CHAPTER THREE PROCEEDINGS AT COURTS
Introduction
3.1 Few accurate data are collected on witnesses cited and giving evidence in the Scottish justice system, and even fewer on adult vulnerable and child witnesses and the use of special measures (see chapter 4), so a primary data collection exercise was undertaken at courts.
3.2 This chapter presents the results of primary research encompassing the review of over 10,000 solemn indictments, which identified almost 1,300 vulnerable witnesses and accused persons, some of whom had VW applications or CWNs submitted on their behalf. While the Act began to be implemented on 1 April 2005, only cases reported to the procurator fiscal rather than all indictments after this date came within its ambit, and it was not possible to distinguish which indictments were covered by the Act (see annex 2 for fuller notes on methods). While there was no clear 'start date' in the case records therefore, by examining court records in detail, the researchers were able to look at how the Act is bedding in, and assess which vulnerable witnesses gave evidence in study courts, and how.
3.3 The work covered solemn proceedings in 6 sheriff courts and all High Court locations, and also attempted to assess the implementation of the Act in Children's Hearings court proceedings. The results describe the use and frequency of specialist reports, the submission of CWNs and VW applications not only by the Crown but by the defence and reporters, and the prevalence of the use of special measures. They also include some rich information about witness characteristics, and who did and did not have applications submitted on their behalf.
3.4 This chapter also looks specifically at the treatment of under-12 year olds, the use of remote sites, and trends across the study period including the baseline year before the Act.
Sources of information
3.5 A primary data collection exercise was undertaken at the 6 study sheriff courts (Glasgow, Edinburgh, Greenock, Stirling, Peterhead and Airdrie) and at the High Court in Edinburgh, where records for all High Court locations and cases are kept.
3.6 Visiting the courts was the only means of discovering the total number of witnesses cited, which witnesses cited actually gave evidence, and how they did so. Such information is recorded by clerks of court in the minutes of proceedings, filed with the sitting papers, but there is no other currently available information on who has given evidence at courts.
3.7 The papers for a case also include the indictment (with details of the charge and the accused person), the Crown and any defence witness lists, copies of any CWN, petition or VW applications made for special measures, any specialist reports on witnesses or the accused persons, and any productions (e.g. evidence in the form of photographs).
3.8 In the absence of any CWN or special measures application, child witnesses are (usually, but not always) identified because their ages are shown in the witness lists. If the child is also a victim, their age is given in the indictment as well, or instead. The date of birth of the accused is also always shown in the indictment.
3.9 Careful examination of sitting papers can therefore provide a range of information, and the information collected for this research is listed in annex 3. Fuller notes on methods are shown in annex 2. Applications for special measures in referrals to the sheriff from Children's Hearings are considered separately, on page 70.
Different sampling methods in the High Court and sheriff courts
3.10 The sampling methods for the sheriff courts and High Court differed. In the sheriff courts, sitting papers for all solemn cases indicted during the study period (the 3 years from 1 April 2004 to 31 March 2007) were examined individually. Every witness list and indictment during the study period was read, so this provides a high degree of certainty that all child witnesses cited in solemn proceedings in the study sheriff courts were identified by the research, regardless of whether an SM application of any sort or CWN was submitted on their behalf.
3.11 This was done because there was no 'key' showing which cases contained vulnerable or child witnesses. While some sheriff courts maintained registers of special measures applications, these were patchy and none contained consistent information (an indictment number or accused person's name) to link to case papers.
3.12 It proved largely impossible to identify vulnerable adult witnesses for whom no application had been made even by examining case papers. This is because the process of determining adult vulnerability includes a judgement by those citing the witness as to whether the vulnerability means that person's evidence is likely to be affected. Adults identified were therefore largely but not exclusively those for whom applications were made (attempts were made and abandoned to form a 'baseline' before the Act; see page 69).
3.13 In all cases, adult witnesses who applied for or used special measures but were professional witnesses (i.e. undercover police officers) were excluded.
3.14 In the High Court, examining every indictment individually was impossible within the scale of the research, particularly given the volume of cases and the bundled filing system. Fortunately, Justiciary Office clerks had kept comprehensive records of cases in which special measures applications had been made. These were used, but this meant that sampling proceeded on the basis of witnesses for whom applications had been made, rather than all witnesses cited. This method still identified some witnesses for whom no application had been made, because a case containing one application often also contained further vulnerable witnesses or accused persons for whom no application had been made.
3.15 However, in the High Court there was one 7-month period (April - November 2005, in child year 1) when no records were kept and all indictments had to be examined individually, as in the sheriff courts. During this period, examining all papers individually picked up applications at the bar and all vulnerable witnesses (again, largely children) being cited regardless of whether they were accompanied by an application or notice. While the administrative staff were noting all CWNs or VW applications, they were not examining all case papers and minutes, the approach taken by the researchers. The extent of any under-count would largely depend on the number of vulnerable witnesses for whom the Crown or defence submitted no CWN, VW application or application to use SMs.
3.16 This 7 month period fell at the start of child year 1, starting with cases indicted after 1 April 2005, so some children cited in this period should have had CWNs submitted on their behalf. As noted in the previous chapter, the commencement arrangements made in implementing the first 2 phases of the Act meant that cases reported to the procurator fiscal before 1 April 2005 did not fall within the ambit of its provisions (see page 2).
3.17 Analysis of the data collected for that period showed that in 26 cases involving 94 witnesses, some kind of application or CWN existed for at least one vulnerable witness in the case, so these would have been picked up by the clerks recording cases with applications. In a further 39 cases which involved 67 child witnesses, however, no CWN or application had been submitted for any witness in the case. Many of these cases (25 of the 39) contained one child witness only, and such single vulnerable witnesses may be particularly likely to have no notice or application submitted.
3.18 The 7 month period showed CWNs being submitted in around 40% of cases where children were being cited in the High Court, or for around 60% of children cited (since cases without applications contained many single citations of children). It is possible that this percentage fell as the Act bedded in since this was the start of child year 1, but the research was unable to show this.
3.19 Data for the High Court throughout the rest of this chapter are annotated to remind readers that not all child or adult vulnerable witnesses being cited in the High Court were being identified. An important limitation then is that the proportion of children cited who did not have a CWN or SM application submitted is unknown, outwith the 7 month period.
3.20 In summary then, the population sampled was all witnesses cited in solemn proceedings throughout the study period in the study Sheriff Courts, and during one 7 month period in the High Court. Outwith that period in the High Court, only cases where clerks recorded at least one SM application were examined. The study period included the years from April to March:
- 2004/05, or the 'child baseline' period before the Act came into force in April 2005
- 2005/06, or 'child year 1', the first year of the Act's implementation
- 2006/07, or 'child year 2/adult year 1'. Although the final tranche of data collection was left as late as possible (April 2007), many cases were still on-going and the papers unavailable.
3.21 An estimated two thirds of 2006/07 cases were completed and in the files for examination by April 2007. This means that year-on-year comparisons of absolute numbers are not possible from child year 1 to child year 2/adult year 1 although trends in proportions or percentages are presented when possible.
3.22 Similarly, any comparisons between the baseline and year 1 are on the basis that applications were being made only for some children before the Act, but afterwards, CWNs should have been submitted for some children, i.e. those in cases reported to the procurator fiscal after 1 April 2005. Finally, because of the different sampling methods and nature of cases, results should not be combined for the High Court and study sheriff courts.
Numbers of cases covered by the research
3.23 The entire study encompassed over 10,000 indictments, as table 3.1 shows.
Table 3.1 Indictments sampled by the research
3.24 In the sheriff courts, almost 6,500 case papers were individually examined. In the High Court, over 3,500 indictments registered were either monitored for SM applications by clerks, or examined individually during the 7 month period by the researchers.
3.25 The rest of this chapter considers the findings in more detail, first considering the High Court and then the study sheriff courts.
Witnesses cited at the High Court
3.26 In all the following High Court results, the method used to sample cases (relying on applications made) means that the research undercounts the number of children being cited, because children for whom no CWN or SM application was submitted were not identified. (In the baseline period, and for cases reported to the fiscal before 1 April 2005 even if indicted after that date, there was no mandatory requirement to submit a CWN but only a SM application if deemed necessary.)
3.27 The 7 month period is the exception and provides the most reliable indication of the true picture. It indicated that at the start of child year 1, CWNs or other applications were being submitted for around 60% of children cited in the High Court. This percentage may well have increased by child year 2 as more child witnesses came within the ambit of the Act. Because sampling proceeded on a different basis in child year 1, the following tables show any absolute numbers for that year in italics, to dissuade readers from discerning trends inappropriately.
