Scottish Government

Shona Barrie COPFS - Suggested changes to minutes of 22 September 2004

Comments/issues
Action

• "A child did not want automatic special measures to be applied (would in fact a hearing be required? If a child is 15 and wants to be in court, a judge may wish to be satisfied about whether that is in the child's best interests but I wouldn't like to build up any expectation that a hearing will follow)"

• agreed

• "(Would be the subject of Crown Office guidance for Crown witnesses)"

• agreed, bracketed text to be taken out

• Intimation of the notice was discussed and points raised were
  • Intimation of a copy of the notice and supporting materials on defence agents could disclose vulnerability issues that they were previously unaware off
  • Potential for further investigation/focus on that vulnerability, and suggest relationship to credibility/reliability. Witness could be further victimised because of this
• It was agreed that intimation of the full notice was required to meet the Crown's disclosure duties and to avoid inevitable challenges. Highlights need to balance disclosure duties with fairness to the witness in the framing of a notice/application. The conclusion was reached that the notice should only contain basic information fields and that additional documents lodged as an addendum containing more detailed supporting information and may not require to be intimated. (I don't recall us being quite so sure of this? I'm not so confident we can rule this out. )Crown Office would be issuing guidance to prosecutors about the drafting of notices/inclusion of supporting material"

• agreed, bracketed text to be taken out

Shona Barrie COPFS - Suggested changes to minutes of 22 September 2004

Comments/issues Action

• "It was agreed to delete "Date of Trial" and insert "Date of Indictment" and to insert "Age of child at date of indictment - is entitlement not around date of commencement of proceedings - i.e. raising of petition? "."

The group agreed that clarification on this point was required as a matter of high importance however, 271(3) of the 1995 Act as inserted by the VW Act makes it clear that proceedings shall be taken to have commenced when the indictment or, as the case may be, complaint is served on the accused.

• "(i.e. about the location/arrangements)"etc

• Agreed

• "Recommendations being explored by the Working Group on Visually Recorded Interviews - relevant too for prior statement provisions"

• Agreed

• The lack of instruction on how to deal with challenges to admissibility was also discussed as well as potential difficulties around editing of recordings in the event they are to go before a jury. Points to requirements for instructions in this area re. deletion of scenes from recorded material etc "

• Agreed

• other comments discussed

• COPFS reminded the group that consultation with judges would be restricted to the draft act of Adjournal and would follow the usual protocol.
• COPFS drew the group's attention to the fact that the draft rules on taking evidence on commission would simply reflect the existing rules in this area except replacing a video recording for an audio recording.

It was agreed that this may nullify confusion with regard to how the defence would access the evidence and allow the court to be the holder of the recording as is currently the case taking away concerns about the sensitive nature of recorded evidence was highlighted and issues surrounding onward distribution.

Shona Barrie COPFS - comments received on request for Act Of Adjournal

Comments/issues
Action

• Child Witness Notices-I think out earlier discussions were to the effect that we could avoid service on the accused but I don't see that can avoid intimation to the defence.

• No comments

• It is for consideration whether more detail about the type of offence should be disclosed in the Child Witness Notice or whether, if the notice is submitted with the PF reference no, it can be associated with the copy indictment lodged with the clerk at the Sheriff court/Justiciary office.

• Agreed that court reference would be required on the notice and if this reference was unavailable the PF's reference would be provided instead. The group agreed the requirement for a description of the charge or charge number so that general nature of the offence could be assessed quickly. Agreed that DOB of accused would also be useful.

• Special Measures-Personally I think we need much more detailed considered options - setting out the pros and cons - before we could approach the judiciary on this. There are far more wide ranging issues about the conduct of EoC/its introduction in evidence which have to be identified and discussed.

• The group discussed the fact that generic guidance on this issue was being commission by the SE. It was agreed that this would make the whole process transparent.

Anne Keenan Law Society - comments received on request for Act Of Adjournal

Comments/issues
Action

• Paragraph 1 - In paragraph one, could the second sentence be altered to reflect the fact that there must be a significant risk that the quality of evidence to be given by the person will be diminished through fear or distress. Fine.

