Scottish Government

SCOTTISH EXECUTIVE CENTRAL RESEARCH UNIT

Crime and Criminal Justice Research Findings No. 60

Vulnerable and Intimidated Witnesses: Review of Provisions in Other Jurisdictions

Reid-Howie Associates

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Main Findings

• It is now increasingly recognised that there are a number of groups of "vulnerable" witnesses in adversarial jurisdictions, including not only children (whose needs have been recognised alongside the increased awareness of sexual abuse), but also witnesses with mental health problems or physical impairments (including both physical and learning disabilities), and witnesses in fear or distress.
• The nature of the adversarial process and the issues which "vulnerable" witnesses face are seen to affect their experiences in court. Evidence suggests that such groups are not always currently enabled to provide their evidence in the most effective way.
• There is a growing recognition of the need to make provision for "vulnerable" witnesses (particularly children), and some examples can be identified of measures which address the barriers which they face, but, in general, provision has been limited. Provision to adults has been particularly low.
• Even for those for whom provision is made, there are problems with the level of use of the measures which are available and variations in practice and interpretation of the provisions. The considerable inconsistency in their use can undermine their effectiveness.
• The lack of provision (or use of provision) raises issues relating to equality and social justice, where "vulnerable witnesses" can be seen to be disadvantaged by a criminal justice process which often does not allow their full and equal participation.
• The findings suggest the need to consider the extension of the availability of provision to other groups of witnesses and to improve the use of the provision which is already in place.

Introduction

In recent years, there has been a growing focus upon the identification of the barriers facing "vulnerable" witnesses in the adversarial justice process.

A range of jurisdictions have begun to address these issues in a number of ways and a review of relevant literature relating to provision to "vulnerable" witnesses around the world was commissioned by the Scottish Executive in late 2001.

The review focused upon adversarial legal systems (particularly, although not solely, England and Wales, Australia, New Zealand, Canada and the United States), where two sides present a case and a court makes a decision (as opposed to the inquisitorial systems which exist in much of Europe, where the court collects information, examines the issues, questions those who are relevant and applies reason to identify the truth).

This had the following objectives:

• To provide an account of how "vulnerable" and intimidated witnesses are defined in legislation in different jurisdictions.
• To provide an account of statutory and discretionary provisions which are available to "vulnerable" and intimidated witnesses.
• To identify, from the literature, how existing provisions are applied in practice.
• To review any literature on the effectiveness of these provisions.
• To summarise any literature which examines whether and how these provisions are compatible with due process and human rights.

The complexity and variety of provisions, as well as constant changes to legislation and practice, made it impossible to take a "gazetteer" approach to describing the measures available. Instead, the review provided a broad picture of approaches and
emergent issues.

Definitions - Who are Vulnerable Witnesses?

Three main categories of "vulnerable" witnesses were identified in literature across most jurisdictions:

• Children.
• People with an impairment (physical or mental, including mental health problems, learning disabilities and physical impairments).
• People "vulnerable" to attack, fear of attack or intimidation.

Many provisions excluded defendants (although there seemed no clear reason for this).

The profile of the problems facing some groups of witnesses in court was raised with the growing recognition of child sexual abuse, as the number of reported cases rose and the importance of children's evidence became apparent. It was increasingly noted that the same issues affected other groups of witnesses, such as disabled people (whose requirements may not be met by the court or process), women who experienced rape, other sexual assault or domestic abuse, and witnesses to particular crimes of violence who may be intimidated by the defendant.

Groups identified as "vulnerable" were found to share a number of common experiences. Their testimony was seen to be important, but a number of factors made it less likely that they could participate in evidence-giving, or do so most effectively. These groups may face:

• Factors which make their participation particularly traumatic.
• Fear of the attacker because of the nature of the attack or the crime.
• An imbalance of power between the witness and defendant.
• Problems with the nature and impact of questioning/procedure on their ability to testify/quality of their evidence.

It has also been suggested that there is an underlying problem with the nature and principles of the adversarial style of justice, which is seen to be less appropriate for witnesses in these circumstances. This creates additional difficulties in giving evidence.

These groups of witnesses are then disadvantaged by a criminal justice process which, when measures to address their requirements are not taken, does not allow their full and equal participation.

The provisions

With the recognition of these issues, there has been some development of provisions to provide support to "vulnerable" witnesses, to enable their participation in the criminal justice process and to enhance the quality of the evidence provided.

A number of measures were identified in the review which focused on evidence-giving and these included:

• Changes to competence requirements and the need for an oath, to enable more witnesses to testify (in terms of the greater presumption of "competence", relaxation in conditions required to be deemed "competent" and changes to the need to take an oath).
• Flexibility in the types of evidence considered admissible (with, for example, the removal in some jurisdictions of the need for corroborative evidence in some cases, the inclusion of hearsay and the use of evidence which has been videotaped).
• Flexibility in the ways in which evidence is provided (enabling, for example, the use of measures such as screens and CCTV/live link to prevent face-to-face confrontation, the use of communication support and the use of persons to assist a witness).