3.28 The Justiciary Office of the High Court in Edinburgh maintains records centrally for all High Court cases, including for the permanent High Court locations at Edinburgh, Glasgow and Aberdeen. Cases moved sometimes, so the court recorded was where evidence was heard or the preliminary hearing was held if a plea was entered. Table 3.2 shows that (as might be expected) Glasgow and Edinburgh followed by Aberdeen handle most cases involving vulnerable witnesses, but cases are heard at a range of courts on circuit:
Table 3.2 Cases identified involving vulnerable witnesses, by High Court location
3.29 Some of these cases, of course, involved more than one child or adult vulnerable witness. There was nothing to suggest that cases at certain courts were more likely to involve a greater number of witnesses per case, as table 3.3 indicates:
Table 3.3 Average number of vulnerable witnesses cited per case with VWs in the High Court
3.30 It was not unusual in either the High Court or sheriff courts for a large number of children to be cited in a single case, and an example can be seen in table 3.3 for one Inverness case in child year 2. Several interviews noted that if there was one child witness cited in a case, it is very likely that there will be more. For example, these cases may involve a number of siblings or perhaps networks of child abusers. On the other hand, there were generally fewer adult vulnerable witnesses per case.
3.31 Below, cases from all High Court locations are considered as a whole. Of the 593 vulnerable witnesses identified at the High Court, 539 were children, 54 were adults, 15 had been cited by the defence and 11 were vulnerable accused persons, as table 3.4 summarises.
Table 3.4 High Court summary; witnesses identified by the research
3.32 As discussed, witnesses were largely identified through an application being lodged or CWN submitted in the case, apart from in the 7 month period. Numerous vulnerable witnesses were identified for whom no application or CWN was submitted however; notably, as table 3.5 shows, for 35 children cited by the Crown in the baseline and 76 in child year 1.
Table 3.5 Vulnerable witness applications by the Crown in the High Court
3.33 Outwith the 7 month period it is impossible to say how many vulnerable witnesses were being cited in total, or how many were being cited without applications being made. But in those 7 months, a total of 161 children were cited in 65 cases. Grossing this up suggests around 280 children may be being cited annually in the High Court.
3.34 Of the 161 children cited in that period, 42% (67 child witnesses) had no CWN or other application submitted on their behalf. At the start of year 1 then, CWNs or other applications were being submitted for around 60% of children cited. The equivalent proportion is unknown for other periods. The number of witnesses found with no application appears low in child year 2, but this is related to the commencement arrangements, sampling method and the fact that there were many on-going cases for which the papers could not be examined. From child year 1 to child year 2 however, the numbers of CWNs submitted almost doubled, even though child year 2 was as yet incomplete, and we do not know how many children were cited in total.
3.35 Table 3.5 and figure 3.1 below show the progression from using petitions to apply for special measures in the baseline period before the Act to using CWNs in child year 1, with just a small tail-off for children (10 petitions lodged after 1 April 2005).
3.36 The incidence of having 'no application or notice' appears highest in child year 1, simply because this includes the 7 month period which provides the fullest picture concerning children for whom no application was being made. There may well have been substantial numbers of children cited in other periods for whom no application was made.
Figure 3.1 Vulnerable witness applications by the Crown in the High Court
Applications at the bar
3.37 In many cases, there was no notice or petition in the papers, and the clerks had not recorded a notice or petition being lodged, but the minutes recorded agreement of special measures at the preliminary hearing ( PH). These were likely to be applications 'at the bar' which did not result in subsequent documentation and they were, of course, most likely to be identified during the 7 month period.
3.38 During the baseline period few applications at the bar were detected (4; see table 3.5/figure 3.1) but this was because not all papers were being examined by hand; case papers were only examined when an application was recorded by Justiciary Office administrative staff. In child year 1 the Crown made 80 child applications at the bar, many of which were identified when examining sitting papers in full during the 7 month period. This may then have been an accurate picture of the numbers of applications being made at the bar. In child year 2, 20 applications were noted, but again there may well have been more than 20 made, but not identified by the research.
Defence applications
3.39 Vulnerable defence witnesses or vulnerable accused persons were seldom identified, but when they were, any applications made by the defence were noted. Two defence applications were made during the child baseline and 2 CWNs submitted in year 1, and a further 3 CWNs in year 2 to date, all on the correct form of notice. Six applications were made by the defence at the bar in child year 2. Sometimes at the PH the defence said a notice would be lodged as soon as possible, or was on its way. Two children were identified in child year 2 who had been cited by the defence without any CWN, as table 3.6 shows:
Table 3.6 Vulnerable witness applications by the defence in the High Court
3.40 Two notices were found for vulnerable accused persons. The vulnerable accused person in child year 2 for whom a CWN was submitted was a 15 year old male, with a late application for a supporter at the preliminary hearing. The example from adult year 1 was for a 20 year old male who had several co-accused and an application was made by the defence at the preliminary hearing. Although a notice was recorded as lodged it was not in the papers so its precise form and the measure sought was unknown. In both cases pleas were entered and the accused person did not give evidence.
3.41 No CWN or application was lodged for a total of 9 other vulnerable accused persons identified, all of whom were children. One of these (a male aged 14 in child year 1) used a supporter when giving evidence although no notice had been lodged.
3.42 Although generally few applications for special measures were made for vulnerable accused persons, many (4 out of 8 identified in the study sheriff courts in child year 1 for example) were referred to the Children's Hearing System for advice before sentencing. This suggests that the accused person's age was very much on the mind of the court by this stage, although no notice was lodged beforehand. However, in some of these cases a defence witness list was not present and the accused person may not have been cited; there may have been no intention to lead evidence from them.
Adult vulnerable witnesses
3.43 In adult year 1 (table 3.5), roughly half of the applications found were on old style petitions (7), and half on VW applications (6). At least a further 12 applications were made by the Crown at the bar. Of the applications identified then, including applications at the bar, around one quarter (6 of 25) were on VW notices. Although some of these petitions were lodged in November or December 2006, it is possible those cases were reported to the fiscal before 1 April 2006 and so therefore did not require to have a VW notice.
3.44 It proved impossible to identify adults for whom no application had been made. But given the results for children, who are far easier to identify than adults, it is safe to assume that there would have been vulnerable adult witnesses who were not identified by the system.
3.45 41 of the 54 adult vulnerable witnesses for whom applications were made in the High Court were female. At least 20 women were also victims; only 4 were not (papers were missing in the remaining cases). Many of the females were victims of alleged sexual offences or abuse (18) and only one was involved in a murder case. The male witnesses were more often cited in murder or attempted murder cases (4); one was also a victim and 3 were not, but the papers were missing for the rest.
3.46 The average age of adult vulnerable witnesses was 29 (n=47, 7 unknown). They included 12 under-20 year olds, forming, as figure 3.2 shows, a skew towards younger age groups. The oldest witness cited and for whom a VW application was submitted was 70. Age may not have been the primary factor determining vulnerability for this person, since another witness in the case also had an adult witness notice but was aged only 45.
Figure 3.2 Age of vulnerable adult witnesses identified in the High Court
Child witnesses
3.47 Child witnesses in cases reported to the fiscal and cases lodged in children's hearings court proceedings on or after 1 April 2005 are covered by the Act, and the legislation also sets out the relevant date for defining a witness as a 'child'. Under section 271(a) of the 1995 Act as amended by the VWA, a person is a child witness if 'under the age of 16 on the date of commencement of the proceedings in which the trial is being or to be held' (when the indictment is served). Yet if witnesses turned 16 after this, i.e. during the trial, they sometimes lost their entitlement, wrongly.
3.48 For example, in January 2006 (during child year 1), 3 CWNs had been submitted in the same case, seeking a range of measures. At the preliminary hearing the Advocate Depute ( AD) "Confirmed that he was not moving the three child witness applications for special measures. Two of these applications were now redundant as the witnesses were no longer children and the third child was likely to be an adult if trial was fixed after [a certain date]. Accordingly , he agreed with his Lordship that these were no longer live matters before the court". On the day however, one witness, whose application had been for CCTV, wanted special measures and this was allowed, although the witness gave evidence using a screen and not CCTV. Another gave evidence using no SM and the other did not give evidence.
3.49 In one case during the child baseline period, a 15 year old female alleged victim turned 16 during a trial which had first called in October 2004 and was on-going in April 2005. A petition for a screen had been submitted and although the complainer was by now an adult, counsel for the defence said in court that he would not oppose screens. In the event however, the witness no longer wanted to appear in court and did not give evidence, and the accused person was acquitted.
