The Scottish Government

VWTC/04/05 - VULNERABLE WITNESSES ACT IMPLEMENTATION STEERING GROUP

TRAINING AND COMMUNICATIONS SUB-GROUP

SUB SET GROUP

Development of Guidance on the following:-

(a) Identifying degree of vulnerability for child witnesses

(b) Use of prior statements

(c) Use of screens

(d) Live TV links.

1. At a meeting of the sub set group in January, it was agreed that the group would focus on producing generic guidance on identification of suitable special measures for child witnesses rather than define degrees of vulnerability. It is intended that this guidance will (i) assist in considering factors to help determine what special measures would be appropriate for a child witness (ii) who might be able to do this and (iii) the processes involved. This piece of draft guidance is attached at Annex A. This guidance is intended to complement Annex B & C and will provide a web link to the legal practitioners guidance (SCRA, Law Society and COPFS guidance).

2. The Victims and Witness Unit is producing draft guidance on the use of prior statements as evidence in chief. This will be issued around relevant colleagues, members of the Visually Recording Pilot Group and members of the sub set group in due course before the draft guidance goes out for wider consultation.

3. Draft guidance on the use of screens has been produced. See attached Annex B. This guidance is intended to be non-technical generic guidance describing how the special measures will work and includes examples of circumstances where the special measure may be helpful. This guidance is aimed at the legal profession, other practitioners such as social workers, Witness Service volunteers, the police and voluntary sector organisations.

4. Draft guidance on the use of a live TV link within the court building has been produced. See attached Annex C.

5. Members were invited to comment on the material produced so far. Please submit any comments to Clare Collin by close of play Friday 18th February. The amended draft versions of guidance will then be issued for wider consultation.

SEJD

Victims and Witnesses Unit

February 2005

Annex A

GUIDANCE ON THE IDENTIFICATION OF SUITABLE SPECIAL MEASURES FOR CHILD WITNESSES

This guidance focuses on the identification of suitable special measures for vulnerable child witnesses and should be of interest to legal practitioners, the police, court personnel, Victim Information and Advice (VIA), social workers, Witness Service volunteers and workers in other support organisations.

Under the Vulnerable Witnesses (Scotland) Act 2004, witnesses under the age of 16 are automatically entitled to give evidence by the use of standard special measures. The Act also widens the definition of "vulnerable witness" to include anyone suffering from a mental disorder or anyone where there is a risk that the quality of their evidence may be diminished by reason of fear or distress in connection with giving evidence at the trial or hearing.

Special measures are intended to support vulnerable witnesses by reducing the pressure when they are giving their evidence, which is likely to provide evidence of an improved quality.

Standard special measures are:

(i) Use of a live television link where the witness is in another part of the court building

(ii) Use of a screen

(iii) Use of a supporter in conjunction with either (i) or (ii)

Further special measures are:

(i) Use of a live television link from a place other than a court building

(ii) Use of prior statements as evidence in chief

(iii) Taking evidence on commission

These special measures can be used on their own or in conjunction with another.

If the accused is under 16 years of age and there is a possibility that he or she may choose to give evidence at the trial or hearing, consideration should also be given to the most appropriate special measure (s), which may be required to enable him/her to give evidence. Under the Act, the use of a screen does not apply to any accused.

Information Gathering

In most cases, the police report or police statements will contain information about the age, maturity and likely vulnerability of the witness in the case. This early information will assist the person preparing the case (prosecution or defence) to consider which, if any, standard measure(s) may help the child give evidence in court and whether additional special measures may be necessary. There may be some cases in which the police report or police statement makes no reference to the likely degree of vulnerability or maturity of the witness.

During case preparation, information as to vulnerability may also be obtained from the social work department, school, family GP or other specialist services relevant to the witness. In some cases, these services will have provided information to the police, Procurator Fiscal or Reporter's office; in other cases, the person citing the witness may approach the service(s) for their views, depending on the child's circumstances.

The party citing the witness should consider all available information carefully when preparing the case. When assessing the quality of evidence, the person preparing the case should consider whether the child will be able to give their evidence in a coherent and accurate manner with or without using any of the special measures available.

