| CHAPTER 4: BEFORE
THE TRIAL |
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| Introduction |
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| 4.1 This
Chapter describes the help available to witnesses in the
period between the original report of the crime and the
start of the trial. It looks at the help available for
witnesses generally - and then considers the position of
the three special groups (children, vulnerable adults and
intimidated witnesses) of particular concern to the
Group. |
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| Witnesses
generally |
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| 4.2 The
Group was conscious that the co-operation of witnesses is
likely to be maximised if they have a clear understanding
of what is expected of them when the crime is being
investigated. The literature now made available at
various stages of the process, and described at paragraph
2.9 above, should
go some way to ensuring that this is achieved. |
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| 4.3 The
leaflet "Reporting a Crime - A Guide for Victims and
Witnesses", which was launched in
February 1998, is designed to be distributed by the
police to all victims and potential witnesses at the time
when a crime is reported. It describes the role witnesses
will be expected to play in the criminal justice process
and the support available to all witnesses. The Group
considered that it was a very helpful innovation. It
needs to be kept up-to-date and steps need to be taken to
ensure all potential witnesses receive it. |
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| Recommendation 1: that The Scottish
Office’s Victim Steering Group (see
paragraph 2.8 above) be invited to review the
"Reporting a Crime" leaflet periodically to
ensure that it is still up-to-date; that the Association
of Chief Police Officers in Scotland be invited to verify
that the leaflet is in fact being distributed as
intended; and that research be carried out into its
effectiveness. |
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| 4.4 The
Crown Office, Procurator Fiscal Service and Scottish
Court Service Joint Statement on Crown Witnesses,
launched in January 1998, sets out a number of
commitments to witnesses, including vulnerable witnesses.
The Statement is applied throughout the country via local
codes of practice agreed between procurators fiscal and
clerks of court and there are protocols in place to
ensure that the relevant commitments are met in the High
Court. The Group would like to see an evaluation of the
effectiveness of the Statement and the local Codes in
achieving their aims. |
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| Recommendation 2: that the Crown Office
and Scottish Court Service commission research into the
effectiveness of the Joint Statement on Crown Witnesses
and local codes of practice, seeking the views of
witnesses, with a view to informing good practice and
identifying areas where improvements can be made. |
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| 4.5
Witnesses’ early contacts with the police are likely
to be important in influencing their willingness to give
statements and subsequently to testify - so police
practices are vitally important. Careful training is
given to all police officers, and particularly to
detectives, at the Scottish Police College. Good practice
is well established - for instance, avoiding turning the
spotlight on a witness and his identity at the scene of
the crime, interviewing witnesses at times and places
convenient to them, and avoiding calling at
witnesses’ houses or places of work in a way which
could cause embarrassment. The Group considered, however,
that there was a role for good practice guidance on the
treatment of vulnerable and intimidated witnesses - both
to ensure that all police officers are aware of best
practice, and to reassure the public that such witnesses
will be treated with due care by police. (In practice,
the guidance might sensibly apply to all witnesses -
but that is beyond the Group’s remit.) |
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| Recommendation 3: that the Association of
Chief Police Officers in Scotland be invited to draw up
and disseminate to police forces, and make publicly
available, best practice guidelines on treatment of
vulnerable and intimidated witnesses. |
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| 4.6 Many
witnesses clearly value independent help from Victim
Support Scotland and similar voluntary groups which can
provide practical support and information about the role
of the witness. |
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| 4.7
In some circumstances, the police or other statutory and
voluntary agencies provide such support to victims of
crime. However, the main source is Victim Support
Scotland (VSS), a voluntary organisation whose local
schemes cover most of Scotland. Most VSS referrals come
from the police. VSS trained volunteers contact victims
of most types of crime to offer support, irrespective of
whether or not a court case is involved. Generally this
support takes the form of advice, emotional support and
practical assistance, rather than long term intensive
support (for which professional assistance would be more
appropriate). |
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| 4.8 In 1996,
in response to a bid from VSS, The Scottish Office agreed
to fund three pilots Witness Support Projects in Ayr,
Hamilton and Kirkcaldy Sheriff Courts. The service is
provided by VSS volunteers, who have been specially
recruited and trained for the project, and has been
developed with the assistance of the Procurator Fiscal
Service and the Scottish Court Service. A full
independent evaluation of the pilot has been carried out
and published. The researchers found that the model used
in Ayr and Kirkcaldy, which involved a volunteer presence
at the court providing an advice and support service to
all who requested it, was well used, particularly by
prosecution witnesses, and appreciated both by service
users and by most of the criminal justice personnel
involved. Although most contacts were relatively short,
witnesses often found them emotionally sustaining as well
as of practical assistance. The use of volunteers who
were seen as independent of the criminal justice process
was particularly valued by witnesses. Criminal justice
agencies saw the projects as valuable in raising
awareness of victims’ needs, and reducing the burden
on the statutory agencies. |
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| 4.9 The cost
of providing such a service to sheriff courts throughout
Scotland would depend on coverage and on the way in which