3.50 One case during child year 2/adult year 1 involved four siblings. Two alleged child victims gave evidence against their brother concerning sexual allegations, using CCTV in one case and screens in the other, and both with supporters. Their sister, who had turned 16 one month before the case first called, and was also an alleged victim, gave evidence with no special measures and with no VW application being submitted. In another case in the same year one 16 year old alleged victim gave evidence with a supporter despite no application having been made. (Child witness notices had been submitted for 5 other child witnesses in the case only one of whom was also a victim.) Such examples illustrate both the unavoidably arbitrary nature of the 16-year age limit but also show how the courts can be flexible even when no CWNs or VW applications have been lodged on a young person's behalf.
3.51 A petition or VW application were sometimes submitted for 16 year olds. In one case before the adult provisions came into force, a petition for screens accompanied by a reference report was submitted for a 16 year old victim within the same case as 3 child witness notices. In another case, a VW application (which again accompanied child witness notices) noted that " although the witness has attained 16 by indictment, she is still a very young girl and is 6 months pregnant". One alleged rape victim who had just turned 16 was the subject of another VW application with a teacher's reference report.
Characteristics of children identified in the High Court
3.52 The average age of children identified in the High Court was just over 13. It is hard to draw generalities about other characteristics including gender because as table 3.7 shows, these varied year on year. Over the entire study period, 306 (57%) of the 539 children identified were female and 205 (38%) were also victims in the case. 406 (75%) had no family or other relationship to the accused person so far as the papers showed.
Table 3.7 Characteristics of child witnesses identified in the High Court
3.53 Children for whom applications were made in the baseline period seemed to differ from children identified in other years in some respects, with a higher proportion of female witnesses. Looking at the ratio of males to females each year, this differed significantly from what would be expected (50:50) in the baseline period 12 and year 2 13, but not in year 1 14.
3.54 This implies female child witnesses may have been most likely to have an application made in the baseline period, before the Act came into force. Tables 3.28 and 3.29 below show that gender did not have a significant effect on whether applications were made or CWNs submitted however. On the other hand, victims were more likely to have an application made or CWN submitted. In fact, in each year, the female children identified were more likely to be also victims and males less likely to be 15.
Specialist reports
3.55 Table 3.5 showed how petitions began to give way to witness notices. Petitions were generally accompanied by a specialist or expert report from someone such as an education or health professional, providing arguments as to why special measures were justified.
3.56 One direct effect of the Act is that the number of reports required by the court from professionals fell drastically and immediately. In the baseline period almost 100 reports were produced for the High Court, as table 3.8 overleaf shows. By child years 1 and 2 these should have been increasingly unnecessary, and only a few were still being produced. In year 1, one was very early in the year and a further 4 were lodged in relation to the same case which first called in May 2005; these all accompanied petitions and it is highly likely that these cases were reported to the fiscal before 1 April 2005. The 2 teachers' reports produced in child year 2 related to the same 12 year old child and a request for a remote link.
Table 3.8 Specialist reports accompanying SM applications in the High Court
3.57 Five reports were produced to accompany applications in adult year 1 of implementation. One of these accompanied a petition and 2 VW applications. In one of these the witness had just turned 16, and a VW application included a report from a teacher. The other 2 were in the form of letters to the court from a psychiatrist and a GP, each accompanying a Crown application made at the bar.
3.58 In other words, specialist reports may still be being produced where the applicant feels the need to 'bolster' a request which may not otherwise be granted. The interview study also suggests that a degree of judgement is being exercised. Some Crown interviewees felt that accompanying documentation should not be necessary and that VW applications should be submitted without as a matter of principle; at the same time they were exercising discrimination about applications made. Other interviewees agreed, but felt that if VW applications began to be submitted indiscriminately, then there should be accompanying documentation and courts would start demanding this. This is discussed further in chapter 5.
3.59 Overall however, it is clear that the Act has removed some of the resource demands associated with making an application, but chapter 5 discusses how some interviewees felt that this has been replaced by more work for those lodging CWNs for 'no SMs required'.
Special measures sought in the High Court
3.60 Both CWNs and the earlier petitions stated which special measures were being sought, and petitions sometimes also noted what the witness's views were. There were changes over the course of the study as table 3.9 shows.
Table 3.9 Special measures sought in the High Court
3.61 Of the 3 'standard special measures', applications were split during the baseline period roughly equally between screens and CCTV link, with very few applications for supporters with another standard SM. Four applications sought a closed court. This was because the children in these cases had expressed a wish to give evidence "in private" (2 children), "not in public", and "not in front of others". The children's views expressed in petitions included wanting to be protected from the accused, or wanting "anything that helps"; while some noted "thinks he will be OK".
3.62 Once the Act began to come into effect, the popularity of screens seemed to decline further relative to CCTV, with only a third of the number of applications for screens as for CCTV in each year. After the baseline period, there were no further applications for closed courts; this is not a choice on the CWNs but a matter for the court to make by special arrangement. Applications for supporters increased drastically from 5 in the baseline period to 113 in child year 2. This may partly be because child witness notices record the use of this measure better than petitions, or because requests for supporters often accompanied those for one of the other standard special measures. Requests for supporters alone as a special measure remained relatively low.
3.63 Adult vulnerable witnesses showed different patterns to children in several ways. Applications for screens and supporters were more common than for CCTV. Adults were only being identified by the research particularly in the High Court as VWs if they made an application for special measures, so it was highly unusual to see a VW application seeking no special measures; the sole example was in a case with 4 other adult vulnerable witnesses who were seeking a range of special measures.
3.64 For children, 'no special measures required' was almost as common a choice as screens in years 1 and 2. (In the baseline and in cases reported to the fiscal before 1 April 2005 of course, there was no need to submit a petition if no measures were being applied for.) This suggests that those citing young witnesses, or the children themselves, will not necessarily seek to use special measures simply because they are available as of right. Equally, it suggests that where they are chosen, this indicates that the child's perception is that they may be unable to give their evidence otherwise.
3.65 Applications for remote sites were largely confined to child year 2. The one example in child year 1 was very late in the year (lodged in March 2006). The use of remote sites and the other special measures in giving evidence is considered below.
Special measures used
3.66 Table 3.10 shows which special measures and other arrangements were used when vulnerable witnesses gave evidence. Clerks of court recorded this information in the minutes. Although this was done in a consistent manner, it is possible that some procedures, particularly the removal of wigs and gowns, which did not appear after the baseline period, were simply no longer being recorded.
Table 3.10 Special measures and arrangements used giving evidence in the High Court
3.67 Just fewer than 60 child witnesses were identified as giving evidence in the High Court in each year of the study, as did 17 vulnerable adult witnesses in adult year 1. The true number is almost certainly higher, since not all VWs were being identified by the research, especially outwith the 7 month period, unless an application had been made on their behalf.
3.68 Although it is not shown in the table, across the study period, 242 witnesses for whom applications were made or CWNs submitted did not give evidence because a plea was accepted. Interviewees noted that such applications may help convince the accused that the witness is going to give evidence against them, as well as reassuring the witness.
3.69 Table 3.11 shows the same data, but as a percentage of all those who gave evidence:
Table 3.11 Special measures used in the High Court (% of those who gave evidence)
3.70 While the table shows that of the witnesses identified almost a quarter (23%) gave evidence with no SM over the entire study period, it is likely that the true proportion was higher. Child year 1 (44%) may most closely represent the real picture since it included the 7 month period when nearly all child witnesses were identified, not just those for whom applications had been submitted. It was, however, early on in the implementation period.
3.71 Considering the 3 standard special measures, almost half of the vulnerable witnesses identified by the research who gave evidence did so using a TV link from within the court. Screens were used by around a fifth of those who gave evidence, although their use was higher for adult vulnerable witnesses. The use of supporters in tandem with either a screen or TV link was also common (43%). The use of a supporter only was much less so; overall, around 1 in 10 witnesses gave evidence with a supporter only (see also below).
3.72 Non statutory special measures include a range of actions which do not require to be intimated on a VW application, which the court can take to help put witnesses at their ease. A closed court seemed to be becoming more frequently used for children throughout the period of the study, and was especially used for adult vulnerable witnesses. On the other hand, the removal of wigs and gowns was not seen after the baseline period. As noted, this may be a recording artefact. If there were any examples of judges coming down off the bench, these were not recorded in the minutes.
3.73 The 'non-standard' special measures under the VWA include the use of a prior statement (which includes visual or audio recordings), taking evidence on commission and the use of a remote site. No examples of taking evidence on commission were found in the High Court during adult year 1, although as chapter 2 noted, implementation was delayed. However, during what would have been the adult baseline period one case at Glasgow High Court from August 2004 to May 2005 used evidence on commission for a prosecution adult witness.
3.74 One case identified in the child baseline period involved a case in which a DVD recording had been made of a child's joint investigative interview with police and social workers. The DVD was included as a production but not ultimately played in court (Richards et al, 2007).
Use of remote sites and technical issues
3.75 The use of a remote link is worth considering in detail since no uses have yet been recorded when giving evidence, although 12 uses were applied for (table 3.9).
