| CHAPTER 5: THE
TRIAL |
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| Introduction |
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| 5.1 This
Chapter describes the support available to witnesses from
the start of the trial. |
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| 5.2 Not
every witness needs to give evidence in court: there may
be insufficient evidence to proceed with the case, the
accused may plead guilty, or the testimony of the
particular witness may not be necessary to the
prosecution case. Nonetheless, the trial tends to be the
part of the process which causes witnesses most concern.
Trials are of two types: the more serious offences are
tried under "solemn" procedure in the High
Court or a sheriff court with a judge and jury, whereas
less serious offences are prosecuted
"summarily" before a sheriff or a magistrate
without a jury. |
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| Witnesses
generally |
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| 5.3 The
Crown Office/Procurator Fiscal Service/Scottish Court
Service Joint Statement (see Annex 2) states that
witnesses will only be brought to court if their evidence
is likely to be needed to prove the case. Even if a
witness’ evidence is needed, there are various ways
in which certain witnesses can be spared a personal court
appearance:- |
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5.3.1 Agreement of
evidence. In the period leading up to the trial,
there is a statutory duty on the prosecution and
defence to explore the extent to which
non-contentious evidence can be agreed in advance of
the trial. When such evidence is agreed, the witness
need not attend court to give evidence personally on
the agreed matters. In practice, this works better
for formal subjects (such as medical evidence) than
for the very questions which are likely to be most
distressing for a witness to recount to the court
(which are most likely to be the contentious part of
the case and therefore least likely to be suitable
for agreement in advance of the trial). It is
therefore likely to be more (though still limited)
help to vulnerable than to intimidate witnesses.
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5.3.2 Evidence on
commission. Section 271 of the Criminal
Procedure (Scotland) Act 1995, as amended, makes
provision for "vulnerable witnesses" (see
paragraph 3.4 above) to give evidence on
commission in appropriate cases. Similar provision is
made in Section 272 for witnesses who are ill or
infirm and unable to attend the trial diet. Evidence
on commission involves the court appointing a
commissioner to obtain the evidence of the witness
outwith the court setting: it could include
cross-examination. Commission proceedings under
Section 271 must be video recorded and, although
Section 272 does not require video recording,
the evidence is admissible in video recorded form. So
far as the Group is aware, the procedure has not been
used by children or vulnerable adult witnesses as
defined in Section 271. One possible reason is
that, while the Act of Adjournal (Criminal Procedure)
Rules 1996 lays down the procedure for
Section 272 proceedings, no rules exist to set
out how Section 271 ought to operate in
practice.
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5.3.3 Prior
statements. In 1997, the law was changed to allow
a prior statement by a witness to be admissible in
court as part of that witness’
evidence-in-chief. Such a statement can be in
writing, or in the form of a video or audio
recording. The witness must still be present in court
to adopt the statement as part of his evidence and to
be cross-examined if necessary - but potentially
embarrassing or distressing evidence can be led in
chief without requiring the witness to repeat the
facts in open court.
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5.3.4 Evidence by
live TV link. Section 271(5) of the Criminal
Procedure (Scotland) Act 1995, as amended,
allows children (and, since 1997, vulnerable adult
witnesses) to give evidence by live television link
from another room in the court house. This provision
is now routinely used for child witnesses.
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| 5.3.5 Hearsay
evidence. The statement of a person who is unfit or
unable to give evidence in a competent manner may be
admitted under the Hearsay Rules in Section 259 of
the Criminal Procedure (Scotland) Act 1995. That
provision was intended for witnesses who are infirm,
physically or mentally incapable, overseas, unwilling or
whose whereabouts are unknown. Procurators fiscal are
instructed to consider using these provisions for child
witnesses and vulnerable adult witnesses in appropriate
cases. |
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| 5.4 But the
Group recognised that these alternative ways of giving
evidence will not always present the court with the
"best evidence", as convincing as that which is
available by direct testimony of a witness. And the
"best evidence" is important, because the
criminal justice process aims to ensure that people get a
fair trial and that those who are guilty of crimes are
convicted - and conviction of the guilty is important to
witnesses (particularly the victims of crime). The Group
considered that the procurator fiscal was in the best
position to decide, on the information available to him
including the views of the witness, whether it is
necessary to the success of a case for a witness to
appear in person or not. That is the present position and
the Group recommends no change. |
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Recommendation 13: that, with the aim of
enhancing the scope for vulnerable and intimidated
witnesses to give evidence other than in person:-
- the Crown Office
conduct a review of the use made by prosecutors
of the hearsay evidence and prior statement
provisions in Section 259 and 260 of the
Criminal Procedure (Scotland) Act 1995, with a
view to determining whether there is scope for
wider use in relation to particular categories of
vulnerable or intimidated witnesses;
- the Criminal Court
Rules Council be invited to consider preparation
of rules about how the statutory provision for
vulnerable persons giving evidence on commission
should operate in practice.
