VITAL VOICES - Helping Vulnerable Witnesses Give Evidence
Chapter 4: Existing Special Measures
4.1 This chapter will review the range of special measures which are available to witnesses at the moment, and discuss some possible changes.
Video Evidence on Commission
4.2 This is provided for in criminal trials by section 271 of the 1995 Act. The court appoints a lawyer ("the Commissioner") to take the evidence of the witness. In practice, both sides involved in the case will send their lawyers along to ask questions of the witness in the normal way, with the Commissioner assuming the role of the judge. The Act, however, does not prohibit the Commissioner from carrying out the questioning himself. The accused is not normally permitted to be present, but must be able to watch and listen by some means while the witness's evidence is taken. This could for example be achieved by use of a live TV link. The proceedings are recorded on video tape, which can then be played at the trial.
4.3 The advantages of this method are that the witness does not have to face the accused while testifying, and is able to give his evidence away from the court. Taking evidence on commission does involve conventional questioning of the witness by lawyers, but it could be expected that they would take account of the witness's vulnerability in their questioning.
4.4 Anecdotal and the limited statistical evidence currently available suggest that this procedure is rarely used. The reasons for this are not clear. It may be that the legislation is too restrictive as to the circumstances in which the method is available. The practicalities of arranging the technology and the location, and the attendance of everyone required, may be a discouragement. It has been suggested to us that the presence of the Commissioner plus two sets of lawyers in a room with the witness may be too alarming and distracting, especially for a child. People may simply not think of using the procedure. Or it may be largely a matter of timing. If the accused has not instructed legal representation until shortly before the trial, it may be very difficult to make arrangements before the trial is scheduled to start. If it cannot be done well in advance of trial, then it may have no great advantage over the live TV link at trial.
4.5 The Crown Office and Procurator Fiscal Service are currently looking into the possibility of making greater use of this procedure, especially in cases involving children. A system of early identification of vulnerable witnesses and earlier consideration of their needs, combined with some procedural changes to allow the court to make a decision about the use of this method well before trial, may be needed before there is a greater uptake of this means of taking evidence. We would welcome views as to the advantages or disadvantages of taking evidence on commission, and on any changes that would allow the procedure to be better used.
Screens
4.6 Screens were introduced by statute in 1993 17, although they had been used to some extent before then by judges who took the view that this could be done as part of their power to regulate procedure in their own courts. Section 271 of the 1995 Act now provides for them in criminal trials only. The screen is used to conceal the accused from the witness while the witness is giving evidence in the courtroom, but the accused must be able to watch and hear the witness give evidence. This can be achieved by a one-way screen (so that the witness cannot see the accused but the accused can see the witness ), or by a TV monitor relaying the image of the witness to the accused. The witness is still questioned by lawyers in the normal way.
4.7 Screens may be effective in removing immediate physical fear of an accused. They can also prevent the use of the tactic adopted by some lawyers of standing so close to the accused that the witness is forced to look almost directly at him while being questioned.
4.8 It might be questioned whether the fact that the accused has to be able to see the witness giving evidence has any bearing on the effectiveness of the measure. While it would be possible to amend section 271, so that only the accused's lawyer had to be able to see the witness (which is the position in England and Wales) 18, some might see this as a step too far in restricting the rights of the accused. The research we are commissioning will attempt to assess the effectiveness of the use of screens, but views of respondents are welcome on how screens are currently used, and any possible modifications to the procedure.
CCTV
4.9 This was introduced by statute in 1990 19, but now also falls within section 271. The witness gives evidence by live television link, usually from a room within the court complex, separate from the courtroom itself. This method is most often used when children give evidence, particularly in sensitive cases of physical or sexual abuse. A major research study 20 revealed that 10% of all child witnesses in High Court cases had applications made for them. Applications were most likely to be made where the child was young (the average age was 10), where the child was a victim rather than a bystander witness, where the child had a close relationship with the accused and where the offence was a particularly sensitive one. A very high proportion of applications was made in sexual abuse cases. Research in connection with this consultation paper will provide some updating of this early study.
4.10 The live TV link avoids face to face confrontation between witness and accused. In practice the witness still has to attend court, since there are currently no courts which use CCTV facilities remote from the court complex. There may still be a risk of the witness meeting the accused or his associates in or around the court buildings. There is, however, no legal requirement for the room from which the witness gives evidence to be part of the court complex, and it would be possible, with the co-operation of other agencies, to arrange for the witness to use the live TV link from other premises, such as social work or health premises, or perhaps even from the witness's home. We would welcome any information that respondents may have on experiences with the use of CCTV, and any views on modifications to the current law or practice.
