SPECIAL MEASURES FOR VULNERABLE ADULT AND CHILD WITNESSES: a guidance pack

TAKING EVIDENCE BY A COMMISSIONER

INTRODUCTION

THIS GUIDANCE IS DESIGNED TO PROVIDE PRACTITIONERS WITH INFORMATION ABOUT TAKING EVIDENCE BY A COMMISSIONER AS A SPECIAL MEASURE FOR CHILD AND ADULT VULNERABLE WITNESSES IN CRIMINAL AND CHILDREN'S HEARING COURT PROCEEDINGS.
IT IS DESIGNED TO ASSIST THE PRACTICAL APPLICATION OF THE PROVISIONS OF PART 1 OF THE VULNERABLE WITNESSES (SCOTLAND) ACT 2004, WHICH INSERTS SECTION 271I TO THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995, AND THE EQUIVALENT PROVISION INTRODUCED BY SECTION 19 OF THE 2004 ACT IN RESPECT OF CIVIL AND CHILDREN'S HEARING COURT PROCEEDINGS.

THE GUIDANCE OUTLINES THE CIRCUMSTANCES THAT TAKING EVIDENCE BY A COMMISSIONER CAN ASSIST VULNERABLE WITNESSES, BOTH ADULTS AND CHILDREN. IT INDICATES CORE PROCEDURAL PRINCIPLES APPLICABLE IN BOTH CRIMINAL AND CHILDREN'S HEARING COURT PROCEEDINGS AND DIFFERENT APPROACHES THAT CAN BE TAKEN WHEN CONDUCTING THE PROCEEDINGS.

This guidance applies to criminal proceedings and children's hearing court proceedings only and does not extend to other civil proceedings, which may be covered by additional guidance at a later date.

The measure 'taking evidence by a commissioner' in criminal proceedings is to be distinguished from existing provisions in section 272 of the Criminal Procedure (S) Act 1995 'evidence by letter of request' or 'on commission' and from similar existing provisions in civil proceedings contained in the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 and Rules for the Court of Session. These procedures, known as 'evidence on commission', continue to be available in criminal and civil proceedings, (including, informally, in children's hearing court proceedings) other than in the District Court. They relate to those occasions when, in criminal proceedings, a witness is "ill or infirm and unable to attend the trial diet" or "not ordinarily resident and at the time of the trial diet unlikely to be present in the UK, Channel Islands or Isle of Man". In civil proceedings, they relate to those occasions when a witness is resident beyond the court's jurisdiction at the relevant time; or, resides at a remote place within the jurisdiction; or, by reason of age, infirmity or sickness the witness is unable to attend court.

By providing a practical understanding of how the measure of taking evidence by a commissioner works as a special measure, this guidance aims to assist practitioners in their consideration of the possible use of this procedure for vulnerable 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 this special measure 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.

Practitioners should have particular regard to the guidance on the use of special measures for vulnerable witnesses with special needs.

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:

a live television link where the witness is in another part of the court building;
a screen; and
a supporter in conjunction with either of the above.

The full list of special measures, available on application, which can be used by either a child or adult vulnerable witness is:

a live television link from another part of the court building or other place outwith that building;
prior statements as evidence in chief (criminal cases only);
taking evidence by a commissioner;
a screen; and
a supporter.

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 live television link where the witness is in another part of the court building and the use of a supporter.
The use of a prior statement as evidence in chief during commission proceedings.
Use of taking evidence by a commissioner and the use of a supporter.

Practitioners should also 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.

It is competent for the commission to be conducted with the assistance of a live TV link. There are different approaches of taking evidence by a commissioner and these are more fully explained later in this guidance.

INTRODUCTION TO TAKING EVIDENCE BY A COMMISSIONER

Taking evidence by a commissioner is one of a number of special measures available to help vulnerable witnesses give their evidence. It is not a 'standard' special measure for child witnesses.

