Scottish Government

VITAL VOICES - Helping Vulnerable Witnesses Give Evidence

Chapter 3: Defining Vulnerability

3.1 This chapter looks at which witnesses should be eligible for additional help in giving evidence, and at whether some people should have an automatic right to use special measures when testifying, or whether this should always be at the discretion of the court. We will also look at whether the accused in a criminal trial might sometimes be regarded as vulnerable and in need of assistance.

3.2 Someone may be vulnerable because of their own personal characteristics, such as age or ethnic origins, or because they have a physical disability or mental disorder. Vulnerability may also be the result of external circumstances affecting the witness, such as the type of crime of which he or she is an alleged victim, the relationship between the witness and the accused or a party to the case, or the existence of a threat to the witness's safety. Personal characteristics and external circumstances are very often closely related.

3.3 The law currently allows the use of statutory special measures in criminal trials by witnesses in the following circumstances ²:-

3.4 We do not think there can be any doubt that children should be eligible for any special measures that may be available. We go on to discuss the other two initial categories below. It can, however, be noted that eligibility for special measures depends on factors which are essentially intrinsic to the witness (i.e. age or having a mental illness or learning disability) and do not take account of the witness's wider circumstances. It is only at the stage of considering whether to grant an application for someone who is eligible that the witness's external circumstances are taken into account. It may be questioned whether this is the correct approach, given that it results in special measures being available only to those who satisfy an initial eligibility test. No matter how traumatic the nature of the offence, a victim who has to give evidence will not qualify as a "vulnerable person" unless he or she falls within one of the initial categories. We would welcome views as to whether a better approach would be to allow the witness's wider circumstances to be taken into account in determining eligibility in the first instance.

3.5 Some people might question whether there needs to be an eligibility test, based on personal characteristics or external circumstances, at all. It would be possible simply to make special measures available to all witnesses who wished to use them and were permitted by the judge to do so. Some guidelines could be provided to help judges exercise their discretion, but these would not be absolute. There would be no fixed categories of witness who were or were not eligible for special measures.

3.6 The main advantages of this option would be conceptual simplicity and the fact that no witness who was genuinely in need of help would be excluded. There would, however, be substantial disadvantages. Vagueness about the basis of eligibility could lead to considerably more argument and delay. Judicial decisions would probably be less consistent. This could create difficulties for those advising a witness about what is likely to happen. Uncertainty about what will take place in court can in itself be a major source of stress. If all witnesses were regarded as potentially vulnerable, this could give rise to a "special measures culture". While it is certainly not a routine event, an appearance as a witness should not be especially traumatic for most people. To the extent that it is, the right response is arguably to reform mainstream court procedures and facilities for the benefit of all witnesses, rather than making special treatment more widely available. General improvements in practices and procedures may in fact obviate the need for special treatment in some cases.

3.7 Our provisional view is that special measures should continue to be available only to defined groups of witnesses, although we would welcome views on this. The key issue would then be which groups should qualify.

3.8 We now move on to look at particular groups of witnesses who need to be considered in relation to any new definition of vulnerability.

People with Mental Disorder

Mental Illness

3.9 Someone with a mental health problem, but who does not suffer from significant impairment of intelligence and social functioning, would currently only be eligible for special measures if they have been subject to an order under mental health legislation. This requirement significantly restricts the number of people with mental illness who would qualify. The majority of people with mental illness have never been "sectioned" and will have agreed to, and indeed sought, any treatment being received voluntarily. The existence of a court order may not be a reliable guide to vulnerability. A person who has an insight into his illness and the effect it has on him may be more fearful and distressed at the prospect of a court appearance than someone who does not believe he is ill and has had to be given treatment compulsorily.

3.10 The Millan Committee Report on the Review of the Mental Health (Scotland) Act 1984 ³ expressed concern that the existing law does not adequately cover voluntary mental patients who have to give evidence. They have recommended that the requirement of a court order should be removed, with permission to use special measures depending on the nature of the illness, not on whether such an order has been made.

3.11 There may be good reasons for having criteria which limit the number of people with mental illnesses qualifying for special measures. Many of these people do not have symptoms which would affect their ability to give evidence in court. The number of adults with some form of mental health problem is very large.

3.12 The approach suggested by Millan does, however, seem more principled than the existing one. It would require some new factors to be set out which would be used to decide whether someone with a mental illness should be allowed to use special measures. One way might be to limit availability to those witnesses suffering from an illness linked in some way to the court case itself. This would cover people who may be suffering from depression, anxiety state or post traumatic stress disorder as a result of having been victims, or witnesses of very distressing events. This link could, however, be difficult to prove in some cases. Another way would be to say that any witness with a mental illness may qualify for special measures, but the court must also be satisfied that the quality of the witness's evidence would be likely to be diminished if he was required to testify in the normal way. This is the approach adopted in England and Wales. ⁵We would welcome views on the criteria which should be used to decide if someone with a mental illness should be able to use special measures in giving evidence.