• Agreed

• Paragraph 6 - In the third sentence of paragraph 6 reference should perhaps also be made to the fact that the notice should contain a summary, not only of the child's views but also of the views of the child's parents, except in cases where the parent is the accused. Not actually stipulated in the Act. This sentence also goes on to indicate that the notice should set out which special "are requested". Perhaps reference should rather be made to the consideration of which special measures are thought to be the "most appropriate" for the purpose of taking the child witness's evidence.

• Group agreed that the point about the views of parents were in fact covered by the Act. .COPFS also indicated that the act of Adjournal will mirror the wording from the legislation.

• Paragraph 7 - perhaps the reference to the date of the indictment in this section could be altered to state the date when the indictment was served on the accused as this will be the relevant date in determining the commencement of proceedings under of the new section 271(3). Paragraph 7 could also be extended to include reference to the views of the child witness's parents and details as to how and when those views were sought.

• Group agreed that clarification on the date which should be used is required.

Anne Keenan Law Society - comments received on request for Act Of Adjournal (cont.)

• In terms of the new section 271A(13) the party lodging the child witness notice must, at the same time as lodging it with the court, intimate the notice to the other parties to the proceedings. It would be helpful if reference could be made to this requirement. Provision should also be made in relation to how intimation is to be effected and subsequently proved.

Comments/issues
Action

• Susan Conroy clarified that the notice will include a field requesting details about intimation of the notice and will state the requirement for the attachment of a certificate of intimation.

• Should rules also be drafted for the procedure to have a hearing under the new section 271A(9) in circumstances where the use of other special measures (i.e. non-standard special measures) will be debated?

• The group agreed that this point would not be prescribed by the rules and that an interlocutor would serve as a mechanism to have a hearing in this instance.

• Evidence on commission - In the first bullet point in this section, should the reference to CPR 24.2(a) and (b) be to CPR 24.2(2)(a) and (b)?

• Error already corrected by the Victims and Witnesses Unit

• Use of Prior Statements as Evidence in Chief - It may be helpful if this section were extended to include clarification of the procedure which will be adopted in court when leading this evidence.

• Generic guidance commissioned by SE should clarify this matter as well as the fact that the existing rules in this area would remain.

• Live television link - should the reference to the CPR Rule 21 in this section in fact be to CPR Rule 22(1).

• Agreed should be Rule 22(1)
• COPFS assured the group that all rules & notices produced will be suitable for all in these circumstances. Prompts for completion of certain fields will be clearly given within notices in cases involving children of certain ages.

• Position of the accused - As you know, the Act makes special provision to the effect that the accused can be treated as a vulnerable witness and therefore be entitled to consideration for special measures. Although it may be the case that there will be few prosecutions involving children under 16 and, more particularly, involving those under 12, I would suggest that the rules should be comprehensive in their terms and make reference to the application of the Act in these circumstances.

• The group agreed that in view of the time constraints the Lord President's Office should produce a first draft of an Act of Adjournal without a request from SEJD for this to be done.

Section

Comments/issues

Action

VWSL/9/04 and VWSL/9a/04

• Access to Justice Division made the group aware that papers VWSL/9/04 and VWSL/9a/04 were already out of date due to further comments received and items covered at the meeting. It was agreed that any further comments on these draft instructions are to be sent electronically within 1 week due to time constraints.

• The group were invited to make comments by email to Claudine Persaud by 2 November 2004.

Section

Comments/issues

Action

VWSL/10/04

• The group discussed how the commencement would fit in with the commencement of the high court reform legislation. OSSE advised that they were working on this. It was agreed that any further comments on the draft Commencement Order are to be sent electronically within 1 week due to time constraints.

• The group were invited to make comments by email by 2 nov 2004.

• Concerns were raised about the commencement plans for the act. It was explained that cases reported to the crown by the police after the 1 ^st April 2005 would be subject to the Act in order to avoid transitionals. It was agreed that use of this date may result in proof hearings as the date would not be available to the court or on the court paperwork. The fact that police or PFs do not report children's panel cases was also an issue which would have to be addressed in terms of the commencement arrangements.

• Unit to consider implications of this information.