the service was provided but could be provided for
witnesses in the vast majority of cases for £750,000 per
annum. |
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| Recommendation 4: that, subject to the
availability of resources, the pilot Witness Support
Projects which have operated at three sheriff courts be
extended to as many sheriff courts as practicable,
retaining the volunteer element. |
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| 4.10 The
police and procurators fiscal pay particular attention to
obtaining evidence from sources other than direct
witnesses. Recent developments include the national DNA
database (DNA samples are particularly helpful in sexual
crimes) and the increasing use of CCTV. Competent
evidence can also be given by people whose employment
brings them into professional contact with a case -
police officers or local authority employees, for
example - and who are less vulnerable to
intimidation than members of the public (particularly
relatives or neighbours of the accused). Evidence of that
kind can corroborate the evidence of a witness,
increasing the number of cases which can be prosecuted
successfully. They can also reduce the pressure on
individual witnesses, by increasing the likelihood of a
guilty plea, by making it more likely that the defence
will agree part or all of the evidence or by reducing the
extent to which a witness needs to give evidence. |
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| Children |
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| 4.11
Because of the special vulnerability of children, the
police and procurators fiscal already treat child
witnesses with particular care. Wherever possible (and
especially in investigations of sexual or other offences
committed by the family or someone in charge of the
child) child witnesses are interviewed by
specially-trained police officers who normally specialise
in work with women and children. Detailed guidance is
provided to procurators fiscal about the way child
witnesses should be treated throughout the investigative
process. In all proceedings involving child witnesses,
the procurator fiscal preparing the case will bear in
mind the needs of the child (as well as the requirements
of the court) and alternative ways in which the child
might give evidence (which are considered in the next
Chapter). The procurator fiscal will take into account
the possible effects on the child, the child’s own
views, the age and maturity of the child, the nature of
the alleged offence and the nature of the evidence that
the child might be called upon to give as well as the
relationship (if any) of the child to the accused. This
is reasonably straightforward in solemn proceedings (that
is, cases involving more serious offences which are tried
by a judge and jury), when the child will be interviewed
by the procurator fiscal. In summary cases (involving
less serious offences, which are tried before a sheriff
or a magistrate without a jury), this assessment is not
so easy because the procurator fiscal rarely meets the
child before the trial. The procurator fiscal is heavily
dependent in such cases on information provided by the
police, support agencies or the child’s family. |
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| 4.12
Procurators fiscal are given detailed guidance on the way
in which children should be interviewed. A support person
should be present and the interview should be conducted
in an atmosphere which is as "child friendly"
as possible. Repeated interviews should be avoided and
interviews should be carried out by specialised units
staffed by specially trained legal and other staff. |
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| 4.13 As
paragraph 2.3 explains, the defence is also entitled to
interview Crown witnesses before the trial and, as a
general rule, Crown and defence interviews are carried
out independently of one another. But, where a child
witnesses is involved, the procurator fiscal often makes
the prosecution interview report available to the defence
in cases where the defence agrees that this will avoid a
second interview. In other circumstances, the Crown (if
called upon to do so) can sometimes make special
arrangements for child witnesses to be interviewed by the
defence either at the procurator fiscal’s office or
at a police station. The Group noted anecdotal examples,
however, of defence interviews which caused great
distress to children because of the manner in which they
were carried out - apparently as a result of ignorance
rather than malice. While there are comprehensive
guidelines and procedures for procurators fiscal on the
treatment of child witnesses and while Crown interviewers
are specially trained, the Group noted that there is no
equivalent code of practice for defence solicitors. |
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| Recommendation 5: that the Law Society of
Scotland be invited, in the interests of minimising
trauma for child witnesses and without prejudicing the
ability of the defence to prepare its case, to draw up
guidance for its members on the interviewing of children. |
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| 4.14 Once it
is certain that a child is to appear as a witness, the
child will be given a copy of the (age relevant)
"Going to Court as a Witness?" booklets and
will be offered the opportunity of a court visit. In
solemn cases, every effort is made to allow the child to
visit the courtroom in which he is to give evidence and
to familiarise himself with the layout of the court and
(if evidence is to be given by "alternative"
means) with any equipment which will assist him to give
evidence. The court visit provides the child with an
opportunity of airing any concerns he might have about
his forthcoming appearance. If a child has not previously
had the opportunity of meeting the procurator fiscal
conducting the Crown case, steps can be taken prior to
the trial for this meeting to take place. The defence
solicitor or advocate is generally also invited to this
meeting, although they cannot be made to attend. |
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| 4.15 While
much work has been done on the treatment of child
witnesses, and practices have been improved as a result,
more work is in hand. In particular, the Lord Advocate
set up a Working Group on Child Witness Support in 1995
with a remit:- |
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- to consider
arrangements to support children affected by
child protection or criminal proceedings and
identify necessary improvements;
- to design, implement
and evaluate a pilot initiative;
- to formulate
proposals to disseminate good practice on a
national basis.
