral. Rules should provide that
the applicant should, at the time of lodging the
application certify that he has copied the application to
other parties to the case. Again a form of intimation and
execution thereof would be useful. There will be no need
to use such a form when a review is sought verbally at the
bar during the course of proceedings.
All that is said above about the need or otherwise for a
hearing equally applies in this regard.
6. 3 USE OF EVIDENCE ON COMMISSION (Sec
19) The Secretariat was originally advised by
policy holders that there is little precedent for taking
evidence on commission from child witnesses in children's
hearings but that a rare example is Ferguson, Petitioner
SLT 1989 150. Policy holders plan to commission guidance
for use where commissions are granted. They suggest
however that it may be of assistance to have rules of court
covering:-
- who may act as a
commissioner
- what steps should be taken by the
commissioner to make the proceedings "child
friendly"
- method by which parties may watch
and hear the proceedings
- method by which a parties may
communicate with legal representatives relative to the
evidence on commission
- the role of the commissioner,
including his power to adjourn the commission, decide
on the admissibility of evidence, ask questions
himself, etc.
- cross - examination
- who shall be present at a
commission
- who shall pay for the
commission.
The Rules Council has agreed this contention but only in
so far as rule or precedent do not already make such
provision.
I asked policy holders to consider further what is
really required here in the light of the Rules Council's
comment. I pointed out that commissions are currently used
quite widely in civil litigation - see Macphail, 2nd
edition 15.18 et seq but that we have very few rules
regulating them - see Ordinary Cause Rule 28.9 to 11 to be
found at D44/71 in the Parliament House Book. I asked what
type of commission this is? Is it a new statutory type of
commission or is it merely one of the type we have been
used to dealing with hither to? I pointed out that at
present we could have a commissioner take a child's
evidence in any civil litigation but we don't prescribe who
may act; what steps they should take to make the
proceedings "child friendly" etc. If a commissioner is in
any doubt then he/she can revert to the court for further
direction. If he or she takes a decision and a party
disagrees with it then they can object to the court.
In response I have been advised that the latest version
of the instructions for the Act of Adjournal now contains
very little in relation to Commissions to take evidence
because of existing Criminal rules on the subject of
Commissions. I will press further for an answer to my
questions about the nature of this commission.
Please see 6.4 on how the Rules Council would want
this matter addressed.
On the issue of who shall pay for the commission, the
normal provision in civil litigation is that the expense is
part of the process and expenses of course normally follow
success. However, this is not a civil process. I have
sought the views of SCS on who should pay reminding them of
the terms of rule 129 of the Child Care and Maintenance
Rules 1997 which states that "No expenses shall be awarded
in any proceedings in which this chapter applies. From
this I would conclude that there is no need for the rules
ultimately drafted to address this issue.
6.4 TAKING EVIDENCE BY LIVE TV LINK (Sec
20). Although such a measure is presently
competent the use of such a video link is currently
restricted to Court premises. (see rules 3.22 and 3.23 of
the C C & M Rules)
It is the policy intention that that sections 12(1)(a),
12(3), 18 (b) and 20 should be read as opening the door for
the live TV link to be from somewhere other than a Court
where this seems to be not a special measure but a measure
which could fall into the category of "measures as the
court considers to be the most appropriate for the purpose
of taking the child witness's evidence" (sect 12 (1)(b).
It is suggested that in these circumstances we may require
rules to cover:-
· who should be present at the remote
location
· who pays for any expenses involved (Note: See
comments above which equally apply here)
· the choice of remote location
· the securing of the site.
The Rules Council has considered the need for rules
here. Rather than being prescriptive in rules as to the
choice of location and who should be present it is the view
that it would be preferable for rules to require the
Sheriff to consider each case on its merits and in
authorising evidence by TV link form a remote location
should stipulate where this should be and who should be
present. Perhaps a general provision that the sheriff may
make such direction ……….as he deems appropriate in all the
circumstances ………..in regard to………. Such a provision may
be sufficient to cover TV link, commission, presence of
supporters, use of screens etc.
I would be pleased if you could draft such an all
encompassing rule for consideration by the
council.
6.5 USE OF SCREENS (Sec 21). The C C
& M Rules do not currently make provision for the use
of screens although policy holders advise screens have been
used in such proceedings. If rules are now considered
necessary it is suggested they should cover:-
· positioning of the screen
· parties right to view the witness behind the
screen
· whether party behind screen may speak to agent
while witness present.
As at above, the Rules Council has considered the need
for rules and again here, rather than being prescriptive in
rules as to the positioning of screens, parties right to
view the witness behind the screen and whether party behind
the screen may speak to an agent while witness present, it
would be preferable for rules to require the Sheriff to
consider each case on its merits and in authorising the use
of screens he/she should give directions in regard to these
issues.
(See 6.4 above for instructions)
6.6 PRESENCE OF SUPPORTERS (Sec 22).
Such an issue is not presently dealt with in the C C &
M Rules but must often be dealt with in practice. Given
the introduction of the special measures above it is
suggested by policy holders that this may be the time to
address this issue. It is suggested rules should
specify:-
- where a supporter may sit (and
whether they should be in view of the witness)
- whether the supporter may speak
to the witness or comfort them
- how a supporter is used alongside
other special measures such as screens, live TV links
and in evidence on commission.
As at above, the Rules Council has considered the need
for rules and again here, rather than being prescriptive in
rules as to the where a supporter may sit, whether the
supporter may speak to the witness or comfort them, how a
supporter is used alongside other special measures such as
screens, live TV links it is suggested it would be
preferable for rules to require the Sheriff to consider
each case on its merits at any stage during the
proceedings. These are matters sheriffs currently
regulate as a cases progresses. As the Sheriff will not be
present during a commission of course he won't be able to
give such direction but this is an issue the should be
considered and decided upon by the commissioner appointed
by the court.
