Chapter Two Context for Visual Recording
64. This chapter describes the legal and policy contexts for visual recording in Scotland. It sets out the legislation relevant to visual recording of joint investigative interviews with children, and outlines other policy developments. These include current guidance on interviewing children and the treatment of child witnesses. The chapter also describes the position in England & Wales in some depth since visual recording is longer-established there than in Scotland. Other jurisdictions using visual recording are also briefly described.
65. A more detailed account of the background to the Scottish pilots and their current operational procedures is given in Chapter 3.
Numbers of children in the Scottish justice system
66. The Executive estimated for the explanatory memorandum to the Vulnerable Witnesses (Scotland) Bill that there are around 6,700 child witnesses cited to give evidence in criminal proceedings each year, of whom around 2,000 will go on to give their evidence. In one year, around 2,000 cases were referred to the sheriff from the children's hearing system, and evidence was heard in 600 of these (Scottish Parliamentary Corporate Body, 2003).
67. The Victims and Witnesses Unit (Scottish Executive, 2004f) has made available COPFS data on prosecution witnesses in the criminal justice system in 2003-04. The figures relate to children aged 16 and under who may have been cited more than once, inflating some numbers.
68. Of around 22,000 child witnesses in that year some 8,000 were cited ( COPFS policy is to cite child witnesses only where necessary). The number who actually gave evidence was not known. Most child witnesses cited were in summary proceedings in the sheriff court (some 6,400). In the High Court, 36 child witnesses aged under 12, and 199 aged 12 to 16 were cited. In Sheriff and Jury trials 107 witnesses aged under 12 and 415 aged 12 to 16 were cited. By procurator fiscal ( PF) area, most were in Glasgow followed by Lanarkshire, Central, Tayside, Argyll and Clyde, Lothian, Ayrshire and Grampian, so some of the busiest areas correspond to the pilot locations.
69. There are no central figures showing the number of joint investigative interviews conducted each year. The numbers would not be expected to correspond to the number of children in the justice system, since JIIs are conducted for a variety of child protection purposes and not all result in further legal proceedings (see chapters 5 and 6). At the same time, JIIs are conducted according to specific criteria, and many child witnesses cited to appear in court will not have made their statement during a joint investigative interview.
Scottish law on visually recorded evidence
70. Much of the legislation relevant to visual recordings relates to their status as evidence in legal proceedings. Visual recordings of investigative interviews are treated as hearsay evidence.
Criminal proceedings
71. In general, hearsay is not admissible as evidence in Scottish criminal courts, but the Criminal Procedure (Scotland) Act 1995 2 provides exceptions to the hearsay rule, allowing statements under section 259 from people unfit or unable to give evidence in person in a competent manner as admissible evidence. Section 262 and Schedule 8 allow documents containing the statement or evidence to be, in addition to a document in writing, any film, negative, tape, disc or other device in which one or more visual images are recorded. Section 263 allows for the cross-examination of any witness, including about their statement.
72. Section 271 of the 1995 Act allowed for special provisions in relation to children, including for their evidence to be taken on commission, in which case the evidence should be recorded by a video recorder. The same section allowed for the use of screens and live television link for children cited to give evidence, on cause shown. The provisions applied to children aged under 16 years, or under 17 years in a number of offences (set out in Schedule 1 to the Act). Section 272 allowed for evidence to be taken on commission if a witness was abroad or unable to attend through being ill or infirm. The record could be a visual recording, if a transcript was also provided.
73. The 1995 Act's provisions were extended in 1997 to certain vulnerable adult witnesses (Scottish Office, 1997), and extended still further in 2004 by the Vulnerable Witnesses (Scotland) Act 2004 ( VWA). Part 1 of the 2004 Act deals with criminal proceedings. It further amended the 1995 Act by inserting a new section 271 defining vulnerable witnesses to include all children aged under 16, who are entitled to use special measures in giving evidence in court. Five special measures are set out by the Act in section 271H, of which three are 'standard special measures' (a screen, supporter or live television link - or any in combination for children, under s271A). Taking evidence by a commissioner and giving evidence-in-chief in the form of a prior statement are the other two special measures, and these may involve the use of visual recordings.
74. Section 271I deals with the taking of evidence by a commissioner, which shall be recorded by video recorder, and may be received in evidence without the witness being required to swear to it at trial.
75. Section 271M describes giving evidence-in-chief in the form of a prior statement. Under this section, a statement lodged in evidence that was made by a vulnerable witness may be admitted as evidence-in-chief or as part of evidence-in-chief, without the witness being required to adopt or otherwise speak to the statement in giving evidence in court. The definition of a 'statement' is the existing definition in section 262 of the 1995 Act, so it can include a visual recording.
76. The court will always allow applications for a standard special measure or a combination of special measures, unless it is satisfied that this will give rise to a significant risk of prejudice to the fairness of the trial or otherwise to the interests of justice, and that the risk of such prejudice significantly outweighs any risk of prejudice to the interests of the child.