The new section 271 I to the 1995 Act, introduces the use of taking evidence by a commissioner as a special measure in criminal proceedings for those vulnerable witnesses defined by the Vulnerable Witnesses (Scotland) 2004 Act, to help them give their evidence. Section 19 of the 2004 Act applies in respect of civil actions, including children's hearing court proceedings.

Evidence taken by a commissioner as a special measure, involves proceedings being conducted before a commissioner appointed by the court. The evidence of the vulnerable witness is taken in full (in criminal proceedings involving examination, cross-examination and re-examination). The proceedings are video recorded and the recording later received in evidence at the subsequent trial or court hearing.

In outline, the legislation requires that, if the use of this special measure is granted:

the court shall appoint a commissioner;
the commission proceedings shall be video-recorded;
the accused or party to proceedings shall not routinely be present;
the accused or party to proceedings will be entitled to watch and hear the commission proceedings as they are taking place;
the recorded evidence does not have to be sworn to by the witness at any subsequent proceedings.

As a special measure, taking evidence by a commissioner is likely to be considered for the most vulnerable witnesses where there is a risk that a delay in giving their evidence may cause increased distress or trauma which could significantly affect their ability to give their evidence.

IDENTIFYING WHEN TAKING EVIDENCE BY A COMMISSIONER MAY BE THE MOST SUITABLE SPECIAL MEASURE

The party citing the witness is responsible for considering whether this special measure is needed to assist a child or adult vulnerable witness to give their evidence and must apply to the court, giving their reasons, including any supporting material, which will help the court decide whether to grant the application.

In doing this, assumptions about the wishes and needs of vulnerable witnesses should not be made. Practitioners should be prepared to be open to the views and concerns of each individual vulnerable witness and should consider whether this special measure is the most suitable to help the vulnerable witness give their best evidence. For example, they should not assume, in respect of child witnesses, that those of the same age will have the same wishes and concerns or be affected by the same things.

The following provides some examples of circumstances where taking evidence by a commissioner as a special measure may be most helpful and should be considered. This is not a comprehensive list.

BENEFITS OF TAKING EVIDENCE BY A COMMISSIONER

Taking evidence by a commissioner may be most helpful in the following circumstances.

a) Where the witness may be regarded as a vulnerable witness and there is a risk that the witness's evidence may be affected due to the passage of time depending on their age, or due to increasing physical or mental ill-health or disability.

b) Where a case is likely to be adjourned and there is a risk that the delay (or repeated delays) will either:

cause undue or intolerable levels of distress, fear or psychological trauma to the witness; or
delay the witness's physical or psychological recovery from any alleged incident regardless of therapeutic intervention. (see separate guidance on therapeutic support to child witnesses) http://www.scotland.gov.uk/Topics/Justice/criminal/18245/12291

In the event of repeated adjournments to trial proceedings, practitioners will want to have particular regard to any psychological effects caused by the delays.
For example, if a witness is becoming increasingly withdrawn or uncommunicative, it may be particularly helpful to consider this special measure.

There are some additional benefits when taking evidence by a commissioner.

The commission proceedings may be more readily interrupted by the needs of the vulnerable witnesses ( e.g. when repeated adjournments are required to take account of a witness's concentration span or for the need for unusually frequent comfort breaks). Where the commission is interrupted for any reason the recording will be halted. This could reduce the anxiety that some vulnerable witnesses may feel by having to interrupt live proceedings at court to meet their needs.
The vulnerable witness may be more able to give their evidence in an atmosphere more commensurate with their needs depending on the approach to conducting the commission.
In some circumstances, it may reduce pressure on parties to prepare for any early trial or court hearing ( e.g. where the parties are prepared to take the particular witness's evidence but need further time to prepare other matters).

As with the use of some other special measures, taking evidence by a commissioner can also offer additional support to a witness depending on the approach used.

The witness may not require to be present in the courtroom;
The witness may not see the accused while giving evidence;
If the evidence is relayed via a live television link, the witness may not need to give their evidence in the presence of others (although a supporter may be present if requested and granted).

POSSIBLE DISADVANTAGES TO THE WITNESS OF TAKING EVIDENCE BY A COMMISSIONER

There are no routine disadvantages to using this special measure, however, practitioners will wish to consider the following.