3.76 In two cases, including the case in child year 1, a plea was accepted so the children did not give evidence. Two of the 9 applications in child year 2 were for very young female victims in the same case calling at Edinburgh, involving a sexual offence. The application was to use the High Court at Perth as a remote site, rather than a location outwith a courthouse. However, the quality of the link was unsuitable to continue with the trial, so the special measures were reviewed to allow a link from within Edinburgh High Court the next day. The accused person was convicted.
3.77 Another application was for a 12 year old female victim of an alleged sexual offence. After a court familiarisation visit the application was changed to use a TV link within the same building.
3.78 For 5 witnesses (4 in the same case and 3 aged under 12) the case papers were unavailable since the case was on-going, but information was gained from interviews. This is described as a case study in chapter 5, which eventually used a TV link from within the court.
3.79 One of the 2 applications for adults was dismissed "due to its' lacking in specification", perhaps because there was no accompanying specialist report with the petition. The witness gave evidence with no special measure. For the other adult a plea was accepted and the witness did not give evidence.
3.80 Technical issues were sometimes noted in the minutes when using TV links within courts as well; in one case during child year 2 a case was deserted following a series of problems. There were problems with the quality of sound and then when the equipment was switched off for a break the jury could hear the witness speaking and had to be discharged. In another case there were technical problems in showing video evidence to a witness who was using the TV link within the court, which caused a delay of about an hour.
3.81 These examples of technical problems should be seen in the context of 87 cases during the study period in which evidence was given using a TV link within the courthouse. Cameras and monitors are also used when evidence is given from behind a screen, so that the accused can see the witness and again this indicates high levels of use of some courtroom technology. When considering remote links alone however, so far there is a poor success rate in attempts by applicants to use these. The use of special measures by under-12s giving evidence in the study sheriff courts and High Court is discussed on page 67.
Use of supporters
Table 3.12 Identity of supporters in the High Court
3.82 Those who supported witnesses were sometimes but not always identified in the minutes. The WS was most often recorded apart from the child baseline period, when social workers more often supported witnesses. Family members were popular choices and would have been more popular, but were sometimes objected to by the defence as supporters. One 15 year old female victim wanted her mother as a supporter but VSS acted instead. Two witnesses in the same case wanted a sister and aunt as supporters but following objections WS supporters acted instead.
3.83 Choice of supporter is often discussed at precognition, sometimes with VIA staff, and while it would not be appropriate for family members who are also to be cited as witnesses to act as supporters, family members are not discouraged per se16. However, the results from data collection and from the interview study suggest that objections at court often occur regarding family members who have not been cited.
Witnesses cited at the study sheriff courts
3.84 At the study sheriff courts, all Crown and defence witness lists and indictments were examined in each solemn case indicted throughout the study period. The following results can therefore be considered confidently as being based on all child witnesses in these cases cited throughout the study period, although problems identifying vulnerable adult witnesses remained, and attempts to assess applications in referrals from Children's Hearings are discussed separately below. The results for solemn cases in the sheriff courts do not rely on applications being made therefore, or being recorded by clerks, as they did in the High Court outwith the 7 month period. This section can therefore consider, for instance, the proportion of total children cited in these cases who had CWNs submitted for them and how this changed through the study period.
3.85 The study sheriff courts were chosen to include Edinburgh and Glasgow, and then one in each other sheriffdom to include a range of court characteristics (Airdrie, Greenock, Peterhead and Stirling). Summaries are shown first by court and year, and then generally with data from all courts combined to look at issues in turn.
Table 3.13 Child witnesses cited during the baseline period in the study sheriff courts
3.86 In the baseline period a total of 201 child witnesses were cited in solemn cases, appearing in 112 cases out of over 2,000 examined. In all then, some 6% of cases involved a child witness and there was an average of 1.8 children cited in each of these. One of those identified was a young accused person, and 5 witnesses had been cited by the defence.
3.87 Before the Act, SM applications had been made either via petition or at the bar for 39 children, or 19% of the children cited. In other words, around 80% of children cited had had no application made. Because all indictments were individually examined in the sheriff courts, and quality control checks were made, confidence in these findings is high.
Table 3.14 Child witnesses cited during child year 1 in the sheriff courts
3.88 By child year 1, the number of child witnesses cited increased to 269 appearing in 142 cases, but levels of business had also increased, with over 2,600 papers being examined. So approximately 5% of cases involved a child witness, with an average of 1.9 children being cited per case, both similar to the baseline period. The defence cited no child witnesses but there were 8 accused persons aged under 16 (for one of whom a CWN was submitted by the defence; see below).
3.89 Overall, 210 or around four-fifths of children had no application made or notice submitted on their behalf, while some kind of application or CWN was submitted for 59 children, or 22% of those cited. In this year CWNs should have been submitted for all children whose cases were reported to the fiscal after 1 April 2005. As noted earlier it was not possible to draw a sample from the court records comprised entirely of cases which fell within the ambit of the Act. The sample therefore was based on sheriff court cases indicted on or after this date; however, because some case papers recorded no indictment date, the date of the first diet was used to judge whether or not a case was likely to have been indicted on or after 1 April 2005.
Table 3.15 Child witnesses cited during child year 2 in the sheriff courts
3.90 Child year 2 is perhaps two-thirds complete, because of the time-lag between cases being indicted and completed. Of over 1,800 cases examined, 108 or 6% involved child witnesses, so the proportion of cases involving child witnesses in the study sheriff courts was remarkably constant, at 5% - 6% over the study period. An average of 1.9 children was cited per case, again constant from year to year. The number of children cited by the defence remained low (2) and 3 vulnerable accused children were identified.
3.91 Of the 204 children identified in year 2, 97 (48%) had some sort of application or CWN. This is a large increase from the baseline (19%) and year 1 (22%) and implies that awareness of the need for special measures, and for CWNs, may be increasing. It also reflects the increasing proportion of cases involving child witnesses that fell within the ambit of the Act by year 2 (April 2006-April 2007), having been reported to the procurator fiscal on or after 1 April 2005.
Table 3.16 VW applications in the study sheriff courts
3.92 Adult year 1 was of course the same period as child year 2, and based on the same 1,817 case papers. As in the High Court, it proved impossible to identify adult vulnerable witnesses in the absence of applications (see page 69 for notes on 'candidate cases' found). In over 1,800 cases, only 14 vulnerable adult witnesses were identified (13 through VW applications and one 16 year old through an earlier child witness notice).
3.93 The Crown applications occurred in 11 cases, and 10 of these also had a CWN submitted in the case. This implies that VW applications are more likely to be submitted when a CWN is being submitted in the same case. No VW applications were submitted by the defence or for an accused adult. Table 3.17 shows data for all 6 study sheriff courts and for adults and children combined, and the form that applications by the Crown took.
Table 3.17 Vulnerable witness applications by the Crown in the study sheriff courts
3.94 The replacing of petitions by CWNs occurred more gradually than in the High Court, with almost equal numbers of each in child year 1; indeed still more petitions than child witness notices were lodged in that year. By child year 2 however, witness notices outnumbered petitions substantially and applications at the bar or first diet ( FD) had fallen to zero in that year so far for children.
3.95 The proportion of instances in which no application was made or notice submitted was higher than in the High Court (around 40% of children cited in the 7 month period) but it did fall throughout the study period. In the baseline period, some sort of application was made for 39 children, but 155 had no application (80% of all instances). This approximation held in child year 1, but by child year 2 around 54% of children had no CWN or other form of application. In other words, the two groups 'with' or 'without' notices or applications were starting to approach parity.
3.96 Nevertheless, after the Act's provisions began to be implemented, over 300 children had been cited in the study sheriff courts with no form of application or CWN being made on their behalf even though all children in cases reported to the procurator fiscal from 1 April 2005 should have had a CWN. To an extent, this will be due to the time taken between receipt by the fiscal of a report and indicting a case, which will vary within set limits. A custody sheriff and jury trial must commence within 110 days (unless extended by the court), and indictments in respect of all custody cases must be served by the 80th day following full committal. The majority of bail cases are likely to be indicted within 8 to 11 months but some will be indicted within custody time limit periods or at a date prior to the 8 to 11 month period. 17
3.97 This would have had the most effect in child year 1. By child year 2 (April 2006-April 2007), the majority of cases would have been reported to the fiscal after 1 April 2005, although still only 54% rather than 100% of children had CWNs lodged.