77. The party citing the child shall specify the special measure or measures it considers appropriate in a child witness notice, lodged with the court a fixed period before the trial diet or preliminary diet (see below). The other parties in the proceedings must be notified at the same time.
78. Applications for the use of the two non-standard special measures must be authorised by the court if satisfied on the basis of the notice that it is appropriate to do so. This means that the use of visual recordings is not a 'standard' special measure under the Act. It also means that they should be intimated to the court and to the defence in advance of the trial, by means of the child witness notice (child witness notices must be provided for all children cited in any case).
79. The Criminal Procedure (Amendment) (Scotland) Act 2004 (the 'Bonomy Act') came into force at the same time as the VWA. It deals with several issues that relate to using visually recorded statements in court proceedings. In his 2002 review of procedure, Lord Bonomy had stated that to fully inform the defence and therefore the client, 'the normal rule should be that intimation of all material to be used by the Crown at the trial should be given to the defence with the indictment' (Bonomy, 2002). Solicitors practising in the High Court, he considered, were much more interested in the statements given by the witnesses to the police than in Crown precognitions. There was no standard practice on statements being lodged as productions or given to the defence, largely because of their variable origins and quality. Only some were signed by the witnesses, whose expectations of their future use varied. Those of Lord Bonomy's recommendations requiring legislation were implemented in the Bonomy Act.
80. Paragraph 15(a) of the Schedule to the Bonomy Act amended section 66(4) of the 1995 Act to provide that the copy indictment served on the accused shall include (in addition to the list of witnesses already provided) a list of the productions to be put in evidence by the prosecution. Under section 68 of the 1995 Act, the accused is allowed to see the productions, according to existing law and practice. Section 23 clarified admissibility of prior statements under the 1995 Act; the prior statement shall not be inadmissible solely because it is not included in any list of productions.
81. Some time limits, concerning the duty of parties to seek agreement of evidence, to agree or appeal uncontroversial evidence and on admission of statements under s259, are changed. This is because of the new preliminary hearings introduced by Bonomy, intended to dispose of all preliminary matters in the High Court.
82. The VWA is amended by the Bonomy Act so that child witness notices (which should be used to seek use of any special measure or a prior statement as evidence-in-chief) should be lodged no later than 14 clear days before the preliminary hearing in the High Court, no later than 7 clear days before the first diet in the sheriff court, and no later than 14 clear days before the trial diet in any other case.
83. The situation regarding disclosure has since been addressed by the Privy Council and Crown practice guidance, to produce, in effect, full disclosure of Crown statements, including police statements. Judgments made by the Judicial Committee of the Privy Council, in the cases of Holland (2004) and Sinclair (2004), have had the effect of confirming that the Crown must disclose statements of witnesses who may be called at trial, including police statements (which include visual and other recordings).
Civil proceedings
84. Part 2 of the VWA extends its provisions to civil proceedings. The special measures set out by section 18 are the same as those set out for criminal proceedings, but with no provision for giving evidence-in-chief in the form of a prior statement.
85. This is not to say that visually recorded evidence cannot be used as evidence in civil proceedings, including children's hearings court proceedings, since these routinely use prior statements, hearsay being admissible. The statement can indeed 'replace' the child in court 3.
Competency testing
86. For current pilot practice, other relevant aspects of the VWA include allowing the use of expert evidence to explain a victim's behaviour in some cases (new section 275C inserted into the 1995 Act), the barring of accused persons from conducting their own defence in many cases involving child witnesses (new sections 288E and F), and its abolition of the competence test.
87. Abolishing the competence test for all witnesses (it was possible to challenge the competence of an adult witness as well as children) was a measure generally supported by respondents to the consultation on the bill. Section 24 (Part 3) of the Act states that for criminal and civil proceedings the court must not, at any time before the witness gives evidence, take any step intended to establish whether the witness understands the difference between truth and lies, or the nature of the duty of a witness to give truthful evidence.
88. It is widely believed that such a test did not ensure the truthfulness of a child witness. This argument was repeated during debates accompanying the passage of the bill. For example, the Minister Hugh Henry said that
" The bill contains many other supplementary provisions that complement the aim of ensuring that witnesses' voices are properly heard, such as the abolition of the competence test. The court should have the best evidence, and the barriers that many regard as artificial and which prevent a vulnerable person from speaking up must be removed. The voice of a vulnerable person is every bit as valid in a court as any other person's voice is. It is not right that vulnerable people should have to subject themselves to a competence test for their voice and evidence to be heard" (Justice 2 Committee Meeting no. 8 2003, 30 September 2003; col 172)
89. The abolition of the test means that it is now for the judge or jury to determine reliability and credibility of witnesses in the context of the case and the evidence led. The recent Guidance Pack for practitioners on the Act's special measures (Scottish Executive, 2006) states that
While the Act prohibits the use of the competence test in criminal and civil court proceedings, this may raise the question for practitioners about its application to other stages of proceedings, in particular the investigative interview. It is no longer expected that a child or vulnerable adult (for example an adult with a learning disability) needs to demonstrate their understanding of the need to tell the truth or the difference between telling the truth and telling a lie. However, the court will still have to make a judgment of the witness's truthfulness and reliability, therefore any interview should still clarify, in age appropriate ways, the witness's level of understanding. This exploration will assist the court in determining issues of credibility and reliability.
