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Vulnerable Witnesses (Scotland) Act 2004: Information Guide

INTRODUCTION

THE PURPOSE OF THIS BOOKLET IS TO PROVIDE PRACTITIONERS WITH A BRIEF GUIDE TO THE VULNERABLE WITNESSES (SCOTLAND) ACT 2004 AND INFORMATION ABOUT ITS IMPLEMENTATION.

THIS BOOKLET IS LIKELY TO BE OF PARTICULAR INTEREST TO INCLUDE CROWN OFFICE AND PROCURATOR FISCAL SERVICE STAFF, LEGAL PRACTITIONERS, LAY REPRESENTATIVES (SUCH AS WORKERS IN THE CITIZENS ADVICE BUREAU), CHILDREN'S REPORTERS, THE POLICE, SOCIAL WORKERS, VICTIM SUPPORT SCOTLAND VOLUNTEERS AND WORKERS IN OTHER SUPPORT ORGANISATIONS.

BACKGROUND

The Vulnerable Witnesses (Scotland) Act 2004 received Royal Assent on 14 April 2004. It was the result of extensive consultation carried out over several years and drew on detailed research and analysis. It responded to the concerns held by many organisations and individuals that too many victims and witnesses to crimes found the criminal justice process daunting, stressful and intimidating.

In November 1998, the Scottish Office issued a consultation document on vulnerable and intimidated witnesses in criminal and civil cases, entitled, " Towards a Just Conclusion" and sought views on what might be done to help such witnesses give their best evidence. The introduction of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, was the first step towards fulfilling some of the recommendations made as a result of that consultation.

"Towards a Just Conclusion" gave rise to further work that looked in detail at how the treatment of vulnerable and intimidated witnesses could be improved more generally by changes in the law of evidence and court procedures. To take this forward, in May 2002, the Scottish Executive issued a further consultation paper, " Vital Voices - Helping Vulnerable Witnesses Give Evidence".

The outcome favoured changes to the law on the categories of persons who should be able to use special measures when giving evidence, the types of special measures used and the availability of these measures in different court proceedings. Details of these changes are explained further in this booklet.

PURPOSE OF THE ACT

The Act aims to improve conditions for vulnerable witnesses by increasing the number of support measures available to help them participate more fully in criminal and any civil court proceedings. Some of the most vulnerable witnesses are children and the Act aims to ensure they are supported and protected during the court process.

THE ACT:

• FORMALISES EXISTING SPECIAL MEASURES AND PROVIDES OTHER PROVISIONS DESIGNED TO HELP CHILD AND ADULT VULNERABLE WITNESSES GIVE THE BEST EVIDENCE THEY POSSIBLY CAN IN CRIMINAL CASES IN THE HIGH COURT, SHERIFF COURT AND CHILDREN'S HEARING COURT PROCEEDINGS.

• INTRODUCES SPECIAL MEASURES FOR CHILD AND ADULT VULNERABLE WITNESSES WHEN GIVING EVIDENCE IN CIVIL CASES IN THE COURT OF SESSION AND THE SHERIFF COURT, INCLUDING FATAL ACCIDENT INQUIRIES.

• EXTENDS THE DEFINITION OF "VULNERABLE WITNESSES" IN ADDITION TO THOSE WITH A MENTAL DISORDER TO INCLUDE ANYONE WHERE THERE IS A SIGNIFICANT RISK THAT THE QUALITY OF THEIR EVIDENCE WILL BE DIMINISHED THROUGH FEAR OR DISTRESS.

PROVISIONS WITHIN THE ACT

IN CRIMINAL CASES:

• All child witnesses under the age of 16 are automatically regarded as vulnerable witnesses and can use standard special measures to assist them to give their best evidence (see special measures overleaf).
• The Act introduces a notice/application procedure in respect of vulnerable witnesses, which will streamline the process of deciding on the appropriate special measures.
• Applications may be made to request a special measure for a child or adult vulnerable witness including witnesses for the defence.
• These measures also apply if a child accused or adult vulnerable accused person gives evidence.
• Some child witnesses can give evidence without attending the court building where the trial is taking place. This applies in particular to child witnesses under 12 in criminal cases involving sexual assault or violence.
• A witness may not need to identify an accused person in the courtroom in cases where there has been a previous formal identification by the witness and if this is not challenged by the defence.
• An accused person in cases of certain violent crimes is prohibited from personally taking statements from a child witness under 12.
• An accused person in cases of certain violent crimes involving child witnesses under 12 is prevented from conducting their own case. The accused must be legally represented in court.
• The court also has discretionary power to prevent the accused conducting their case personally in other cases involving vulnerable witnesses and the power to appoint a legal representative for the accused. This provision already exists in all sexual offence cases.
• The Act allows the use of expert evidence to explain a victim's behaviour in certain cases.
• The Act allows for the same special measures for vulnerable witnesses who are giving evidence at a proof on a Victim Statement.