In all cases, prior to meeting the witness, the person preparing the case should have conducted all due enquiries to ensure that he or she is familiar with the witness's circumstances. They should also ensure that any meeting or discussion will take place in appropriate setting tailored to the needs of that particular witness.

When the witness is a child, the interviewer should be expected to have regard to:-

• the child's age and gender
• their race, culture, religion, ethnicity, first language and whether an interpreter is required;
• their cognitive (e.g. attention and memory) and linguistic (comprehension and speech, vocabulary) abilities and range of behaviours;
• their present emotional state;
• any mental and/or physical health requirements;
• any mental, physical or learning impairments that require specialist input or attention;
• the child's family composition and living arrangements;
• the nature of the child's relationship with family members and/or carers;
• daily routines, bath, bed, meals etc;
• any sources of stress for the child and/or the family;
• any previous involvement with child protection agencies;
• details of previous action taken and support provided (e.g. any therapy or counselling underway);
• other sources of information: parents, carers, teachers, GPs, child psychologists.

Meetings with the child should, wherever possible, take place when these are convenient for the child and be conducted in a way that puts a child at ease.

During the first meeting or contact with the witness, the person preparing the case will consider whether the provisions of the Vulnerable Witnesses Act might apply and if so, to what extent. They will consider:-

(i) whether the witness is a child under 16 or could be regarded as vulnerable within the terms of the Act

(ii) whether the witness is a child under 12 and

(iii) if so, which of the special measures (if any) is or are most appropriate for the purpose of taking evidence.

In doing this, they should

(a) consider the best interests of the witness, and

(b) take account of any views expressed by the witness.

Obtaining the Views of Child and Parent or Carer

Where the witness is a child, the person citing them will take into account the child's age and maturity and also the views of their parent or carer (except where that is the accused).

In all cases, the person citing the child witness will have to complete a 'Child Witness Notice'. These notices must be submitted to the court by certain deadlines and these are set out in the guidance for Crown and Defence Practitioners and the Reporter's Office. (refer to SCRA, COPFS and the Law Society guidance links on the SE website) The Child Witness Notice must always include information about the child's views and the parent or carer's views.

In order to take account of the views of the child and/or their parent, it is essential to ensure that the child/parent has sufficient information to make an informed decision.

Children may be influenced by the way information is presented to them. It is therefore important that anyone helping to ascertain the child's views has sufficient knowledge and experience of court procedures and the special measures, to enable them to give information accurately and without prejudice. Guidance on each of the special measures is available on the Scottish Executive website at: (insert web address) If there is any doubt about this, it is better to seek advice in order to avoid giving inaccurate or misleading information.

It is also important that the information to the child is conveyed in a way that is appropriate to their age, maturity, level of understanding, cultural context and degree of language proficiency.

Responsibility for ascertaining the views of the child and/or parent as is outlined in the legislation always falls to the person citing the witness and in many cases it will be possible to do this when interviewing the child to prepare the case. In many cases, the responsible person will involve someone with experience of communicating with children to help in this process, for example VIA or the Witness Service.

In carrying out this assessment, the person preparing the case should have regard to the guidance on interviewing child witnesses in Scotland produced by the Scottish Executive and is available on the Scottish Executive website at: (insert web address to guidance).

The person interviewing the child should always explain what will be expected of the child if he/she were to give evidence in open court; what procedures the court will use, what the courtroom would be like and the functions of the relevant personnel in the court. They will aim to give a realistic expectation of the proceedings and ensure that the child understands the role and limitations of everyone involved in the proceedings.

This person should also explain the standard special measures of live TV link, screens and use of a supporter and provide a description as to how these would operate in practice.

In some cases the child will be able to understand and give a clear view as to their wishes.

In many cases, however, additional guidance will be required to help the child understand and give an informed view. The person citing the child should refer to the child witness booklets and any other material which may help to explain the court setting and each of the special measures. This may include video/dvd/website material.

In many cases the child may not fully understand without a visit to the courtroom and this should be arranged. A parent, carer or any professional or voluntary organisation can also ask for the child to have a court visit particularly if they believe it will help the child to form a better view. Court visits also help the child to become more familiar with the surroundings and to lessen anxiety about the proceedings.

