Towards a Just Conclusion

CHAPTER 7: WITNESSES IN CIVIL CASES

7.1 Previous Chapters have considered the role of the witness in criminal cases. It is just as important that those who are capable of assisting the courts in reaching decisions of fact in civil cases should be equally prepared to give evidence.

The different problem in civil cases

7.2 There are significant differences in the civil process which affect the position of witnesses:-

corroboration is not generally required; hearsay evidence is generally admissible; the standard of proof is the "balance of probabilities", rather "beyond reasonable doubt"; the use of extensive written pleadings in some procedures avoids the need for an oral hearing, so a much smaller percentage of cases comes to court; fewer particularly vulnerable or intimidated witnesses tend to be involved in civil proofs than in criminal cases; the formalities of procedure do not apply to the same extent as in criminal cases and in particular the absence in most cases of a jury leads to fewer difficulties over the treatment of witnesses.

7.3 This does not mean that problems of intimidation or of the treatment of vulnerable or intimidated witnesses do not exist in civil procedure. Where they do exist, the need to consider how the law and the legal system can minimise the problems is just as important.

7.4 There are four areas in which problems appear to exist in civil procedure and they are similar to those in criminal procedure:

proper care of and support for witnesses generally; children; particularly vulnerable witnesses; intimidation, most notably in cases involving anti-social behaviour.

7.5 Another important area of difference between criminal and civil procedure lies in the respective roles of those who have primary duties towards the witnesses concerned. In criminal procedure, witnesses for the prosecution are the responsibility of the police and procurators fiscal and Crown counsel. In civil cases, however, with one major exception, most witnesses are the responsibility of the great diversity of parties who are litigating. Most of the parties are not in the public sector. The exception is cases under the child care and protection provisions of the Children (Scotland) Act 1995, where the reporter to the children’s hearing has the responsibility of bringing before the sheriff, in cases where the grounds of referral to a children’s hearing have to be established, those witnesses whose evidence is necessary to substantiate the factual basis of the grounds of referral. Often those witnesses are children who need special measures. A public body - the Scottish Court Service - is also involved in the operational problems of accommodation of witnesses in court rooms. In other respects, however, the care and support given to witnesses will be a matter for the litigants.

Recommendation 22: that no substantive change be made in the law about the care and support of witnesses in civil cases but that all those concerned, particularly the legal professions, be reminded of their responsibilities particularly for vulnerable witnesses and those who may be suffering from intimidation.

Alternative ways of giving evidence

7.6 Given the wider variety of possibilities for bringing evidence other than by direct participation of the witness in a proof court hearing, the considerations of how to support and protect witnesses in civil cases are somewhat different. Under the Civil Evidence (Scotland) Act 1988, corroboration is not required in any civil case and the evidence of a witness which is hearsay (primary, secondary, tertiary) is also admissible. Of course, if there is dispute on points of fact critical to the case of one or other of the parties, then corroboration or primary evidence may have to be sought from witnesses. In that situation, vulnerable or intimidated witnesses are in much the same position as those in criminal cases. There is also a general provision in the 1988 Act which allows the admissibility of written evidence including all sorts of documents as well as video recorded material (quite apart from videoed evidence taken on commission). There is in general no opposition to the use of such evidence (although video recorded evidence may require to be the subject of cross-examination).

7.7 So alternative methods of giving evidence are not so important in civil as in criminal cases. There are, however, a number of exceptions. The first is in relation to child witnesses. The Scottish Law Commission in its 1990 Report on the Evidence of Children and Other Vulnerable Witnesses recommended that provision should be made to enable a child to give evidence by means of a live CCTV link or by means of a pre-trial deposition. This was particularly required in relation to the proceedings for child care and protection which are now contained in Part II of the Children (Scotland) Act 1995. Although these procedures were not applied in such civil cases by statute, there have been instances in which the courts have allowed evidence to be taken by CCTV for the purposes of establishment of the grounds of referral. This practice was approved by the Inner House of the Court of Session in the Petition of Miller to the nobile officium (16 October 1996) and the matter is now regulated by the Act of Sederunt (Child Care and Maintenance Rules) 1997 which provides procedures for the taking of evidence from children by live television link (see Rule 3.22). It was never necessary to provide for evidence on commission in civil proceedings since this was already the law.

7.8 Given that it is already possible to use such special methods for the delivery of evidence in civil procedures involving children, it is also arguably the law that these procedures can be used for other witnesses if it appears appropriate to do so. The only issue is whether those involved with the support and care of such witnesses should be encouraged to consider the use of special procedures such as the taking of evidence on commission or by live television link. The Group concluded that there was a sufficient problem for vulnerable and intimidated adult witnesses in civil cases to make that worthwhile.

Recommendation 23: that those responsible for the support and care of vulnerable or intimidated adult witnesses in civil cases consider the use of special procedures for delivery of evidence such as CCTV and the taking of evidence on commission.

