The Scottish Government

VWTC/13/04

VULNERABLE WITNESSES ACT IMPLEMENTATION STEERING GROUP

TRAINING AND COMMUNICATIONS SUB-GROUP

OTHER TRAINING AND PROMOTIONAL ISSUES

1. At the meeting on 10 November it was agreed that the Group should view 3 videos produced by the NSPCC entitled respectively -

• A case for balance
• A case for special measures
• Giving evidence - What it's really like

and consider whether there would be merit in adapting these for use in Scotland. Following a viewing of the videos Members are invited to offer their views on them.

2. The Unit has unfortunately been unable to trace the research material referred to at the previous meeting which set out the views of children and was referred to in evidence before the Justice 1 Committee. However, Members' attention is drawn to a recently published NSPCC report "In their own Words" in which 50 child witnesses recount their experiences of giving evidence in criminal proceedings in England. This gives a very mixed picture of the situation there. Relevant extracts of the report relating to "Special measures and witness choice" are attached.

3. An audit has been carried out by the Victims and Witnesses unit regarding the state of readiness to implement the Act and an extract of the findings on training based on questionnaire responses and meetings with some organisations at local level is attached. This shows quite a low level of local knowledge about the Act and highlights the need for a national training strategy in addition to the road shows to raise awareness of what the Act will do. In that connection the Unit is still trying to set up bilateral meetings with organisations represented on the sub-group to discuss what a national training strategy might look like and their ideas on it. If dates for these meetings have not already been fixed, members are invited to contact Clare either by e-mail or by telephone on 0131 244 3332 to arrange a meeting.

SEJD

Victims and Witnesses Unit

December 2004

EXECUTIVE SUMMARY

Special measures and witness choice

• Of the 50 witnesses, 44 gave evidence by TV link at court, one gave evidence behind a screen in the courtroom and 5 gave evidence in open court.
• Eighteen said they were not given a choice about anything associated with being a witness.
• Ten felt they had a choice about how to give evidence.
• Of the 44 witnesses giving evidence by TV link, only nine said they had chosen to do so but 28 preferred this method.
• In some cases where young witnesses gave evidence by TV link and in the courtroom, children and their parents were unhappy about people watching from the public gallery. In addition to youth court cases, which are always held in private, members of the public were excluded from the courtroom during the evidence of four witnesses giving evidence by TV link but not for any of the 5 witnesses giving evidence in the courtroom.

CONCLUSIONS

Special measures and witness choice

Article 12 of the UN Convention on the Rights of the Child (1990) states that children have the right to participate in decision-making processes that are relevant to their lives and to influence decisions taken in their regard. It is a challenge for courts to take account of children's views about how to give evidence (Wade, 2002). It is therefore ironic that the Youth Justice and Criminal Evidence Act 1999, the first legislation requiring courts to take account of witness views about how to give evidence.[ 49], has resulted in restricting the options available to young witnesses.

The Government has indicated its readiness to revisit the essentially compulsory use of TV links for young witnesses in cases of sex or violence under section 21, to enable 'measures to be more tailored to the individual witness's needs' (Home Office, 2004). Early research on use of the TV link in Australia indicated that witness choice about how to give evidence was an important factor in determining the effectiveness of the child's testimony (Cashmore and de Haas, 1992).

While most young witnesses in our study were content with the TV link decision, others feared being seen by the defendant or the public gallery over the TV link and some were misled into thinking this could not happen. Recognition of witness choice would enable such witnesses to give evidence either by TV link with the defendant's monitor blocked or in the courtroom behind a screen. Where TV link equipment breaks down or a backlog of cases causes listing delays, witnesses should be able to use a screen in court, if this means the case can be dealt with more quickly. The existing provision for clearing the public gallery applies only to sexual offence cases, or where there has been or is likely to be intimidation. Even within these parameters, little use of the provision seems to have been made. Greater consideration needs to be given to case-by-case eligibility for this special measure, including where evidence is given by TV link.