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| The Working
Group is chaired by the Crown Office, with
representatives from the police, procurators fiscal, the
Scottish Court Service, the Scottish Courts
Administration, the Law Society of Scotland, the shrieval
bench, the Scottish Children’s Reporter
Administration, a local authority social work service,
the health service, Victim Support Scotland and NCH
Action for Children. The Group recognised that the
Working Group on Child Witness Support was thoroughly
reviewing policies and practices on child witnesses and
understood that its report will be available before the
end of 1998. It did not appear sensible for the Group to
duplicate its work and recommend further improvements in
the meantime |
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| Recommendation 6: that the findings of
the Working Group on Child Witness Support be used to
inform improvements in support for child witnesses, once
its work is complete. |
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| Vulnerable
adults |
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| 4.16 Much
work has been done to develop guidance about how
witnesses suffering from a mental impairment can best be
supported throughout the investigative process. That work
culminated in the publication in June 1998 of a code of
practice ("Appropriate Adult Schemes") on
interviewing people who are mentally disordered. As
paragraph 3.4 notes, the guidance applies to a wide
variety of people who may have difficulty giving
evidence. The scheme provides that an appropriate adult
will be present at any interview to support the witness
and, if necessary, explain the significance of the
questions posed at interview. The scheme applies equally
to witnesses who are victims and to other witnesses as
well as to accused people. |
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| 4.17 To
assess whether an appropriate adult is required, the
guidance recommends that the police should consider
whether the interviewee is excessively apprehensive, and
shows any signs of mental disorder such as excessive
anxiety; unusual mood level eg tearfulness or euphoria;
incoherence (not solely drug or alcohol induced);
inability to understand or answer questions; unusual
behaviour traits; or agitation leading to physical
activity which is not in keeping with the current
situation. The guidance makes clear that the police must
be guided by comments from carers or other people who
know the interviewee. |
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| 4.18 At this
point the interviewing officer should establish (with the
advice of a psychiatrist or police surgeon) whether the
witness is in fact fit to be interviewed. If the
interview proceeds, the witness should be accompanied by
an appropriate adult identified in accordance with the
local arrangements. These arrangements will involve local
authority social work services, health boards, NHS
trusts, voluntary agencies (such as ENABLE, the Scottish
Association for Mental Health and Alzheimers Scotland
Action on Dementia), procurators fiscal and the police. |
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| 4.19 The
vulnerability of the witness, and the fact that an
appropriate adult has been present at police interviews,
will be recorded by the police and notified to the
procurator fiscal (and subsequently to the court). The
appropriate adult will be is asked to attend if the
procurator fiscal decides to interview the witness, and
plays much the same part as at the police interview: to
ensure that the witness understands what is happening. He
may also be requested to be present if a familiarisation
visit to the court takes place. |
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| 4.20 The
Group considered that the "Appropriate Adult
Schemes" code of practice gave the right basis for
the special treatment required by adults who are
vulnerable as a result of personal characteristics. The
code of practice is relatively new and the Group
considered that the time was right to check (perhaps by
means of the research which the Group considered should
be carried out - see Recommendation 20) that it was being applied by all
relevant parties throughout Scotland, and that defence
solicitors were also conscious of its guidance. |
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| Recommendation 7: that The Scottish
Office be invited to verify that its "Appropriate
Adult Schemes" code of practice is being applied by
the relevant agencies and that the Law Society of
Scotland be invited to take account of the code of
practice in good practice guidance on the treatment of
vulnerable adults by defence solicitors. |
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| 4.21 The
procurator fiscal needs to know if a witness falls within
the statutory definition of a "vulnerable
person" who is eligible to give evidence using one
of the alternative methods specified in Section 271
of the 1995 Act (see paragraph 3.4 and Chapter 5). As with children, in solemn cases the
procurator fiscal will almost always meet the witnesses
before the trial, simplifying assessment. In summary
cases, on the other hand, the procurator fiscal is
unlikely to meet the witness before the trial date and so
is dependent on information supplied by the police,
support persons and families. |
