Scottish Government

Chapter Six Recordings as Evidence

408. This chapter focuses on the potential for recordings to be led as evidence-in-chief in court, and played in children's hearings court proceedings. Several cases in which visual records have been available have proceeded to trial, but at the time of writing, the evaluation understood that only one case (from Dundee) had shown 2 recordings as evidence in court proceedings, and only 3 recordings (all from Glasgow) had been shown by the reporter in 2 children's hearings court proceedings. Several more had been viewed by defence agents but as the last chapter discussed, no clear effect on pleas could be identified by interviewees. Nevertheless the recordings' potential use as evidence has attracted some debate, and the evaluation identified a number of issues arising, which this chapter discusses.

Recordings used as evidence in court

409. The use of visual recordings in the courtroom, largely because of the need for the child to be cross-examined on the evidence contained, was the only area where the research did not find wholehearted support for visual recordings as a tool in the justice system. Because the numbers involved were so small, the researchers were able to discuss the cases where recordings have been played in court (or almost played in court) in detail with professionals who had been involved both for the defence and prosecution, and in children's hearings proceedings.

410. Recordings have featured as evidence-in-chief in only one court case, using DVD evidence from Dundee in a sheriff and jury trial in Dundee sheriff court. A Dundee DVD was also included as a production but not ultimately played in a High Court case. The descriptions of the cases given below are based on interviews with practitioners involved in them, supplemented by minutes of meetings of the NSG, which discussed the cases in some detail ³⁰.

411. HMA v Forbes was heard in Dundee sheriff court in a sheriff and jury trial. This case involved one defendant and alleged sexual offences against four teenage females. In advance of trial, one of the witnesses attempted suicide and the community psychiatric nurse testified that the witness would not be able to come to court to give her evidence. An application was made to show the visual recording of the investigative interview with the witness as a prior statement under section 259 of the Criminal Procedure (Scotland) Act 1995 Act. The statement was admitted, but was 'littered' with hearsay concerning offences not being prosecuted or pursued. One fiscal interviewed pointed out that this was not because of poor quality of questioning but the opposite; a surfeit of information being volunteered (in other words, a successful free narrative interview phase).

412. Therefore part of the recording was played to the sheriff and jury, showing the rapport building stage only, to allow the jury to identify with the child as a person. Then the interviewer and fiscal, both of whom this research interviewed, read the statement from an edited transcript. Another witness in the case gave evidence, and the rapport stage of the investigative interview with her was also shown. This recording had been heavily edited after agreement with the defence, so much so that the interview no longer appeared to flow. However, the fiscal involved felt that even after editing, seeing the child on screen "hit the jury very hard". The prosecution led evidence to clarify the charge being made, and the jury watched the child giving evidence by TV link.

413. This case was heard before the new disclosure rules, and although the defence had requested copies of the recordings, they were allowed access only. Crown counsel instructed the fiscal to provide the defence with transcripts of the interviews, which was done but the defence went on to lodge a specification of documents at the High Court, seeking disclosure of the DVDs. When the Crown opposed the motion for recovery the defence did not insist on the motion, and ultimately non-contentious editing was agreed. The outcome in HMA v Forbes was a unanimous guilty verdict. Apparently in this case an expert had provided a report on the interview but this was not used in court.

414. HMA v Plummer was heard in the High Court and was a case where the DVD was listed as a production, to be available to be led as evidence, but ultimately not shown in court. This case involved a 6 year old child, who was considered to be very articulate. At the time discussions concerned how to show the recording so that the child could view it and the jury could see her reaction. These issues were described as "tricky" at the time. Concerns were also raised by the advocate depute in this case about the number of leading questions used by the interviewer, and technical difficulties in stopping and starting the DVD. The defence led an expert (a psychologist) who identified a number of problems with the interview, including the presence of the child's mother (the child had refused to give evidence without her mother being present), and alleged coaching of the witness by the interviewers.

415. The NSG viewed an extract from this recording and were concerned about several aspects of the questioning during the joint interview. They were also concerned about the potential for interviewers to 'inadvertently prejudice evidence in interview', highlighting the need for training and peer review. It was believed, however, that this problem stemmed from attributing a dual purpose to the interview when it is 'primarily an investigative tool', and 'not essentially in gathering evidence for court purposes'. The Group agreed that it was important that training focused on interview techniques. Training should help to clarify good practice in questioning children, and assist interviewers to defend any decisions made to use leading questions, or continue the free narrative phase of the interview for longer than usual.