If witnesses have a choice about TV links or screens, their decision may be influenced by who may accompany them while they give evidence. It seems likely that some children will sacrifice the benefits of the TV link and opt to give evidence in court with a screen, if they can be accompanied by a supporter of their choice.

Achieving Best Evidence in Criminal Proceedings lists the objectives of the supporter's presence as providing emotional support, reducing anxiety and contributing to the witness's ability to give best evidence (Home Office, 2001a, para. 5.85). A number of studies indicate that potential benefits to recall and stress reduction flow from the presence of a known and trusted supporter: it is not surprising that young witnesses are likely to show greater accuracy in a more supportive environment (Moston, 1992; Batterman-Faunce and Goodman, 1993).[ 50] In our study, 17 young witnesses who gave evidence by TV link would have preferred to be accompanied by a relative or someone familiar to them. At present this is more likely to be permitted in the courtroom: all six witnesses giving evidence in court were accompanied by supporters and/or relatives oftheir choice. Thirteen young witnesses who gave evidence by TV link only met the person accompanying them on the day of trial. They derived little or no benefit from the presence of ushers or supporters whom they did not know. Strangers who meet the witness only on the day of trial are not 'supporters' within the terms of Achieving BestEvidence in Criminal Proceedings.

We do not believe that the divergence of practice between the TV link room and Courtroom is justified. The 1991 Practice Direction, essentially stating that only an usher could accompany the child, was issued prior to an understanding of the potential benefits to the witness's testimony derived from the presence of a known and trusted supporter. This research finding may still not be well understood by the judiciary and advocates. Despite the more flexible Practice Direction introduced in 2002, some courts continue to be much more restrictive about the type of person accompanying witnesses in the TV link room than in the courtroom.[ 51]

Judges and magistrates may have given little thought to the identity of supporters, beyond ensuring that someone with the confidence of the court accompanies the young witness in the TV link room. The interests of the witness and the court are not mutually exclusive: it ought to be possible to identify a supporter who is trusted by the witness and is also acceptable to the other side and the court. Where no support organisation has had contact with the young witness before trial, there should be an increased obligation to identify a neutral person from among the young witness's own circle of acquaintances who can act as a supporter.

Safeguards relating to TV link room practice already exist. These include the presence of the usher; advising the jury that the judge has a separate camera and screen showing everything that happens; and requiring the supporter to swear an oath delineating their role before the child's evidence starts. These should be formalised and built on (for example, by the production of guidance for 'one-off' supporters[ 52]). This would ensure that the use of the supporter during witness testimony meets the objectives stated by Achieving Best Evidence in Criminal Proceedings, irrespective of the manner in which the witness gives evidence.

Consideration should be given to the position of supporters in Scotland. Most are drawn from the child's circle of acquaintances.[ 53] They can sit 'alongside the witness' and even give evidence themselves provided this takes place before acting as supporter: the provision is a statutory special measure rather than judicial guidance.[ 54]

[50] Batterman-Faunce and Goodman (1993) found that children whose parent or loved one remained with them were rated as more credible witnesses and provided less inconsistent testimony regarding peripheral details during cross-examination.

[51] In Scotland, the Lord Justice-General's Memorandum on Child Witnesses provides for 'a relative or other supporting person to sit alongside the child while he or she is giving evidence' (1990, republished 2003).

[52] The Equal Treatment Bench Book suggests the type of 'proper instructions' to be given to the person accompanying the child (Judicial Studies Board, 2004, section 4.4.3).

[53] In a 1995 study, 84 per cent of supporters were well known to the child: K. Murray 'Live TV Link: an evaluation of its use by child witnesses in Scottish criminal trials' HMSO.

[54] Section 271L, Criminal Procedure (Scotland) Act 1995, as amended by Vulnerable Witness (Scotland) Act 2004.

[49/ Section 19(3)(a).

