VITAL VOICES - Helping Vulnerable Witnesses Give Evidence
Chapter 8: Related Issues
Expert Psychological Evidence
8.1 A number of respondents to Redressing the Balance expressed the view that greater use should be made of expert witnesses in trials for rape and similar offences, as recommended in the Cosgrove report. 39 The purpose of such evidence would be to help judges and jury members understand why a witness had behaved in a particular way, how the offence alleged may have affected the victim, or how an alleged offender may have operated.
8.2 There have been some recent attempts by prosecutors to make greater use of this sort of evidence. In one recent trial 40, the Crown sought to lead the evidence of a child psychologist with extensive experience of cases of sexual abuse. The accused had already been convicted of a minor offence of indecency involving two young boys. Subsequently, one of the children had made a fuller disclosure which alleged that much more had taken place than the boys had originally revealed. On being questioned, the second child confirmed this and the accused was charged with sodomy. The prosecution wanted to ask the psychologist how common it was in her experience for child victims of sexual abuse to give a full account only in stages over a period of time, to counter any attack on the credibility of the boys on the basis that they had changed their story about what had happened.
8.3 The Crown were refused permission to lead the psychologist's evidence. There is a line of Scottish judicial decisions holding that expert evidence may not be led in support of, or to undermine, the credibility of a witness, although there may be exceptions to this when the witness's behaviour could be attributable to a mental abnormality. 41 The courts have tended to take the view that judges and juries are usually as well fitted as experts to make judgements about human behaviour, and that their duty to make decisions about how reliable a witness's evidence is should not be eroded by expert opinions which in effect try to answer the relevant questions for them.
8.4 These may be good arguments when a judge or jury is being asked to assess human behaviour in relation to relatively commonplace situations. Most people, however, have little or no direct experience of sexual assault or abuse, or of how these may affect a victim's behaviour or mental state. Empathy can be used to overcome this experience barrier, although this may become progressively harder as the events the court is being asked to evaluate become more unusual.
8.5 There may be dangers in allowing expert evidence to be introduced too freely. If one side is allowed to call an expert witness, the other side must be allowed to lead their own expert in rebuttal. The witness might have to submit to interview or examination by several experts, and trials might become overburdened with expert witnesses, confusing the issues by expressing conflicting views, and diverting attention from the facts of the case. We would, however, welcome further views on whether greater use should be made of expert evidence, and if so, in what circumstances.
Identification Evidence
8.6 The Scottish Law Commission recommended in 1990 42 that in any criminal trial, where a report of an identification parade or some other recognised identification procedure has been lodged in court by the prosecutor, it should be presumed that the person named in the report as having been identified by the witness is the person of the same name appearing to answer the charge in court. The prosecutor would serve notice on the accused at least fourteen days in advance of trial enclosing a copy of the report, stating his intention to rely on it. The accused would have to lodge a counter-notice of his intention to dispute the fact that the witness had identified him, at least six days before the trial, unless the court granted an extension on cause shown. If he did not do so the presumption would apply.
8.7 The aim of this recommendation was to cut down on the number of "dock identifications" having to be made by witnesses, especially children. The Report of the Lord Advocate's Working Group on Child Witness Support 43 supported full implementation of the recommendation.
8.8 Although the recommendation has not been implemented in full, section 271(11) of the 1995 Act does provide that, where a vulnerable witness gives evidence by means of one of the special measures, and confirms that he remembers having identified, before the trial, a person alleged to have committed the offence, the evidence of a third party about the identification made by the witness is admissible evidence of that identification. This means that the witness need not be asked to make a "dock identification", since police evidence about what happened at the identification parade can be used to achieve the same effect. Obviously this provision is needed where the witness is using a special measure which avoids the witness seeing the accused. The purpose of that would be defeated if the witness still had to be brought into the courtroom to point out the accused.
8.9 The main difference between the SLC recommendation and what is contained in section 271(11) is that the latter does not involve a presumption that the person previously identified and the accused are one and the same. Section 271(11) also only applies where the witness has given evidence using special measures, whereas the SLC recommendation would apply even if the witness gives evidence in the normal way. We think that implementing the recommendation in full could be helpful to some witnesses and would therefore propose to do so as part of any proposed legislation following on this paper. We are, however, happy to have any further views that respondents wish to offer.