APPLYING FOR SPECIAL MEASURES
INTRODUCTION
THIS GUIDANCE IS DESIGNED TO PROVIDE PRACTITIONERS WITH INFORMATION ABOUT APPLYING FOR THE USE OF SPECIAL MEASURES FOR VULNERABLE ADULT AND CHILD WITNESSES.
FOR THE PURPOSES OF THIS GUIDANCE, PRACTITIONERS INCLUDE CROWN OFFICE AND PROCURATOR FISCAL SERVICE STAFF, OTHER LEGAL PRACTITIONERS, CHILDREN'S REPORTERS, THE POLICE, COURT PERSONNEL, SOCIAL WORKERS, VICTIM SUPPORT SCOTLAND VOLUNTEERS AND WORKERS IN OTHER SUPPORT ORGANISATIONS.
THE GUIDANCE IS RELEVANT TO BOTH CHILD WITNESSES AND ADULT VULNERABLE WITNESSES, ALTHOUGH THERE ARE SPECIFIC REFERENCES TO CHILD WITNESSES WHERE PROVISIONS DIFFER. IT IS
NON-STATUTORY AND IS NOT AN AUTHORITATIVE STATEMENT OF THE LAW BUT AIMS TO ENSURE A COMMITMENT TO PRACTICE, WHICH DOES NOT DISCRIMINATE ON THE GROUNDS OF RACE, RELIGION, DISABILITY, GENDER, SEXUAL ORIENTATION OR AGE.
It is expected that application of the guidance should assist consistency in the use of special measures across Scotland.
Separate guidance is available on each of the special measures in addition to guidance on identifying the most appropriate special measures for child witnesses.
In making use of this guidance pack, practitioners should have particular regard to the guidance on the use of special measures for vulnerable witnesses with special needs.
The guidance will be placed on the Scottish Executive Vulnerable Witnesses website at www.scotland.gov.uk/Topics/Justice/criminal/17416/8451
SPECIAL MEASURES
Special measures are intended to help vulnerable witnesses by providing appropriate support when they give their evidence. By reducing the anxiety and pressure, which vulnerable witnesses may feel when giving evidence, it is likely that they will be better able to give their evidence.
Standard special measures that child witnesses under the age of 16 have a right to use are:
(i) a live television link where the witness is in another part of the court building;
(ii) a screen; and
(iii) a supporter in conjunction with either (i) or (ii) above.
The full list of special measures available on application, which can be used by either a child or adult vulnerable witness is:
(i) a live television link from another part of the court building or other place outwith that building;
(ii) prior statements as evidence in chief (criminal cases only);
(iii) taking evidence on commission;
(iv) a screen; and
(v) a supporter.
Each of these special measures can be used on their own or in conjunction with one another.
Examples of possible combinations of special measures are:
- use of a screen and a supporter;
- use of a live television link where the witness is in another part of the court building and the use of a supporter; and
- the use of a prior statement as evidence in chief together with the use of a screen when the witness's evidence is subsequently examined.
Practitioners should note that the use of a supporter is not classed as a 'standard' special measure for child witnesses unless it is being used with a screen or live television link.
However, the use of a supporter can be requested as a stand-alone measure and may be authorised on the basis of the case made in the Child Witness Notice or Vulnerable Witness Application.
APPLYING FOR SPECIAL MEASURES
In all cases involving child witnesses, a child witness notice must be submitted to the court.
The person who will prepare the necessary notice or application for special measure(s) will vary depending upon the nature of the proceedings. In criminal proceedings, this will be the procurator fiscal or defence agent, in children's hearing court proceedings, the reporter, safeguarder or defence agent, or in civil cases those acting for litigants.
In criminal cases, these notices or applications must be submitted to the court within a specified timescale. The person citing the witness must submit the notice or application to the court at least:
- 14 days before the preliminary hearing in high court cases;
- 7 days before the first diet in sheriff and jury cases; and
- in any other case, no later than 14 clear days before the first diet.
In the case of children's hearing court proceedings, there is no time limit on when the notice specifying the special measures required must be submitted. However, the notice will normally accompany the relevant application to the sheriff or as soon as possible afterwards. Any initial orders on special measures must be made before the hearing at which the child is required to give evidence.
