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2.1 In all 36 responses were received to the consultation on Towards A Just Conclusion. Most of the responses were generally supportive of the paper’s recommendations, although there were different underlying approaches to vulnerable and intimidated witnesses. Some respondents, mainly from the legal profession, wanted to improve the treatment of and information for all witnesses to allow vulnerable and intimated witnesses to give evidence as normally as possible, without further special measures. This view reflected a presumption that evidence given in person in open court, with cross-examination, is best evidence, and any alternative would not be in the interests of justice, either because it could be prejudicial to the defence or could reduce the impact of the evidence from prosecution witnesses. The other view, mainly from victim support groups, was that certain witnesses may have special needs because of their personal characteristics, circumstances or the nature of the crime involved, and cannot be expected to give evidence normally. Also proposed in the responses was a third, more radical approach involving a change in the current assumptions about best evidence, looking for most evidence to be agreed, given on commission or through CCTV, with full pre-trial disclosure.
2.2 The responses to the individual recommendations, and the actions that have and will be taken, are considered in Section 3. This section considers in more detail the way forward for the recommendations on the law of evidence and how witnesses give evidence in court (Recommendations 13-17), which were complex proposals, some requiring legislation.
2.3 There was general support for some of the recommendations: that the Criminal Court Rules Council should be invited to consider preparation of rules for vulnerable people to give evidence on commission under the provisions in Section 271 of the Criminal Procedure (Scotland) Act 1995; that the power of the judge to clear the court should be extended; and that there should be a review of the current use of Sections 259 and 260 of the 1995 Act on hearsay evidence and prior witness statements.
2.4 There was, however, no consensus on whether the provisions for giving evidence by special means should be extended, or how this should be done. As well as offering the general arguments against giving evidence through special measures, certain responses suggested that the existing provisions had not been in existence for long enough to know whether, or to what extent, they were currently being used and whether they were working as intended. Some felt that a change at this stage would be premature and strongly supported further research into the effect of the measures. The alternative view was that these measures should be extended, and particular claims were made for the special needs of victims of sex offences, domestic violence and racist crimes, as well as physically disabled and sensorily impaired people and intimidated witnesses.
2.5 Section 271 of the Criminal Procedure (Scotland) Act 1995 currently defines vulnerable persons only as children and certain mentally disordered adults. This statutory definition is narrower than the word "vulnerable" suggests in everyday usage and there was some support for broadening this definition to those groups identified above. This approach would extend the coverage of the existing provisions by reference to the type of crime the victim had suffered, as well as their personal characteristics, as at present, and or their individual circumstances, as envisaged in Towards a Just Conclusion. However, there was no consensus on which persons an expanded definition should cover or whether this approach was the correct one. More consultation on the definition of "vulnerable" was sought by many groups.
2.6 The issue of cross-examination of victims in sex offence cases was also highlighted in the responses and has attracted considerable public concern since the publication of Towards A Just Conclusion. Two separate issues have been identified: cross-examination by an accused in person; and cross-examination of the victim on sexual history and character. Cross-examination of the victim by an accused in person can add considerable trauma to the already stressful experience of giving evidence, as can intimate questions on sensitive personal matters. There are already statutory provisions to restrict questioning on sexual history, but there is a perception, supported by research carried out between 1987 and 1990 and published by The Scottish Office in 1992, that these provisions are not working as intended.
2.7 Towards a Just Conclusion did not address these issues in detail but recommended that further research was done on how victims of sex offences gave evidence to identify any shortcomings (recommendation 17). Voluntary groups generally opposed this recommendation and stated very clearly that more research was unnecessary as there were numerous examples of victims experiencing significant trauma giving evidence. There was a clear view from their experience that Sections 274 and 275 were not working as intended, although the reasons for this are less clear. As for cross-examination by an unrepresented accused, there were significant differences of opinion in the responses - which were submitted before recent high profile trials - about whether there is, or is the potential for, a serious problem in practice in Scotland. There was no agreement about whether sufficient use is made by the courts of the powers currently available to them to control unacceptable behaviour by an accused. Sections 34 to 40 of the Youth Justice and Criminal Evidence Act 1999 changed the law in England and Wales so that an accused is not permitted to cross-examine in person a witness who is the alleged victim of a sexual offence, and introduced a requirement for the accused to be legally represented for that purpose.
2.8 There have been other developments which would need to be taken into account in considering the law of evidence for vulnerable or intimidated witnesses. The Human Rights Act 1998 may result in the courts being required to consider a number of fundamental questions about the balance of the rights of the accused to a fair trial and the rights of victims to be accorded respect for their private lives and not to be treated in a discriminatory or degrading way. In addition, the decision of the European Court of Human Rights in the Thompson and Venables case (the Jamie Bulger case) has highlighted that in some cases the accused may also be vulnerable and entitled to special consideration so that they can understand and fully participate in the trial. Any extension of the definition of vulnerable witness or introduction of further special measures for giving evidence would have to take account of the fact that, in some circumstances, the vulnerable person giving evidence may be the accused or another defence witness.
2.9 Another development is in relation to the review of the Mental Health (Scotland) Act 1984 by the Millan Committee. The current definition of vulnerable witness is closely related to certain provisions of the 1984 Act. Depending on the outcome of the review, it is possible that the current provisions will require amendment. The Committee's recommendations could have relevance in defining the categories of witness for whom special arrangements for giving evidence in court could be made available. It is also possible that the Disability Discrimination Act 1995 could have implications for the courts.
2.10 In the light of the responses and subsequent developments, the Executive considers that further work needs to be done before detailed legislative proposals to extend the provisions of Section 271 of the 1995 Act to other vulnerable or intimidated witnesses could be proposed. In addition, the Executive agrees that victims should not be cross-examined by the accused in sex offence cases and that current provisions restricting questioning on sexual history should be strengthened.
2.11 The Executive intends to produce two sets of legislative proposals on these issues. The first will cover how victims in sex offence cases give evidence in court, including proposals to prevent the accused cross-examining the victim in person and to strengthen Sections 274 and 275. The Executive will present options for achieving these policy objectives while ensuring that the accused receives a fair trial, and in a way consistent with the European Convention on Human Rights. The Executive will also consider practical issues, in particular provision of legal representation for an accused who does not want to be represented. This work might also cover other aspects of the criminal law relating to sex offences.
2.12 The second will cover the law of evidence as it relates to vulnerable and intimidated witnesses in both criminal and civil cases. The Executive will consider in detail how the statutory definition of "vulnerable person" could be extended and what further adjustments need to be made, both in the law and in court procedures, to make sure that the best possible evidence is obtained from those who may face special difficulties or experience particular distress in giving evidence in open court, including excluding the public and media from proceedings. The Executive will propose options for extending the current special arrangements and other measures which could be of assistance to particular categories of witnesses or in particular types of cases or circumstances.
2.13 In addition to work presently being carried out by the Executive much is being undertaken by other bodies - such as Committees of the Scottish Parliament and the Scottish Partnership on Domestic Abuse - examining the needs of victims of particular types of crime. A consistent approach is desirable and the further legislative proposals will take any other relevant developments into account.
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