Admission of Prior Statements
4.11 This is not strictly a "special measure", since it applies to all witnesses, but it has special relevance for vulnerable witnesses. In civil proceedings there is a general rule that a prior statement can always be admitted in evidence. 21 In criminal proceedings it also is now possible to admit in evidence, under section 260 of the 1995 Act, a previous statement made by a witness which has been reliably recorded, on video or in some other way. The witness must still attend court to confirm that the statement is accurate, and be cross-examined on it. An obvious example might be a video recorded investigative interview, conducted by specialist police officers and social workers, with a child or vulnerable adult who may have been sexually abused.
4.12 Although in a criminal case the witness still has to attend court for cross-examination, using a prior statement could avoid the need for lengthy and distressing questioning by the lawyer representing the side for whom the witness is appearing (known as "examination in chief"). It could allow most of the witness's evidence to be taken at an early stage, when his memory was still fresh, and reduce the amount of time spent in court during the trial.
4.13 There are, however, some significant drawbacks. Those involved in taking the recorded statement will not be lawyers and are unlikely to conduct the interview with the legal rules about admissibility of evidence at trial uppermost in their minds. While experience in England and Wales suggests that some extra latitude is allowed for leading questions in recorded interviews (which sometimes can be the only way to prompt any response from someone who is withdrawn, scared or embarrassed), there is still a risk of part or, in some cases, all, of the recording being judged inadmissible. Detailed written guidance to interviewers would need to be developed and closely followed in order to minimise such problems, and the appropriate technology used to edit the recording where necessary.
4.14 As matters stand, the witness has to be cross-examined in court on the content of the statement. This will happen some time after he has actually made it. The witness would have the recording played back to him and be asked to adopt it as his statement before the cross-examination, but may no longer be able to remember some of the detailed events described in the statement. This could easily be used by the opposing lawyer to suggest that the witness's evidence was unreliable, to the distress of the witness. Some witnesses might become more confused and distressed by seeing the video of themselves than by being questioned afresh.
4.15 It would be possible to provide, as is the case in England and Wales, that an initial pre-recorded interview could, in some circumstances, be admitted as the witness's evidence-in-chief, without the witness having to appear subsequently in court to "adopt" the prior statement. It would also be possible to provide for cross-examination on the initial statement to be carried out separately from the trial and recorded on video. 22 This would, in effect, be a modified form of evidence on commission, with questioning being limited to clarifying and testing the statements made by the witness on the original recording. Changes such as these would be likely to require quite substantial changes to criminal procedure, with applications for evidence to be taken in this way having to be made well in advance of the trial. Such changes would be likely to involve a much greater, and earlier, degree of judicial management and oversight of cases than is currently exercised. We would welcome views on the law and procedures relating to the admission of prior statements and the possibility of pre-trial video recording of cross-examination.
Use of a Supporter
4.16 In 1990 the Lord Justice General, the most senior judge dealing with criminal cases in Scotland, issued a Memorandum giving guidance to other judges and sheriffs about support which could be provided to child witnesses in criminal cases. This includes the removal of wigs and gowns by judges and lawyers, allowing the child to give evidence from the floor of the courtroom, rather than from the witness box, and allowing an adult supporter to sit close to the child while the evidence is given. Although not covered by the 1990 Memorandum, supporters have also been allowed for adult witnesses in some cases.
4.17 At present, the judge or sheriff has complete discretion as to whether the witness is allowed a supporter and what that person can do, and there are considerable variations in practice. Sometimes the supporter is required to sit out of the witness's line of sight. A supporter may or may not be allowed to comfort a crying or distressed witness. Where the live TV link is also being used, the supporter is not always able to communicate with the judge. This may be a source of anxiety if something is inadvertently said during questioning which causes distress to the witness. In a case commented on in Kathleen Murray's study, 23 a lawyer confused the name of a close relative of the accused with that of one of the child complainer's carers, and the supporter struggled to alert the court to the mistake.
4.18 Clearly, the supporter cannot be allowed to prompt or coach the witness. If there are grounds to suspect that this may happen, or that the witness may be reluctant to speak freely in front of the supporter, a different person should be chosen. Some supporters have, however, felt that judicial caution restricted their role so much that it was not worthwhile.
4.19 Some would argue that certain witnesses should have a right to a supporter. We think that would be problematic because of the difficulties in some instances of identifying a suitable person to fulfil the role. Ideally, it should be someone who is known to the witness and has built up a rapport with him or her, but is detached from the facts of the case, and from any investigation. This combination must often be hard to achieve, with a significant proportion of potential supporters who could be objected to by the other side. This may be partly why some judges are reluctant to allow supporters, or limit their role very strictly. It may, therefore, be helpful to develop more detailed guidance about the use of supporters, both for cases involving children and where the witness is a vulnerable adult. Such guidance might include advice about identifying a suitable supporter. There may be some crossover with the regional "appropriate adult" schemes which operate to provide support for suspects and witnesses with mental disorders at police interviews and similar occasions. We would welcome views on the use of supporters and whether there should be written guidance governing their appointment and role.