Some approaches of taking evidence by a commissioner may not be helpful to the vulnerable witness. For example if the commission was held without the assistance of a television link, the witness may be required to be present in the courtroom or 'commission room' with the commissioner, legal representatives of the accused or other parties and other officials. The vulnerable witness may find this too stressful.
Some witnesses might prefer to participate in a live trial, particularly if they are one of a number of witnesses from within the same family unit.
As the evidence taken by a commissioner will be video recorded, the witness will be on camera and consideration should be given to whether this is appropriate, especially if the facts and circumstances of the case which led to the current proceedings involved episodes of abuse in which a camera was used.
It may be that this special measure is not suitable if the witness's evidence of identification is essential to the case and cannot be obtained during the commission or cannot be established by other means to the necessary standard.
Taking evidence by a commissioner is not a standard special measure for child witnesses and therefore the court will only grant the use of this special measure, for a child witness or adult vulnerable witness, if it is satisfied that it is appropriate to do so. Where early certainty in the use of a measure may be the most important issue for a child witness, then one of the standard measures may be more appropriate.

CORE PROCEDURAL PRINCIPLES APPLICABLE TO TAKING EVIDENCE BY A COMMMISSIONER IN BOTH CRIMINAL AND CHILDREN'S HEARING COURT PROCEEDINGS

The provisions relating to taking evidence by a commissioner in Part 1 Vulnerable Witnesses Act (criminal proceedings) and Part 2 (civil proceedings) are in identical terms.

A number of core procedural features apply to taking evidence by a commissioner in both criminal and children's hearing court proceedings.

The commissioner is appointed by the court.
The commission proceedings will be video-recorded.
The accused or party to proceedings will be able to see and hear the proceedings as they happen.
The witness and the accused or party to proceedings are not normally expected to be in the same room as each other.
The accused or party to the proceedings is not expected to be present in the room where the proceedings are taking place, except by leave of the court.
The accused or party to proceedings is entitled to be able to consult with their agent in the interests of conducting a fair trial. Although this is not stipulated in the vulnerable witnesses legislation, it will be for the court to decide to what extent the opportunity to consult must be immediate and freely available, whilst balancing
the practicalities of the proceedings and the potential distress to the witness.

It should be noted that for all proceedings, the "competence test" has been abolished. The court is no longer entitled to ask preliminary questions of the witness to ascertain whether the witness understands the difference between truth and lies and the duty to give truthful evidence. (Section 24 of the Vulnerable Witnesses (Scotland) Act 2004.)

During proceedings, adjournments may be taken for legal debates or comfort breaks and, if the witness is present in the courtroom or commission room, he/she will be required to leave and will require a suitable waiting area. They may be accompanied by a supporter who has been granted as an additional special measure or by another person. The supporter should never discuss the witness's evidence or any other details of the case at any time during the proceedings and should be familiar with the vulnerable witnesses guidance on the role and behaviour of supporters.

In addition the following may apply.

The witness may be accompanied by a supporter if this has been granted by the court as an additional special measure.
The witness may be linked to the commission by a TV link if the court agrees.
The witness may be accompanied by an interpreter if required.

The legislation does not set out a single procedural approach of using this special measure and there are a number of ways in which evidence can be taken by a commissioner and recorded. Practitioners should consider these before deciding which would be the preferred approach to recommend in any individual case. Of course, it is for the court to reach a final decision on the appropriate approach having considered the nature of the case and the information supplied to support the notice or application.

DIFFERENT APPROACHES TO CONSIDER IN CRIMINAL PROCEEDINGS

The following will normally apply to any approach used in criminal proceedings:

In addition to the commissioner, those present will be the prosecution, the lawyer(s) for the accused, and the clerk;
The witness will be liable to be questioned (examined, cross-examined, re-examined) by all parties or on behalf of all parties;
The commissioner and other parties will usually be expected to conduct proceedings without wearing their wigs and gowns in accordance with the High Court of Justiciary Practice Note, Child Witnesses: Discretionary Powers, No. 2 of 2005;
Members of the public and the press will not be entitled to be present.