Learning Disabilities

3.13 The separate test of significant impairment of intelligence and social functioning was designed primarily to benefit witnesses with learning disabilities. There are many learning disabled people in Scotland who might already be classed as vulnerable under the current legislation.

3.14 The current definition of "vulnerable person" may be adequate to allow people with learning disabilities to qualify for special measures when they need them, although we would welcome views on that. There may, however, be other hurdles preventing people with learning disabilities giving evidence, such as the "competence test". We look at that in more detail in Chapter 7.

Victims of Sexual Offences

3.15 The humiliating nature of a crime may, in itself, make it very difficult for the victim to report it and give evidence about it. The most obvious example of this would be sexual offences. For a victim, talking to strangers about details of the acts perpetrated can be a very traumatic experience.

3.16 The Sexual Offences (Procedure and Evidence) (Scotland) Act, which was recently passed by the Scottish Parliament, will give substantial new protections to complainers in sexual offence cases. We outlined the content of the Act in paragraph 1.3 above. The nature of the questioning which a complainer is likely to face in a sexual offence trial is particularly distressing, involving as it does highly intimate and degrading matters. Victims of such offences are, however, only entitled to special measures in giving evidence if they fall within one of the existing categories of "vulnerable person". This would exclude most adult victims of such offences.

3.17 In England and Wales, the Youth Justice and Criminal Evidence Act 1999 treats all complainers in sexual offence cases as vulnerable. They are all eligible for special measures, unless they prefer to testify in the standard way. ⁷

3.18 Some of those who responded to Redressing the Balance (the Consultation Document which preceded the Sexual Offences Bill in Scotland) expressed the view that similar provision should be made here, so that all victims of sexual crimes would be eligible for special measures. We would welcome further views.

Intimidated Witnesses

Actual Intimidation

3.19 Where a witness has actually been subjected to reprisals or threats, the Police should be made aware of the fact so that appropriate assistance can be given. Every police force in Scotland now has access to the services of Strathclyde's Witness Liaison Unit, which provides assistance to witnesses and their families who are considered to be at risk. There is no specific crime of "witness intimidation" in Scotland, so recorded crime statistics give little indication of the extent to which actual intimidation occurs. Fear of intimidation, either from an individual or from the process itself, is more common.

Fear of Intimidation

3.20 Fear of giving evidence may be the result of a pre-existing relationship between the witness and a person against whom he or she would be testifying. An obvious example would be the complainer in a domestic abuse case.

3.21 Some members of minority ethnic groups will have particular needs in relation to the justice system, even if their court case has no overtly racial element. The justice system may feel especially alien and intimidating to recent arrivals from other societies, whose social norms may not be understood or appreciated in the Scottish system. Refugees who may have been persecuted within their own legal systems could be particularly fearful about becoming involved in a court case.

3.22 The recent report into the handling of the Surjit Singh Chhokar murder case ¹⁰ highlighted some of these concerns in greater detail. Everyone in the justice system needs to be alive to these issues and do their utmost to ensure that people from ethnic minorities are treated with respect and consideration.

3.23 Members of ethnic minorities are thought to be at greater risk than the general population of experiencing repeat assault. ¹¹ They may face racial victimisation, harassment or attack. When this happens once, it is often repeated.

3.24 It is, however, important not to treat all members of ethnic communities as if their needs were the same. Many have been born here, understand the justice system as well (or as poorly) as anyone else and regard themselves as Scottish or British, while usually also retaining a sense of ethnic identity. Some may feel insulted to be singled out and offered special help on the basis of their ethnicity. Tact and sensitivity on the part of those operating the system are vitally important.

3.25 Some elderly or physically disabled people may also be likely to fear intimidation. An elderly or disabled victim of a violent attack may have been completely unable to defend him or herself, and dread the prospect of having to face the attacker again in court. People who are unaccustomed to social contact, or who have little contact with officialdom may find answering questions at length in a formal trial a confusing and difficult experience. It is possible that a sufferer from early stage dementia would be sufficiently mentally capable to give evidence, but entering the witness box is likely to represent a particular ordeal given the vulnerability of this group to unfamiliar surroundings and people. However, many elderly or physically disabled people would not consider themselves vulnerable and would resent being treated as less capable of coping with a court appearance than other members of the public.

3.26 Feared intimidation may also stem from neighbourhood crime, where the accused or his family or associates live close to the witness, or from repeat victimisation, where a witness has suffered repeated harassment at the hands of the same offender or group of offenders. In either case, the witness may believe that giving evidence is only likely to trigger further trouble. Most repeat victims show signs of emotional trauma, such as anger and anxiety, and may become easily upset even by apparently trivial incidents, due to accumulated stress. ¹³

3.27 Certain groups of people may be at particular risk of repeat victimisation and neighbourhood crime. We have already discussed the position of ethnic minorities (paragraphs 3.21-3.24 above). Gay men, lesbians, bisexuals and transsexuals may also be vulnerable.