A Combined Approach
4.20 It would be possible to combine some of the elements in paragraphs 4.1 to 4.19 in a more holistic approach. This might involve the witness's evidence being taken well before trial, using video recording on commission. This method could be modified to suit the needs of the witness, for example by excluding everyone but the Commissioner and anyone acting as the witness's supporter from the venue where the evidence was being taken. The lawyers for the parties might be asked to submit questions in advance, or could be connected up to the proceedings via a live link, allowing them to do so as the proceedings went along. Questions might require to be asked by the Commissioner only, who could be specially trained to deal with the questioning of vulnerable witnesses. The video recorded evidence would then be used at the trial as the entire testimony of the witness, who would not need to appear for either examination-in-chief or cross-examination.
4.21 Such an approach would be likely to require substantial changes to existing procedures. It would be necessary for the accused to have instructed legal representation at an early stage, or for a solicitor to be temporarily appointed to him or her by the court. It would also be necessary for the defence solicitor to be well informed about the case against his or her client from an early point in the proceedings. Without this, it would be extremely difficult to formulate appropriate questions for the witness to be asked. At present, prosecution and defence in Scotland largely prepare their own cases, taking statements from witnesses separately. As the defence are likely to begin working later in the day, they may not have their own statements until quite close to the trial. To be effective therefore, this approach might require a formal system of pre-trial disclosure of information by the prosecution. Even if confined to cases involving vulnerable witnesses, that would be a major change, and would place a considerable additional administrative burden on the Crown Office and Procurator Fiscal Service.
4.22 The advantages from the witness's point of view, might however be significant. In particular, it ought to reduce the need for multiple precognition statements to be taken from the witness by the prosecution and by defence solicitors. It might also allow the witness's evidence to be taken in full while his or her memory was still fresh. Where the witness was a child or had a mental disorder affecting memory, this would have obvious benefits. Early disclosure of the details of the prosecution case might lead, in some instances, to the accused pleading guilty.
4.23 Adopting this approach would not necessarily be a solution in all cases. Even if arrangements could be made to take a witness's evidence at an early stage, other evidence might later emerge, resulting in the witness having to be questioned again. A requirement for greater pre-trial disclosure of information might inhibit the investigation of some cases, or mean the Crown having to release sensitive information which could be exploited to the disadvantage of an already vulnerable witness.
We would welcome views on the advantages and disadvantages of this sort of approach.
Clearing the Court
4.24 The judge has statutory power to exclude the public in a criminal trial for an offence contrary to decency or morality involving children (section 50(3)) of the 1995 Act), and in a trial for rape or a like offence (section 92(3)). In practice, judges routinely exercise this power when the alleged victim comes to give evidence, although not for the rest of the trial. Under section 50(3), the media must be allowed to remain. Under section 92(3), they could be excluded but are usually allowed to stay on the understanding that they will not publish anything which would identify the complainer. At common law, a judge could also order the court to be cleared in other types of case if he considered it necessary in the interests of justice. It has, however, been suggested that the common law power is limited to recognised categories of case (e.g. sensitive evidence in divorce proceedings, secret manufacturing processes etc), so it may be of limited use to vulnerable witnesses. 24
4.25 It would be possible to give judges statutory power to clear the court in additional types of case. This might be done to protect witnesses who had experienced threats as a result of coming forward, or witnesses with a mental disorder, who might find giving evidence in open court upsetting and confusing. Towards a Just Conclusion suggested that, where a witness reasonably feared further serious victimisation, there might be a case for ensuring that the media were excluded as well as the general public. 25 Although the responses to that consultation indicated some support for a wider discretion to hold proceedings in private, we are not aware of any major concerns about the way the current provisions operate.
4.26 As far as we are aware the press and other media in Scotland generally operate in a responsible way as regards the reporting of sensitive court cases. That justice should normally be administered openly and in public is an important principle which should not be restricted without very good reason. We would, however, welcome any information from respondents regarding the operation of the current rules about clearing the court and views as to whether any changes are required.
Concealment of Address or Anonymity
4.27 Where a witness fears intimidation or unwelcome attention from an accused or his friends or associates, the witness's address need not be read out in court, although the witness must normally be named and identified. Very often witnesses are shown on the witness list as "care of" a police station. In some very exceptional circumstances, for example cases involving national security, a witness may be permitted to remain anonymous, or use an alias. Clearly where a witness fears intimidation and has asked for his or her address not to be disclosed, care must be taken to ensure that it is not disclosed inadvertently. The police will also need to be aware of the witness's concerns so that they can offer advice and protection where necessary. We think that current arrangements allowing the address of a witness to be withheld are generally adequate, and do not see any need for a change in the circumstances in which a witness may be allowed to remain anonymous or use an alias.