3.1 The recommendations in Towards A Just Conclusion were organised in procedural order from the point of view of the witness, covering events before and during the trial. This led to degree of repetition and overlap amongst the recommendations. They have therefore been rearranged in this action plan into the following broad categories: -
i. support and information for witnesses
Recommendations 1, 4, 10a, 14, 20ii. protection of witnesses
Recommendations 10b, 11, 12, 16ciii. child witnesses
Recommendations 5, 6iv. good practice
Recommendations 2, 3, 7v. identifying vulnerable and intimidated witnesses
Recommendations 8, 9vi. giving evidence
Recommendations 13, 15, 16, 17vii. national standards for witnesses
Recommendations 18, 19, 20, 21viii. care and support of witnesses in civil cases
Recommendations 22, 23, 24, 25, 26
3.2 Each recommendation is followed by a very brief summary of the most relevant responses and the Executive's comments and proposed actions.
3.3.1 Recommendation: That the "Reporting a Crime" leaflet is reviewed to ensure it is up-to-date, effective and being distributed as intended (Recommendation 1).
3.3.2 Suggestions were made in the consultation that the leaflet should be produced in different formats eg suitable for people with learning difficulties, and that support agencies such as Women’s Aid and Rape Crisis should be signposted.
3.3.3 The purpose of the leaflet is two-fold — to provide basic information to victims and witnesses about the operation of the criminal justice system and to facilitate referral of victims by the police to Victim Support Scotland in all but the most serious cases. There have been concerns about the current system of referrals to Victim Support and new data protection legislation, which has affected the use of the leaflets and so the information available to the victims of crime. Where the leaflet is being used as directed there has been a marked increase in the level of referrals to Victim Support Scotland. The level of referrals continues to be monitored and the use made of the leaflet is being kept under review.
3.3.4 Action The future use and content of the leaflet, including the possibility of different formats and references to other support agencies, is being kept under review in the wider context of the provision of information to victims on case progress as well as work on data protection. The Executive remains committed to the current system of referrals to Victim Support and is considering how it can be maintained.
3.3.5 Timescale Continuing
3.3.6 Recommendation: That the pilot Witness Support Projects are extended to as many sheriff courts as practicable, retaining the volunteer element. (Recommendation 4)
3.3.7 Most responses supported this recommendation, although some questioned the need for a volunteer element and advocated social work involvement. There was also a suggestion that this approach may encourage practitioners to evade their responsibilities for witness care and that resources would be better employed training practitioners in this area.
3.3.8 The Deputy First Minister announced in December 1999 that an additional £2 million would be made available over the next two years for the extension of volunteer Witness Support Projects for all witnesses, as piloted by Victim Support Scotland, to all Sheriff Courts as a volunteer Witness Service. Schemes in Hamilton, Ayr and Kirkcaldy have already been extended to Kilmarnock, Dunfermline and Cupar Sheriff Courts.
3.3.9 In addition, the Crown Office and Scottish Executive Justice Department have jointly commissioned a feasibility study to assess the options for providing improved services for victims and witnesses. Its work includes collecting information about current practice in relation to the care of witnesses with a view to identifying the scope for better services. Included for consideration is a proposal to establish a Crown Office based Victim and Witness Service accountable to the Lord Advocate. This arose from the Lord Advocate’s concern that there was scope for improvement in service delivery to victims and witnesses. One possibility is that a division of the Crown Office would be set up, drawing on support from Crown Office and the Procurator Fiscal Service, and the Scottish Court Service, with secondment from other criminal justice agencies. This service would complement the support delivered by the volunteer Witness Service, but would not provide services for victims and potential witnesses in cases which are not reported to the procurator fiscal or after the end of court proceedings.
3.3.10 Action Extend volunteer Witness Service to all Sheriff Courts.
3.3.11 Timescale Service available to majority of witnesses by April 2001; roll out complete by March 2003.
3.3.12 Action Feasibility study into improved services for victims and witnesses
3.3.13 Timescale Summer 2000.
3.3.14 Recommendation: That procedures be put in place to inform affected witnesses about releases on bail and about relevant conditions imposed. (Recommendation 10a)
3.3.15 Responses were generally supportive of this recommendation. Further, lack of information about the progress of cases generally , including dates of hearing, verdicts and sentences was identified as a major concern for witnesses.
3.3.16 The Scottish Executive's Programme for Government "Making it Work Together" pledged to improve information to victims - including those who are also witnesses - and their families on the progress of cases and on the release dates of offenders. An automated scheme should be in place by 2001.