416. Interviewees spoke of one other Dundee DVD in a case where a recording came close to being played in court, and might have been if the interview was of better quality. The witness was an 8 year old girl, and the alleged offence was sexual abuse by a male relative. One fiscal interviewed said that the parent's understanding was that visual recording of the investigative interview meant that the child would undergo no further interviews, and would also not have to give evidence in court. The fiscal dealing with the case therefore experienced problems in attempting to precognosce the child, since the parent (following the perceived assurance) expected no further interviews. In this case the fiscal also advised the witness that they were not obliged to provide a precognition to the defence, and instead offered the defence the opportunity to view the recording.

417. Of course any remarks made by interviewers to parents or carers at a time of great stress can be misconstrued. Attempting to verbally draw distinctions between different types of later interviews, only some of which might not need to take place, is also likely to lead to confusion. Therefore the accompanying draft guidance recommends that a leaflet is given to parents or carers (draft content is provided) and talked through before the interview, to avoid raising false expectations. The parent or carer would then have this to re-read later.

418. Ultimately the DVD was not played in court on the advocate depute's decision, and the child briefly gave evidence in court via TV link. A plea was accepted, to a less serious charge than the Crown was seeking (which the parent had insisted on). There was a possibility that the defence could have cited the recording as evidence; but they were content with the plea to the reduced charge, which they had already offered at an earlier stage in the case.

419. One practitioner interviewed for the research argued that the recording was crucial in this case, in that it provided a full record of how the evidence was obtained and the nature of the questioning. Recordings that have been used in court or that have been criticised in retrospect are used in the pilots in training as examples, and so they are contributing to developing good practice.

420. Police interviewers in Glasgow mentioned 2 other cases where a video recording was available. In one of these cases, the accused pled guilty and the child did not have to give evidence. One fiscal confirmed that a further case in which there was a video recording available was due to start in Glasgow sheriff court in March 2006.

Practitioner views on recordings as evidence

421. Some social workers expressed doubts about the value of recordings in court, wondering "what [was] the point" if the children had to appear in court anyway. One view expressed was that it was best if the case didn't proceed to court at all, since this was not the best outcome from a child welfare point of view. (The need for the child to be present for cross-examination is less of an issue in children's hearing court proceedings.) The VWA had only recently come into force for some cases involving children in April 2004, and its provisions were not well understood by some interviewers. However, some social workers said that playing the recording in court and then making the child watch it and be cross examined was "very wrong", even where this was done with the assistance of special measures. Police officer interviewees had fewer such concerns.

422. Other interviewees whose roles were more focused on the court, including some sheriffs, defence agents and Witness Service personnel, said that children were often well capable of giving evidence in person, sometimes more so than adults, and moreover very often made very good witnesses. It was noted that younger children seemed less self-conscious than teenagers, and made better witnesses than older children. Yet some interviewees believed that this might be because younger children had little awareness of the severity of the alleged offences they were describing. Some panel members pointed out that young children express anxiety in different ways to older children, and that such differences might not be discernible to non-specialists.

423. There was some concern about the use of special measures under the Act, with several interviewees suggesting that some 15 year olds did not need to use special measures anyway in giving evidence, since they were "practically adults" and were perfectly capable of giving evidence in person. Some interviewees had come across child witnesses who were making use of the criminal justice system generally to raise false allegations. The general message from such interviewees was that despite entitlement to use special measures in giving their evidence, children are individuals and assumptions should not be made regarding their ability or willingness to give evidence in person. Some such interviewees considered that current policy and legislation had gone too far in identifying all children aged under 16 as vulnerable witnesses.

424. On the other hand, 35 of the 50 children who spoke to Plotnikoff & Woolfson (2004) described themselves as 'very nervous or scared' in the pre-trial period. Twenty, including some 14 and 15 year olds, had experienced symptoms including sleeplessness, bedwetting and self-harming. Difficulty in understanding questions in court covered all age groups. Seven out of 24 witnesses aged 13-15, and 5 out of 6 witnesses aged 16, found some of the questioning in court confusing. Sixteen reported helpful intervention from the bench during questioning, some because of clarity and pace of questions, and this was appreciated when it happened.

425. Indeed some fiscals, defence agents and sheriffs interviewed for this work observed that court was no place for children, although such professionals often prefaced their remarks by identifying these as personal rather than professional views. For them, the new provisions on the treatment of child witnesses in court proceedings were moving in the right direction.

426. Some interviewees echoed the social work interviewers' view that if the point of recording interviews was "not to put the child through it again" then this was negated by "making a child go to court". Yet these interviewees were perhaps most strongly of all in favour of making and using recordings otherwise, pointing out that the recordings reduced defence precognitions, improved the quality of prosecution precognitions, and (crucially) provided the best record of the interview.

427. While recognising that special measures could be used if the child had to give evidence or be cross examined, other interviewees thought that either current special measures were inadequate, or that it was better for the child to give evidence in court, perhaps using special measures, rather than relying on (especially imperfect) visual recordings of investigative interviews.

