Towards a Just Conclusion

CHAPTER 2: THE CONTEXT

2.1 This Chapter describes the part played by witnesses in the criminal justice process in Scotland and recent developments in the care of witnesses

Witnesses in the criminal justice process in Scotland

2.2 The rules and procedures for the investigation and prosecution of crime in Scotland have developed over centuries and seek to ensure that those who perpetrate crime can be dealt with effectively by the courts. Until an alleged perpetrator of a crime is found guilty by the courts, however, he is entitled to the presumption of innocence and has an absolute right to defend himself against charges brought against him. These principles have led to the development of safeguards intended to ensure that the investigation of a case against an alleged offender is conducted fairly and, at the end of the process, any evidence led against him has not only been obtained in accordance with defined procedural requirements but is also put to the court in a fair and proper manner, laid down in the strict rules of evidence.

2.3 The Scottish criminal justice process differs from that in England and Wales in a number of ways which are important from the witness’ viewpoint. First, whereas in England and Wales the police have sole responsibility for the investigation of crime, in Scotland the procurator fiscal (the public prosecutor) has a key investigative role. While the police routinely carry out criminal investigations, the procurator fiscal has the power to direct enquiries. In serious cases, the procurator fiscal will precognose (interview) the witness, which gives an opportunity for contact between prosecutor and witness (including vulnerable and intimidated witnesses) before the trial. The principal purpose of that precognition is to collect evidence - but it also allows discussion of other matters such as fears of intimidation and special measures to help the witness give evidence. Second, the defence in Scotland is responsible for preparing its own case. While the Crown will make available to the defence any information relevant to the defence case which comes to light during the investigation, the defence is not as a matter of course entitled to see prosecution witness statements and it is up to the defence to conduct its own interviews with witnesses - including prosecution witnesses - and prepare its case in light of those interviews and other investigations. Thirdly, Scotland is a small jurisdiction and there is good local liaison among criminal justice agencies - principally the police, the prosecutor and the courts. That contact is often crucial in ensuring that witnesses are treated as well as possible

2.4 But there are also important parallels between the Scottish process and that in England and Wales. The success of both systems of criminal prosecution depends to a very large extent on the willingness and ability of witnesses to assist the police in the investigation of a crime and, if necessary, to appear in court to tell their version of the events. In securing convictions in cases which come to trial, procurators fiscal often rely on witnesses to appear in court to give a first hand description of the events which occurred — because evidence is often most effective when given personally by a witness. The court (including the jury where the trial is for a serious offence) then has an opportunity to assess at first hand the demeanour of the witness - which is an important factor in establishing the reliability of the witness and the weight which should be attached to his or her evidence. Both the prosecution and defence may call witnesses and each has a right to cross-examine the other’s witnesses. If an accused has not retained a legal representative, he or she has the right to conduct the cross-examination personally

2.5 While witnesses may be reluctant to come forward because they are apprehensive of involvement in the whole criminal justice process, from investigation to trial, it is the trial itself which causes most apprehension. This is true for almost every witness: even experienced police officers sometimes find it daunting to give evidence. Particularly daunting is the possibility of active and persistent cross-examination by the defence. The high standard of proof ("beyond reasonable doubt") which is required to obtain a criminal conviction, means that witnesses for the prosecution may be subjected to cross-examination designed to test the credibility (or, just as important, the reliability) of their evidence. Witnesses for the defence may also be subjected to cross-examination for the same reason. But, while the Group acknowledged the reality of witnesses’ apprehension about cross-examination, the Group recognised that some witnesses are untruthful or are genuinely mistaken and that it is equally vital in the interests of justice that the defence is given proper opportunity to test the evidence against the accused. That includes the right to cross-examine, stressful though witnesses may find it.

2.6 Whilst recognising that it is legitimate for witnesses to be cross-examined, the Group believed that witnesses must be protected from unnecessary, over-aggressive, vexatious or harassing cross-examination. Although such cross-examination is more feared than prevalent, the Group considered that all involved in the criminal justice system had a duty to afford such protection - the courts themselves and the practitioners both on the prosecution and defence side. The aim of all should be to enhance the opportunity for evidence being given without fear or apprehension wherever possible and to do so without prejudicing a fair trial or the likelihood of conviction of a guilty person.

