The Scottish Government

VWTC/12/04

VULNERABLE WITNESSES ACT IMPLEMENTATION STEERING GROUP

TRAINING AND COMMUNICATIONS SUB-GROUP

TAKING EVIDENCE ON COMMISSION/USE OF A SUPPORTER

1. Members are invited to note the draft minutes (attached Annex B) of the Project Steering Group meeting held on 26 November at which there was a lively discussion on various aspects of taking evidence on commission and on the use of a supporter. Comments on the draft from those who attended are invited not later than 5 January 2005

2. Professor Bull undertook to provide a first draft of the guidance on taking evidence on commission prior to Christmas. This will be circulated for comment when received.

3. A first draft of the guidance on the use of a supporter has already been circulated for comment by not later than 5 January 2005. A copy is attached (Annex A) for information.

4. The next meeting of the Project Steering Group will be held on Friday 14th January 2005 at 2.30pm in St Andrew's House. Members are invited to attend and should e-mail Clare Collin in the Unit to confirm your availability.

SEJD

Victims and Witnesses Unit

December 2004

ANNEX A

1. Guidelines on the Use of a Supporter

2. Draft 1

Professor Graham Davies

School of Psychology

Leicester University

Aims of the Guidance

1. The guidance covers the use of persons to give social support to vulnerable witnesses giving their evidence in court. The discretion of the courts to allow supporters for such witnesses was provided under the Vulnerable Witnesses (Scotland) Act of 2004, which in turn was based on the recommendations of the policy document Vital Voices; Helping Witnesses give Evidence published by the Scottish Executive in 2003.

2. The provision of a supporter for a witness is one of a number of Special Measures available to the court under the Vulnerable Witnesses (Scotland) Act to assist vulnerable witnesses to give their best evidence. The Act provides for the provision of supporters for vulnerable witnesses for criminal trials, both summary and indictable at the Sheriff Court and for solemn proceedings in the High Court. Supporters may also be provided for witnesses at Children's Panel Hearings.

3. With the exception of children below the age of 12 years appearing in cases involving sexual assault or physical violence, the provision of all Special Measures, including the use of a supporter, is at the discretion of the presiding officer of the court or hearing. The test for the provision of such Measures is whether they would be in the best interests of the witness.

4. The guidance outlines the likely benefits to a vulnerable witness's evidence of the presence of a supporter in the courtroom and where necessary, prior to and after a court appearance. It defines which groups of witnesses are vulnerable according to the terms of the Act. It describes the role that supporters can (and cannot) play in facilitating proceedings. It describes the types of persons who may act as a supporter and the necessary personal qualities and knowledge they should possess to play the role successfully. The guidance also describes the forms that support may take before, during and after the trial. It emphasises that social support can also be granted for appearances before a Commissioner and for attendance at an identification parade

The Benefit to the Vulnerable Witness of the Presence of a Supporter

5. The role of the court witness supporter is, by his or her presence, to provide social and emotional support to the witness and thereby reduce the anxiety and stress on the witness when giving evidence. Research has demonstrated that very high levels of stress and anxiety impair both the operation of memory and thinking skills. The provision of any aid, such as a supporter, which may reduce such anxiety, will increase the possibility of the witness being able to give his or her best evidence.

6. In addition, providing evidence and attending court are frequently stressful personal experiences for witnesses. They will have to rehearse and relive usually stressful and sometimes traumatic experiences and have their recollections of events challenged during cross-examination. The presence of a familiar person prior to, during and after the proceedings can serve to reduce the risk of further emotional damage to vulnerable witnesses being caused by the process of investigation and trial.

What Constitutes a Vulnerable Witness?

7. Under the Vulnerable Witnesses (Scotland) Act 2004, various groups are defined as vulnerable. The principle groups named in the Act are:

• witnesses under the age of 16 years
• adult witnesses with mental health problems
• adult witnesses with social or learning disabilities

In addition, protection is available under the Act for witnesses who are in fear or distress through threats of intimidation.

8. The services of a supporter are one of a number of Special Measures that the court may grant to a vulnerable witness to assist them to give their best evidence.

9. The use of a supporter can be extended to the pre-trial or evidence-gathering phase of a trial. Legal provision can be made for Supporters to be present when the witness's evidence is taken by a Commissioner or during attendance at an identification parade.

How do Vulnerable Witnesses acquire a Supporter?

10. Early identification of the need for a supporter is beneficial for the well being of the vulnerable witness and the consequent quality of their evidence. The police are generally the first to identify the needs and wishes of such witnesses. Once it is established that a vulnerable person is likely to be called as a witness, the police will need to explain to them the role and purpose of a supporter and establish if they wish an application to be made to the court or hearing for such a Special Measure. Legal representatives may also, at a later stage in the legal proceedings, identify a witness as vulnerable and make application to the court for Special Measures, including the use of a supporter.