In every case, the person interviewing the child or conducting the court visit should consider:

• any signs of upset and any apparent triggers
• Shyness amongst strangers
• Self-consciousness
• Level of apparent confidence and any information about actual confidence

The person citing the child will also consider:

• the relationship between the child and the accused and
• the likely nature of their evidence

If the person preparing the case felt that there were grounds for making an application for additional special measures, then these can also be canvassed with the child, but due care should be taken not to unrealistically raise the expectations of the child.

The child will always be asked how he/she would prefer to give their evidence and this will be noted and submitted to the Judge/Sheriff on the Child Witness Notice. Care should be taken to avoid interference or undue influence from any other persons present during an interview or court visit. It is important to gauge the child's own wishes especially if these differ from the views of their parent or carer.

For every child witness, the person preparing the case should also ask for the views of the child's parent or carer (except in circumstances where the parent is the accused). This will normally take place during or after any interview with the child. Not every parent will understand court procedures and they may need as much basic information as the child. Again there will be a variety of material available to help. In some cases, the parent will want to discuss the options with their child, social worker or other agency.

It should be noted that a witness shall be presumed to be of sufficient age and maturity to form a view if he or she is aged 12 or over. If there is any inconsistency between the views expressed by the witness and those expressed by the witness's parents, then the views of the witness should be given the greater weight. Younger children will also be able to give a view but this may be given less weight if the parent/carer has given a different view.

It should also be noted that children may change their mind about how they want to give their evidence and it is essential that any information about this should be conveyed immediately to the person citing the child.

Annex B

Guidance on the use of screens

This guidance focuses on the use of a screen as a special measure for adult and child witnesses and should be of interest to legal practitioners, the police, court personnel, Victim Information and Advice (VIA), social workers, Witness Service volunteers and workers in other support organisations.

Under the Vulnerable Witnesses (Scotland) Act 2004, witnesses under the age of 16 are automatically entitled to give evidence by the use of standard special measures.

The Act also widens the definition of "vulnerable witness" to include anyone suffering from a mental disorder or anyone where there is a risk that the quality of their evidence may be diminished by reason of fear or distress in connection with giving evidence at the trial or hearing.

Special measures are intended to help vulnerable witnesses by providing appropriate support when they give their evidence. By reducing the anxiety and pressure vulnerable witnesses may feel when giving evidence is likely to provide evidence of an improved quality.

Standard special measures are:

(i) use of a live television link where the witness is in another part of the court building

(ii) use of a screen and

(iii) use of a supporter in conjunction with either (i) or (ii) above.

Further special measures are:

(i) Use of a live television link from a place other than a court building

(ii) Use of prior statements as evidence in chief

(iii) Taking evidence on commission

These special measures can be used on their own or in conjunction with another.

Examples of possible combinations of special measures are:-

• Use of a screen and a supporter
• Use of a live television link where the witness is in another part of the court building and the use of a supporter
• Use of a screen and the use of a prior statement as evidence in chief.

Separate guidance is available on each of the special measures mentioned above. (web address to where the guidance can be accessed to be added)

Specific guidance on identification of suitable special measures for vulnerable child witnesses is available in addition to the guidance on interviewing child witnesses in Scotland and questioning children in court. This guidance is available on the Scottish Executive website at (add website link).

Use of a screen

To help vulnerable witnesses give their evidence in open court, a screen can be used in the courtroom to conceal the accused from the sight of the witness. The screen is placed between the witness and the accused in a way that does not prevent the judge, jury, sheriff, the prosecutor and the defence lawyer from seeing the accused and the witness giving their evidence.

The accused must however be able to see and hear the witness give their evidence. Where a screen is used, this is achieved through the use of a video camera relaying the image of the witness giving their evidence onto a TV monitor which is positioned in front of the accused.

The witness should be made clearly aware in advance of giving their evidence by using this special measure, that even though the screens will prevent them from seeing the accused, the accused will be able to see them through a TV monitor while they give their evidence.