3.3.17 The provision of information to witnesses - including bail information - is being considered in the context of the feasibility study into a Crown Office Victim and Witness Service. Further consideration of how that might best be achieved will depend on the report of the feasibility study.
3.3.18 Procurators Fiscal should have procedures agreed with local forces to provide bail information to affected witnesses. The Crown Office Victims and Witnesses Steering Group will liaise with ACPOS representatives to ensure that there is a structured approach to this on a national basis. In the meantime, instructions are being issued to Procurators Fiscal to ensure that arrangements are in place at a local level. This work is also relevant to Recommendation 44 of the report of the Stephen Lawrence Inquiry.
3.3.19 Action The Executive will work with the Crown Office and police on their structured approach to the timely provision of information about bail to affected victim and witnesses.
3.3.20 Timescale Autumn 2000
3.3.21 Recommendation: That research be commissioned into witnesses’ perceptions of their treatment and ways in which it might be improved. (Recommendation 20)
3.3.22 Although responses to this recommendation were generally supportive, it was also suggested that a questionnaire for witnesses would provide sufficient information.
3.3.23 Action This will be included in the research into the Joint Statement on Crown witnesses referred to at 3.6.1. In addition, the feasibility study referred to in 3.3.9 is informed by the experiences of a small sample of witnesses. The suggested questionnaire will be considered further.
3.3.24 Timescale As for the research detailed at 3.6.1 below.
3.4.1 Recommendation: That ACPOS and the Crown Office ensure that 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. (Recommendation 10b)
3.4.2 Responses to this recommendation were mixed, some felt existing practice was adequate, others felt the powers available were not being fully used.
3.4.3 Police officers are made aware of their powers under Section 28 and the need to report information to the Procurator Fiscal for action under Section 31, although further information may be required on the power of arrest for being "likely to break" bail conditions. The Crown Office Victims and Witnesses Steering Group and ACPOS will pursue this in their discussions about bail (see 3.3.18 above). This is also relevant to Recommendation 44 of the Stephen Lawrence Inquiry report.
3.4.4 Action The Executive will work with the Crown Office and police on their structured approach to the timely provision of information about bail to affected victim and witnesses.
3.4.5 Timescale Autumn 2000
3.4.6 Recommendation: That, in the light of the Strathclyde Police witness protection pilot, augmented support for intimidated witnesses is extended more widely in Scotland, and that measures be identified to provide additional protection and support to intimidated witnesses both locally and in court. (Recommendations 11 and 12)
3.4.7 Support was expressed for this recommendation, although there was concern about resource implications.
3.4.8 The report on the Strathclyde Police Witness Protection Programme published last year concluded that there was a genuine need for the type of service offered by the Strathclyde Programme and that it represents a significant improvement in the ability of Strathclyde Police to provide suitable protection, particularly in life-threatening cases (albeit there are relatively few of these). The research also confirmed a dedicated unit for dealing with cases of witness intimidation has enabled Strathclyde Police to handle such cases effectively and efficiently. The Executive has recently agreed to extend the funding of the programme for a further year.
3.4.9 The Strathclyde Police Witness Protection Programme itself deals with the most seriously intimidated witnesses (known as Level 1 witnesses). The programme has also built up a expertise in dealing with intimidation of witnesses at lower levels (Level 2 witnesses) and has produced a training package and detailed guidance for divisional police officers who may have to deal with intimidated witnesses. The guidance includes a checklist of information required to assess the level of threat to a witness, and possible responses to lower levels of threat, such as the provision of alarms and secure communications. The guidance also covers the role of officers during the trial of cases, including transport to the court, and entry and accommodation arrangements in the court building. The Witness Protection Programme emphasises the importance of liaison with the Procurator Fiscal in arrangements for intimidated witnesses, not least to avoid the risk of tainting their evidence.
3.4.10 The Strathclyde unit has provided advice to other forces in Scotland on the handling of intimidated witnesses. Its officers also address courses at the Scottish Police College, including every detective course. For the time being, it seems preferable to maintain the development of this expertise in Strathclyde Police or a central support unit, as a national asset to assist other forces as necessary, rather than other forces, with less experience, building up similar units.
3.4.11 Action The Executive and ACPOS to decide the long term arrangements for witness protection in Scotland.
3.4.12 Timescale early 2001.
3.4.13 Recommendation: That police officers required to be in court to give evidence should use prosecution waiting rooms to reduce the likelihood that witnesses feel intimidated. (Recommendation 16c)
3.4.14 The only comment on this proposal was to the effect that there is agreement in some areas that police witnesses remain on standby at their workplace rather than "waste time sitting in court".