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| 5.5 The way
in which the trial itself is conducted can help minimise
distress to witnesses. For example:- |
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5.5.1 at the
discretion of the court, in cases of rape and other
serious sexual offences, the public may be excluded
from the court room while particular witnesses give
evidence. In theory, the media may also be excluded -
but in practice that is unnecessary because they take
a responsible attitude to reporting the circumstances
of the case but not revealing the witness’ name.
The public (though not the media) may be excluded if
a child is giving evidence in a case involving
"an offence against, or conduct contrary to,
decency or morality". More generally, the judge
has a common law power to clear the court at any
time.
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5.5.2 a child or
vulnerable adult witness may give evidence in open
court but be shielded from the accused by screens,
with a video camera placed on top of the screen
enabling the accused to see the demeanour of the
witness while giving evidence, but avoiding the
witness being required to confront the accused.
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5.5.3 separate waiting
rooms are available in all sheriff courts, to
segregate prosecution witnesses from the accused or
associates. The room used by prosecution witnesses
could be used also by any police officers who have to
be in court to give evidence, which would reduce the
likelihood that prosecution witnesses feel
intimidated.
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5.5.4 the procurator
fiscal can in some cases take simple measures to
relieve pressure on particular witnesses - for
instance, by ensuring that their addresses are not
disclosed in court (or on witness lists) if they do
not wish, or by calling them early in the trial so
that they can get away from the court.
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5.5.5 there have been
exceptional cases, involving the security forces,
where the judge has authorised in advance the use of
an alias to protect the identity as well as the
address of a witness. That would obviously be of
limited assistance in a case where the witness was
known to the accused. But there may be other
exceptional cases where it could be of assistance.
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| 5.6
Cross-examination is the part of the trial which causes
witnesses most apprehension. The Group noted (see
paragraph 2.5 above)
that cross-examination is a necessary part of the trial
and that, to probe the witness’ reliability as well
as his credibility, searching questions may need to be
asked. Witnesses did not always realise, however, that
cross-examination did not necessarily imply that they
were untruthful: that point should be emphasised in
guidance leaflets. |
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| 5.7 The
court has an inherent common law power to prevent
inappropriate or intimidating cross-examination. The
Group took the view that it was important that all
concerned recognise the need to support witnesses and to
prevent such cross-examination and that, if necessary,
the Lord Justice General and the senior judiciary should
consult with members of the professions about how to
reinforce the court’s powers. |
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| Recommendation 14: that appropriate
opportunities be taken to emphasise to witnesses that
cross-examination does not necessarily imply that they
are untruthful, and to emphasise the court’s role in
preventing inappropriate or intimidating
cross-examination. |
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| 5.8 The
Group’s work focused mainly on the higher criminal
courts (sheriff court and High Court). Though the nature
of the criminal business of the district courts does not
give rise to serious concerns about witness intimidation,
the same arrangements for vulnerable and intimidated
witnesses can be made - or the procurator fiscal can
proceed in the sheriff court instead. The District Courts
Association is considering producing a statement on
services for witnesses in the district courts. |
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| Child
witnesses |
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| 5.9 As is
the case before the trial (see
paragraph 4.11
above), child witnesses are treated with particular care
during the trial. In 1990, Lord Justice General Hope
issued a memorandum to the judiciary (reproduced at
Annex 3) directing their attention to a range of
measures which could be taken to reduce the potentially
distressing effect on a child of giving evidence in
court. The memorandum appeared to the Group to have had
an influential effect on the treatment of child
witnesses. To make the courtroom less intimidating, for
instance, the memorandum recommends that wigs and gowns
should be removed if a young child is giving evidence.
Procurators fiscal have well-established and detailed
guidance on the manner in which child witnesses should be
treated in court. The Group commended these arrangements.
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| 5.10 The
arrangements for giving evidence by alternative means,
and for making it as easy as possible for the witness to
give evidence (see paragraphs 5.3 and 5.5 above) apply
with particular force to children. The Group noted an
increasing use of the procedures for giving evidence by
alternative means. The number of child witnesses giving
evidence using screens or a live TV link rose from 23 in
1995 to 94 in 1997. This reflects perhaps the fact that a
sheriff court in each sheriffdom is now fitted with CCTV
equipment (and cases involving child witnesses can be
programmed for these courtrooms) and that there is
greater familiarity not only with the legislation, but
also with the requirements of the court and with the
procedures themselves. At the same time, the Group noted
that all court users are increasingly aware of the
special requirements of children, which is reflected in
the more sympathetic approach to child witnesses within
the conventional court setting, where most children still
give their evidence. The Group was not made aware of any
recent cases in which a court refused an application for
a child to give evidence by alternative means. The Group
commended the arrangements which are already in place and
considered that they had no obvious deficiencies -
subject to the more comprehensive review being carried
out by the Working Group on Child Witness Support (see
paragraph 4.15). |
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| Vulnerable
adults |
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| 5.11 Like
children, vulnerable adults may benefit particularly from
arrangements to give evidence by alternative means. The
statutory provisions in Section 271 of the Criminal
Procedure (Scotland) Act 1995 were amended in 1997
to extend to vulnerable adults the alternative means of
giving evidence available previously only to children.