Measures were also identified which focused on the court processes, and included:

• In certain types of case, measures to protect privacy (such as, for example, the exclusion of the press and public and non-disclosure of the name of a victim of a crime or witnesses).
• Restrictions upon the types of questions which could be asked (such as specification of what was allowed for specific groups, who could ask questions and how questions could be asked. Many examples were found of "Rape Shield" legislation).
• Measures allowing flexibility in the layout and facilities in the court (such as the position of furniture, provision of other facilities and physical access to the court, as well as the use, in some cases, of specialist courts for specific issues such as domestic abuse).

Finally, other measures were identified, which included:

• Specific witness protection schemes (which involved a range of measures up to and including total relocation and removal from surroundings, as well as protections which applied directly to a period in court).
• Measures to prepare "vulnerable" witnesses for court (such as the provision of support by individuals and/or organisations and the use of specific court preparation schemes).

Application of provisions

Although there was limited information about the actual use of these measures, some issues relating to the application of provisions were identified.

In general terms, children were found to be the witnesses recognised most widely in legislation as those for whom "special measures" could be provided. Examples of measures for children were found in Canada, England and Wales, the USA, Australia, Scotland, New Zealand, Hong Kong and South Africa.

In England and Wales, for example, children aged under 17 now qualify automatically for a range of special measures in specific types of case. These measures can include the use of CCTV ("live link") and screens, and the admission of pre-trial videotaped evidence.

In the USA, Congress enacted the "Child Victims and Child Witnesses' Rights Act" in 1990, giving protection to all of those under the age of 18 who experienced physical abuse, sexual abuse or exploitation or who were witness to such a crime against someone else. Again, measures such as CCTV, anonymity and closed courts can be used. Individual states have enacted their own statutes by which children can be allowed to use a range of measures and, by 2000, 37 US states had statutes in place allowing particular measures in child sexual abuse cases. Some statutes require courts to make special provisions for children, while others are reliant on discretion.

Provisions also exist in both Commonwealth and State and Territorial jurisdictions across Australia to provide protection to children in court, and measures have been introduced in New Zealand to make it easier for children in court to communicate and to reduce their trauma. In South Africa, the Report on the Protection of Child Witnesses by the South African Law Commission made a number of recommendations in relation to special measures and, in Israel, a neutral examiner is used to question children.

There has, to date, been less focus on other groups. The inclusion of physical "impairment" or "disability" was found to vary between jurisdictions, but many made provision to overcome, for example, inability to hear, understand or reply to a question and to accommodate requirements relating to a physical impairment. In some cases, these rights were found to be contained within wider rights in disability legislation. There were also examples of provisions for witnesses with intellectual and physical impairments and for people with mental health problems, although these often involved access to a more limited range of measures than for children, and were not always enshrined in legislation.

For people with intellectual disabilities, there were issues across jurisdictions as to whether, or how, witnesses had to demonstrate competency. A presumption of competency was found to exist in some jurisdictions, but there was some variation. Similarly, there was not a common approach to the provision of support for people with mental health problems, and few examples of this. Much of the discussion of these issues again related to "competence" to testify, rather than the provision of support to enable people to do so.

Perhaps the clearest example of attempts to clarify access to measures for witnesses in these groups was found in England and Wales, where legislative provision now covers people with:

• a "mental disorder" within the meaning of the Mental Health Act 1983.
• significant impairment of intelligence and social functioning (intellectual disability).
• physical disability or disorder which the court considers likely to affect the quality of their evidence without special measures.

Finally, for witnesses who experience fear, distress or intimidation, some measures were identified in a number or jurisdictions. The legislation in England and Wales now includes witnesses who are likely to suffer "fear or distress" (including all of those who are complainants in sexual cases) whose quality of evidence may be diminished. They are then eligible for the majority of provisions.

Special measures such as screens, CCTV and supports can be used to address the issues facing women in Western Australia, and an initiative aiming to improve gender equality in the criminal justice system has been developed in Canada. Changes have also been made to the nature of evidence in rape cases in terms of the extent to which the defence can use information on the sexual histories of "victims". There is now a general approach throughout most common law jurisdictions to disallowing questioning of this nature in principle (although there were found to be problems in practice).

Additional examples of provisions to protect the identity of witnesses in fear were found in the USA, Australia, New Zealand, Poland, South Africa and the former Yugoslavia. In many jurisdictions, these took the form of witness protection and support schemes, and often encompassed the provision of measures, both within and outwith courts, to facilitate evidence-giving.

Overall, however, the review identified a lack of availability of systematic and comparative evaluative information. On the basis of the evidence available, provision was found to be limited and inconsistent. Variations were identified in the definitions of which witnesses were included in provision, which offences were covered and the practical ways in which measures were applied, as well as in the nature of provision adopted. There were differences across national boundaries and between jurisdictions in federal systems.