There are different types of screens that can be used in the courtroom. Some screens are moveable partitions to screen off the entry to the courtroom and the witness box. Others may be curtains whereas others may be specifically designed to fit onto the witness box.

A supporter will be allowed to sit next to the witness if this is specified in the child witness notice.

The vulnerable witness can choose however to give evidence without the benefit of these measures and if the court is satisfied that it is appropriate to do so, the court will allow the vulnerable witness to give evidence in the traditional format in the court room. In making this assessment, the court will have regard not only to the views of the witness but also in respect of child witnesses to the views of the witness's parents/carers, provided the parent is not the accused.

Where the use of a screen is specified as the most appropriate measure (or combination with the use of a supporter), the court will authorise the standard special measure (s) specified to be the most appropriate for the vulnerable witness to give their best evidence.

The prosecution or defence lawyer who has cited the witness may also ask the witness if they would like the people in the courtroom to remove their gowns and wigs.

Assumptions about the wishes and needs of vulnerable witnesses should not be made. Be prepared to be open to the views and concerns of each individual vulnerable witness. For example, do not assume in respect of child witnesses that those of the same age will have the same wishes and concerns.

The following provide some examples of circumstances where the use of a screen as a standard special measure may or may not be helpful. This is not a comprehensive list.

Circumstances where the use of a screen may be helpful

The vulnerable witness:-

• Is not concerned about going into the court room.
• Will not have to face the accused (or their family or friends) in the court room.
• Is not anxious about speaking in front of strangers.

Circumstances where the use of a screen may not be helpful

The vulnerable witness:-

• Is anxious about being in the same court building as the accused.
• Is anxious about being in the same room as the accused.
• Is anxious about the possibility of hearing the accused should he or she make a noise in the court room.
• Is anxious about speaking in front of the judge, sheriff, jury and lawyers.

Courts should consider the practical issues surrounding the use of screens

• Ensure availability of screen
• Ensure the necessary people and time is available to set up the screen
• Ensure the screen is fit for purpose
• Ensure TV arrangements for the accused are switched on and are working correctly.

Annex C

Guidance on the use of a live television link within the court building

This guidance focuses on the use of a live television link within the court building as a special measure for adult and child vulnerable witnesses and should be of interest to legal practitioners, the police, court personnel, Victim Information and Advice (VIA), social workers, Witness Service volunteers and workers in other support organisations.

Under the Vulnerable Witnesses (Scotland) Act 2004, witnesses under the age of 16 are automatically entitled to give evidence by the use of standard special measures.

The Act also widens the definition of "vulnerable witness" to include anyone suffering from a mental disorder or anyone where there is a risk that the quality of their evidence may be diminished by reason of fear or distress in connection with giving evidence at the trial or hearing.

An application will, however, have to be made in respect of adult vulnerable witnesses for special measure (s).

Special measures are intended to help vulnerable witnesses by providing appropriate support when they give their evidence. By reducing the anxiety and pressure vulnerable witnesses may feel when giving evidence is likely to provide evidence of an improved quality.

Standard special measures are:

(i) Use of a live television link where the witness is in another part of the court building

(ii) Use of a screen

(iii) Use of a supporter in conjunction with either (i) or (ii) above.

Further special measures are:

(i) Use of a live television link from a place other than a court building

(ii) Use of prior statements as evidence in chief

(iii) Taking evidence on commission

These special measures can be used on their own or in conjunction with another. Possible combinations of special measures are, for example: -

• Use of a screen and a supporter
• Use of a live television link where the witness is in another part of the court building and the use of a supporter
• Use of a supporter and live television link from a place other than a court building when evidence is being given on commission.

Separate guidance is available on each of the special measures mentioned above. (web address to where the guidance can be accessed to be added)

Specific guidance on identification of suitable special measures for vulnerable child witnesses is available in addition to the guidance on interviewing child witnesses in Scotland and questioning children in court. This guidance is available on the Scottish Executive website at (add website link).

Use of a live television link within the court building

This involves the vulnerable witness giving evidence during the trial or hearing but from a separate room within the court building. Communication is via a live television link. The witness sits in front of a television set with camera's and a microphone and can normally see and hear only the person speaking to him or her from the courtroom. He or she may however be shown items or documents produced as evidence (known as productions) on the TV screen.

