Towards a Just Conclusion

Towards a Just Conclusion

CHAPTER 3: DEFINITIONS

3.1 This paper is concerned with the treatment of vulnerable or intimidated witnesses. It is, accordingly, important to be clear about the Group’s definition of the terms "vulnerable" and "intimidated". As the previous Chapter makes clear, most witnesses feel "vulnerable", and some even feel "intimidated", because of the very nature of the criminal justice process. The Group therefore considered what arrangements were made, and could be made, for witnesses generally. But the Group gave special attention to three groups who are in need of particular care - children, vulnerable adults and intimidated witnesses.

Children

3.2 Children have long been regarded as among the most vulnerable members of society and much effort has been concentrated in recent years in providing support for the child witness. Children are not only physically more vulnerable than adults, but they are also likely to be less articulate and confident when called upon to be witnesses - particularly where the evidence concerns one of their family group or somebody in authority. The prospect of giving evidence is, for some children, so daunting that they find it difficult (and in some cases impossible) to speak up in court.

3.3 A "child" is straightforwardly defined: in Scotland, as somebody under the age of 16 years. Since sections 56 to 60 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 were brought into effect in 1993, children have been able to give evidence in special ways, which may be more suited to their circumstances. Other steps are also taken to help children during the process of investigating a crime and during the trial.

Vulnerable adults

3.4 There is no single definition of a vulnerable adult, and the Group was aware that some of the agencies concerned with witnesses have their own definitions of "vulnerability" for their own purposes. But the Group noted that the term was defined for two important purposes in the criminal justice process:-

Appropriate adult schemes. The guidance issued in June 1998 (see paragraph 2.10 above) applies to people who are mentally ill, have a learning disability or suffer from acquired brain damage or dementia. It is intended to apply "across the whole spectrum of need" and is primarily concerned with the first stage in the process: the police investigation.
Criminal Procedure (Scotland) Act 1995. Section 271 of the 1995 Act (as amended) defines a "vulnerable person" as any child or:-

"any person of or over the age of 16 years -

(i) who is subject to an order made in consequence of a finding of a court in any part of the United Kingdom that he is suffering from mental disorder within the meaning of section 1(2) of the Mental Health (Scotland) Act 1984, section 1(2) of the Mental Health Act 1983, or article 3(1) of the Mental Health (Northern Ireland) Order 1986 (Application of Enactment); or

(ii) who is subject to a transfer direction under section 71(1) of the 1984 Act, section 47 of the 1983 Act, or article 53 of the 1986 Order (Transfer Directions); or

(iii) who otherwise appears to the court to be suffering from significant impairment of intelligence and social functioning."

This is the only statutory definition of "vulnerability" - but it applies only to the assessment of whether witnesses should give evidence at a criminal trial by non-conventional means. The 1995 Act definition was only extended to include vulnerable adults in 1997, with the extension of the evidential regime previously available to children.

3.5 These definitions focus on witnesses’ vulnerability because of their personal characteristics - temporary (eg mental illness) or permanent. They do not, however, include people who are physically disabled, and have difficulty moving around or hearing or speaking. Special arrangements are already in place to help such witnesses and, while there is no room for complacency, they have not been a major part of the Group’s work. Nor do the definitions cover people who are under special pressure because of personal circumstances - the nature of the offence, or the relationship to the accused, for example. The Group felt that to extend the definition of "vulnerable" witnesses, which is based on the special characteristics of individuals, to cover such witnesses would tend to confuse the nature of the characteristics which required special treatment. Whilst recognising that some witnesses who were facing difficulties as a result of the nature of the crime or the relationship to the accused needed special support, the Group thought that this should be dealt with by bringing these witnesses within the description of those who felt "intimidation".

Intimidated witnesses

3.6 The term "intimidation" is often loosely used in respect of witnesses, referring to both subjective and objective circumstances. Hence, a witness may feel apprehensive simply by coming in contact with the criminal justice process, or by the nature of the evidence which he or she may be called upon to give, the nature of the crime or the relationship with the accused person. On the other hand, a witness or potential witness may be actually intimidated by violence or threatening behaviour. During the course of the trial, threats may be made covertly from the public benches or the accused may try to use his right personally to cross-examine a witness to place that witness in a state of fear. Witnesses may find the very presence of the accused and associates of the accused within the public areas of the court house intimidating.

3.8 So "intimidation" in the context of the criminal justice process can mean many things. The Group’s view was that an intimidated witness was somebody who, as a result of actual intimidation, or a or perceived threat of intimidation, may be in genuine fear of going to court to give evidence. In extreme cases, that could jeopardise the success of a prosecution, denying society’s expectation that guilty men and women should be convicted.

3.9 The Group was conscious of a special category of intimidated witness - victims of rape and serious sexual assault. They have often been placed in a special position of fear by the nature of the offence, and face particular difficulties because of the intimate matters with which the investigation and trial may be concerned and the particular distress of confronting the accused during the trial. Where appropriate throughout this paper, specific consideration is given to the particular needs of this category of witness within the wider context of measures required to support intimidated witnesses.