The guidance on "Interviewing Child Witnesses in Scotland", paragraphs 66-71 will be reconsidered, to take account of the change in legislation. (Scottish Executive, 2006; chapter 11)
90. This has not yet been done, and this research has shown ( chapter 4) that the situation has resulted in current confusions about whether investigative interviewers (not just in the pilots but generally) should still be testing a child's understanding of truth and lies at all, and to what degree if so.
91. The VWA came into force on 1 April 2005 in phased stages of implementation, beginning with the provisions for child witnesses in solemn cases and in children's hearings court proceedings.
Scottish policy on interviewing children
92. Policy and research on protecting child witnesses have been developing for over two decades in Scotland. In 1986 the Lord Advocate referred the law governing children's evidence to the Scottish Law Commission ( SLC), resulting in its report The Evidence of Children and Other Potentially Vulnerable Witnesses ( SLC, 1990). In the same year research, believed to be the first of its type in the UK, was commissioned into sources of stress for young witnesses in criminal proceedings (Flin et al, 1988; 1993).
93. In 1992 Lord Clyde published his report of the public inquiry into multi-agency child protection that followed the removal of children from Orkney in 1991 (Clyde, 1992). This addressed the ways in which agencies worked together, and the manner in which interviews were carried out with children. Lord Clyde's report also influenced the changes introduced to child care law in Scotland by the Children (Scotland) Act 1995. When this Act sought to implement the principles of the UN Convention on the Rights of the Child ( UNCRC) in Scotland, the primacy of a child's welfare, a stricter test than that required by the UNCRC, was inserted (Marshall et al, 2002).
94. In 1998 the Scottish Office published Protecting Children: a shared responsibility which provided guidance on inter-agency co-operation (Scottish Office, 1998). For example, it stated that all referrals of child sexual abuse should be considered for joint investigation, and that inter-agency training should take place.
95. Both the police and local authority social work departments have statutory duties to investigate allegations of abuse, and current policy promotes joint investigation by police, social workers and others in cases involving children. The Protecting Children and Young People: Framework for Standards (Scottish Executive, 2004a) is the most recent relevant policy statement and sets out 8 standards for professional practice. Standard 2(7) expects professionals to plan enquiries or investigations jointly, ensuring that
- they gather the best evidence on which to make decisions and to support any subsequent legal proceedings; and
- that the plans are sufficiently comprehensive and robust so that each child is not unnecessarily subjected to repeat enquiries, interviews, or medical examinations.
96. In November 1998 the Scottish Office issued the consultation paper Towards a Just Conclusion, on vulnerable and intimidated witnesses in Scottish criminal and civil cases (Scottish Office, 1998). It outlined the ways in which certain witnesses could be spared a personal court appearance, including taking video recorded evidence on commission. But by then, that procedure had not been used by children or vulnerable adult witnesses as defined in the legislation. No children or vulnerable adult witnesses had given evidence to a commissioner.
Research evidence
97. At the same time an increasing body of research was available to inform policy. An evaluation of the use of the live television link for child witnesses in Scottish trials was undertaken (Murray, 1995). The great majority of children interviewed during this evaluation were relieved to have been able to testify using TV links; children and their parents wanted fewer professional interviews with the child, as well as greater support and fewer delays. Giving evidence, TV users were significantly less likely to answer in detail and, during cross-examination, were significantly less resistant to leading questions on peripheral matters. But when the prosecutor focused on the main actions of the accused the TV users were significantly more likely to answer than non-users. The research recommended that because of the limited use of the live TV link, alternative options such as video recording of the child's prior statement should be the subject of further consideration.
98. The Lord Advocate's Working Group on Child Witness Support was established in January 1995. It was supported over three years by research (Plotnikoff & Woolfson, 2001), which included a study of five pilots of the proposed child witness support structure.
99. Plotnikoff and Woolfson (2001) found inconsistencies in approach to child witnesses across Scotland, and that lack of confidence in investigative interviews led to multiple interviews. This was undesirable both because of the stress caused to the child and the effects on the quality of testimony. Use of multiple interviews was common, despite Lord Clyde's report of the Orkney Inquiry, which had envisaged more co-ordination to reduce the number of times child witnesses were interviewed. Police and procurators fiscal were agreed that repetitive interviews should be reduced, and a Strathclyde Police report of 1995 had stated that ideally children should be interviewed only once. Fiscals believed this agenda could be progressed by better quality police interviews, and their visual recording to capture nuances and the child's non-verbal communication.
100. Plotnikoff and Woolfson's findings also challenged some of the views held by professionals, in particular that the system would make adequate provision for the needs of most child witnesses so that only a few would require special measures. Significant effort had been invested in some parts of Scotland in joint training of police officers and social workers in investigative interviewing of young witnesses. But since such interviews were not recorded, some procurators fiscal took the view that it was almost always necessary to fully precognosce young witnesses in solemn cases.