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| Recommendation 8: that the Association of
Chief Police Officers in Scotland and the Crown Office be
invited to put in place standard mechanisms for
identifying vulnerable adults as defined by the 1995 Act
and for ensuring that information available to
procurators fiscal is consistent and sufficient to enable
early assessment to be made of the appropriateness of
alternative methods of giving evidence. |
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| Intimidated
witnesses |
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| 4.22 In the
"Reporting a Crime" leaflet, witnesses are
invited to advise the police if they are worried about
their safety or that of their family. Such concerns can
arise in a number of different ways. If the witness to a
crime knows the alleged perpetrator is of a violent
disposition, the witness may be worried about
intimidation without any specific threat having been
made. In other cases, witnesses receive very specific
threats from or on behalf of a person alleged to have
committed a crime. |
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| 4.23 But not
all potential witnesses report intimidation and some
people are deterred by intimidation from making a
statement in the first place. To help overcome these
problems, the police in England and Wales have developed
a list of prompts to assist in identifying witnesses who
may need protection, assistance or reassurance. These
prompts cover factors such as the witness’
relationship to the accused, whether the witness is
reluctant to provide a statement, whether he lives in a
community with a history of anti-social behaviour, or
whether the suspect has a history of intimidating
witnesses. The Group believed that, though the police
should continue to take the decision in the light of all
the circumstances of the case, the decision about whether
or not a witness was "intimidated" would be
usefully informed by a similar series of prompts (which
should be advisory rather than prescriptive, because
individual cases and local circumstances vary). |
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| 4.24
Although the police have primary responsibility for
identifying various levels of intimidated witness, it is
important that the procurator fiscal is made aware of the
fact that a witness falls into this category and of any
measures that have been taken to protect the witness. He
may require to co-operate with the police in special
arrangements for precognition or attendance at court.
Further, however, armed with the right information, there
may be additional measures that the procurator fiscal can
take to assist or protect such witnesses, with the
assistance of the Court Service in appropriate cases.
Some of these are discussed in Chapter 5 below. The
Group considered that it was important to ensure that
consistent and sufficient information about levels of
intimidation involved was provided to the procurator
fiscal and that all procurators fiscal were aware of the
range of measures available. |
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| Recommendation 9: that the Association of
Chief Police Officers in Scotland be invited, in
consultation with the Crown Office, to devise and apply a
list of prompts to guide police officers in identifying,
at the earliest practicable stage, a witness who may be
intimidated and to draw up arrangements to inform
procurators fiscal about the level and nature of
intimidation and any protective measures in place. |
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| 4.25 One
very important consideration in preventing intimidation
is the question of bail. When the police arrest a suspect
and keep him in custody, he is entitled to seek bail when
he appears in court the next day. The procurator fiscal
can oppose bail. If the procurator fiscal has information
that a witness is in danger from the accused, this can be
used as a ground of opposition to bail. Most accused
persons, however, are granted bail. The system under
which bail is granted contains important safeguards to
protect witnesses. One of the standard conditions of bail
is that the accused person must not "interfere with
witnesses or otherwise obstruct the course of justice
whether in relation to himself or any other person"
and additional special conditions can be imposed to
protect witnesses who may be at particular risk of
intimidation. Breach of any of these conditions is an
offence, which will be prosecuted if enough evidence is
available. Section 28 of the Criminal Procedure
(Scotland) Act 1995 empowers the police to arrest without
warrant an accused who has been released on bail, if they
have reasonable grounds to suspect that he has broken, is
breaking or is likely to break any condition imposed on
his bail. Persons arrested under this section are brought
back before the court for a review of their bail order.
Even if there is insufficient evidence to prosecute for a
bail offence, the procurator fiscal may be able to ask
the court to review the granting of bail: Section 31
of the 1995 Act empowers a prosecutor to apply to the
court for review of an accused person’s bail
conditions and the court can grant a warrant for the
arrest of the offender so that he may be brought back to
allow the application to proceed. These are powerful
safeguards against intimidation. But the Group was not
convinced that they were used as widely as practicable.