Table 3.18 Vulnerable witness applications by the defence in the study sheriff courts
3.98 No examples of pre-Act petitions being submitted by the defence were found. Very few witnesses were cited by the defence (8 across the entire study), but both of those who were cited after the Act had come into force had a CWN submitted. These were in 2 different cases in year 2, in each of which the Crown also cited child witnesses. One defence witness was cited more than once in related cases at Glasgow sheriff court and the CWN was resubmitted, but the repeat citations have not been counted (nor were returning prosecution cases and witnesses). Although some defence witness lists may have been omitted, equally, the lack of applications could be because the provisions of the Act made defence agents reconsider citing a child witness or simply because few witnesses are cited by the defence in any case (only 6 in the baseline).
3.99 Twelve vulnerable accused persons, all aged under 15, were identified. One in child year 1 was accompanied by a CWN, and 2 in child year 2 had applications at the bar. For one of these vulnerable accused children, while no witness notice was produced the child was allowed to have her mother as a supporter while giving evidence and to take frequent breaks of 45 minutes, 'under section 271'. The remaining 9 had no petition or CWNs submitted. One child during child year 1 at Glasgow sheriff court was a 15 year old accused male who pled guilty and was referred to a children's hearing; according to the papers he had a history of self-harming.
Specialist reports
3.100 By child year 2 the number of specialist reports being submitted was tailing off in the study sheriff courts, as table 3.19 shows:
Table 3.19 Specialist reports submitted in the study sheriff courts
3.101 Because of the slower switch from petitions to witness notices compared to the High Court there was little change from the baseline to child year 1, however. Another difference from the High Court (see table 3.8) is the smaller range of professionals who used to produce reports; mostly teachers and social workers.
Adult vulnerable witnesses in the study sheriff courts
3.102 The 14 adult vulnerable witnesses identified were all at Glasgow (10) and Edinburgh (4) sheriff courts; none were found at the other study courts. All were prosecution witnesses. The vast majority were female (12) and most were victims as well as witnesses (9). Five of the witnesses were related in some way to the accused person.
3.103 Their average age was 25. The only two male vulnerable witnesses had apparent ages of 15 but VW applications had been submitted, so presumably they had turned 16 just as proceedings began. They have therefore been treated as 16 year olds for the purposes of analysis. (It is unlikely that VW applications were used by mistake, since they were cited in a case that also contained CWNs for younger witnesses.) The oldest adult vulnerable witness was 42, so age alone was insufficient to determine vulnerability at the higher age ranges; no over 60 year olds were deemed vulnerable even though many were found. On the other hand, there was a preponderance of 16 year olds, so at the lower end of the age range, age probably was a factor in determining vulnerability:
Figure 3.3 Ages of adult vulnerable witnesses identified in the sheriff courts
3.104 During the Bill's parliamentary stages there was some debate whether 16 and 17 year olds should be classed as children and therefore automatically vulnerable witnesses. As well as youth, some other factors contributing to vulnerability were mentioned in the witness notices. One witness said she felt vulnerable and was pregnant; another said at precognition that she was terrified of the accused, and the charge included threats to this witness.
3.105 Only one VW application in the sheriff courts was accompanied by reference reports, in this case from several agencies on behalf of the one 16-year old female victim in an alleged familial sexual abuse case. The only adult who did not have some form of application had earlier been cited with a child witness notice, and had given evidence using a supporter in a closed court as a 15 year old. The time bar had been extended because of new evidence, and it was not clear whether this witness would be required to give evidence again.
3.106 Seven of the adult witnesses gave evidence, and 6 did not because of pleas, with one case unfinished. Special measures had certainly been used in one case, where a female witness used screens, the measure sought on the VW application. In the other cases, it was not possible to tell how the witnesses gave evidence (although no applications were recorded as refused). This may mean that these other witnesses gave evidence without any special measure, or that the minutes were less comprehensive for adult witnesses than for children.
Special measures and arrangements applied for in the sheriff courts
Table 3.20 Special measures and arrangements sought in the study sheriff courts
3.107 Trends in special measures sought in the study sheriff courts showed some similarity to those in the High Court (see table 3.9). In the baseline period and excluding notices requiring 'no special measures', applications were split almost equally between screens (49% of all applications) and CCTV (44%), with screens slightly more popular. By child year 1 however the choice of screens (16%) had fallen drastically relative to CCTV (63%). CCTV as a choice (36%) remained more popular than screens (12%) in child year 2.
3.108 The choice of the third standard special measure, supporters in tandem with CCTV or a screen, rose drastically in child year 2, to become the most popular. The pattern of choice of screens/ CCTV accompanying this mirrored that for those measures alone. Again as in the High Court, the choice of a supporter alone remained low. Since this is a non-standard special measure its use must be justified to the court, and this may help explain why it is more rarely used 18. Another similarity to the High Court was that adults showed the opposite pattern to child witnesses, with applications for screens being more common than for CCTV.
3.109 Of the non standard special measures, no requests to use a prior statement/visual recording were found in the study sheriff courts during the study period. However, in February 2006, before the adult provisions began to come into effect, an 'evidence on commission statement' was admitted in a case at Greenock sheriff court. This was evidence taken by a commissioner from a 75 year old male defence witness in an historical alleged sexual abuse case. As noted, commencement of the provisions on evidence by commissioner under the VWA was delayed ( chapter 2). Use of remote links is discussed below.
3.110 Of the non-statutory special measures, there were few recorded requests for closed courts. Some children (and adults) gave evidence in a closed court however (17% of all those who gave evidence across the study; see table 3.21), without specific requests to do that being recorded in the paperwork; many were probably made at the bar but not noted in the minutes. Applications were made for 2 children at the bar during a trial at Edinburgh which lasted for almost a year; their petitions originally granted in March 2006 sought a live link within the court, but a request was made at the bar in February 2007 for a closed court, screens and a supporter. The accused person pled guilty.
Use of remote links in the study sheriff courts
3.111 There was one application for a remote link in child year 1, rising to 10 in child year 2. The example in child year 1 was for one under-12 year old witness at Stirling sheriff court, who gave evidence using a remote link and a supporter.
3.112 Eight of the applications in child year 2 were for children in the same case calling at Edinburgh sheriff court in September of child year 2, all of whom were under 12 and were victims of a sexual offence. Seven gave evidence and all did so using a remote link from a site at an academic institution. The accused was found guilty.
3.113 The other 2 applications were another case calling at Edinburgh in November 2006 involving 3 siblings; the applications were for 2 of these who were under-12 year old victims. Their other sibling who was aged 15 had an application for screens instead. A different remote site, closer to the centre of Edinburgh, was identified by the parent as "being convenient" but because of poor sound quality the case had to be adjourned to the next day. Then there was a motion to allow evidence to be taken by CCTV link from within the courthouse, not a remote site, because of the technical difficulties. The children gave their evidence in this way, and the accused was convicted.
3.114 One further child witness notice in child year 2, for a 7 year old male victim of an alleged offence of a sexual nature calling at Edinburgh sheriff court, noted that "Due to the nature of the evidence [the witness] is likely to give he would be entitled to give evidence by way of a TV link from a site outwith the court building in terms of section 271b. The nearest and only currently available such remote site is in […] and it is more practicable for the said [witness] and his mother to attend at Edinburgh Sheriff Court". The parent also considered it "impractical and undesirable" to attend the other remote site. In effect then the distance to travel to the only available remote site meant that the only choice available was within the sheriff court where the trial was being held.
3.115 It cannot be stressed enough that this evaluation was able to examine only a sample of what was happening at sheriff courts in Scotland, by carrying out data collection at one courthouse per sheriffdom. But the interview study picked up further examples of applications for and attempts to use remote sites, some of which were similarly affected by technical or locational difficulties. Chapter 5 gives further details and 2 case studies.
Special measures and arrangements used in the study sheriff courts
3.116 As in the High Court, the minutes were examined to see whether each vulnerable witness gave evidence, and if so how. The minutes recorded the use of special measures in a consistent manner, and so if no special measure was described, this was recorded as 'no special measure' used. For adults however, a large number of witnesses for whom VW applications had been made apparently gave evidence without any special measure. It may be that many adults go on to give their evidence without a special measure on the day, but possibly this is a recording artefact if clerks were not recording use of special measures for adults. Table 3.21 shows special measures and other special arrangements used when giving evidence.
Table 3.21 SMs and arrangements used giving evidence in the study sheriff courts
3.117 In the 6 study sheriff courts across the study period, around 40-50 children gave evidence each year. SCS or COPFS are unable to supply figures for the numbers of child witnesses who give evidence nationally (see chapter 4). Each year over 100 - and almost 200 children in child year 1 - did not have to give evidence because a plea was accepted in the case; in all, pleas were accepted for 416 vulnerable witnesses cited.
3.118 According to the minutes, supporters were apparently little used in the sheriff court, but it may well be that these were simply not being recorded in the minutes, or to a lesser extent than in the High Court. Of the 14 supporters noted across the entire study period and courts, 4 were identified as WS, one as a grandparent and the remaining 9 were unidentified in the minutes. It may well be that the use of supporters is so commonplace as to not merit inclusion in the minutes, since during the interview study WS reported that supporters were used quite often.