101. Other research has highlighted the potentially harmful effects on children and their evidence from multiple interviews (reviewed in for example Silovsky (2000)). The need to minimise numbers of interviews now seems a widely accepted view held not only among child specialists but by all those interviewed for this research.
102. The Lord Advocate's working group also noted issues surrounding precognition which were also highlighted by a small scale research study (Christie & Moody, 1999). This found little formal control or protection for witnesses during precognition processes, and that it was quite common for witnesses to be precognosced two or more times by different agents, some of whom had had very little formal training or vetting.
Implementing the Lord Advocate's recommendations
103. The Working Group did not consider visual recording because this was being considered elsewhere, but the draft guidance that resulted, When Children Speak, was never published (Scottish Office, 1995).
104. The Lord Advocate's Working Group's 16 recommendations were published in 2001 4. Recommendation 7 dealt with improving the quality of investigative interviews and the sharing of information to reduce the number of times a child is questioned. To improve the conduct of interviews and precognitions with young witnesses, recommendation 7 said:
'The Scottish Office should invite all relevant organisations to co-operate in the development of guidance on the conduct and recording of investigative interviews of children by police officers and social workers, on the basis that implementation of standard guidance would improve the quality and consistency of interviews and assist in reducing the need for others to re-interview the child about the circumstances of the alleged offence' (Plotnikoff & Woolfson, 2001; annex B)
105. Recommendation 7 also covered consistent disclosure of police child witness statements, SCRA and Law Society policy, and defence agent practice on precognitions 5. Although the Working Group was not tasked to consider visual recording, it noted that several practitioners, including fiscals, were calling for this. The interviews and precognition pilot considered by the Working Group developed a statement of 15 principles to underpin operation. These principles include considerations about information flow in multi-agency working, and state that
- those involved in the criminal or child protection investigation should address the information requirements of others in the system;
- any person wishing to re-interview a child should be clear about their purposes and whether the information sought is otherwise available;
- it is in the interests of all agencies and professionals that the child's evidence be available; and
- there should be an overview of the number and nature of interviews sought from a child witness and a person or persons should be specifically responsible for this overview.
106. Current Scottish Executive policy responsibility for dealing with support for child witnesses is located in the Justice Department's Vulnerable Witness Unit ( VWU).
107. The main role of the SEVWU child witness branch to date has been to co-ordinate the Lord Advocate's recommendations. In 2001, a Child Witness Implementation Group was established to implement the working group recommendations, which included developing national guidance on interviewing children. The Executive issued a consultation document on support for child witnesses in 2002, including several draft national guidance documents on practical support for child and young witnesses, including investigative interviewing. Also in 2002, the Executive consulted on possible changes to the law of evidence including the introduction of special measures for vulnerable witnesses, with responses published at the end of the year (Fitzpatrick, 2002) and including views on the range of special measures proposed.
108. Responses on video recording evidence on commission showed that a range of positive advantages for the witness were generally recognised. Concerns raised related to the ability to cross-examine and put new evidence to the witness; the right of the accused to listen to the recording or have a transcript; the shorter time scale between service of indictment and trial compromising the defence case; technical issues; the ability of a jury to assess the witness; and the fact that with a commissioner and two lawyers present, the child might still feel intimidated. Improvements suggested included more guidelines and training for the legal profession, taking account of the English experience, and allowing the child more space and time to give views, perhaps using pictures/stories rather than routine questions from commissioners.
109. Responses on prior recorded statements included that they should be used for all child witnesses. Suggestions to promote this included providing detailed guidance to ensure that evidence was admissible and the need to take these statements as soon as possible after the event by appropriate trained persons. Concerns raised were very similar to those about the use of evidence on commission, including cross examination. The Scottish Law Agents Society felt that the method was 'fraught with difficulties' and that evidence should be given in person. The Faculty of Advocates considered that prior recorded statements were incompatible with the accused's right to a fair trial under Article 6 of the European Convention on Human Rights (but this view has not been upheld by the courts elsewhere; see the summary at the end of this chapter).
110. A related question on whether separate pre-trial video-recorded cross examinations would be a positive development drew 19 supportive, 5 negative and 4 undecided responses. Similar proposed provisions have since been modified in England and Wales (see below). One consultee noted that it was hard to outline disadvantages because of a lack of empirical evidence available on the use of video recorded evidence. Strict controls over access to the videos were seen as necessary.
111. Visual recording of investigative interviews with children is a longstanding issue for the VWU's child witness branch, because of how it might support child witnesses. Child witness policy has two main aims, described by the VWU as ' reducing stress is half of it, giving best evidence is the other half'.
Scottish guidance
112. The Supporting Child Witnesses Guidance Pack (Scottish Executive, undated) was launched in September 2003, and progress on the Lord Advocate's working group's recommendations was published in May 2004 (Scottish Executive, 2004c). The underlying premises of the guidance are the child's right to protection from harm, abuse and exploitation, and the treatment of children as individuals with the right to be involved in decisions that affect their future.