11. With the exception of children under the age of 12 years appearing in cases involving sexual assault or violence, all Special Measures, including the provision of a supporter for a witness, are at the discretion of the presiding officer of the court or hearing, who will wish to have clear grounds in order to make an informed decision. Expert evidence concerning a particular witness's needs or vulnerabilities can be admitted from a psychologist, medical practitioner or other qualified person. If there is concern over witness intimidation, then evidence for this concern needs to be presented to the court or hearing. The onus is therefore upon those making the application to collect all the necessary information to place before the court or hearing.

12. Normally, the witness's legal representative will make an application to the presiding officer of the court at least 14 days before the first hearing of the case for which the witness has been cited. For the High Court, this will normally be the preliminary diet, for the Sheriff Court, the first diet and for Summary Proceedings, the intermediate diet. The 2004 Act requires the presiding officer of the court or hearing to make a decision on the provision of Special Measures within 7 days of the lodging of the notice. An early application is also required where an application is made for a supporter to accompany the witness during the evidence-gathering phase of an investigation.

13. In exceptional cases, where the vulnerability of a witness is only detected on the day at which the witness's evidence is taken, the 2004 Act provides for a late application to be made and considered by the court or hearing. Inevitably, such late applications may lead to delay and less than optimal arrangements, so a timely application is always preferable.

14. Applications for the use of a supporter may be made on behalf of either the prosecution or defence witnesses.

15. All applications for the use of Special Measures, including the provision of a supporter require the consent of the witness, or if they are deemed unable to provide informed consent, the parent or other carer. There is no legal requirement for vulnerable witnesses to use Special Measures and such witnesses may opt out of such Measures if they so wish.

Who can be a Supporter?

16. It is essential that the witness agrees to the nomination of the person who is to be the supporter and that the witness understands what the supporter can and cannot do to assist them. Care should be taken to ensure that there has been no undue pressure exerted on a vulnerable witness to accept a particular person as a supporter. The need for consent applies equally to children who may require a supporter. Where a witness is unable through age or other vulnerability to give informed consent to the choice of a supporter, then responsibility devolves to the parent or other carer.

17. Examples of persons who may play the role of supporter include a relative, personal friend or a social worker. Ideally, such a person should have no direct knowledge of the facts of the case, though in some instances, some familiarity is unavoidable. The use of another witness in the same case as a nominated supporter can be considered and where this occurs, the supporter should always have their evidence taken prior to that of the vulnerable witness.

18. Supporters may be required during evidence gathering, as well as the actual trial or hearing. Subject to the agreement of the court or hearing, a supporter may accompany the vulnerable witness during the taking of statements or attendance at identification parades. Wherever possible, a different supporter should be used for the evidence gathering phase, compared to the trial or hearing, to minimise the risk of contamination or influence on the vulnerable witness's evidence.

What skills and knowledge are required of a Supporter?

19. First, supporters should have some personal knowledge and rapport with the witness. Second, they should be able to offer vulnerable witnesses reassurance and social support, while still being aware of their duty not to discuss the case or their evidence with witnesses. Third, they should have sufficient knowledge and understanding of evidence gathering and courtroom procedures as to be able to offer explanation and reassurance to the witness. If this knowledge is not already present, it should be possible for the supporter to acquire it, provided he or she is appointed in good time.

What role can supporters play?

20. Supporters accompany the vulnerable witness solely to provide social and emotional support. In their initial contact with the witness, they will need to explain to the witness that they are independent of both prosecution and defence and that they cannot discuss either the case or the evidence. Supporters provide emotional and social support, but must refrain from giving their own views on the case or on the witness's evidence.

21. Supporters should make clear to witnesses that their work is not and cannot be confidential. If the witness begins to talk about the case or their own evidence, the supporter should make a note of this in the witness's own words and be prepared to disclose this to the police or counsel.

The Role of the Supporter in the Court Process

22. Subject to the agreement of the court, support can be provided for a vulnerable witness prior to, during and following the trial or hearing.

Support prior to the trial or hearing

23. subject to the agreement of the presiding officer of the court or hearing, supporters may accompany vulnerable witnesses in evidence-gathering procedures, such as attending an identification parade or having their evidence taken by a Commissioner. Supporters should have sufficient knowledge to answer any straightforward queries about the procedures involved, but should not discuss the witnesses' evidence.

24. Where an identification parade is to take place, supporters should introduce themselves to the Conducting Officer for the parade and may accompany witnesses into the room in which the parade is to take place. When the parade is viewed, they should stand behind and to the side of witnesses, but on no account communicate or prompt witnesses when they view the parade and make their decision.

25. Where evidence is to be taken by a Commissioner, supporters should introduce themselves to the Commissioner and may accompany the witness into the room where the evidence is to be taken. They should position themselves in such a way as to be out of the line of sight of the witness, but in sufficient proximity as to allow them to offer them comfort and assurance during the taking of evidence. Supporters cannot prompt or otherwise influence the witness when their evidence is being collected.