3.119 Table 3.22 shows the same data as table 3.21, as a percent of those giving evidence:
Table 3.22 Special measures used, study sheriff courts (% of those who gave evidence)
3.120 In the baseline period, 67% or two thirds of children (31 of 46) who gave evidence did so without any special measure. This fell to half of all children who gave evidence in child year 1, and 14% in child year 2. Screens were not very popular compared to the use of a TV link, which was used by over 10% of children during 2 of the years and by almost a third of children in child year 1.
Patterns in SMs by location; High Court and sheriff courts
3.121 Table 3.23 shows disaggregated data by study sheriff court over the entire study period, which shows some interesting patterns in SMs requested. (Totals often sum to more than the number of vulnerable witnesses identified, because many requests were for more than one special measure, notably for CCTV or screens and a supporter.)
Table 3.23 Special measures requested, entire study period, by study sheriff court
3.122 All of the 11 applications for a remote link bar one (Stirling) were at Edinburgh. The numbers are small so it is difficult to draw conclusions from this. However, given that Glasgow sheriff court handles twice as many vulnerable witnesses as Edinburgh this may point to a lack of availability of remote sites in Strathclyde, or to Edinburgh fiscals 'embracing' remote sites to a greater extent.
3.123 There were no CWNs or petitions submitted at Peterhead, although 10 child witnesses were cited during the research period. Peterhead handles few child witnesses and 7 of those identified were in the baseline period before the Act came into force. However, 3 child witnesses (one of whom was a 15 year old accused child) in years 1 and 2 were involved in cases which may have come within the ambit of the Act, but had no CWN. Professionals at Peterhead explained this as confidence that cases would result in pleas and indeed none of these 3 children gave evidence since a plea was accepted.
3.124 Apart from Peterhead, only Stirling had no applications for CCTV link. Stirling did have 11 applications for screens, 10 of which were within one case in the baseline period, and were refused even though the parents had been told measures could be put in place and were upset by this. The papers show that the applications were made at the bar one week before the trial started and some were lodged again one day before, and that the defence objected. Reports from a teacher accompanied them and the content for all of the children was very similar. However, in the end, a defence motion of 'no case to answer' was granted and the accused was acquitted.
3.125 Looking at percentages rather than numbers to allow comparison across courts:
Table 3.24 Special measures requested, entire study period, by study sheriff court (%)
3.126 Discounting Peterhead, which handles very small numbers as discussed, Airdrie had the highest percentage of vulnerable witnesses (92%) for whom no application or notice was submitted, despite being the third-busiest of the study courts in terms of vulnerable witnesses coming through the door. Greenock and Stirling, perhaps similarly sized courts, both had applications or notices in around half of cases. The 2 biggest courts had very similar levels of witnesses (two-thirds) for whom applications or notices were not submitted.
Table 3.25 Special measures requested by study sheriff courts, child year 2
3.127 Looking briefly at data for child year 2 alone, to see how the Act bedded in by sheriff court location, only Glasgow differed appreciatively from the situation across the entire study period. There was no CWN for 37 (37%) of child witnesses, far fewer than the 69% with no notice or application across the study period as a whole in Glasgow. The numbers are very small for some of the study courts so a table of percentages is not presented here.
3.128 This exercise was repeated for the High Court locations. Note that since these are High Court results, they relate largely only to cases where applications had been made. There may well have been many other vulnerable adult witnesses and children in cases for whom no application was made, who were not identified by the research.
3.129 For applications made however, CCTV link had been requested at all locations except Forfar (where just one case had occurred). The one remote link sought outside the permanent High Court locations was at Inverness, but cases were on-going for 81 cases, so these papers were not available to examine.
Table 3.26 Special measures requested by High Court location
3.130 Table 3.26 shows the 4 busiest locations individually only, for clarity. But screens had been requested at Inverness, Perth and Paisley and not Kilmarnock, Forfar or Dundee, which had each handled very few cases involving vulnerable witnesses.
Table 3.27 Trends in special measures requests at the permanent High Court locations
3.131 Looking at trends over the study period for the 3 permanent High Court locations only (data for adults and children combined), they mirrored the overall picture with increasing use of supporters by year 2. Each had handled at least one application for a remote link. All showed consistent levels of requests for CCTV link, except for Aberdeen with none in the baseline, probably because the permanent High Court site was not yet functioning. Screens were generally more popular in the baseline period than afterwards. Again mirroring the overall picture, in each of the 3 permanent court locations the number of vulnerable witnesses with no application or CWN fell from child year 1 to child year 2/adult year 1.
3.132 The 81 instances where a CWN or VW application had been recorded but the case was on-going included 5 requests for a remote link. Four of these were in one High Court case and are discussed as a case study in chapter 5.
Characteristics of cases without applications or CWNs; High Court and sheriff courts
3.133 The above section implies that location may play some part in whether witness notices are submitted or in the choice of special measures. For example, requests for a remote link seem more common for witnesses at Edinburgh than Glasgow sheriff court, and witnesses at Peterhead have not so far had notices or applications submitted. However, this may be, for instance, because all children at Peterhead were in cases where the Fiscals expected not to take evidence. To examine which factors affected whether or not witnesses had applications or notices submitted the data were split into those vulnerable witnesses with any form of special measures request, and those without.
3.134 In the High Court, adults were excluded because cases with VW applications only had been examined. For the same reason, child year 1, when all cases were examined rather than relying on applications being made, will give the truest picture; the other years are more heavily weighted towards those with applications made only. Table 3.28 shows the outcome:
Table 3.28 Characteristics of children with and without applications; High Court
3.135 Looking at the bottom part of the table where percentages are presented allows comparison between groups. Given that child year 1 supplies the most rounded picture, examining this alone shows that the two groups with and without some form of SM request or CWN were very similar in their characteristics (half females, around 30% victims, average age just under 14, only 1 in 10 related to the accused 19). Neither group was more likely to have pleas accepted 20. The groups with and without requests or CWNs differed significantly only in whether the child gave evidence (which was more likely for the group with a CWN or other application 21).
3.136 In the baseline period, witnesses with applications were more likely to include victims than the group without 22. Indeed, in the baseline period, 71% of all those for whom applications were made were victims; no other group in this column rose above 40%. Those without applications were more likely to give evidence without any special measures, as might be expected 23. The group with and without applications did not differ significantly from each other in any other respect however 24, so if any selective mechanism was operating, it was probably only that applications were more likely to be made before the Act for victims.
3.137 Another striking feature is that in each year and including after the Act, the groups with no application or CWN were more likely to have a plea accepted. This strongly implies that one reason for no application or CWN is that the Crown (or defence) expects the witness not to have to give evidence, because the accused person will plead. Indeed in each year, a smaller percentage of those without an application went on to give evidence. It is difficult to draw conclusions about numbers going on to give evidence without a SM, because although the difference in percentages seems high, the top half of the table shows that the numbers are small in each year including the baseline and the sample was biased towards those with applications.
3.138 As a related aside, evaluation of the High Court reforms found that the majority of guilty pleas were being entered at the new PHs rather than at trial diets, saving attendance and inconvenience to witnesses (Chalmers et al 2007).
3.139 In the sheriff courts, all case papers were examined so the confidence that all child witnesses without an application or CWN had been identified was higher. Again, adults were excluded from the analysis because they had only been identified where a VW application had been made and the lower half of the table shows percentages, to make comparison between groups of different sizes easier.
Table 3.29 Characteristics of children with and without applications; sheriff courts
3.140 It has already been noted how the groups with and without CWNs (or other form of application) approached parity by year 2 (see the first column of the top table). In the baseline period, the group with applications was more likely to include females (64%) than the group without applications (32% female) 25 but age was not significant 26. It was not more likely to include victims 27 but it was more likely to include children who were related to the accused person 28. This suggests that in the baseline period applications were more likely to be made for female witnesses who were related to the accused person; being a victim was less significant.
3.141 As with the High Court however, having no application in the baseline period was associated with having a plea being accepted 29, and with not giving evidence 30. Neither group was more or less likely to give evidence without SMs however 31. This suggests that as in the High Court, some judgement was being made as to whether evidence was likely to be led.
3.142 By year 2 still half of all child witnesses being cited were without CWNs, which is a large number in which to be sure of evidence not being led. 55 child witnesses for whom no application or CWN had been submitted over the study period went on to give evidence, of whom 40 used no special measure, but only 15 and 5 of these respectively were in year 2.