Requirements for submitting a child witness notice or vulnerable witness application are set out in more detail in the specific guidance for all Crown Office and Procurator Fiscal Service staff, for defence practitioners, in guidance prepared by the Law Society of Scotland and for reporters in separate guidance prepared by the Scottish Children's Reporter Administration. Links to this guidance are available on the Scottish Executive Vulnerable Witnesses website at www.scotland.gov.uk/Topics/Justice/criminal/17416/8451
The Act requires the court in criminal proceedings to make a decision on the provision of special measures within seven days of the lodging of the notice or application.
A child witness is entitled to the use of the standard special measure(s) specified in the child witness notice.
Special measures, which are not 'standard' for child witnesses, may be authorised solely on the basis of the case made in the child witness notice or after a court hearing to consider the measure(s) specified in the notice.
Special measures for any adult vulnerable witnesses may be authorised solely on the basis of the case made in the vulnerable witness application or after a hearing to consider the application.
In all cases, if the court is satisfied, it is the court that will authorise the special measure(s) to be used.
The court will have regard not only to the views of the vulnerable witness but also, in respect of child witnesses, to the views of the witness's parent(s), provided the parent is not the accused or other party implicated in the allegations. Where the parent's views differ from the child's, and the child is aged 12 or over, the child's views will be given greater weight by the court. For the purposes of the Act in relation to a child witness, a parent means any person who has parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995.
The wishes or needs of a vulnerable witness may change during the actual proceedings. The method of giving evidence can be reviewed at any time by the court on its own initiative or on application of the person citing the witness and the party citing the witness should always be prepared to apply for such changes if circumstances suggest that a different measure may assist the witness in giving their evidence.
Practitioners should note that a child witness notice must be submitted in situations where the party citing the child has formed the view that the child can give evidence without the benefit of any special measures and must provide the justification for this belief.
The child witness can choose to give evidence without the benefit of these measures and if the court is satisfied that it is appropriate to do so, the court will allow the child witness to give evidence in the traditional way in the courtroom.
If the accused or party to proceedings in children's hearing court cases, is under 16 years of age, or otherwise vulnerable in terms of the Act, and there is a possibility that he or she may choose to give evidence at the trial or hearing, consideration should also be given to the most appropriate special measure(s) to enable him or her to give their evidence. The use of a screen does not apply to any accused person.
HOW DO ADULT VULNERABLE WITNESSES ACQUIRE SPECIAL MEASURES?
Early identification of the need for special measures is beneficial for the well being of a child or adult vulnerable witness and the consequent quality of their evidence.
While children by definition qualify as vulnerable, other vulnerable groups are less readily identified.
In determining whether a person over 16 is a vulnerable witness, the court will take account of a number of factors, including:
- adult witnesses with mental health problems or significant social or learning disabilities;
- whether the circumstances of the offence and nature of the evidence to be given is particularly distressing;
- the relationship between the accused and the witness;
- the witness's age and maturity;
- any threats to the witness from the accused, their family or associates, or from any other witness or accused person;
- the witness's religious beliefs, sexual orientation, ethnic, social and cultural background or political opinions;
- the witness's domestic and employment circumstances;
- any physical disability or impairment of the witness which could affect the giving of evidence; and
- any other relevant factor.
In reaching a fair and informed decision, the court will benefit from having all of the above necessary information about the witness.
It is important that those making the application for special measures provide the necessary information for the court. Statutory and voluntary agencies may have a role in advising those citing the witness or the agents citing the witness may seek their assistance.
In some circumstances, the court may deem it necessary for expert evidence to be provided concerning a particular witness's needs or vulnerabilities, in which case a report should be obtained from a psychologist, medical practitioner or other qualified person.
OTHER COURT POWERS OUTWITH THE ACT
Where the witness is a child, the prosecution or defence lawyer who has cited the witness may also ask the witness if they would like the people in the courtroom to remove their wigs and gowns, and if so, an application can be made to the court. In children's hearing court proceedings, these are removed as a matter of course.
On application in criminal court proceedings, the court may also consider clearing the courtroom of all persons not directly involved in the proceedings, if it is satisfied that this may further reduce anxiety and distress for the vulnerable witness.
It will be for the presiding judge or sheriff to decide whether these applications should be granted.
REMEMBER…
The whole court process - from the start of an investigation to giving evidence in court - can make an already traumatic experience even more upsetting and stressful. This is even more likely to be the case if the witness is a child or an adult vulnerable witness.
The provisions and special measures, contained in the Vulnerable Witnesses (Scotland) Act 2004, aim to provide support for all vulnerable witnesses to help them give their evidence.