Editing

428. Successful, free-flowing JIIs will generally lead to inclusion of hearsay and inadmissible evidence. Fiscals reported the difficulty of sometimes having to tell hard-pressed interviewers that they just could not use some of the evidence presented in a visual recording. They also had experience of using edited recordings, and said that while discontinuities were introduced, the effect on the jury was still powerful. They felt that it would however be important to show some initial rapport building stages or for the judge or sheriff to brief the jury that editing was normal (much as they may do when introducing edited transcripts) to preserve witness credibility.

429. Defence agents thought that since the inclusion of inadmissible statements is almost inevitable, editing was similarly an inevitable part of the process, much as it is with current typed statements. Previously there have been problems with "whizzing over" parts of recordings, so the possibility of editing DVDs was considered useful. This would be feasible so long as the statement was not too littered with hearsay. It was suggested that joint protocols with the Crown could be developed to examine the recordings together with a view to editing, given the goodwill that exists towards protecting the child. All defence agents, naturally, would need to first view an unedited version in full.

430. Some reporters took the opposite view, in thinking that editing would not be easy and that recordings should be played in their entirety (the length of those they had seen were under 30 minutes). This may indeed be the most appropriate course of action in many civil proceedings where, unlike a criminal trial, issues of admissibility do not arise. Another reason for not editing recordings for use in the children's hearings system, apart from having little need given the different rules of evidence, is the shorter time scale in which children's hearings proofs take place after the reporter is directed to make an application to court to test the grounds. The welfare and child protection concerns underpin this difference.

431. Time scale is important when recommending how, when and where editing should take place. Fiscals acknowledged that the police could edit any recordings, but this might not be possible very quickly. This would lead to the possibility of delays, which are in the interests of the defence and can give them reason to appeal, possibly having a damaging effect on child witnesses. The SCS has extremely limited capability for editing. This means that the police acquiring editing equipment along with all recording equipment purchased seems the only feasible way forward. The draft guidance recommends this course of action. It also recommends that fiscals and defence agents agree to edit only where a case is proceeding to court, and at a relatively late stage, resembling the balance to be struck with transcripts.

Why are more recordings not being used in court?

432. The research investigated why more recordings were not being used in court proceedings, and found that the reasons for this are several, and relatively straightforward:

• This is not the primary aim of the pilots or those conducting interviews. Visual recordings are produced for investigative and child protection purposes and to produce a full record (with an important by-product of improving interviewers' skills) so no-one is 'pushing' their use in court.
• There is the natural attrition of cases proceeding through the criminal justice system, with some investigations leading to no further proceedings or to primarily social work involvement. For many cases that do get reported to the fiscal, the decision is taken not to proceed further, and later pleas may be entered in cases that do proceed, all reducing the number of cases resulting in a trial.
• Children's reporters are generally only seeking to view visual recordings in children's hearings court proceedings where a case is contested or goes to proof. There may however be more scope for use by them in other contexts such as when preparing cases or deciding on the best course of action.
• The technical quality of the Glasgow recordings has been seen as too poor. Fiscals and precognoscers report having to 'rewind and rewind' recordings to understand what a child is saying. No Glasgow fiscals felt able to recommend use in court because of these technical problems.
• The quality of interviewer performance is perceived by many practitioners as patchy, with some rare examples of unjustified leading of the child and inappropriate questioning.
• Even with high quality interviews, there is likely to be the need for heavy editing because of hearsay and inadmissible evidence. This has been hampered by lack of suitable editing facilities which currently extend to little more than using the fast-forward button in court.
• Some legal professionals consider that lines of questioning needed at later stages may differ from the approach taken by interviewers in the early investigative stages.
• Some legal professionals believe that live evidence is always better than a heavily edited recording, since if the jury think evidence is being deliberately obscured this may damage the credibility of the witness, although this may be alleviated by sheriffs or judges introducing the evidence.
• There is still low awareness of the work of the visual recording pilots and availability of recordings, especially in Glasgow, although this is perhaps not surprising given the volume of cases handled by Glasgow sheriff court, and the high numbers of practitioners in this area.
• There are concerns about defence tactics when faced with recordings as evidence, including bringing in experts to "give the tape/witness/interviewer a good going over", and the consequent need for the prosecution to cite their own experts to challenge criticism made, resulting in "battles of the experts".
• The fact that a recording once led as evidence may be viewed by the accused in court was of concern to some professionals.
• There are mixed views about the value of recordings in court proceedings since even in cases where a visual recording is led as evidence-in-chief, the child must normally be available for cross-examination.

433. This research finds some of the arguments against the use of recordings as evidence as premature, given the current lack of Scottish experience and the relatively successful developments in this area and research findings in England & Wales. If a case is serious enough to warrant prosecution then currently a witness must give evidence in some way, and normally be available to be cross examined ³¹.