3.143 By year 2, neither gender, being a victim nor being related to the accused was significantly associated with having a CWN (or other application) submitted 32. This might be expected, since age alone should by then have been determining the submission of CWNs, which should have been submitted for the vast majority of child witnesses whether or not the use of SMs was anticipated. However, the group without a CWN submitted was still more likely to have a plea accepted 33 and less likely to give evidence 34. Just as in the baseline period, neither group (with and without a CWN) was more or less likely to give evidence without any special measure; very few children did so in year 2 of implementation; 2 with CWNs and 5 without, and the difference between the groups was not significant 35.
3.144 There are interesting patterns to this. The basis for submitting notices or applications has changed as the Act has come into force but the same filters are operating, to the same overall net effect. CWNs are now being submitted on the basis of age (but by year 2 were still only being submitted for half of children) whereas child SM applications used to be associated with gender and relationship to the accused. In the sheriff courts, being a victim has never seemed to be a significant factor in determining whether an application or CWN was submitted (for children, at least), even though this was associated with self-identified vulnerability in the related VWO witness survey (see chapter 6).
3.145 Both in the baseline period and year 2, having no application made/ CWN submitted was significantly associated with not giving evidence and having a plea accepted. Within the same year, both before and after the Act, those with and without applications or CWNs were equally likely to give evidence with no special measure.
3.146 The difference is that by year 2, a total of 7 (out of 51) children gave evidence with no SM, whereas in the baseline period, 31 (out of 46) children did so. This was a significant decrease 36. One can speculate that this is because the starting pool is larger (based on age, because of the Act, rather than on fiscals' perceptions of vulnerability) or because of general raisings of awareness.
3.147 Conversely, in the High Court, the incidence of children giving evidence without SMs was low even in the baseline period and not different before or after the Act (11 of 56 children in the baseline compared to 6 of 59 in year 2 37); it seemed that if children were thought likely to give evidence, they had an application submitted and the judgements were largely correct. Those who did not have an application submitted but did give evidence did so with no SM, but their numbers were relatively low. It might be argued then that in this respect, the Act has had more effect in the sheriff courts than in the High Court.
3.148 Findings from interviews indicate that witness notices were prepared at the same time as the indictment; section 1 of the Act states ' proceedings shall be taken to have commenced when the indictment or, as the case may be, complaint is served on the accused'. The Act sets out time limits for lodging CWNs, although also allows that applications can be made or changed anytime up to the time of evidence-giving, even if some sheriffs say no. So when fiscals prepared the indictment, they were perhaps judging then that the child, although cited, would not be giving evidence. This was not always the case however.
3.149 The sheriff and jury check lists or form 9A.4 statement of preparation forms were sometimes left within the papers. One noted "No notice yet for 14 year old witness" and on another, where 'No' had been indicated next to 'Any child witness notices?' someone else had written "Why not?" This shows that in some courts, either the judiciary or court staff were starting to question the absence of notices. Evidence from the related VWO evaluation (Morris et al, 2008) indicates that in some areas, where the judiciary questions the absence of CWNs, their submission may increase.
Applications refused and witness choice; High Court and sheriff courts
Applications disallowed
3.150 Examples of applications for special measures being refused were very rare. After the Act came into force, in relevant cases children were supposed to have CWNs submitted as a matter of course, so there should in any case be more certainty in standard measures sought being granted. Adults however, still require VW applications which, as the name suggests, include a greater element of application to the court.
Table 3.30 Applications refused; High Court and study sheriff courts
3.151 In the High Court in the child baseline period, 2 children in the same case applied for a CCTV link and one of the petitions mentioned that this was what the child wanted. The children were aged 9 and 10, were not alleged victims and were unrelated to the accused. However, screens were granted since it was " agreed TV unnecessary". The case in adult year 1 was the application for a remote site made by petition but without any accompanying reference report which was dismissed due to "its' lacking in specification". (The Court said that the Crown could reapply but no further application was made, and the witness gave evidence without special measures.) The 3 High Court instances shown in child year 1 were in the case where the CWNs were withdrawn, because the witnesses turned 16 between the indictment and the trial.
3.152 Late applications by both the defence and prosecution were always and frequently allowed in both the High Court and sheriff courts; there were no examples of a request being disallowed simply because of being lodged late. The form of request (witness notice, petition or at the bar) seemed unimportant, although at Stirling the case papers for a group of 11-13 year olds in one case in the baseline period showed a lack of individual detail or reasons for measures, and it is possible that this contributed to applications for screens being not allowed.
3.153 In the sheriff courts, the 4 refusals in child year 1 occurred in 2 cases. In one case in Edinburgh which first called in July 2005 the defence twice objected to petitions for 2 witnesses, once after a jury had been sworn in. In October 2005 the Crown renewed its section 271 applications, but the defence objected again saying this was not competent since the children were now vulnerable witnesses under section 271a. The prosecution amended the applications to refer to the Vulnerable Witness Act 2004, and the applications were granted. When summing up, the sheriff said that "The jury must remember that the witnesses, [a] and [b] gave their evidence by CCTV but the accused gave his evidence from the witness box".
3.154 The other example was a case at Glasgow sheriff court. An application for CCTV was made in June 2005 for a 13 year old male alleged victim via a petition with a supporting reference report from a teacher. A report from the Children's Reporter was also in the case papers, saying that the witness had assaulted the accused and his brother, in support of a special defence regarding the witness's character and of self defence. The sheriff refused the application. An application was resubmitted, seeking screens. Again this was refused and the child gave evidence without any special measure. The Crown did not seek a conviction.
3.155 There were also examples of flexibility. In one case during year 2 a child became upset when giving evidence with a supporter only, so the AD moved for CCTV on the day. In Edinburgh sheriff court during child year 1 an 8 year old child was giving evidence via CCTV link, and the case was adjourned because the prosecution noted that the child's "attention span had diminished". The prosecution said they might wish to continue using screens.
Seeking witnesses' views
3.156 Part of the process of submitting a child witness notice is to seek the child's view on which special measure, if any, they wish to use. In some cases in the High Court, the AD or defence counsel were unable to say what special measure might be wanted because of a lack of co-operation by a witness, accused person or their families. There were no examples of this in the baseline period (because child witness notices did not exist then). But there was one example late in child year 1 (March 2006), increasing to 6 in child year 2.
3.157 In such cases it seemed usual to delay submitting the notice, and to finally lodge a CWN stating 'no special measures required' with a note explaining why. One notice suggested "none or a supporter". Another said that a new notice would be "fresh lodged if necessary", although since it was not a sexual case it was expected that the child would give evidence "in the normal way" (the child gave evidence with a supporter eventually).
3.158 As well as this, some notices said that the child was possibly too young to understand what was being asked. One Counsel for the defence in child year 2 had submitted a child witness notice stating that the child wanted no special measures but was possibly too young to understand. At the preliminary hearing he noted that since the AD was seeking CCTV for the Crown's witness he might seek to also use this, so the Court deferred consideration.
3.159 There were similar examples in the study sheriff courts. During one case in child year 2 the child witness notice explained that because the child was disturbed she had refused to discuss special measures at precognition. However, because of the child's age (13) and nature of the crime (alleged rape) " it seems appropriate that the best way for her to give evidence would be by way of CCTV link". The child witness notice for one 11 year old male witness at Glasgow sheriff court noted that the child had said he wanted no special measures, and the grandparent with whom he lived refused to give an opinion.
3.160 Difficulties in seeking the child's views were raised during the interview study and provide a burden of extra work especially for VIA, and for those with no legal power to insist that the witness attends for precognition, as the Crown does. Undoubtedly some examples of witnesses turning up at court with no special measures arranged are because letters or telephone calls have remained unanswered. If a child can be required to attend for precognition then this is a chance to seek their views, but the defence (and the reporter, in referrals to the sheriff from Children's Hearings) has no such lever, and if VIA are not able to attend the Crown precognition, this causes more work.
3.161 The small sample here may suggest that difficulty in obtaining children's views is increasing and this was a concern to many professional interviewed in advance of the roll-out to summary cases, where there is no precognition of witnesses.
Under 12 year olds
3.162 There is a presumption among professionals (and in the Act) that under-12s should be subject to special consideration, and be able to give their evidence away from the courthouse if the evidence is of a sexual nature or they are witnesses in sexual or violent offences.
3.163 In the High Court 84 children aged under 12 were identified during the study period, and in the study sheriff courts, 154. The youngest cited was one 2 year old in the sheriff courts (this was in an alleged assault case where a plea was accepted; the child did not give evidence and no special measures application had been submitted, presumably in anticipation of this). Generally, sheriff court citations extended to a lower age range, as figure 3.4 shows, although the sample in the sheriff court included all witnesses cited, while the High Court sample may not have done:
Figure 3.4 Ages of the under 12s cited in the High Court and study sheriff courts
3.164 Of the 238 under-12s cited during the study period and study courts, at least 129 were giving evidence in a case involving an alleged sexual offence. There was no application or CWN for 100 of these children. Pleas were accepted in 119 cases, but 70 children gave evidence;
Table 3.31 Under 12s cited and who gave evidence; High Court and study sheriff courts
3.165 None of the under-12s in the High Court gave evidence using a remote link but 8 in the sheriff courts did so, as table 3.31 shows.