113. The Support Pack includes several sets of guidance, each targeting a particular aspect of the system dealing with child witnesses. All are aimed at practitioners although there are also supporting booklets aimed at child witnesses and their parents. Notably the first guidance issued in the support pack was the interviewing guidance (Scottish Executive, 2003a).
114. The Guidance on the Questioning of Children in Court (Scottish Executive, 2003b) states that children should only be called as witnesses where this is necessary in the interests of justice. Where this is the case questioning should cause the minimum of anxiety and distress for the child. It sets out the duties of the court and practitioners in ensuring this and also highlights the powers of the court in enforcing appropriate questioning of child witnesses.
115. The Guidance on information about child, young and vulnerable adult witnesses to inform decision-making in the legal process (Scottish Executive, 2005) advises police officers on best practice standards in recording information about young witnesses through the Standard Prosecution Report ( SPR). The guidance provides a framework for the capture of vital preliminary information to ensure that relevant information for case management is available to decision makers early in the process. The framework is based on information already collected on young offenders or accused persons aged under 16.
116. The guidance on information puts the police at the centre of information provision, although it stresses that it is not the role of police officers to assess vulnerability or the need for special measures; rather, it is their role to provide information (where available) for such assessments to be made. The main mechanism for this is through the SPR prepared by the police for referral to the procurator fiscal and children's reporter. Much of the information for the SPR will come from the investigative interview process, so records have to be held on child witnesses who are interviewed.
117. In March 2006 Special Measures for Vulnerable Adult and Child Witnesses - A Guidance Pack was published to outline, for practitioners, the special measures available under the Act (Scottish Executive, 2006).
118. To date, none of the guidance deals with the visual recording of investigative interviews. Nevertheless, the interviewing guidance governs the use of joint investigative interviewing in practice, setting out a framework for the interview process as well as its structure, and requiring formal mechanisms for partnership working. Its provisions relating to day to day interviewing practice are considered in chapter 4.
119. The interviewing guidance also recommended that better methods than taking verbatim notes to record interviews were considered for the future. The Executive told this evaluation that the main response to the draft guidance on investigative interviews was to question why visual recording was not being recommended. The Executive felt unable to take this course at the time however; in September 2003 the pilots were just about to start operation and the Vulnerable Witness Bill was in progress. While visual recording was being used increasingly routinely in England and Wales, evaluation evidence of policy and practice was still in early stages but showing some signs that visual recording was not entirely unproblematic.
120. Since that time, the Scottish Executive has published the Social Work Inspection Agency's report of the inspection into the care and protection of children in Eilean Siar (Scottish Executive, 2005). This report was concerned that investigative interviews with some of the children involved were not recorded. It made several recommendations regarding interviewing and training, including that the results of the visual recording pilot schemes were considered with a view to drawing up guidance on extending this throughout Scotland.
Legislation, practice and evaluation in England and Wales
121. Legislative measures and practice in England and Wales have proceeded more rapidly than in Scotland, with the result that these countries have developed several years' practical experience of the use of video recorded evidence, and have evaluated its use. Policy developed from the late 1980s following the Cleveland inquiry (Department of Health, 1988), into the incidents where large numbers of children had been removed from their homes after suspected sexual abuse (predating the Orkney inquiry (Clyde, 1992)). An advisory group examined the use of video-recorded interviews conducted by police or social workers in criminal cases, and recommended that such interviews be substituted as a child's evidence-in-chief at trial, possibly with video-recorded pre-trial examination (Pigot, 1989 cited in Davies & Westcott, 1999, and Cooper, 2005).
122. The Criminal Justice Act 1991 allowed video recorded interviews with child witnesses to be substituted in certain cases, and at the judge's discretion, for the child giving evidence-in-chief at trial. The provisions were limited to children under 17 appearing as witnesses in cases of sexual assault and under 14 in cases of physical violence, and the ability to cross-examine the child was retained. The Home Office and Department of Health issued a Memorandum of Good Practice in 1992 (Home Office in conjunction with Department of Health, 1992).
123. Research on the use of the 1992 Memorandum of Good Practice has been reviewed by Davies and Westcott (1999). Some early work indicated initially disappointing levels of use of visual recordings in court proceedings (later work, described next, showed increasing use at trial). Several studies had been critical of aspects of the Memorandum, but most of these related to the conduct of the interview rather than to visual recording. The Memorandum has since been superseded by Achieving Best Evidence (Home Office et al 2001, see below).
124. The new legal provisions were evaluated following implementation. Davies et al (1995) found strong support for the use of video interviews among child protection workers (although lawyers were more ambivalent) and that it increased the accuracy and completeness of the evidence. Of some 1,200 trials in England and Wales involving child witnesses between October 1992 and June 1994, over half - 640 - were accompanied by applications to show a videotaped interview. 470 of these were granted while others were either refused or overtaken by a guilty plea. In 202 cases it was possible to show that the tape had been played in court, and these cases were characterised by involving male defendants, sexual offences, and female witnesses with an average age of 12. There was no significant difference between the proportion of guilty verdicts delivered for videotaped evidence as opposed to live evidence-in-chief.