434. Judgements as to whether a prosecution is in the public interest, given the need to cite a child witness, are made daily by fiscals. If a suitable visual record is available of their initial evidence and can be shown, then this may reduce concerns about the effects of the legal process on a child witness and may provide more compelling evidence than from the child in person, especially since the allegations will not be fresh in the child's mind by the time the case calls in court. Other special measures may be used in combination with visual recordings as evidence-in-chief. Reducing the time a child spends being questioned is in itself potentially beneficial to the child whether or not cross examination takes place, with or without special measures.

Recordings used in children's hearings referrals to the sheriff

435. Children's reporters and pilot interviewers said that no recordings had been used in referrals to the sheriff in Dundee, and that 4 had been shown by reporters during 2 referrals to the sheriff in Glasgow.

436. Children's reporters interviewed in Glasgow described one case where two recordings had been shown in a referral to the sheriff, which was a case disputed by the mother. There were some problems with hearing the child, and since there was no transcript the reporters themselves tried to transcribe parts. Two of three recordings were played in court after evidence was heard from a number of witnesses, which made for "quite compelling" evidence. After these 2 recordings were played, the sheriff recommended that the defence consult their client, which happened and the evidence was accepted at that point.

437. Glasgow reporters also described a case where a recording may have been useful, but the interview had not been visually recorded. This case involved 2 children who reported abuse of a baby by a female relative, and was referred to the sheriff from a children's hearing. By the time the case called, the children were less willing to testify and there were concerns that pressure had been applied by the family so they would not give evidence.

438. Dundee reporters outlined a case where 2 children were witnesses in a vandalism case, but since the mother did not want them to give evidence and SCRA does not insist on this, the recordings were not used.

Summary and implications for national rollout

439. There seems to be little expectation among the majority of those involved that recordings will make a significant impact on the number of child witnesses giving evidence in court, even though evidence in the form of a prior statement is a special measure under the VWA 2004. Interviewees were more likely to emphasise improving ways to effectively support children in giving evidence, rather than avoiding the need for them to give their evidence-in-chief by seeking to use the investigative interview recording. Many felt there was no point in using recordings as evidence-in-chief, if the child still had to be present (even if via CCTV link). At the same time, some defence agents felt that the VWA means that prior recorded statements may be more likely to be shown in court, if only through growing familiarity.

440. Above all, the quality of interviews, and in particular technical quality, determines a recording's usefulness in court proceedings. The poor sound quality of Glasgow VHS tapes means that they are seen as impractical for use in court, even though many have been viewed by fiscals (and poor technical quality also hampers their use in preparation of cases).

441. Although DVDs are of higher technical quality, any recording may raise issues of admissibility, which is perhaps inevitable in any interview where the child speaks freely. These issues can be addressed by editing arrangements, and the draft guidance recommends resourcing and installing editing equipment at recording suites. However, it is recognised that if use of recordings as evidence-in-chief increases, there is a danger that local editing facilities may not be sufficient and may result in delays. In that case, the Executive (guided by the NSG) should consider whether resources for central editing facilities are possible. In the meantime, the costings presented here and accompanying draft guidance suggest an 'optional' additional technician role, initially at police force level to help with editing, any portable uses and issues with the equipment.

442. The cases where recordings have been played have involved both sides 'feeling their way', so detailed and better-publicised protocols will help steer this aspect of recording use, as will growing familiarity among professionals. General rules are set in the draft guidance developed from the evaluation findings, for example on viewing by the defence and editing facilities, and should be expanded in more detailed local and national protocols. There is guidance on the SCS website concerning informing ESDU and arranging to play DVDs in court, but since little use has been made of such provisions so far, the administrative arrangements have not been fully tested in practice.

443. The VWA will tend to make the process of using recordings easier, however. Reports from teachers or psychologists on why a child needed special measures used to accompany the petitions under s259, and these sometimes took months to be produced and provided few insights of note (MorrisRichards, 2006). These are no longer needed when applying to show a recording on the new child witness notices, or similarly when seeking special measures for the child to give evidence or be cross-examined.

444. The Bonomy reforms may have a still greater effect, in reducing defence precognitions and indeed making recordings readily available to the defence to cite. Some people spoke of the danger of both sides getting in experts to attack or defend the recording and explain the child's responses. But there is no reason to suppose that the present working system of reasonable agreement will cease, and the usefulness of experts will be diminished by increasing the quality of interviews.

445. Counterbalancing this also is the possibility that the availability of recordings to the defence will allow defence agents to gauge for their clients the strength of the case against them, and the credibility and strength of the child witness beforehand. This may encourage more pleas and reduce the number of times a child has to come to court.