In some criminal cases, it may be the case that other parties will also be present.

Junior lawyers for either side.
Technician operating the recording equipment.

Depending on which approach is used, the witness may also be present in the room with those above.

It will be for the court to approve that evidence by a commissioner is an appropriate special measure and any particular approach applied for.

Within the parameters set out in s271I of the Criminal (Procedure) (S) Act 1995, the measure may be given practical effect in the following permutations.

APPROACH 1

A suggested approach for taking evidence by a commissioner in criminal proceedings is likely to be where the witness gives evidence to the commission via a live TV link to a courtroom as follows:

The commission would take place in a courtroom allocated for the purpose.
All parties to the commission would be present in the courtroom. This includes the commissioner, the procurator fiscal or advocate depute with any accompanying staff, the accused's representatives and clerk of court.
The accused would be present in the courtroom or linked to the courtroom via a live television link.
The witness would be linked to the courtroom via a live television link. The location of the witness would depend on the extent and nature of the witness's vulnerability and may be in a TV link room:
within the same court building;
in another court building; or
in a non-court 'remote site'.
The witness may be accompanied by a supporter if this combination of special measures has been requested and granted.

This approach provides support for the witness and may ensure adequate security in individual cases. It will also enable the intricate requirements of the legislation to be met through use of existing court technology.

APPROACH 2

In some criminal cases, it may be the case that giving evidence to a commissioner via a TV link is deemed inappropriate ( e.g. where this would cause undue distress to the witness). In this instance the requirements may still be met through an adaptation of approach 1.

All parties as set out in approach 1 would be present in the courtroom with the witness, with the exception of the accused.
The accused would be linked to the proceedings via a live television link from another room in the building.
It is expected that the relevant parties will be seated informally around a table in the well of the courtroom, rather than on the bench or in the witness box, as for normal court proceedings.

It is recommended that, due to the technical requirements associated with this approach, it be sought in only exceptional cases.

OTHER APPROACHES

The two approaches outlined above provide a practicable and effective means of fulfilling the operational demands of the legislative provisions whilst at the same time maintaining a degree of flexibility to recognise the specific needs of the individual vulnerable witness.

Any proposal for an additional approach involving a location outwith a court building will be subject to consideration of the feasibility and practicality of this approach. In principle any location that meets required standards and specifications (as referred to in the accommodation section) could be considered for holding this type of proceeding.

Practitioners should consider what would be the most appropriate and helpful approach to use, given the facts and circumstances, for the individual case and the needs of each vulnerable witness.

CONDUCTING THE COMMISSION IN CRIMINAL PROCEEDINGS

The witness will be called by the party citing them, and, in criminal cases, the commissioner will invite them to swear or promise to tell the truth before they are questioned as appropriate to the proceedings and approach used.

If taking evidence by a commissioner is being used in combination with the use of a prior statement as evidence in chief, the procedure will follow the relevant guidance given for that special measure.

DIFFERENT APPROACHES IN CHILDREN'S HEARING COURT PROCEEDINGS

Evidence taken by a commissioner in children's hearing court proceedings is determined by s19 of Part 2 of the Vulnerable Witnesses (Scotland) Act 2004, which, like its counterpart in Part 1 is written in broad terms. The procedure has not been formally available in children's hearing court proceedings although there have been occasional examples of its use in practice.

However, beyond this legislative framework, children's hearing court proceedings have the potential to be more flexible and have greater latitude than other proceedings; the focus is on the welfare of the child and this principle will determine the approach used in individual children's hearing court cases. Rule 3.73 of the Act of Sederunt (Child Care and Maintenance Rules) 1997 allows the sheriff to "make such further orders, in relation to any special measure, as he deems appropriate in all the circumstances".

The core features identified earlier, apply to the use of this measure in Children's Hearing court proceedings, namely:

The commissioner is appointed by the court;
The commission proceedings will be video-recorded;
The party or parties will be able to see and hear the proceedings as they happen;
The witness and a party to proceedings are not normally expected to be in the same room as each other;
A party to proceedings is not expected to be present in the room where the proceedings are taking place, except by leave of the court.