3.4.15 There have been efforts to reduce the amount of time that officers spend at court but there is still a significant presence in witness waiting rooms. There is a need for these officers to avoid accusations of coaching witnesses. For more serious cases of intimidation, the Strathclyde Witness Protection Programme have developed guidelines for police officers to avoid intimidation in the court building, including avoiding public waiting rooms (see 3.4.9 above).
3.4.17 Action The Executive to encourage forces to implement this recommendation when police officers are in court and when there are no legal restrictions.
3.4.18 Timescale Immediate
3.5.1 Recommendation: That guidance be drawn up by the Law Society of Scotland for the interviewing of children and that the findings of the Lord Advocate’s Working Group on Child Witness Support be used to improve support for child witnesses. (Recommendations 5 and 6)
3.5.2 There was widespread support for these recommendations, tempered with concerns that relevant agencies be consulted. In particular the point was made that the Towards a Just Conclusion Working Group had no input regarding the experiences of the considerable number of children who are affected by domestic abuse. Further, it was suggested that improvements in support for child witnesses be extended to all vulnerable or intimidated witnesses.
3.5.3 The Lord Advocate's Working Group on Child Witness Support reported in March 1999, and its recommendations were put out to consultation. The Working Group consulted widely and its report expanded upon the recommendations in Towards a Just Conclusion. It is proposed that developments in the support of child witnesses should be taken forward by the Lord Advocate's Working Group.
3.5.3 Action An action plan is being compiled to take forward those recommendations which are for Crown Office. Crown Office will consult the other departments and agencies affected by the recommendations.
3.5.4 Timescale Consultation by the end of July 2000
3.6.1 Recommendation: That current codes of practice including the Joint Statement on Crown Witnesses be assessed for their effectiveness, seeking the views of witnesses, with a view to informing good practice and identifying possible improvements. (Recommendation 2)
3.6.2 It was suggested that the research should involve consultation with relevant agencies, and that the needs of defence witnesses should also be considered.
3.6.3 A team of researchers has already been commissioned to carry out this work but it has been delayed because of the difficulties caused by the loss of temporary sheriffs. The research will start with a pilot to establish the contact with witnesses that will be required. This research will cover the more general research proposed in Recommendation 20 (see 3.3.21) and will attempt to include some vulnerable witnesses (Recommendation 15 - see 3.8.14), but it will not cover the experiences of defence witnesses at the moment.
3.6.4 Action Research to commence when the loss of temporary sheriffs ceases to have a significant impact on court programming.
3.6.5 Timescale The position with regard to court programming is improving and we plan to start the research in July 2000.
3.6.6 Recommendation: that the Association of Chief Police Officers in Scotland develops best practice guidelines for vulnerable and intimidated witnesses. (Recommendation 3)
3.6.7 General support for this recommendation. It was suggested that the process of developing best practice guidelines should involve consultation with relevant agencies.
3.6.8 There are measures in place in Scotland to deal with vulnerable or intimidated witnesses based on best practice. Training is conducted for all Scottish Police Forces by the Scottish Police College, involving inputs from the Crown Office, Victim Support Scotland and officers from the Strathclyde Witness Protection Programme.
3.6.9 Action The Executive will work with the police to update best practice training in the light of experience and in consultation with relevant agencies.
3.6.10 Timescale Continuing
3.6.11 Recommendation: That verification is sought that the Appropriate Adults Schemes code of practice is being applied by relevant agencies and taken into account in good practice guidance on the treatment of vulnerable adults by defence solicitors. (Recommendation 7)
3.6.12 This recommendation was supported, with suggestions that defence solicitors should be bound by the good practice guidelines and that the Appropriate Adult role be extended to the courtroom.
3.6.13 The Executive has confirmed that Appropriate Adult schemes have been set up by all Scottish local authorities. It will review the operation of the schemes against the terms of the original guidance, and consider what further guidance may be appropriate in relation to the role of the appropriate adult in court. The Executive will contact the Law Society of Scotland about the second part of this recommendation.