In particular, the Group recognised that action for
breach of bail may depend on witnesses knowing the bail
conditions which might affect them, and reporting any
breach to the police. It is therefore important that
witnesses are aware of releases on bail, and the relevant
conditions which have been imposed. |
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Recommendation 10: that the
Association of Chief Police Officers in Scotland and the
Crown Office be invited to ensure that:
- procedures are in
place to inform affected witnesses of releases on
bail and in particular of relevant conditions
imposed;
- police officers
are fully aware of their powers to arrest an
accused for breach of bail conditions, under
Section 28 of the Criminal Procedure
(Scotland) Act 1995 and of the importance of
reporting to the procurator fiscal information
that may allow him to act under Section 31
of the Act.
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| 4.26
Although acting on breaches of bail conditions is the
most effective way of protecting witnesses from
intimidation, other measures can also help. Intimidation
of a witness (by violence or by threats) is a serious
offence in its own right and perpetrators will be
prosecuted whenever sufficient evidence is available.
Whether or not the evidence is sufficient for a criminal
prosecution, the Protection from Harassment Act 1997
can potentially also help. It allows someone who is being
harassed to apply for an order prohibiting the
harassment. Breach of the order is a criminal offence,
but the order can be granted on the (lower) civil
standard of proof. Alternatively, an interdict can be
sought (again in the civil courts) to prevent
interference with a witness: while it is quick to obtain,
however, it is not easy to enforce. |
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| 4.27
All Scottish police forces take special measures to
protect intimidated witnesses. This work has recently
been developed further by Strathclyde Police, under a
witness protection pilot project funded by The Scottish
Office. For the purpose of that project, the police in
Strathclyde identified 2 levels of threat - |
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Level 1 - a
small inner-core of individuals who have witnessed
serious crimes and who have received specific
threats. Such witnesses are considered to need the
high level of protection afforded by a formal scheme
of the kind being piloted by Strathclyde Police.
Level 2 - a middle and lower category of
witnesses and victims who have suffered intimidation
or harassment which is not necessarily life
threatening but nonetheless merits investigation by
the police and subsequent prosecution of those making
the threats. At the "lower" end of this
tier come members of the general public whose
perception of the possibility of being threatened or
harassed is such that they are not prepared to come
forward with evidence to the police even when they
themselves are the victims of crime.
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| 4.28 The
first level of intimidation is clearly the more serious.
The pilot project can, in the worst cases, relocate and
give new identities to witnesses whose lives or whose
families’ lives may be in danger, as well as
offering specialist help to witnesses who have been
subject to lower levels of intimidation. The provision of
new identities and relocation is clearly a major
undertaking involving central and local government
authorities as well as the police. It is recognised that
flexibility and total confidentiality are essential to
the success of any such scheme. |
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| 4.29 Most
cases of intimidation fall into Level 2. These cases can
generally be dealt with quite effectively at the
Divisional level within the force, in consultation with
the Strathclyde Witness Protection Unit as necessary.
Measures which can be taken to assist Level 2 witnesses
include the provision of alarms and other technical
assistance such as the installation of outside security
lighting or home-based CCTV; advice on personal security;
and, in the more serious of the Level 2 cases,
examination of the possibility of re-location if
necessary. |
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| 4.30 The
Strathclyde Police project is being independently
evaluated by researchers commissioned by The Scottish
Office. A summary of their research has been published
and the full report is likely to published early in 1999.
It will be for chief constables to take decisions about
whether, and if so how, the results of the research are
relevant to the other 7 Scottish forces. |
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| Recommendation 11: that The Scottish
Office and the Association of Chief Police Officers in
Scotland consider, in the light of the results of the
Strathclyde Police witness protection pilot project and
the availability of resources, whether augmented support
for intimidated witnesses is warranted more widely in
Scotland. |
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| 4.31 While
the police have developed a range of measures to help
protect intimidated witnesses, that range might be
widened with the co-operation of other criminal justice
organisations. |
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Recommendation 12: that the
Association of Chief Police Officers in Scotland, in
association with the Crown Office and consulting where
appropriate the Scottish Court Service, be invited to:-
- identify a range
of measures that might provide additional
protection to particular classes of intimidated
witnesses cited to give evidence in court;
- ensure effective
liaison at local level, to provide support to
intimidated witnesses in individual cases.
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