Recent initiatives

2.7. During the 1990s, increasing attention has been given to the experience of witnesses and victims in the justice process. The Justice Charter for Scotland, launched in November 1991, made clear that members of the public should come forward as witnesses to help the police to maintain law and order. And the Charter outlined special measures to help witnesses at court. A range of statutory measures which permit some witnesses to give their evidence by non-conventional means has been introduced in recognition of the particular vulnerability of specific categories of witness such as children and adults suffering from mental incapacity. The services provided by voluntary organisations have increased in scope and the agencies involved in the justice process have become more responsive to the concerns of witnesses. At the same time, there has been a growing recognition of the risk that intimidation might prevent witnesses from giving a full and truthful account of the events surrounding the commission of a crime.

2.8 Special attention has been given to witnesses who are the victims of crime. In 1996, the Victims Steering Group was set up to consider the full range of issues concerning victims in Scotland. The Group, chaired by The Scottish Office, comprises representatives from Victim Support Scotland, the Scottish Court Service, the Association of Chief Police Officers in Scotland, the Association of Directors of Social Work, the Law Society of Scotland, the Crown Office, and the Sheriffs Association. Its terms of reference are to provide a consultative forum for the discussion of issues of relevance to the interests of victims, and to advise on policy and good practice. Support for victims, from the time that the crime takes place until the trial and afterwards, has been developed thanks to organisations such as Victim Support Scotland and those dealing with specific groups of people such as women who have been raped. Every police force in Scotland has set up special units to deal with investigation of crimes such as rape or crime involving children. These units are staffed by specially trained personnel sensitive to the practical and emotional needs of victims at a most distressing time.

2.9 Other new developments have been designed to help witnesses generally. The Scottish Office, in consultation with the police, Crown Office, Victim Support Scotland and other agencies, prepared a leaflet, launched in February 1998, called "Reporting a Crime - A Guide for Victims and Witnesses" (reproduced at Annex 1). Intended for distribution by the police and others to all witnesses and victims, this useful guide should go a long way to removing some of the apprehensions felt by witnesses, by explaining their role in the process and the support which is available to them. For a number of years the Crown Office have made available to witnesses who have been cited to attend court written guidance on what they might expect on arriving at court. Special leaflets have been prepared for children and for witnesses with learning disabilities. In January 1998 the Crown Office, Procurator Fiscal Service and Scottish Court Service issued a Joint Statement (reproduced at Annex 2) on their responsibilities in relation to Crown witnesses. Three pilot witness support projects were launched in 1996-97, to provide a service to victims (at Hamilton Sheriff Court) and victims, witnesses and their families (at Ayr and Kirkcaldy Sheriff Courts) who were attending criminal trials.

2.10 Special attention has been given to children and other vulnerable witnesses. In response to the 1990 report of the Scottish Law Commission on "The Evidence of Children and Other Potentially Vulnerable Witnesses", the Government introduced measures whereby child witnesses could give evidence by alternative means (including a live television link). Implemented in 1993, these arrangements were extended in 1997 to certain vulnerable adult witnesses. Research carried out to monitor the operation of the live television link for children highlighted deficiencies in the pre-trial preparation of child witnesses and, in some cases, the care offered to those in need of continued support after the trial was completed. As a result, the Lord Advocate established the Working Group on Child Witness Support in 1995, to consider existing arrangements for child witnesses, identify and pilot improvements, and disseminate good practice nationally. To give guidance to the police on interviewing witnesses who lack full mental capacity, The Scottish Office in June 1998 published guidance on "Appropriate Adult Schemes", following consultation with the police, procurators fiscal and organisations representing the interests of such witnesses. These non-statutory schemes envisage witnesses (and accused persons) who lack full mental capacity being accompanied at interview by an appropriately-qualified adult who can facilitate the process.

2.11 Intimidated witnesses have also been the subject of special attention. In August 1996, a pilot Witness Protection Project was set up by Strathclyde Police, with funding from The Scottish Office, to assist witnesses subject to actual or perceived intimidation

2.12 Attention has also been given to prevention of crime. Local community safety strategies, promoted by The Scottish Office, local authorities and the police, are designed to reduce the kind of crimes which cause particular local disquiet - some of which will give rise to the intimidation of witnesses. The Crime and Disorder Act 1998 strengthens the powers of local authorities in curbing the activities of individuals who cause local disorder - through Anti-Social Behaviour Orders, which can be granted by a Sheriff, imposing conditions on anti-social neighbours: the breach of such an Order is a criminal offence. Special measures have also been taken to reduce the risk of re-offending by sexual and violent offenders - such as the requirement in the Sex Offenders Act 1997 that serious sex offenders must register changes of name and address and the powers in the Crime and Disorder Act 1998 allowing the courts to impose extended post-release supervision on released sex and violent offenders and to make Sex Offender Orders preventing convicted sex offenders doing things which put the community at risk. These and other measures are aimed at reducing crime and, in particular, cases of harassment or intimidation of witnesses.