3.6.14 Action The Executive to contact current appropriate adult schemes to review their operation.
3.6.15 Timescale March 2001
3.6.16 Action The Executive to discuss good practice guidance for solicitors with the Law Society of Scotland
3.6.17 Timescale Autumn 2000
3.7.1 Recommendation: That standard mechanisms are put in place to identify vulnerable and intimidated witnesses and provide information to procurators fiscal to enable prompt assessment of the appropriateness of alternative methods of giving evidence. (Recommendations 8 and 9)
3.7.2 This recommendation was supported, but consultation with relevant agencies was suggested in a number of responses.
3.7.3 Guidelines for identifying vulnerable adults (within the statutory definition) are included in the guidance on Appropriate Adult schemes issued by the Scottish Office in June 1998. The responsibility for identifying a vulnerable adult lies with police officers in their initial contact with the witness. The Procurator Fiscal should be informed of the existence of such a witness at an early stage, but no guidelines to ensure consistency exist at the moment.
3.7.4 On intimidated witnesses, a risk assessment will be carried out locally if the intimidation is made known to the police or any other agency. The guidance produced by the Strathclyde Police Witness Protection Programme identified a number of factors for forces to consider in making this assessment. There has not yet been any evaluation of the prompts devised by the police in England and Wales to identify intimidated witnesses who do not report their position to the police.
3.7.5 Action ACPOS and the Crown Office to agree guidelines on informing the procurator fiscal of vulnerable witnesses, in consultation with relevant agencies.
3.7.6 Timescale Autumn 2000
3.7.7 Action ACPOS to evaluate prompts for identifying intimidated witnesses produced in England and Wales
3.7.8 Timescale December 2000
3.8.1 Recommendation: That a review is carried out of hearsay evidence and prior statement provisions of Sections 259 and 260 of the Criminal Procedure (Scotland) Act 1995 to determine if these could be used in relation to vulnerable or intimidated witnesses. (Recommendation 13a)
3.8.2 Recommendation: That rules be drawn up regarding the operation of the statutory provision for vulnerable persons giving evidence on commission. (Recommendation 13b)
3.8.3 These recommendations were strongly favoured by voluntary organisations in particular. Legal practitioners were less supportive, with concerns being raised about the quality or admissibility of other forms of evidence.
3.8.4 Crown Office has conducted a review of the use made by prosecutors of the provisions at Sections 259 and 260 of the 1995 Act. It has concluded that scope exists to issue guidance to Procurators Fiscal to ensure consistency of approach. As regards the scope for making wider use of the provisions for particular categories of witnesses, there has been relevant case law (MacDonald v HMA) in which the Appeal Court commented that Section 259 represented a substantial innovation in the law of evidence and that the terms of the section require to be strictly observed before Section 259 can be invoked. The scope for utilising these provisions is also linked to the work of the Crown Office/ACPOS Joint Working Group on Police Reports and Witness Statements, which is to issue a guidance document for officers in the near future. The work described in Section 2 will examine these and other relevant statutory provisions as part of its review of the use of existing measures to assist vulnerable and intimidated witnesses
3.8.5 Action Crown Office to issue guidance to Procurators Fiscal on Sections 259 and 260
3.8.6 Timescale August 2000
3.8.7 Action The Executive to invite the Criminal Court Rules Council to prepare rules relating to the operation of Section 271.
3.8.8 Timescale July 2000
3.8.9 Recommendation: That opportunities are 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. (Recommendation 14)
3.8.10 This recommendation was not widely supported, as its terms were seen as unclear.
3.8.11 Provision of information of this sort is being considered by the feasibility study into the proposed Crown Office Victim and Witness Service.
3.8.12 Action The feasibility study into the proposed Victim and Witness Service will encompass this recommendation.
3.8.13 Timescale Summer 2000
3.8.14 Recommendation: That research is carried out into the effectiveness of the alternative means of evidence now available for vulnerable adults in reducing their distress. (Recommendation 15)
3.8.15 Support for this recommendation was widespread. It was further suggested that reference should be made to the use of means of communication other than spoken English, for example other language interpreters and sign language experts of all kinds.
3.8.16 The Executive proposes to consider what further research is required during the development of legislative proposals described in Section 2 above. In the meantime, the research into the Joint Statement on Crown Witnesses will attempt to include the experiences of some vulnerable witnesses (see 3.6.1).
3.8.17 Action The Executive to consider further research into the effectiveness of Section 271.
3.8.18 Timescale Discussions with interested parties in July.
3.8.19 Recommendation: That the law of evidence is changed to allow the public and the media to be excluded from the courtroom in cases where witnesses face serious and specific intimidation. (Recommendation 16a)
3.8.20 Recommendation: That the law of evidence is changed to allow intimidated witnesses to give evidence by the alternative means currently available for children and vulnerable adult witnesses. (Recommendation 16b)
3.8.21 There was a mixed response to these recommendations — Recommendation 16a was generally supported but Recommendation 16b was supported by voluntary organisations, local authorities and academics, but not by all legal practitioners and Sheriffs. Even among those who supported widening the current provisions, there was no consensus on how far this should go or who should be covered.