EQUIPMENT AND ACCOMMODATION SUB GROUP

Extract from VW Unit 'STATE OF READINESS FIRST AUDIT'

Introduction:

1. This is the first report into the readiness of courts and agencies across Scotland to implement phase one of the Vulnerable Witness (Scotland) Act 2004. It has been carried out on behalf of the Scottish Executive Victims and Witnesses Unit, Vulnerable Witnesses Act Implementation Steering Group and it's sub-groups.

2. The report sets out the audit process, collates the results of returned data, provides an initial assessment of local readiness in respect of each of the special measures in the Act and suggest what implications these findings may have for fully implementing phase one.

3. The assessment of readiness is based on information received from representative organisations between 11 November and 26 November 2004 and uses the RAG 'traffic light' system.

4. The following criteria were agreed:

Red:

• Not ready - Little local awareness of Act - no remote accommodation identified or proposed. No allocation of roles and responsibilities for identifying, managing and operating remote accommodation.

Amber:

• Not ready - general awareness of Act - plans in place within deadlines for identifying locations and ensuring their effective management and operation

Green:

• Ready - good awareness of Act - remote accommodation and equipment operational. Protocols on respective roles and responsibilities in place.

5. The Steering Group and sub-groups were advised of the intention to use a series of questionnaires to find out more about the use of accommodation and resources across the country which can help to deliver some of the special measures and other provisions of the Act in respect of child witnesses and to assist in reviewing any gaps in provision. The questionnaires are also intended to seek information about each organisation's general state of readiness to implement the first phase of the Act and included a section on Training.

6. This report is based on the results of the first questionnaire. It is expected to set a baseline from which progress can be measured and is intended to help all of those who are involved in implementing the legislation. By drawing on consistent and comparable information, it is expected to be a source of information to allow the multi-agency steering group, its sub-groups and the Victims and Witnesses Unit to benefit from a common understanding of where we all currently stand and what the shared challenges might be.

Section C - Training

7. The questionnaire and accompanying letter noted that training in the national Criminal Justice organisations was being planned centrally and that this may affect the responses from local offices within these organisations. Nevertheless 28 of 33 participants completed this section.

8. Participants were asked about existing training and planned training and the responses were given as Yes or No. An assessment of AMBER has been given when training is either underway or planned.

9. 12 of the 28 responses indicated an awareness of training plans or that they were awaiting central guidance. Only WS indicated that some training had already taken place in one area in relation to improving skills in using special measures for children. The CPC participants were most likely to report plans for training.

10. These results can be translated in a local risk status of:

Total Fiscal areas - 11

• RED - 5
• AMBER - 6
• GREEN - 0

And shown as an agency status:

Total agencies - 7

• RED - 3
• AMBER - 4
• GREEN - 0

11. Comments in this section:

"training [needed] for anyone who uses CCTV, including Judges"

"practical guidance in relation to procedures and communication of information regarding who, what and when [CCTV] links will be used"

" logistical difficulties that arise in delivering [remote] service"

"all avenues to be explored on a multi-agency basis"

"interagency review to be commenced in Jan 2005"

"[training] to be organised in Feb-March after CPC and Liaison with ..colleagues"

"[have] received little guidance…"

"basically all of the provisions - how it will work-everything"

"[training] policy still being developed"

"really need some guidance on all areas"

"more general info and guidance to provide to customers"

"how to get regular contact with PF to talk about how badly supported our young people [are]"

"more specialised training may be required"

"more consideration and thought to local implementation"

"Training needs analysis to be carried out"

."…supporting witnesses in remote locations"

"identifying how a witness wishes to give evidence"

..[need an] approved /prepared summary of the Act"

COPFS has established 2 working groups (training and guidance) to consider what information is currently provided and what changes require to be made in light of the new Act. There will be a requirement for greater inter-agency co-operation: sharing of detailed information between police, COPFS, SCRA, WS etc about child witnesses needs during the court process. A Protocol is being discussed between SCRA and COPFS re information sharing in the context of the legislation which will help inform discussions with child witnesses and their parents/carers about the options and what may be most suitable.