In the courtroom, television sets with cameras and microphones are provided for the Judge/Sheriff, the prosecutor or reporter and the defence lawyer/s so they can see and hear the witness and the witness can see and hear them. The person questioning the child can see a headshot of the child and a small insert on the screen of themselves asking the question.

The Judge or Sheriff has an extra view of the room where the witness is giving evidence and any support person sitting with them.

The accused must also be able to see and hear the witness give their evidence. Where the use of a live television link within the court building is used, there are normally two television sets on which the accused and the jury can see and hear the vulnerable witness giving their evidence.

The Judge or Sheriff controls all TV monitors, cameras and microphones.

The witness should be made clearly aware in advance of giving their evidence by using this special measure, that even though the use of a live television link will prevent them from being in the same room as the accused, the accused will be able to see them through a TV monitor while they give their evidence.

The vulnerable witness can choose however to give evidence without the benefit of these measures and if the court is satisfied that it is appropriate to do so, the court will allow the vulnerable witness to give evidence in the traditional format in the court room. In making this assessment, the court will have regard not only to the views of the witness but also in respect of child witnesses to the views of the witness's parents/carers, provided the parent is not the accused.

The use of live CTV within the court building is a standard measure. As such, where this is specified (or in combination with the use of a supporter) it will be taken by the court to be the most appropriate and authorised automatically.

The prosecution or defence lawyer who has cited the witness may also ask the witness if they would like the people in the courtroom to remove their gowns and wigs. In children's hearing court proceedings this will happen automatically.

Assumptions about the wishes and needs of vulnerable witnesses should not be made. Be prepared to be open to the views and concerns of each individual vulnerable witness. For example, do not assume in respect of child witnesses that those of the same age will have the same wishes and concerns.

The following provide some examples of circumstances where the use of a live television link within the court building as a standard special measure may or may not be helpful. This is not a comprehensive list.

Circumstances where the use of a live television link within the court building may be helpful

The vulnerable witness: -

• will not have to go into the court room.
• will not have to be in the same room as the accused.
• will not have to face the accused (or their family or friends) in the court room. This can be important where there are issues of intimidation or hostility.
• will not hear the accused should he or she make a noise in the court room.
• will not have to speak directly in front of a lot of strangers.

Circumstances where the use of another measure might be more appropriate.

The vulnerable witness: -

• Is anxious about being in the same court building as the accused.
• Has allegedly suffered through a crime, which involved the use of IT or other visual recording equipment.
• Is self conscious about the camera being directed on him or her.
• Is uneasy talking to a microphone/machine and would prefer to see the person asking questions in person.
• Is uneasy about the facial images of those asking him or her questions appearing and disappearing on the television set. This may be extremely unsettling for the vulnerable witness.
• Is easily distracted from giving their evidence although this does not necessarily rule out the use of a live TV link and can be addressed in other ways.

Practical issues surrounding the use of a live television link within the court building

As a matter of practice, any application to use this standard special measure should be made as early as possible so that the necessary equipment can be made available and the vulnerable witness can be advised on how he or she is to give evidence.

• Ensure appropriate people are available when required to set up the equipment.
• Ensure equipment is working and set up correctly.
• Ensure TV arrangements for the accused are switched on and are working correctly.

It is important that those using a live television link should:

• Bear in mind the witness is vulnerable.
• In the case of a child witness, have regard to the guidance on Questioning of

Children in Court (add web site address).

• Speak clearly and modulate voice tones.
• Focus on the camera and not the TV screen when questioning the witness, so

as to make eye contact.

• Try not to look down (for example at case papers) as the witness will then

only see the top of the questioner's head.

• Not rapidly move their faces close to the television screen resulting in their

face looming in on the vulnerable witness.

• Not lean aggressively towards the camera.
• Not make aggressive gestures.
• If possible, try not to turn to an off camera colleague in conversation during questioning.
• Ensure that when demonstrating the equipment to the child, there is someone available to pretend asking questions and allow the vulnerable witness to practice giving answers to, so they can understand the measure fully and are not surprised on the day.