3.8.22 The way forward on these recommendations is discussed in Section 2 above.
3.8.23 Action The Executive will produce legislative proposals for extending the current coverage of special measures, including clearing the courtroom.
3.8.24 Timescale Discussions with interested parties in July.
3.8.25 Recommendation: That research is commissioned into the ways in which victims of sexual crimes give evidence in court, in order to identify any shortcomings in the present arrangements. (Recommendation 17)
3.8.26 This recommendation was not accepted by the voluntary organisations involved in supporting victims who considered that the drawbacks in the system were well known, and that s274 of the Criminal Procedure (Scotland) Act 1995 and the common law powers were ineffective in protecting victims of sex offences. This view was also taken by academics. In contrast, Sheriffs felt there was not a problem in the cross-examination of such victims in Scotland.
3.8.27 The way forward on this recommendation, and the related issue of cross-examination by an unrepresented accused in sex offence cases, is discussed in Section 2 above.
3.8.28 Action The Executive to produce legislative proposals to prevent the accused in sex offence cases cross-examining the victim in person and to strengthen current provisions restricting cross-examination on sexual history.
3.8.29 Timescale Discussions with interested parties in July.
3.9.1 Recommendation: That all those involved in the criminal justice process participate in the preparation of national standards for witnesses in Scotland, including seeking information about the training provided in witness care. (Recommendation 18)
3.9.2 This recommendation was broadly supported and it was suggested that the model produced for England and Wales was a good one. Multi-agency training involving all relevant agencies was recognised as the best way forward.
3.9.3 The Executive will take this forward with other criminal justice agencies in the light of the outcome of the feasibility study on the proposed Crown Office Victim and Witness Service and against the background of the developing national victims' strategy. Any national standards for victims and witnesses will explicitly include the handling of racist incidents and crimes, in line with Recommendation 29 of the Stephen Lawrence Inquiry report.
3.9.4 Action The Executive is consulting with relevant interests, through the Victims Steering Group in the first instance, on the content of a National Strategy for Victims
3.9.5 Timescale Autumn 2000.
3.9.6 Recommendation: That the Scottish Executive mounts a publicity campaign about support available for witnesses and seeks to raise public awareness about the important role which witnesses play. (Recommendation 19)
3.9.7 It was again suggested here that equal attention be given to Crown and Defence witnesses.
3.9.8 Action There will be local publicity about the availability of support as the volunteer Witness Service for all witnesses is rolled out across sheriff courts. National publicity will be undertaken once future services and support for witnesses are more clearly defined.
3.9.9 Timescale See 3.3.11
3.10.1 Recommendation: That no substantive change be made in the law about the care and support of witnesses in civil cases but that all those concerned be reminded of their responsibilities to vulnerable and intimidated witnesses. (Recommendation 22)
3.10.2 Recommendation: That the use of special procedures for giving evidence such as CCTV and the taking of evidence on commission or hearsay evidence be considered for vulnerable and intimidated witnesses in civil cases. (Recommendation 23)
3.10.3 Recommendation: That ways are sought to minimise the exposure of witnesses in civil cases to possible intimidation through the use of remedies such as interdict. (Recommendation 24)
3.10.4 Recommendation: That all those concerned in the civil process be conscious of their duties to protect witnesses from insulting, annoying, vexatious or oppressive cross-examination and seek to minimise the extent to which witnesses are subject to this treatment. (Recommendation 25)
3.10.5 It was clear from the responses to the consultation that these recommendations had not been sufficiently developed to take forward.
3.10.6 The main focus of Towards a Just Conclusion was the criminal justice system, and this is reflected in the less developed nature of the proposals for civil cases. However, considerable intimidation is also experienced by those involved in civil cases. This is clearly an issue in the case of domestic violence, especially for orders under the Matrimonial Homes (Family Protection)(Scotland) Act 1981 and contact and residence orders under the Children (Scotland) Act 1995. The needs of these witnesses will be given full consideration in further work.
3.10.7 Action In response to criticisms raised in the consultation, it is proposed to revisit the issue of witnesses involved in civil cases in more detail. As far as the law of evidence and any special provisions for vulnerable or intimidated witnesses is concerned, the work discussed in paragraph 2.12 above will look at both civil and criminal cases in considering what changes to the law are necessary, particularly for cases involving domestic violence.
3.10.8 Timescale Discussions with interested parties in July.