26. Where some delay elapses between the witness being cited and the court or hearing taking place, the uncertainty and delay can be very stressful for the witness. Supporters can perform a useful liaison role by keeping in touch with the witness and passing on to the police or legal authorities any requests for changes in provision of Special Measures or incidents of undue pressure or intimidation.

27. As the trial date draws closer, the needs of the witness for information and reassurance from the supporter are likely to increase. Where witnesses are not familiar with legal procedures, a visit to the court or hearing building is likely to be beneficial. It will enable witnesses to familiarise themselves with the location of the defendant and the witness and the positions of the various court or hearing officials. It should also enable the witness to understand the layout of the building, including the toilets and other facilities such as the witness waiting room and cafeteria (where present).

Support during the trial or hearing

26. Vulnerable witnesses are likely to be at their most anxious on the day of the trial or hearing. It is appropriate for supporters to accompany the witness to and from the venue. On no account should supporters discuss witnesses' evidence with them during such journeys or at court prior to the tendering of evidence. However, it may be useful to raise the possibility of further delay in the hearing of the case, so that witnesses are better prepared for any postponement and rescheduling, should this occur.

27. Supporters will need to work closely with the officers of the court and in particular the ushers and representatives of the Witness Service, whose duties complement those of supporters. Supporters should sit with the witness until their evidence is called, either in the witness waiting room or in the room where the court or hearing takes place, depending upon established procedures. They may also accompany the witness in any meetings at the trial or hearing involving the presiding officer or legal representatives and the witness. Where the witness is a child or young person, then supporters should ensure that a sufficient supply of age-appropriate playthings is available (they can be brought to court by the witness if necessary). When the vulnerable witness is called to give their evidence, supporters, if necessary with the permission of the presiding officer of the court, should sit in such a position as to be visible to the witness, but not in line of sight of either the presiding officer or the legal representatives.

28. Where the witness is giving their evidence via a video-link, the supporter may, with the agreement of the presiding officer of the court, accompany the witness into the link room during the tendering of their evidence. Supporters should explain the nature of the link to the witness: that the court will be able to see him or her give their evidence but that the witness will only see the person who is questioning them, and provided the equipment is appropriately arranged, the witness will not see the defendant while giving their evidence. It is quite in order for the supporter to talk informally to the witness while the witness is waiting to be examined, but again there should be no discussion of the case or their evidence. When the witness is giving their evidence, the supporter should normally be seated behind the witness, so as to eliminate the possibility of non-verbal communication between supporter and witness. The supporter should stay silent during the examination and cross-examination of the witness. If the witness begins to exhibit signs of undue stress, then the supporter should alert the presiding officer, so a decision may be made as to whether a short break should be called.

Support after the trial or hearing

29. A Witness will need continuing support after their evidence has been taken and when the proceedings have been concluded. Their recollections will have been challenged in cross-examination and allegations may have been made that the witness has misremembered events or deliberately misled the court. The outcome of the trial or the sentence passed on the defendant may be very much at variance with what the witness hoped or expected. The supporter can play a valuable role in listening to the witness's views and concerns. If necessary the supporter can pass on these concerns to counsel who may be able to explain to the witness otherwise puzzling aspects of the legal proceedings, the verdict or the sentence. Where a witness leaves court prior to the completion of proceedings, the supporter should make every effort to establish the outcome, communicate this to the witness and answer any questions or queries.

ANNEX B

MINUTES OF VULNERABLE WITNESSES ACT IMPLEMENTATION STEERING GROUP, TRAINING AND COMMUNICATIONS SUB-GROUP

PROJECT STEERING GROUP - TAKING EVIDENCE ON COMMISSION; USE OF A SUPPORTER HELD ON FRIDAY 26 NOVEMBER 2004

3. Welcome and introductions

Bill Moore (Chair) SEJD

Paul Smart, SEJD

Clare Collin, SEJD

Professor Ray Bull

Frank Russell, VSS

Robbie Burnett, The Law Society

Maggie Mellon, Justice for Children

Frances Roberts, SCRA

Nigel Whitelaw, SCS

Claudine Persaud (Secretary) SEJD

Apologies:

Sharon Duffy, VIA

Anne Keenan, The Law Society

Inspector Dawn Laing, ACPOS

Lindsey Anderson, Crown Office

4. Outline of Leicester University's approach to the project - VWTC/PSG/01/04

Comments from initial approach to stakeholders - (paper VWTC/PSG/02/04 & VWTC/PSG/02/04A)

Papers Tabled by Professor Bull - Taking Evidence on Commission and Role of the Supporter: Draft Guidance

7. AOB - Professor Bull and Maggie Mellon of Justice for Children to meet.

8. Date of the next meeting - Agreed to hold the next meeting week commencing 10th January 2005.

Victims and Witnesses Unit

29 November 2004