Intimidated witnesses

7.9 The Group was conscious of special concerns in certain cases, particularly where anti-social behaviour was involved, because witnesses were reluctant to be identified or to come forward to give evidence, and intimidation was thought to have taken place or be likely. The Group was mindful of the evidence given to the Select Committee on Scottish Affairs in its 1996 inquiry into Housing and Anti-Social Behaviour, where anti-social behaviour led not only to a deterioration in the environment of people occupying public sector and other rented accommodation, but also to real fear for people who lived locally (both generally and specifically when they came to give evidence).

7.10 The use of alternative means of giving evidence (especially written evidence) can help in these cases. But the Group also shared the view of the Scottish Affairs Committee that "professional witnesses" - people who because of their employment or their functions, would come in contact with anti-social behaviour - have an important role. Such witnesses, including but not limited to police officers and people employed by local authority housing departments and housing associations, are able to give direct evidence about anti-social behaviour - or at the very least to give hearsay evidence about the experience of local people who were on the receiving end. That could avoid the potentially-intimidated neighbours having to give evidence in court. The Group concluded that development of good practice in regard to the use of such evidence and in particular the way in which the authorities and institutions concerned might encourage its use would be a step forward. The Group was aware of guidance of that kind, prepared by the Chartered Institute of Housing. Moreover, the new requirement to prove only that anti-social behaviour is "likely to" occur, brought in under Section 23 of the Crime and Disorder Act 1998, is designed specifically to allow those not directly affected, such as local authority officials, to give evidence of the likely effect of such behaviour, in recognition of the reluctance of neighbours to give evidence where there is a risk of intimidation and retaliation.

Recommendation 24: that all those involved in civil cases (particularly concerning anti-social behaviour) where intimidation might be attempted, have regard to alternative types of evidence (particularly hearsay and written evidence) which may avoid the need for witness to attend court.

7.11 Witnesses who do need to attend court, or may need to do so, may be at risk of intimidation. That risk can be minimised by a similar range of legal remedies as apply to witnesses in civil cases. It is up to the litigating parties to apply these remedies.

Recommendation 25: that legal practitioners seek ways of minimising the exposure of witnesses in civil cases to possible intimidation through the use of other legal remedies such as interdict.

7.12 In general the civil process allows, indeed requires, the protection of witnesses. Witnesses have to give evidence in chief (that is evidence to support the point of view of the person in whose interests they are cited to attend court). In general that process will not be intimidating. Proper treatment of witnesses would suggest, however, that they be told exactly what is likely to happen when they give evidence and the Group felt that more might be done by those concerned (particularly legal practitioners) to provide information - perhaps in the form of standard leaflets.

7.13 The Group, however, recognised that greater difficulty arose when witnesses were cross-examined. Cross-examination is a necessary process not only to establish that the facts spoken to by witnesses are clear, and to contrast those facts with other evidence in the case, but also in some cases to test the credibility of witnesses where this may be in doubt. But this cross-examination should never descend to harassment or intimidation of the witness. It has long been established under the law of Scotland that the court is able to intervene where questions are put only to insult or annoy a witness or indeed to protect a witness by stopping cross-examination which is vexatious or oppressive in other respects or where it is unduly long or repetitious. The Group felt that the law in this regard was clear but that it was useful to remind those involved in the legal process that that is the law and that the courts have this power to intervene.

Recommendation 26: that all those concerned in the civil process be conscious of the duties not only of practitioners but also of the courts with regard to the protection of witnesses from insulting, annoying, vexatious or oppressive cross-examination and should seek to minimise the extent to which witnesses are subjected to this treatment.

Other issues

7.14 The same general questions about the care of witnesses within court rooms apply as to criminal witnesses. The Group felt that all those concerned should co-operate in seeking to ensure that discomfort and embarrassment to witnesses is minimised. This the Group felt could be achieved by open dialogue particularly between members of the legal profession and the Scottish Court Service, to identify ways in which any problems can be identified and addressed. The Group recognised, however, that substantial progress was made through local liaison at court level and took the view that such liaison was the best way to deal with any problems which appeared to emerge.

7.15 Finally, the Group considered whether there were any other issues relating to witnesses in the civil process which ought to be the subject of further consultation. The Group realised that generally the amount of actual litigation in civil cases was relatively small compared with the position in criminal cases. Civil litigation being the exception, it is even more important that, in those cases where proof was necessary, all concerned should pay particular attention to the interests of witnesses - particularly vulnerable or intimidated witnesses. The Group therefore wished to encourage all participants in the civil justice process to take the welfare of witnesses as a primary concern and to work together to achieve the common aim of enabling witnesses to deliver evidence without undue feelings of apprehension and certainly without any feelings of oppression or intimidation.