There may be a number of relevant persons who are parties to the proceedings. All are entitled to watch and hear proceedings. Not all will cause distress to the witness; some, by leave of the court, may be present.

As with any children's hearing court proceedings, the evidence will be taken by the commissioner in private.

Within the parameters set out in s19, the measure may be given practical effect in the following permutations (and will apply whether the case is an application under s68, a review under s85 or an appeal under s51(1)).

APPROACH 1

A suggested approach for taking evidence by a commissioner in children's hearing court proceedings is where the witness gives evidence to the commission via a live TV link as follows:

The commissioner plus all legal personnel plus the party or parties in one room;
The witness is linked by TV link in another room.

APPROACH 2

In some cases a different approach may be more appropriate:

The commissioner and the witness plus all legal personnel (including any safeguarder appointed by the court) are present in one room;
Party or parties to the proceedings watch and listen via CCTV monitor in another room within the same building.

It is recommended that, due to the technical requirements associated with this approach, it be sought in only exceptional cases.

CONDUCTING THE COMMISSION IN CHILDREN'S HEARING COURT PROCEEDINGS

In children's hearing court proceedings, the procedure might parallel criminal proceedings (effectively a proof within a proof) with the commissioner adopting the role of the sheriff and the reporter, agents and any safeguarder proceeding in the usual way, and the parties communicating with agents as appropriate.

At the discretion of the court, evidence may be taken by the commissioner alone, whilst being observed by the parties, the reporter and their agents.

At the discretion of the court, the commissioner may also take evidence alone, assisted by pre-prepared questions from the parties who will watch and hear proceedings and who may have an opportunity to ask additional questions through the commissioner.

PROCEEDINGS FOR TAKING EVIDENCE BY A COMMISSIONER

In both criminal and children's hearing court proceedings, it is for the party citing the witness to propose the preferred approach of taking evidence by a commissioner and for the court to be satisfied that whichever approach is used, it is the most appropriate for the purposes of taking the witness's evidence.

THE COMMISSIONER

In all cases, the judge or sheriff hearing the application and granting this special measure, will have responsibility for appointing the commissioner.

In neither Part 1 nor Part 2 does the Act stipulate who must act as a commissioner. The previous requirement that it be an advocate or solicitor of 5 years' standing has been removed and not replaced.

For practical reasons, in criminal proceedings, the commissioner will often be a judge of the relevant court, so as to enable them to rule on any questions of admissibility as they arise during the commission.

It is anticipated that in most cases, the commissioner will be a member of the bench. However, in some cases, it might be possible, or necessary, for the appointed commissioner to be someone other than a member of the bench ( e.g. an experienced legal professional with experience of the appropriate criminal court proceedings). In these circumstances, issues of admissibility will not be resolved with any finality during the commission, but will be reserved for consideration by the sheriff or judge hearing the subsequent proceedings. In children's hearing court proceedings, all issues of admissibility arising from the commission will be for the sheriff to hear under reservation and determine in the usual way.

In all cases, who the commissioner will be, will remain a matter for the court as will any questions of admissibility that may arise during the commission.

ACCOMMODATION

In every case, the accommodation should:

be suitable for the witness's needs;
have sufficient technical facilities to enable the proceedings to be recorded;
enable the accused to hear and watch proceedings.

The integrity, security, and policing of any non-court accommodation needs to be assured and this will be done through the use of protocols between the Scottish Court Service and the provider of the accommodation where the witness is giving evidence from a remote site.

http://www.scotcourts.gov.uk/courtusers/witnesses/vulnerablewitness.asp

Where at all possible, non-court accommodation will fulfil the standards and technical requirements as set out in the Notice of Standards. (see web link above) These standards include ensuring that the accommodation is suitably furnished, is not intimidating to witnesses, is easily accessible to vulnerable witnesses, particularly those who may have physical disabilities/are wheelchair users, and that there are adequate toilet and waiting facilities.