Few applications have so far been made to the court and,
while these appear to have raised no problems, the Group
concluded that the scale of use was insufficient to make
a meaningful assessment of how the new provisions are
working. |
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| 5.12 Special
measures to help vulnerable adults are also available in
court. A pre-trial familiarisation visit can be arranged
(and the "appropriate adult" may be requested
to be present). The "appropriate adult" will
also attend the court hearing itself, though playing no
direct part in the process. Special booklets are
available for learning disabled witnesses, explaining the
court process through the eyes of the witness. |
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| 5.13 The
Group commended these arrangements and identified no
improvements which were necessary. The effect of the 1997
change in law of evidence, however, needs to be monitored
once a sufficient sample of vulnerable adults has used
the new arrangement. That research can be linked to the
further work on the identification of vulnerable
witnesses and on the "appropriate adult"
guidance, which the Group recommends (Recommendations 7
& 8). |
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| Recommendation 15: that The Scottish
Office commissions research to observe whether the
alternative means of evidence now available for
vulnerable adults are effective in allowing these
witnesses to give testimony with minimum distress. |
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| Intimidated
witnesses |
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| 5.14 Some of
the alternative means of giving evidence (paragraph 5.3
above) are potentially relevant to the intimidated
witness, because they could reduce confrontation with the
accused and his supporters. The ways, described in
paragraph 5.5 above, of minimising the risk of
intimidation on the day of the trial are clearly also
important and the Group considered that their usefulness
could be increased. (Recommendation 12 will also help to
do so.) |
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Recommendation
16: that, to reduce the risk of intimidation on the day
of the trial:-
- the law of
evidence be changed to allow the court to exclude
the public (and of necessary the media) from the
court room in cases where witnesses face serious
and specific intimidation (that is, "Level
1" witnesses - see paragraph 4.27 above) - but not
in other cases, since "justice should be
seen to be done";
- the law of
evidence be changed to allow such intimidated
witnesses to give evidence by the alternative
means currently available for child and
vulnerable adult witnesses;
- the Association of
Chief Police Officers in Scotland be encouraged
to arrange for any police witnesses, who need to
be in court to give evidence, to use the
prosecution waiting rooms to reduce the
likelihood that witnesses feel intimidated.
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| 5.15 It is
obviously important that witness protection procedures
operated by the police should continue to offer
protection during (and indeed after) the trial. The Group
understood that this was the practice for the Strathclyde
Police pilot, and for witness protection arrangements
operated by other police forces in Scotland. |
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| 5.16 The
Group gave particular attention to the problem of
intimidation of witnesses who have been the victim of
alleged sexual assault. In such cases, recounting details
of the crime in a public court room can be particularly
distressing for the witness - especially when the alleged
perpetrator of the crime is present in the court room and
clearly visible to the witness. There are already
important safeguards in place to assist such witnesses.
Section 274 of the Criminal Procedure (Scotland) Act
1995 limits the extent to which a victim of a sexual
assault can be questioned about previous sexual history.
Section 92(3) of the same Act enables the judge in
trials for rape and other serious sexual offences to
order that a court be cleared of all persons other than
the accused, counsel and solicitors. The alternative
means of giving evidence, listed in paragraph 5.3 above,
are also particularly relevant to the victims of sexual
crimes. The Group considered whether Section 271 of
the 1995 Act, which makes special provision for children
and vulnerable adults giving evidence in court, should be
extended to the victims of serious sexual crimes, in line
with the recommendation of the Scottish Law Commission in
its Report on the Evidence of Children and Other
Potentially Vulnerable Witnesses (1990). The Group
concluded that there was no evidence of shortcomings in
the present arrangements: but recent research evidence on
their effectiveness was lacking. |
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| Recommendation 17: that The Scottish
Office commissions research into the ways in which
victims of sexual crimes give evidence in court, in order
to identify any shortcomings in the present arrangements. |
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| 5.17 A
particular shortcoming in England and Wales which has
caused serious concern is the aggressive
cross-examination of victims in sexual offences cases by
unrepresented accused persons. No instances of similar
difficulties in Scotland were brought to the attention of
the Group and it appeared that the differences in
procedure and rules of evidence between England and Wales
and Scotland - and, in particular, the interpretation of
the common law duty of the court to prevent inappropriate
cross-examination (see paragraph 5.7 above) - mean that
such cases are unlikely to occur in Scotland. The
research recommended by the Group (see
Recommendation 17) should bring to light evidence of
any shortcomings in the present arrangement. |
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| After the
trial |
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| 5.18 The
Group recognised that, for many witnesses (especially
those who have been the victim of a crime), the
completion of the trial does not necessarily put an end
to the need for support and the Group welcomed the fact
that general support for victims (see
paragraph 4.7
above) and police witness protection arrangements (see
paragraphs 4.27-4.30 above) remained in place if required in the
period after the trial. |