125. The evaluation examined the attitudes of professionals towards use of visual recordings in court. While reduced stress on child witnesses was universally acknowledged, barristers were the least supportive, believing that false allegations would go undetected. Most children questioned by the study welcomed the chance to make a tape although a few would have preferred to give their evidence live at trial. Observers of trials found children interviewed on tape less anxious and the interviewers more supportive than those who were examined/cross-examined live at court, via a live TV link. The evaluation also highlighted issues surrounding the recordings, including quality of the interview process, and the timing of interviews. It also noted that costs of transcription should not be underestimated.
126. In 1998 the Home Office published the Speaking Up for Justice report, the result of a multi-disciplinary group set up to improve protection for vulnerable or intimidated witnesses ( VIWs). It made 78 recommendations relating to the treatment of such witnesses, and its legislative requirements were implemented by the Youth Justice and Criminal Evidence Act 1999 ( YJCE Act).
127. The YJCE Act set out a range of special measures to assist vulnerable or intimidated witnesses including children (under the age of 17) to give their best evidence in criminal proceedings. Under the 'primary rule', the court starts from the assumption that the child will normally benefit from the admission of video as evidence-in-chief, unless this is against the interests of justice. The rest of the evidence is normally given via CCTV link. Some child witnesses (defined in section 21, giving evidence in sexual offence, violence and abuse cases) were given 'special protection' over and above the primary rule. Under s21 it was virtually automatic that in such cases a special measures direction would be granted for a video recording to be admitted as evidence-in-chief (subject to interests of justice tests, normally considered at the preliminary hearing) and for any other evidence to be given via CCTV link.
128. As well as video-recorded evidence-in-chief (section 27), the Act provided (section 28) that children could pre-record their cross-examination. However, this section has not been brought into force. In a Written Statement in 2004 (Hansard, 21 July 2004), the Parliamentary Under-Secretary of State for the Home Department Paul Goggins stated that sections of the Act would be revisited, following the outcome of research and pilots.
129. The Statement said that there had been two main reasons for undertaking visually recorded pre-trial cross-examination. One was capturing all the witness's evidence early in the pre-trial process, but new rules on disclosure effectively meant that by the time both counsel were ready to undertake visually recorded pre-trial cross-examination, they would be ready to go ahead with the trial itself.
130. The second reason, keeping the witness out of court altogether, was still valid. But rather than introducing visually recorded pre-trial cross-examination many months after having visually recorded evidence-in-chief, the government considered it would be 'far more sensible' for the child to appear at an informal hearing. At this, both the child's evidence-in-chief (supplemented, where there was one, by an earlier video recorded interview) and the cross-examination would be recorded on video for subsequent transmission to the court. This was the original recommendation in the report of the advisory group on video evidence in 1989, chaired by Judge Thomas Pigot QC (Pigot, 1989).
131. The Written Statement also announced that section 21 of the 1999 Act would be reviewed. It had the effect of removing choice for all witnesses under 17 who were witnesses in cases of sex or violence by having certain special measures (such as visually recorded evidence-in-chief or live TV links) applied to them, whether they wished for them or not.
132. The 'near-mandatory' section 21 provisions on video evidence and live link under the YJCE Act have also been considered by the Lords of Appeal. Their opinions noted that making the special measures standard for the trial of certain kinds of offences has the advantage of allowing these potential witnesses and their parents to be reassured, at an early stage, that they will be able to give their evidence in this way. The Lords considered the implications in relation to cross-examination, use by child defendants, the right of the accused to see the witness, and the discretion of the court, and rejected an appeal against the Act's provisions (Regina v Camberwell Green Youth Court and others, 2003). They also noted that the defence may be more than willing for an unsatisfactory interview to be admitted, and such issues are considered further in this report in chapters 4-6.
133. Guidance was issued in 2001 on the YJCE Act, as passed. Achieving Best Evidence (Home Office et al, 2001) ( ABE) replaced the earlier 1992 Memorandum of Good Practice, and draws together guidance not only on using the Act to help witnesses throughout the criminal justice process, but on interviewing vulnerable witnesses, including guidance to assist those conducting video-recorded interviews. Its provisions relating to visual recording have been used to inform the draft guidance accompanying this report. Notable differences to Scottish practice include the ability to refresh the witness by showing them the video on the day before trial.
134. On when to record, ABE proposes this is done for all children giving evidence in cases involving sexual offences, violence, abduction and neglect; using the Act's definitions of child witnesses needing special protection, under section 21. For all other cases, the decision to visually record is to be taken at the planning stage, based on various factors listed (nature of the offence, the child's needs etc). In other words, there are no hard and fast rules, but visual recording is likely if there has been an allegation of abuse.