WHEN THE COMMISSION WILL TAKE PLACE

The commission will take place after commencement of proceedings and after the use of this special measure has been authorised by the court.

In criminal summary cases the complaint will have been served. In criminal solemn proceedings the commission will take place after service of the indictment.

In children's hearing court proceedings, the application or appeal will have been intimated.

ADMISSIBILITY

The commissioner, if a judge of the relevant court, will have the power to rule on all issues of admissibility. For example, such issues may arise out of objections to any questions by any of the parties or objections to any part of the witness's evidence.

If the commissioner is not a judge of the relevant court, he/she may still be expected to prevent inappropriate questions. All other objections to questions will be noted and the questions allowed 'under reservation' and decided later by the sheriff or judge hearing the subsequent proceedings.

In children's hearing court proceedings issues concerning the admissibility of particular passages of evidence or questions can be dealt with by the sheriff at the full hearing, (there being no jury from whom inadmissible passages will have to be hidden).

IDENTIFICATION

The party citing the witness should consider the need for identification when considering their application to take evidence by a commissioner for a vulnerable witness.

If prior identification is not agreed (using VIPER technology or other means), the party citing the witness should note that routine court identification processes may be technically difficult given that the witness and the accused or party to proceedings are likely to be in different rooms or even different locations, regardless of the approach used. Consideration should be given to whether identification evidence can be sufficiently spoken to by other witnesses in the case.

It may be that this special measure might not be suitable if the witness's evidence of identification is essential to the case and cannot be obtained during the commission.

PRODUCTIONS

Parties should consider the need to show productions to the witness and make any necessary arrangements depending on the commission approach used. This will be particularly relevant when the commission is being conducted where the witness is giving evidence via a live TV link elsewhere in the court or from a remote site.

COMMUNICATION WITH LEGAL REPRESENTATIVES

The Vulnerable Witnesses (S) Act 2004 specifies that the accused or other party will be entitled to view and hear the proceedings live ( e.g. by being present if the witness is linked to the commission from another location or via a live TV link).

This guidance also takes into account that, in the interests of justice, the accused or other party should be entitled to instruct/confer with his/her legal representative during the course of the commission proceedings. One of the suggested approaches for taking evidence by a commissioner leads to the accused or other party being present in the courtroom or commission room with all other relevant parties (other than the witness), including their legal representative/s. Therefore, no difficulty will arise where these methods are used.

If, on the other hand, the accused or other party is in another location, it is expected that they will be able to instruct or confer with their representative at some stage in the proceedings. It will be for the commissioner to rule as to whether this becomes unduly disruptive to the proceedings and whether a series of adjournments may achieve the required level of communication.

VIDEO RECORDING OF PROCEEDINGS

Recordings of commission proceedings will be in DVD format. The technical equipment required will be dictated by the location of the commission and whether or not the special measure is being used in combination with any other special measure(s).

If Approach 1 is used (the parties in a courtroom or commission room with the witness in another location linked by TV link), the recording will be of a single view of whichever person is speaking, i.e. the witness or those asking the questions, as seen on the TV monitor in live court proceedings.

If the witness is present in the courtroom, as in the second approach described in this guidance, the view will most likely be a collective one of the participants grouped around the table as the commission is conducted. The CCTV equipment will not be used where there is any risk that images of the accused might be transmitted into court in the presence of the witness.

SECURITY OF VIDEO RECORDING

The recorded material will be lodged with and retained by the clerk of court. Rules of Court will determine issues relating to retention, security and access to the recorded material.

ACCESS TO THE VIDEO RECORDING

All parties will have either been present at the commission or been able to watch and hear the proceedings live, however, it might sometimes be necessary for parties to view the recording during their preparation for the trial or court hearing. Parties can apply to the clerk of court to view the recording on court premises, and in consultation with the relevant party, the clerk of court will make such arrangements as are practicable in the circumstances. Copies of the recording will not be provided to any party (including crown or defence). The recorded evidence will remain in the possession of the Scottish Court Service at all times as noted in the previous paragraph.