(See 6.4 above for instructions)
6.7 USE OF PRIOR STATEMENTS AS EVIDENCE IN
CHIEF IN SECTION 65 APPLICATIONS RELATING TO OFFENCE
GROUNDS (Sec 1)
Policy holders advice was sought as follows:-
"Use of prior statement as evidence in chief in s65
applications relating to offence grounds.
With the exception of 52(2)(i) grounds - that the child
has committed an offence - the standard of proof applicable
to the reporter's grounds is the lower, civil standard ie
"on the balance of probabilities" rather than the criminal
standard of "beyond reasonable doubt". Where a child is
alleged to have committed an offence however the higher
standard applies and the greater latitude in terms of what
is admissible available to the reporter establishing
non-offence grounds is not available in offence
grounds.
Accordingly, hearsay ( evidence of prior statements) is
admissible in non-offence grounds but not for "i"
grounds.
However it may now be appropriate to apply to offence
grounds provisions analogous to s271h(1)(e) and s271m of
the act and introduce this measure via s18(1)(e) "such
other measures as the Scottish Ministers may, by order made
by statutory instrument, apply".
The following issues, which arise in connection with s
271m, would apply equally to children's hearing court
proceedings:
In relation to criminal proceedings the act ( at s271m)
does not specify that prior statements should be audio or
visually recorded. However, since it does not preclude
audio or visual recording there may be a need for rules of
court to set out how this is done and under what
conditions. These might include:-
o who shall be present
o what is required by way of transcription
o in the case of visual recording what shall be
visible
o disclosure to the defence, or, in the case of
defence witnesses - to the reporter
o who shall pay the costs
and, regardless of how the prior statement has been
recorded -
o evidence of identification prior to hearing of
offence ("i") grounds."
o
Having noted the policy makers points, before
considering this matter further, the Rules Council were of
the view that they would require to be advised if it is the
intention of policy makers to seek to have an order made by
SI under section 18 (1) (e).
The response of policy holders was as follows:-
"the use of prior statements which is available as a
special measure in respect of criminal proceedings is not
available as a special measure in respect of civil
proceedings under the Act and unless there are compelling
reasons for doing so we would not at this stage propose to
introduce an SSI. I would agree that this provision in
Part 1 cannot be read across to Part II of the Act."
Can you advise me how this advice from policy
holders sits where the subject matter of the referral
is criminal in nature?
6.7. I look forward to hearing from you
in due course. As you are aware the Rules Council next
meet on 26 November. It was our agreed plan that we should
be able to put something before them to consider at that
meeting and as you know I require to send them papers at
least 14 days prior to their meeting. If you can prepare
the outline of an Act of Sederunt this would be very
helpful. I appreciate you still await sight of the draft
Act of Adjournal which we agree will be the basis for what
we are trying to achieve here. The draft Act of Sederunt
will I would expect contain a number of blanks as there are
still a number issues on which we await policy advice, the
advice of SCS and in relation to which the Rules council
still require to give further consideration.
I hope that sight of my earlier draft instructions
prepared for the implementation group meeting on 22
September and your attendance at these meetings will aid
you in your task.
Happy to clarify further where necessary.
Glynis McKeand
Secretary to the Sheriff Court Rules
Council
ANNEX 2
Glynis McKeand
Helena Janssen
John St Clair
Paul Cackette
Karen Stewart
Frances Roberts
Marilyn Riddell
THE VULNERABLE WITNESSES (SCOTLAND) ACT 2004
CHILD CARE AND MAINTENANCE RULES 1997
Your minute of 27 October to Helena Janssen et al re.
the above refers. I apologise for the delay in getting
back to you.
Before I attempt to answer the points in your minute
earmarked for a response from me there is a general point
which is relevant which arose at the most recent meeting of
the Vulnerable Witnesses Act Implementation Steering Group
regarding when the arrangements under the Vulnerable
Witnesses Act will take effect. We have been advised that
in respect of child witnesses in criminal cases this would
be the date the indictment or complaint is served on the
accused if it is on or after 1 April 2005. In the case of
a Children's Hearing court procedure this would be the date
on which the referral is made to the sheriff provided it is
on or after 1 April 2005.
Procedure on lodging of the form of
notice
You rightly pointed out that there is no equivalent in
Part 2 of the Act to Part 1's 271A(5a) and 271A(9). The
Act generally is less detailed about requirements in
respect of civil cases but we are advised that it would be
in order for an Act of Sederunt to include provisions such
as those set out in 271A(5a) and 271A(9).
I can confirm that section 13 applies to both to child
and adult vulnerable witnesses and that the Act of Sederunt
can include provisions about when a hearing would be
appropriate (see response re 271A(9) above.
Use of Evidence on Commission
With regard to taking evidence on commission I can
confirm that this is not a new type of statutory commission
but the evidence must be video recorded and a party to the
proceedings must not normally be present in the room where
such proceedings are taking place. He must however, be
able to see and hear the proceedings.
The Use of Prior Statements as Evidence in
Chief in section 65 Applications relating to Offence
Grounds
We are advised that because Children's Hearings court
procedures are civil procedures even where the subject
matter is criminal in nature this special measure cannot
apply. There would therefore have to be a SSI to remedy
that situation. As previously mentioned we would not at
this stage propose to introduce a SSI unless there are
compelling reasons for doing so.
I hope this is helpful
BILL MOORE
Victims and Witnesses Unit
15 November 2004