VITAL VOICES
Helping Vulnerable Witnesses Give Evidence
Executive Summary
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The full Consultation Paper can be found on the Scottish Executive website at www.scotland.gov.uk
We welcome all views and responses to this consultation. They should be sent, by 31st July 2002, to:
Steve McCourt
Scottish Executive Justice Department
2nd Floor West
St Andrew's House
EDINBURGH EH1 3DG
Telephone: 0131 244 4830
Fax: 0131 244 4848
Email: vitalvoices@scotland.gsi.gov.uk
In accordance with normal practice in Scottish Executive consultations, all responses will be made available to the public, unless confidentiality is specifically requested.
You can get copies of the full Consultation Paper from:
The Stationery Office Bookshop
71 Lothian Road
Edinburgh
EH3 9AZ
Phone: 0870 606 5566
Fax: 0870 606 5588
Introduction
This Consultation Paper discusses changes to the law of evidence and related court procedures to benefit vulnerable witnesses (referred to as "special measures"). A great deal can be, and is already being, achieved through improvements in practice, rather than through changes in the law. The paper should be seen as part of a wider programme of work to help victims and witnesses, including initiatives such as the Scottish Strategy for Victims, the development of the Victim Liaison Office by the Crown Office, and the group implementing the recommendations of the Lord Advocate's Working Group on Child Witness Support.
It is important to balance the interests of the witness against the interests of the accused or the parties to a civil case. A witness's evidence always has to be tested. The costs of any changes must also be borne in mind. In thinking about whether any change in the law should be made, consultees are asked to consider whether:-
- it would make it easier for witnesses to come forward, or to testify;
- the quality of the witness's evidence would be improved or reduced;
- the rights of a party to the case would be prejudiced;
- the financial costs, and increased bureaucracy or delay, would outweigh the benefits.
Who is a Vulnerable Witness?
At present, a witness is only treated as vulnerable if he is:-
- a child under 16;
- an adult who has had a mental health court order made in respect of him or her; or
- an adult with significant impairment of intelligence and social functioning.
The circumstances of the case the witness is involved in can only be considered if the witness falls into one of these categories, no matter how distressing the circumstances are.
Should the wider circumstances of the case be taken into account from the start in deciding whether a witness is vulnerable?
An adult with a mental disorder (other than a learning disability) will not qualify as "vulnerable" at the moment unless he or she is receiving compulsory treatment under a mental health court order (i.e. has been "sectioned"). Many people with serious mental disorders receive treatment voluntarily, so would not qualify. On the other hand there are many people with mental health problems who would be able to give evidence without special help. The Millan Committee, which reviewed the Mental Health (Scotland) Act, recommended that the definition of "vulnerable person" should include any person with a mental disorder, with the court deciding whether the person should have special help to give evidence.
What criteria should be used to decide whether someone with a mental illness will receive special help with giving evidence?
Many other kinds of circumstances might make someone feel vulnerable if they have to give evidence in court. Some examples of people who may be vulnerable are:
Victims of sexual offences, who may feel humiliated explaining what happened to them; members of ethnic minority communities, who may face cultural barriers as well as fear caused by racial harassment or attack; people who have been attacked or threatened for coming forward as a witness; people who are frail because they are old or have a physical disability; people who have been repeatedly victimised, or subjected to domestic violence or crime and intimidation in the neighbourhood; people with communication difficulties.
Should people in any of these groups be covered by any new definition of a vulnerable witness, and if so, how should it be decided if they should have help in giving evidence?
The accused in a criminal trial might also sometimes be said to be vulnerable. While an accused is protected by having his own lawyer, and by being able to choose whether to give evidence, he may still have problems of understanding or communication caused by e.g. a mental illness or learning disability.
Should the accused ever be treated as a vulnerable witness?
Existing Special Measures
At present a vulnerable witness can be allowed to give evidence and be cross-examined on video in advance of trial (video evidence on commission). They may also be allowed to give evidence from behind a screen, or over a live television link. A previous statement may be admitted instead of live evidence (but in criminal trials this must be reliably recorded, and the witness must still attend for cross-examination at trial). The witness may be allowed to have a support person to sit close to him while giving evidence. In trials for many sexual offences, the judge has the power to exclude the public from the court. This is normally done while the alleged victim testifies. The media are generally permitted to remain, provided that they do not publish anything which would identify the complainer.