EDITING OF VIDEO RECORDING

Editing of the recording may be required if, for example, issues of admissibility were heard under reservation ( i.e. the questions and evidence were allowed and recorded and then ruled on later).

To aid editing, the clerk present at commission will note the timings of evidence
a) heard under reservation, b) heard to allow the commissioner to determine admissibility, or c) given by the witness which the commissioner subsequently rules should not be admissible and put before the jury.

The Scottish Court Service will be responsible for the undertaking of any editing of the recording to reflect the directions of the commissioner or judge of the relevant court. It will remain the responsibility of the commissioner to ascertain that the recording has been edited in accordance with given directions. Parties may wish to view the final edit of the evidence to be presented. In the event there is any dispute over the edit it may be necessary to have a further hearing with the commissioner to resolve the matter prior to the presentation of the evidence in court.

Where the commissioner is not a judge of the relevant court, it may be necessary to hold a further preliminary hearing after the commission has occurred to consider issues of admissibility.

It will be for the Commissioner, or Judge of the relevant court, to determine whether the number of issues of admissibility require the formal editing of the DVD as detailed above or whether the recording may be played in evidence in part ( e.g. to be played in court with the exception of the last 20 minutes, etc.) It is likely however, that, should there be several issues raised at various stages, formal editing may be unavoidable.

An unedited version of the video recording will be retained by the court.

APPLICATIONS TO TAKE EVIDENCE
BY A COMMISSIONER

Taking evidence by a commissioner is not a 'standard' special measure for child witnesses therefore, in all cases ( i.e. for child witnesses or adult vulnerable witnesses), the court is required to be satisfied that it is appropriate to grant the use of this special measure.

When preparing the case, the party citing any child witness is required to establish which of the standard special measures is most suitable in accordance with the child's views and their parent's views (unless, in criminal proceedings, the parent is the accused); in children's court proceedings, the parent's views are always sought but where these are in conflict to the child's, they are not to be given the same weight by the court. They should also consider if any of the other special measures may be more suitable to help them give their evidence. Equally, the party citing an adult witness will consider whether they are vulnerable and which of the special measures may be most suitable to help them give their evidence. The party citing the vulnerable witness will therefore consider the merits of taking evidence by a commissioner in all likely cases.

Information about which special measure is considered to be most appropriate for the vulnerable witness will then be specified on either a Child Witness Notice or Vulnerable Witness Application. These notices and applications must be submitted to the court by certain deadlines.

In criminal cases:
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 trial diet.
In children's hearing court proceedings:
no time limit, however, the notice will normally accompany the relevant application to the sheriff or as soon as possible afterwards.

Further details are set out in the guidance for all Crown and Defence practitioners and the Children's Reporter and in this guidance pack, section 2 'Applying for Special Measures'.

If taking evidence by a commissioner is considered the most suitable for the witness, the Notice or Application should be submitted as early as possible. The Notice or Application must give clear reasons for requesting this special measure and should be accompanied by any supporting material to help explain these to the court. Given that there are a number of different approaches to conducting a commission, it is also recommended that the preferred approach to taking evidence by a commissioner be proposed in the notice or application. As the approaches to be used involve the use of TV links, the applicant should also have contacted the Scottish Court Service prior to submitting the Notice/Application in accordance with the existing protocol on TV links.

The court will authorise the use of the special measure if satisfied that this is indeed the most appropriate way to take the witness's evidence. The court will appoint the commissioner and may also specify the approach to conducting the commission.

In High Court proceedings, the Notice or Application may be heard at a preliminary hearing where the court may grant the use of this special measure. It may be that the court will fix a further preliminary hearing to take place before the trial or court hearing that will allow parties to determine any issues about the admissibility of any specific questions or evidence and decide upon any editing issues that arise from the commission, prior to the start of the trial.

In sheriff court solemn proceedings, the Notice or Application may be heard before or at the first diet and the court must decide if there is a need for a continued first diet to likewise determine issues of editing or admissibility.