Practical constraints (such the lack of technology) and the means of use of measures were identified as limiting the effectiveness of the support.

The exercise of discretion by the judiciary and other legal personnel also appeared to be a major issue affecting the use of measures, along with a lack of clarity about their availability.

It was suggested in the literature that the level of understanding by legal personnel of the issues facing "vulnerable" witnesses may impact upon the use of special measures and the experiences of these witnesses.

Evidence of effectiveness

A number of specific issues were identified in relation to the use and effectiveness of measures.

Generally, the evidence suggested that making provision to meet the requirements of "vulnerable" witnesses to overcome the barriers increased the number of witnesses who were enabled to testify, providing access to the criminal justice system for witnesses who might not otherwise have participated.

In relation to changes to competence and oath requirements, however, there continued to be inconsistency in the use of these measures, continuing assumptions made about witnesses and, consequently, a reduced impact of the provisions in some cases.

Similarly, there was evidence of judges reducing the effectiveness of the removal of the need for corroboration by stressing the "frailty" of the evidence and of a reluctance to use hearsay evidence.

There was evidence to suggest that the use of videotaped evidence, along with a co-ordinated response to witnesses could have a number of benefits, for example:

• help to refresh memory
• reduce the number of interviews and individuals involved
• encourage interviewers to use appropriate methods
• preserve exact statements, emotions and demeanour at the time
• encourage confessions/guilty pleas
• help assess the strength of key witnesses
• help prepare for trial.

In terms of specific measures relating to the means of evidence-giving, the findings of the review suggested that the use of protections in court (such as screens and CCTV) could also have a number of benefits which generally outweighed any disadvantages. These included, for example, reducing stress and enhancing the "truth-seeking" process by removing some of the fear of confrontation with a witness' attacker. The evidence available also suggested that it did not appear that the use of screens or CCTV affected the outcomes of court. There were, however, constraints to the widespread use of these measures as a result of different interpretation of the legislation and, in some cases, the lack of necessary technology.

In terms of measures relating to court processes, it was found that there was an overall reluctance in many jurisdictions to use measures to protect anonymity which involved the removal of the public or the press from the court, given the perceived importance of a public trial.

In relation to the nature of questioning, a point to arise consistently was that many legal professionals were relatively poor, and often untrained, in questioning children and other "vulnerable" witnesses, and this potentially undermined special measures. This makes attention to questioning an essential component of support to witnesses.

There was found to be clear variation in the impact of rape shield legislation, ranging from very weak to strong, but there was material to suggest that there remained attempts in many jurisdictions to secure disclosure of sexual history evidence.

There was found to be wide variation in the use of flexibility in the layout and provision of other facilities in the court (such as childcare or separate waiting areas).

There was some evidence to suggest that specialist courts may prove effective for some women who experienced domestic abuse, and some evidence that specialist courts could provide a valuable way of enabling the participation of some "vulnerable" witnesses.

In terms of other measures, although benefits to witness protection were identified, there were also many less positive effects for those requiring full anonymity. These included:

• the effect of relocation on the whole family
• communities' concerns about relocated witnesses being placed in their neighbourhoods
• the strict entry requirements for protection schemes
• the high financial and personal costs involved.

A number of studies suggested that the provision of support persons, generally for children, meant that the children were more able to answer the questions and less likely to be afraid.

Preparation for court has also been found to have positive benefits for witnesses, such as education/explanation and reduction in the "unknown" in the court process.

Human rights issues

Despite the identifiable benefits of many of these measures, a number of issues have been raised, often in terms of the human rights of defendants (although it has also been suggested that the failure to provide measures to allow the participation of some "vulnerable" witnesses also has implications for their human rights). The balance between the rights of the accused and the rights of witnesses was found to be a key area of controversy in virtually all of the jurisdictions covered in the review.

It is now accepted in most jurisdictions that there are circumstances in which special provision for witnesses can be made without violating the rights of the defendant. It is also generally recognised that there is not always a need for actual face-to-face confrontation to uphold the defendant's rights and there are circumstances in which the requirements of a witness for "special measures" must be addressed. Overall, there was evidence to suggest that the use of measures to overcome barriers faced by "vulnerable" witnesses can be considered to be compatible with defendants' human rights.

In practice, however, there were numerous examples of challenges to the use of special measures, which served to continue to undermine the protection offered by the provisions.

Conclusion

In the light of continuing problems faced by "vulnerable" witnesses, there are increasing suggestions that there is a need to identify additional ways of offering more effective protection in the justice process.

Although the literature suggested that there had been an improvement in recent years in the way in which "vulnerable" witnesses (and particularly child witnesses) are dealt with in many criminal justice systems, there remain major areas of concern.

Despite an increased acceptance of the principle that there are cases in which support measures will be necessary, this has not always been translated into practice. It is suggested that there is a need to consider improvements to the use of existing measures along with extending the recognition of the requirements of "vulnerable" adult witnesses, in order to ensure that equality of access to justice is provided.