We welcome views on the law and procedure relating to these special measures, and whether they could be improved, or combined into a stronger package.
Possible New Special Measures
The Sexual Offences (Procedure and Evidence) (Scotland) Act will, when implemented, require an accused in a sexual offence case to have a lawyer. This will prevent the accused from personally questioning the complainer. It would be possible to extend this to other types of case, for example to cases where a child witness might be cross-examined by a close adult relative. We do not think that this is a problem in practice at the moment, although it could happen in theory. Widening the ban on self-representation to cover other cases would involve some procedural complications and possibly increase delays in cases starting.
Should the ban on personal cross-examination by the accused be extended to any cases other than sexual offence cases?
Some groups have suggested that an intermediary could take the evidence of young children, or adults with understanding or communication problems. The intermediary would be a professional in the relevant field (such as a specialist in child welfare or learning disability). His role would be to "translate" the lawyers' questions into user-friendly language for the witness, and perhaps also to interpret the answers if necessary. Difficulties might include finding an adequate supply of intermediaries and ensuring the intermediary was sufficiently independent. This could be a particular problem where the witness's methods of communication were only understood by a small number of people close to him.
We welcome views on the possible use of intermediaries.
It would also be possible to have a lawyer brought in to represent the interests of a vulnerable witness during cross-examination. Such a lawyer would be known as an amicus curiae (literally "friend of the court"). He would be able to apply for the witness to be allowed to use special measures. Another aspect of the role would be to object swiftly to inadmissible or inappropriate questions. Protecting witnesses is however part of the judge's role at present. If the system were to move towards greater judicial case management from an earlier stage, that might be a better alternative.
We welcome views on the possibility of an amicus being appointed in particular cases.
Range of Proceedings
Special measures are generally only available to vulnerable witnesses in criminal trials at the moment. There may be a case for permitting their use in other types of case, including court proceedings connected with children's hearings, family proceedings involving allegations of abuse, housing cases concerning anti-social behaviour or any case involving a witness who is vulnerable. This would however raise issues about how this should be funded. The costs of criminal trials are met from public funds, but civil proceedings are usually financed by the parties.
Should special measures be available outside criminal trials? If so, in what types of case and how would this be resourced?
Children's hearings raise the separate issue of character and sexual history evidence. In criminal trials for sexual offences, there are rules concerning the use of evidence about the alleged victim's previous sexual experiences. These will be both broadened and tightened by the Sexual Offences (Procedure and Evidence) (Scotland) Act. These rules do not apply in children's hearing court proceedings, even when a child is giving evidence about alleged sexual abuse. We have heard of instances where lawyers have asked questions about possible previous sexual experiences of a child or young person at court proceedings connected with a children's hearing.
Should the restrictions on character and sexual history evidence also apply in children's hearing court proceedings?
The Competence Test
Currently, someone who cannot understand and communicate what they have experienced, or who cannot properly understand the duty to speak the truth in court, cannot give evidence. Children are questioned by the judge before they testify to ensure that they are "competent". With adults, competence is assumed, but it can still be challenged by a party to the case. It has been argued that the way competence test works means that the evidence of some young children and adults with learning disabilities cannot be heard, so cases involving them as witnesses simply do not go ahead. If the competence test was abolished, their evidence could be heard, perhaps along with evidence about their level of understanding and how that might have affected their testimony, and it would be up to the jury (or the judge in a case without a jury) to decide what weight to give the evidence.
Should the competence test be retained, abolished or modified, for children only, or for all witnesses? How should courts deal with the giving of evidence by young children or witnesses who may have a mental disorder or impairment?
Expert Psychological Evidence
Scottish courts rarely allow expert evidence to help in the interpretation of human behaviour, unless that behaviour may have been caused by a mental abnormality. This is so that trials are not overburdened with conflicting expert evidence, and the jury's common sense assessment of a witness's credibility is not undermined. But some people, e.g. organisations working with victims, think greater use of psychological evidence would help the court understand the evidence better. Examples would be explaining a witness's reaction to an assault, or explaining why a child may only disclose sexual abuse in stages.
Should greater use should be made of expert evidence in cases involving vulnerable witnesses? If so, in what circumstances?