135. Since the YJCE Act, there have been two major evaluations of the use of its special measures, including video recorded evidence. Hamlyn et al (2004) analysed two surveys undertaken at courts by a research company with over 500 VIWs each time. Across two phases (November 2000 - February 2001 to April - June 2003), the use of video-recorded evidence-in-chief increased from 30% to 42% for all child witnesses, including those who did not go on to give evidence.
136. In phase 2, of 111 witnesses who gave video-recorded evidence-in-chief, 91% found it helpful for reasons including not having to appear in court (43%), and being easier to say things (22%). Almost half of the 437 adult and child witnesses who did not have the opportunity to give evidence in this way said that they would have found this helpful if available. Three-quarters of phase 2 VIWs who had given a pre-recorded video statement also gave evidence. Of these 80 VIWs, 67 said that their video was played in court.
137. The second major evaluation looked at the experiences of criminal justice agencies. Burton et al (2006) found that the Crown Prosecution Service ( CPS) had a lack of time to view videos, which caused problems if applications to show recordings had to be made early in the process (such as in cases involving youth defendants). Surprisingly, given the presumption in their favour and the keenness of the police, ABE interviews were conducted with only around a quarter of children sampled.
138. A number of possible reasons were suggested for this. These included the perceived need to admit a video as evidence-in-chief once made, even if the child's performance or technical quality was poor; possible structural problems relating to reconciling investigative and evidential needs and questions; shortage of trained interviewers; poor technical quality and editing problems (which might be helped by using DVD); delays in making some videos which removed the benefits of a more immediate account; going into defence cross-examination 'cold'; long delays between the video and cross-examination increasing chances to undermine credibility by exposing inconsistencies due to failures of recall; and the length of time needed to view and then be cross examined, meaning that children had to attend on two days.
139. Overall then, prosecutors, judges and the Witness Service rated video recorded evidence less highly than did the police. However, most respondents from all agencies rated it as either 'very effective' or 'effective'. No prosecutors claimed that it led to a lower conviction rate but some judicial respondents felt that a conviction was less likely. The authors cited the work of Davies (1999) on the impact of televised testimony when considering this. They noted Davies's conclusions that despite a preference for live evidence, jurors do not appear to allow this to influence their decision-making, and that this is backed up by other studies showing that the medium of presentation had no overall impact on the proportion of guilty verdicts.
140. Burton et al noted that
' A striking feature of this discussion is that most CJS participants, even judges, appear to believe that it is almost obligatory to use video recorded statements, no matter how disadvantageous to the witness, when it is not clear from the (admittedly complicated) legislation that this is so.' (Burton et al, 2006: p.54)
141. They also said that one reason that more ABE interviews were not being conducted was that the Act placed 'severe restrictions' on when a live examination could take place if a child had been video interviewed, no matter how poor that interview might be.
142. One further piece of work in England and Wales has evaluated the use of video-recorded evidence. 39 out of 50 child witnesses interviewed by Plotnikoff & Woolfson (2004) had made a videotaped statement that was used as their evidence-in-chief.
143. Witnesses in England and Wales are entitled to be shown a copy of their statements before being called to give evidence. Fourteen of the children had seen their video before trial and all had found this useful, and 9 who did not see it until trial thought it would have helped to see it earlier. Child witnesses who viewed their tapes found it helpful in reminding them of the details after a long time period, but some also found it distressing to watch again. Some of those who were able to watch it only on the day of the trial found this distracting.
144. Sound quality was an issue for two of the children and delays were introduced through juries needing a transcript because of tapes' poor sound quality. Watching the video could also be tiring, with evidence-in-chief taking on average just under an hour, including watching the video. Doing this and then immediately being cross-examined tired some child witnesses.
International policy on visual recording of child witness interviews
145. A review of provisions in other jurisdictions on vulnerable and intimidated witnesses for the Scottish Executive (Reid Howie Associates, 2002) found that the literature on good practice in undertaking investigative interviews with children is extensive. On visual recording specifically, a number of countries or territories (the USA, Canada, New Zealand, Western Australia and Hong Kong) allow video evidence to be admitted. There are variations concerning, for instance, eligibility, the need to adopt the statement, the videoing of cross examinations and the need for competence tests. Some but not all states in the USA allow videotaped children's evidence to be admitted in court (Silovsky, 2000).
146. The body of evidence examined by Reid-Howie Associates showed that increasingly, professionals outside the criminal justice system were being used in cases involving young children, most often in sexual or physical abuse cases, to gather evidence and to conduct videotaped interviews. In the USA there are examples of pilots with child interview specialists, and of multi-disciplinary teams, which the US Department of Justice suggests can reduce the number of interviews and enhance the quality of evidence.
147. Indeed, in Sweden, where video-recorded interviews are also admissible in court, Malmö police department's child interview suite opened in June 2004 6. It allows for forensic specialists to attend the interview suite and for a lawyer to pose questions to the child during an interview, via the intercom link from the adjacent viewing room (Torshall, 2006).