IN CIVIL CASES:

• Special measures also apply in civil proceedings including Children's Hearing court proceedings. There is a similar notice procedure in respect of child witnesses and a Vulnerable Witness application procedure in respect of adult vulnerable witnesses.
• All child witnesses under the age of 16 are automatically regarded as vulnerable and can use the equivalent of the "standard" special measures that apply in criminal cases to assist them give their evidence (see Special Measures overleaf).
• There is provision to protect children and young people against unfair use of sexual or character history evidence about them in Children's Hearing court proceedings only.

IN BOTH CRIMINAL AND CIVIL CASES:

• The definition of "vulnerable witness" is widened to include all witnesses under the age of 16 on the date of commencement of proceedings. In respect of adults, it has been widened to include in addition to those with a mental disorder, anyone where there is a significant risk that the quality of their evidence may be diminished by reason of fear or distress in connection with giving evidence at the court case. This enables the court to take into account the wider circumstances of the case, such as the nature of the evidence the witness will give and any relationship between the witness and the accused or any party to the proceedings.
• The "competence test" is abolished.

SPECIAL MEASURES

THE ACT FORMALISES EXISTING SPECIAL MEASURES AND INTRODUCES SOME NEW ONES.

THE STANDARD SPECIAL MEASURES WHICH CHILD WITNESSES UNDER THE AGE OF 16 HAVE A RIGHT TO USE ARE:

• a live television link in another part of the court building;
• a screen; and
• a supporter, in conjunction with either of the standard special measures mentioned above.

FURTHER SPECIAL MEASURES AVAILABLE ON APPLICATION FOR EITHER CHILD WITNESSES UNDER THE AGE OF 16 OR ADULT VULNERABLE WITNESSES

• Use of a live television link;
• Use of prior statements of vulnerable witnesses as evidence in chief (in criminal cases only);
• Taking of evidence by a commissioner;
• Use of a screen (not available for an accused person);
• Use of a supporter.

The Act also provides for evidence to be given in criminal cases, by a live TV link from a place other than a court building. This is often referred to as giving evidence from a "remote site".

It is important to note that there is no specific allowance within the legislation in civil proceedings for the television link to be located outwith the court building. Such an allowance would be at the court's discretion, in terms of its obligation to make such arrangements as seem appropriate for the vulnerable witness concerned.

The special measures may also be used in combination where appropriate.

APPLYING FOR SPECIAL MEASURES

Information about which special measure is most appropriate for the witness, will now be specified on either a Child Witness Notice or, in the case of an adult witness, on a Vulnerable Witness Application.

A child under 16 years of age is automatically regarded as a vulnerable witness and entitled to use "standard special measures". This means that the court will expect a child to use one or more of these measures. The court will need to take account of the child's own preference and his or her best interest. The person citing the child as a witness will provide this information on the Child Witness Notice.

In the case of child witnesses, a Child Witness Notice must be submitted to the court for every child witness and the views of the child and parent must be obtained and taken into account.

If the Child Witness Notice does not specify a special measure, the court must be satisfied that this is the witness's wish and is appropriate in the circumstances.

Further special measures may be available to a child witness. For these, the court will have to be satisfied, on the basis of the information provided in the Child Witness Notice, that the use of a further special measure is appropriate. However, further information, or a hearing may be required before authorisation.

The court will normally expect a child under the age of 12 at the date of commencement of the proceedings, in certain categories of criminal cases, to give their evidence without having to come to court.

Any person citing or intending to cite a child or an adult vulnerable witness, will be expected to lodge a Child Witness Notice/Vulnerable Witness Application in criminal cases by the required time before the date of the trial. In the case of proceedings in the High Court, this will be no later than 14 clear days before the preliminary hearing. In the case of proceedings on indictment in the sheriff court, no later than 7 clear days before the first diet and in any other case, no later than 14 clear days before the trial diet. In the case of Children's Hearing court proceedings or civil proceedings, a Child Witness Notice or Vulnerable Witness Application should preferably be lodged in advance of any procedural hearing where there is one.

The Notice or Application must specify what special measures are being asked for and include a summary of the views expressed by the child or adult vulnerable witness and where appropriate, include the views of their parent or carer. The court will consider these views along with the other information. The court may agree with what is requested or may defer a decision until a court hearing.

The court still has overall authority to authorise a special measure or measures and will take the final decision as to which special measure(s) may be most appropriate.

It is possible for the Judge or sheriff to review the arrangements for taking the vulnerable witness's evidence at any time in the course of the court proceedings. The person who cited the witness can also request a review. A Child Witness Notice or Vulnerable Witness Application can therefore be lodged before or during the proceedings.

IMPLEMENTATION TIMETABLE

The provisions of the Act relating to child witnesses in High Court and sheriff court solemn cases and Children's Hearing court proceedings were implemented from 1 April 2005.

This applies to child witnesses cited or likely to be cited in respect of High Court and sheriff solemn cases that were reported by the police to the Procurator Fiscal on or after 1 April 2005.

In respect of Children's Hearing court proceedings, the Act applies in respect of relevant appeals under section 51 (1) and applications under sections 65 (7) and (9) and 85 of the Children (Scotland) Act 1995 which were made on or after 1 April 2005.