On occasion, new evidence may come to light after the completion of a commission that either, or both, parties may want to question the vulnerable witness about. Consideration will need to be given as to whether a further application for this or other special measures should be made to the court, so that the court may decide the most appropriate way of taking the witness's further evidence.

In criminal proceedings, proceedings may be deserted, or a trial abandoned, after the witness's evidence has been taken by a commissioner and recorded. A new Notice or Application will need to be submitted to the court to use special measures. A request may be made to use deserted recorded evidence taken by a commissioner for earlier proceedings and it will be for the court to determine on the basis of submissions made by parties in any particular case.

OTHER AGENCIES

In considering the particular issues around the suitability of this special measure, the party citing the witness (child or adult) is likely to seek assistance from other organisations as to the child's or adult's particular needs. This will assist the applicant party to provide sufficient information to satisfy the court why evidence taken by a commissioner may be the most appropriate special measure to take the witness's evidence.

Similarly, some organisations (for example social work, education or health) may wish to advise the party citing the witness, about any particular vulnerability of the witness. They should provide information if the witness has previously displayed symptoms of increased distress which may require consideration of this special measure taking into account the benefits set out in this guidance.

COMMUNICATING TO WITNESSES WHAT TAKING EVIDENCE BY A COMMISSIONER MEANS

Children and adult vulnerable witnesses will vary enormously in their abilities and understanding. For most of them, giving evidence either at a trial or by a commissioner will be an anxious experience. It is crucial, therefore, that explanations of what is planned to happen, and why, are given to them in an appropriate way, especially because their wishes concerning the possible use of this (and other) special measure(s) should be taken into account in deciding what is the most appropriate way to help them give their evidence.

Practitioners should also refer to the other guidance in this pack, on 'Identifying Suitable Special Measures' and 'Vulnerable Witnesses with Special Needs'.

When explaining this special measure to a witness, practitioners should remember that, in criminal cases, the actual process of giving evidence is very similar to normal trial proceedings. There is little difference for the witness between giving evidence by TV link to the trial and giving evidence by TV link to the commission. The essential differences are in the timing of the proceedings and that the proceedings would not be delayed or subject to adjournments in the same way that the actual trial or court hearing might be.

In order to help explain evidence by a commissioner to a child or adult vulnerable witness, practitioners may wish to consider the following descriptions adapted from the witness booklets and CDROM.

"Giving evidence by a commissioner means that you give your evidence at a different time or place than the actual court case or other witnesses. This might happen if the lawyers want to record your evidence before the court case starts.
You will tell the court what you know at a different time from other witnesses or in a different place.
You give your evidence before the rest of the court case starts. This may be helpful if the court case is going to be delayed for a long time."

It is especially important that the witness understands that:

in a criminal case, they will be asked questions, just as if they were at the trial;
the proceedings will be video recorded, but this recording will be kept by the court; (they may need reassurance about who will have access to this.)
they will not normally have to give evidence at the trial or court hearing;
the accused or party to the proceedings is entitled to see and hear the proceedings as they happen but will not be in the same room as the witness;
the video recording of their evidence will be played during the trial or hearing and will be regarded as their evidence in the same way as the evidence of any other witness.

COURT VISITS AND PREPARATION

Familiarisation visits provide an opportunity for a witness to become familiar with the surroundings and set up for taking evidence by a commissioner. This opportunity should be offered to the witness who is to give evidence using this special measure as for any other court proceedings and in accordance with the guidance on 'Child Witness Court Familiarisation Visits' http://www.scotland.gov.uk/Topics/Justice/criminal/18245/12291

Practitioners are reminded of the availability of the vulnerable witness's CDROM which can also be used to help child and adult vulnerable witnesses become more familiar with the various court and commission procedures and to give an initial view about the use of special measures. However it is important to note that an actual visit to the court or commission setting is still the best way of understanding and assessing their individual anxieties and/or special needs relating to being a witness.

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.

Professor Ray Bull, School of Psychology at Leicester University contributed to the development of this guidance.

Page updated: Monday, April 21, 2008

Scottish Government