148. Reid-Howie found that in several cases guidance has contributed to an increasing use of videotapes although there appears to be variation in their being admitted; in some cases they are used to introduce a child's evidence. There seems universal agreement that such measures can minimise trauma for children, especially through using non-legal professionals to conduct interviews. However, the authors noted emergent legal issues in a range of jurisdictions ( e.g.USA and New Zealand) on the admissibility of such information as evidence, particularly the extent to which defence solicitors are able to suggest that, for example, questions have been leading. Several studies have suggested links (although not a causal relationship) between using video evidence and the possibility of more guilty pleas being entered.
149. Some studies have identified mixed views on video evidence, including from victim-witness workers, since children often still have to attend court to adopt the statement and be cross-examined. Important detail may be lost without either re-examination or the admission of hearsay evidence (for example, from those present at the pre-trial hearing to whom the child may make remarks prior to, or after the taping session). Silovksy (2000) has raised similar concerns (see chapter 4). There are concerns about the balances to be struck between investigation and evidence-gathering in the interview. Generally however, a number of studies summarising the evidence find it weighs in favour of videotaped evidence, even when cross-examination at trial is retained.
Training
150. The current research has shown that much recent work associated with visual recording has focused on training for interviewers in the skills needed to undertake interviews with children. This includes developing a competency approach to ensure consistently high standards throughout the interview process, covering preparation, briefing and debriefing as well as the conduct of the interview. Identification of skills and competencies is based on the body of research concerned with child psychology and the implications of children's use of language (verbal and non-verbal) in communication. Identifying practitioner competencies is difficult, and discussions across jurisdictions have been facilitated to assist in developing a suitable framework for improving training.
151. Work on training has been carried out most extensively in the United States, and in particular in Florida. The American Professional Society on the Abuse of Children ( APSAC) course run for interviewers at Dundee University has been an influential source of knowledge for Scottish practitioners, and the University's faculty is involved in developing an advanced course for experienced interviewers. The drive towards a competency framework is recognition that courses are focused on knowledge transfer and some interview practice and review, rather than a set of skills or competencies. As competency frameworks begin to emerge from US literature and practice, Scotland is involved in an international group, including Ireland, Sweden and Iceland to observe developments and develop a competency framework to be used by each jurisdiction as a training standard. Further information on training is given in chapter 7.
Allowing children choice
152. Chisholm (2000) found that most research on children's involvement in matters concerning them has focused on the disadvantages to child participation, and that not nearly enough work has been done on how they can usefully participate in decisions made about them. More recently Cashmore (2003) has investigated the views of children involved in court proceedings. Much of the research focuses on children's participation in family law, largely divorce and contact cases, and children's key concerns about court proceedings are
- anxieties about confidentiality;
- lack of explanations about the process;
- lack of good communication skills of interviewers;
- not being listened to;
- unease about recording of what they have to say;
- lack of access to the decision maker; and
- parents assuming they know best.
153. Cashmore also found a lack of feedback from children on outcomes, and a general lack of transparency in the system about what the outcomes are, and how they are viewed by children and families.
154. A lack of information was also highlighted by some of the 50 child witnesses interviewed by Plotnikoff & Woolfson (2004). While 13 young witnesses reported someone keeping in touch with them about case progress during the pre-trial process, 13 reported no information. As the authors noted, the UN Convention on the Rights of the Child says that children have the right to participate in decision making process that affect them. Recognition of witness choice would have given the children in that study more say over the type and combination of special measures used, whereas in England and Wales the legislation ( YJCE Act) has, as discussed above, had the effect of limiting witness choice.
Summary and implications for national roll out
155. In Scotland, an incremental approach to policy development has been leading towards providing greater support for child witnesses and towards the visual recording of joint investigative interviews with child witnesses. Several key sources suggest that this would be an appropriate way forward. Research encapsulated in the Lord Advocate's Working Group report has shown that repeated interviews may be harmful, and that recollection is best closest to first disclosure or expression of concerns. The current Scottish interviewing guidance recommended that a better method of recording than making verbatim written notes should be considered.
156. Visual recording has been adopted elsewhere, including in England and Wales. The evaluations so far available suggest increasing uptake of the use of recordings in court following introduction of the measures, and some confusions regarding admissibility in court and some adverse effect on witness choice, both due to the details of the legislation, but not overwhelming difficulties.
157. The concerns regarding the accused's right to a fair trial under Article 6 raised by the Faculty of Advocates in the consultation on the VWA have not to date been the basis of a successful objection in England and Wales. Similar concerns have been rejected in at least one case by the European Court of Human Rights at Strasbourg (Judgement in the case of S.N. v Sweden, 2 July 2002). In that case a recording was shown at trial without the child being available for cross-examination, but the defendant's lawyers had been given the chance to put questions to the child during a recorded investigative interview.
158. The pilots were developed within this wider and international context, and also reflect interviewer concerns about the status quo. Since the pilots started, there have been further calls for visual recording of JIIs to be considered and informed by the results of the pilots, from the Eilean Siar report. Also since the pilots began, the legislative framework has been altered by the 2004 VWA to allow the admission of prior statements more easily as evidence-in-chief.
159. The time seems ripe, if not overdue, to plan national rollout of the visual recording of joint investigative interviews with children.