In April 2006, the provisions relating to adult vulnerable witnesses in High Court and sheriff solemn cases were implemented and apply to cases that were reported by the police to the Procurator Fiscal on or after 1 April 2006.

Special measures for child witnesses in sheriff court summary criminal proceedings were commenced in April 2007 and apply to cases that were reported by the police to the Procurator Fiscal on or after 1 April 2007.

In respect of child witnesses and adult vulnerable witnesses in civil proceedings in the Court of Session and the sheriff court including Fatal Accident Inquiries, the provisions of the Act commence from 1 November 2007 and applies when the petition, summons, initial writ or other document initiating the proceedings is served on or after that date.

The provisions of the Act for adult vulnerable witnesses in sheriff court summary cases will commence from April 2008 and applies to cases that were reported by the police to the Procurator Fiscal on or after 1 April 2008.

The provisions of the Act do not currently extend to proceedings in district courts.

FURTHER INFORMATION

The Scottish Government Victims and Witnesses Unit website http://www.scotland.gov.uk/Topics/Justice/criminal/17416/8451 provides a wide range of information about implementing the Vulnerable Witnesses (Scotland) Act 2004 including a guidance pack for practitioners called Special Measures for Vulnerable Adult and Child Witnesses. The website also provides details on the wider aspects of what the Unit is doing to help meet the goal of putting victims and witnesses at the heart of the justice system.

There is a variety of "Being a Witness" information booklets, CD-Rom and DVDs available to help practitioners support vulnerable witnesses, providing information about being a witness, going to court and giving evidence, including information about each of the special measures and how they operate. There is also specific information for witnesses with learning disabilities and an information booklet for their carers. Practitioners can access this information at http://www.scotland.gov.uk/Topics/Justice/criminal/17416/InformationMaterials or telephone 0131 244 2213 for hard copies and copies of the CD-Rom and DVDs.

A dedicated website for witnesses was launched in December 2006 - www.witnessesinscotland.com to provide information about being a witness and going to court in an innovative interactive format.

Should you wish any further information on the Vulnerable Witnesses (Scotland) Act, please contact the Victims and Witnesses Unit of the Scottish Government Criminal Justice Directorate by e-mail through Bill Moore at bill.moore@scotland.gsi.gov.uk or by telephone on 0131 244 2690.

USEFUL LINKS

Vulnerable Witnesses (Scotland) Act 2004
http://www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts2004/20040003.htm

Towards a Just Conclusion
www.scotland.gov.uk/library/documents-w3/tajc-00.htm

Sexual Offences (Procedure and Evidence) (Scotland) Act 2002
www.hmso.gov.uk/legislation/scotland/acts2002/20020009.htm

Vital Voices - Helping Vulnerable Witnesses Give Evidence (consultation)
www.scotland.gov.uk/library5/justice/hvwm-00.asp

Vital Voices - Helping Vulnerable Witnesses Give Evidence (Report on the analysis of responses to the consultation)
www.scotland.gov.uk/library5/justice/vvhw-00.asp

Vital Voices - Helping Vulnerable Witnesses Give Evidence - Policy Statement
http://www.scotland.gov.uk/library5/justice/vvps-00.asp

OTHER RELEVANT DOCUMENTS

Law Society of Scotland Code of Conduct for Criminal Work (Precognition of Witnesses)
www.lawscot.org.uk/solicitors_services/code_crim.html

The Lord Advocates Working Group on Child Witness Support: Report and Recommendations
www.scotland.gov.uk/cru/kd01/purple/witness-13.htm

Memorandum by the Lord Justice General on the Treatment of Child Witnesses by the Courts
www.scotland.gov.uk/consultations/justice/childwitness-38.asp

Modernising Justice in Scotland: the High Court of Justiciary
www.scotland.gov.uk/library5/justice/mjis-00.asp

SUPPORTING CHILD WITNESSES GUIDANCE PACK:

Guidance on Interviewing Child Witnesses in Scotland
www.scotland.gov.uk/library5/justice/cwis-00.asp

Guidance on Questioning Children in Court
www.scotland.gov.uk/library5/justice/gqcc-00.asp

Guidance on Child Witness Court Familiarisation Visits
www.scotland.gov.uk/library5/justice/gcwc-00.asp

Code of Practice to Facilitate the Provision of Therapeutic Support to Child Witnesses in Court Proceedings
www.scotland.gov.uk/library5/justice/tscwcp-00.asp

Information about Child, Young and Vulnerable Adult Witnesses to Inform Decision-Making in the Legal Process Good Practice
www.scotland.gov.uk/library5/justice/cyvawgpg-00.asp

Conduct of identify parades with child witnesses and the complimentary booklets Video Identification Parades - A Booklet for Children and Young People and Your Child is Attending A Video Identification Parade - A Booklet for Parents and Carers
www.scotland.gov.uk/resource/doc/77843/0018526.pdf
www.scotland.gov.uk/resource/doc/77843/0018523.pdf
www.scotland.gov.uk/resource/doc/77843/0018525.pdf

This document is also available on the Scottish Government website: www.scotland.gov.uk

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