3.28 It can be seen from these examples that there are a very wide variety of circumstances in which individuals may feel intimidated. Other circumstances such as being a member of a particular religious group or political party might also be relevant. Special measures in giving evidence will probably only be necessary for a small minority. We would welcome views as to what factors should be taken into account in deciding if a witness is sufficiently affected by actual or feared intimidation as to need special measures.

Communication Difficulties

3.29 Certain witnesses may have communication problems which affect their ability to testify in court. Such difficulties may arise for a wide variety of reasons. Some members of ethnic minority communities may face language barriers. There are also witnesses who face physical barriers to communication in court. These range from those profoundly deaf people who communicate using sign language to people with speech impediments and elderly people who may be hard of hearing, or cannot articulate clearly following a stroke. Some communication difficulties may be related to a physical or learning disability.

3.30 Where a witness's first language is not English, or where they use a method of communication such as a standard sign language, the need for translation facilities to be provided should be easily identified and these should overcome the barrier to communication. In other instances however, for example, with a partially deaf elderly person, the problem may not be identified, or if it is, it may be difficult to overcome. A witness may appear confused and unreliable when in fact the only difficulty is with hearing, or articulating clearly. Translation facilities will not always help, for example where a witness who is becoming deaf late in life does not use sign language. A witness who is aware of having communication problems may be especially nervous about a court appearance, and particularly uncomfortable in the formal courtroom setting where acoustics may be an issue. We would welcome views on whether, and if so, how, communication problems should be included in any new definition of a vulnerable witness.

Automatic or Discretionary Entitlement

3.31 If a special measure was available as of right, then a witness would be entitled to use it if he wished, so long as he could demonstrate that he came within the category of person for whom it was intended. If the measure was available at the court's discretion, then even if the witness could establish that he fell into the appropriate category it would still be up to the court to decide whether to allow him to give evidence other than in the normal way. The judge would have to be satisfied that this was appropriate in all the circumstances. It would be possible to set out factors for the court to consider in arriving at its decision.

3.32 Some groups of witnesses might be more suited to automatic entitlement than others. An example could be those with learning disabilities, or whose understanding or communication was otherwise impaired. Some might argue that children under a certain age should never be questioned in open court, and their evidence always be taken by some other method. On the other hand, vulnerability will often relate to a combination of one or more personal characteristics of the witness and the nature of the court case itself. To create automatic rights, or presumptions in favour of certain groups being treated in particular ways, may result in inflexibility. It might also result in some people being "pigeon-holed" and given little say in how they give evidence. We would welcome views as to which witnesses, if any, should be automatically entitled to use special measures, and how and when judicial discretion should be exercised.

The Accused

3.33 The accused in a Scottish criminal trial is not currently eligible for special measures. A person has to have been, or be likely to be, "cited to give evidence" in order to qualify. Under sections 66 and 140 of the 1995 Act, the accused is cited to appear at the trial separately from the witnesses.

3.34 The accused is, of course, in a different position from other witnesses. Most importantly, he can choose not to give evidence. To the extent that special measures are designed to encourage victims to report crime, those considerations are not applicable to him. It will also be unusual for an accused to fear reprisals as a result of giving evidence, although not impossible if his defence is to incriminate someone else. Finally, the accused is protected by having his own legal representative, whereas other witnesses do not. An accused may, however, suffer from the same problems of understanding and communication as some other witnesses.

3.35 The decision in the Thompson and Venables¹⁶ case by the European Court of Human Rights confirmed that where individuals (in that case children) who may be vulnerable are tried in a criminal court, steps must be taken to ensure that they are able to understand and take part in the proceedings in a meaningful way. While in that case the accused did not give evidence, the rationale of the decision would seem to suggest that where a vulnerable accused does choose to give evidence, appropriate adjustments should be made to procedures to ensure that he can do so to the best of his ability. In some instances that may mean allowing the use of special measures. There seems a good argument in principle that the accused should not be excluded from eligibility for special measures, although it may be reasonable for the court to take account of the difference between the accused and other witnesses in making any decision.

3.36 One practical difficulty may be that the decision on whether to give evidence may not be made until a late stage, perhaps during the trial itself, whereas putting special measures in place is likely to require advance preparation. It would, therefore, be important to make contingent arrangements in any case where there is the possibility of an accused giving evidence using special measures. We would welcome views on whether the accused should ever be eligible to use special measures in giving evidence, and if so, on whether the criteria for eligibility should be any different from other witnesses.