3.166 The absence of use of remote sites at the High Court, given the nature of many offences, is surprising. In year 1 in the High Court, no applications for remote sites were made. By year 2 in the High Court 6 requests were made. Five attempts proved impossible because of technical difficulties; 2 in one case trying to use the High Court at Perth as a remote site, and 3 in another case (used as a case study in chapter 5) 38. For the sixth application, the case was on-going and information unavailable. It is possible that the technical difficulties encountered deterred professionals from seeking to use remote sites in other cases, although the main limiting factor is probably the unavailability of fully adequate remote sites. SCS has been addressing on an ongoing basis issues raised by COPFS such as the provision of adequate waiting facilities for those attending with witnesses, disabled access and soundproofing 39.
3.167 Overall, of those 70 children aged under 12 who gave evidence 39% (27) did so using a CCTV link, 19% (13) did so using no special measure and 11% (8, all in the sheriff courts) used a remote link. Screens were used for 5 young children in the High Court but not in any cases in the study sheriff courts.
Attempts to form an adult baseline
3.168 Since the Act and guidance apply a test of vulnerability that has no absolute categories except children under 16, and also a 'high' test requiring significant effect of vulnerability on the quality of evidence of adults, it proved ultimately impossible to draw up any adult baseline. Available SCS statistics indicated very few applications for special measures for adult witnesses (which could be made via a miscellaneous petition, much as applications for children could be made) before the Act came into force. Examining the case papers revealed a limited number of measures being granted for adults before the Act came into force, and some 'potential' vulnerable adult witnesses, for whom no applications were made.
3.169 One case included an application for CCTV link for a victim with a mild learning difficulty in an historical abuse case. A psychiatrist's report was produced in support of the measure and delays in bringing the case to trial were compounded by moving the case to Edinburgh to allow CCTV to be used. In another case, evidence was led from a male victim of sexual assault in a closed court with 'a responsible adult' present. The minutes stated that this was 'as he suffered from learning difficulties'. In a third case a witness was allowed to give evidence in private and the sheriff's report stated that 'this was a serious sexual offence committed against a vulnerable lady'. During one alleged historical abuse case at Greenock sheriff court (first diet February 2006) two female witnesses gave evidence with supporters and behind closed doors, following an application made on the day.
3.170 Other possible indicators of vulnerability were found but in none of the following examples were VW applications made, or special measures used when giving evidence. Across the study courts, examples included:
- many other historical sexual abuse cases, with victims who were often children when abused and sometimes still teenagers when cases came to court;
- threats against neighbours (e.g. with a petrol bomb);
- a woman seriously assaulted by someone who entered her home;
- a woman 36 weeks pregnant who was assaulted;
- witnesses in cases concerning intimidation, menacing or threatening Crown witnesses with violence;
- several witnesses who were victims in a series of racially motivated offences, and
- victims of alleged serious and violent sexual or other assaults.
3.171 Examining indictments showed that it was common practice not only for children's ages to be given in witness lists, but also anyone's age over 60. When this happened such cases were examined closely not only to see whether any application had been made but also whether any special measures had been used when giving evidence. Such witnesses were commonly cited (47 adults aged over 60 were identified in one 10 month period at Edinburgh sheriff court alone). Some such cases had multiple alleged victims and witnesses since they involved the targeting of elderly people (one case had 18 victims cited as witnesses who were aged up to 88).
3.172 Across all cases involving older people the most elderly was 92; but in no instance was an VW application made. At one case at Greenock sheriff court during November 2005 a male alleged victim aged 86 gave evidence with no special measures. After the jury was sworn in, the court reconvened outwith their presence and "the sheriff made enquiries of both the prosecutor and the defence as to whether the first witness was considered to be a vulnerable witness and as to whether any special measures should be put in place. The sheriff was advised that no special measures were necessary".
3.173 It seemed then that older witnesses' ages were being included as an indicator of the nature and severity of the offence rather than to justify any special measures applications for giving evidence, although the Court was able to query this, of course.
3.174 While many adult witnesses identified and for whom applications were made were professional witnesses, none were considered as vulnerable witnesses for the purposes of the research. These were often in cases concerning alleged drugs offences when minutes were made under section 71(2) of the 1995 Act for screens for police officers whose identities were being protected.
Attempts to assess applications in referrals to the sheriff
3.175 The application to the sheriff is lodged by the reporter within 7 days of the hearing, and will include any request to dispense with the child's obligation to attend at court. This decision is made by the sheriff under section 68(5) of the Children (Scotland) Act 1995. In some cases a sheriff decides that there is no need for the child to attend.
3.176 SCRA has a policy of not citing children as witnesses where at all possible. The section 68 application may result in the need to cite witnesses, in order that the sheriff can hear evidence and make a decision on the grounds. The reporter is required to apply for special measures under the VWA for any child or vulnerable adult witness cited. Some cases may settle without evidence being led, so an application will not necessarily result in the need for oral evidence. However, in some cases evidence will be required, and may be contested in the normal way of adversarial proceedings.
3.177 There is a distinction in terms of the evidential rules to be applied, between two categories of section 68 applications. While all Children's Hearings court proceedings are civil in nature, the cases where the ground for referral is based on an alleged offence by the child are subject to the rules of criminal evidence, and the grounds must be proved beyond reasonable doubt.
3.178 Court staff confirmed that generally, the reporter recommends that younger children not be served with papers concerning the hearing, nor required to attend. This is usually because of their age, and occasionally because of the distress that would be caused. Also, children have an opportunity to make their views known to the sheriff, either in writing or in person.
3.179 However, cases where the grounds for referral are based on an alleged offence by the child, while still civil proceedings, are subject to the rules of criminal evidence, and the grounds must be proved beyond reasonable doubt. In such cases where the child is alleged to have committed an offence, hearsay evidence is only admissible in certain limited circumstances, and it is therefore more likely that a child or vulnerable witness will have to be cited 40.
3.180 SCRA does not at present keep records centrally of special measures applications or numbers of children or adults who appear in referrals to the sheriff. In the two largest study sheriff courts, Glasgow and Edinburgh, reporter applications in referrals to the sheriff were recorded in a manual register. Administrative staff record cases manually along with all miscellaneous applications, including applications for special measures in summary cases and solemn cases as well as other matters. As clerks mentioned, some individuals can fill out the register differently from others, so the measure applied for was only sometimes noted, or sometimes the witness name rather than the accused person's name was given. The other courts kept records which amounted to simple counts.
3.181 Referrals were explored in some detail at one of the study sheriff courts (Peterhead) to identify what information the court papers could yield if attempts were made to case track applications recorded in the registers. This was done by searching all referrals during 2004 and 2005 in this court. During this time there were 39 referrals and at least 5 appeals concerning Children's Hearings, and in these cases:
- 10 children were served with notices of the hearing;
- 6 children were asked to attend, including one child who was asked to write down his views beforehand if he didn't want to attend;
- papers in 3 cases specified that the child was present;
- papers in 2 appeals specified that the child was not present; and
- it could not be determined whether the child spoke, even when evidence was led, and even where the papers showed the child was present.
3.182 Although case papers show that the sheriff makes a decision as to whether to refer a case back to the children's hearing after establishing the facts, or to dismiss the case, or to uphold the appeal, the court papers do not always make clear who is present, including the child. Even when evidence was led, it was not always explicitly stated in the papers whether the child was present or not, or whether they spoke or not. Because of this, it was impossible to know at which referrals children or adults gave evidence, and if they did so with any special measures.
3.183 The court registers and/or statistical returns were therefore the only means of providing a simple count of applications made. Any made by the 'reporter' or ' SCRA' were recorded rather than those made by ' PF', 'Crown' or ' HMA', which would have been for Crown witnesses. Sheriff clerks were contacted for figures from registers, spreadsheets or memory of cases.
3.184 The High Court has no jurisdiction in any Children's Hearings proceedings. The Court of Session (civil supreme court) has an appellate jurisdiction for CH cases; these would not be called applications, but appeals, and would not involve witnesses.
3.185 No applications were made for special measures by the reporter during the child baseline period in the study courts (and indeed few referrals generally). However, in year 1 there were 9 applications (all in Edinburgh and Glasgow) and by year 2 applications had increased four-fold to 36, and to study courts outwith Edinburgh and Glasgow:
Table 3.32 Special measures applications by the reporter
3.186 As with solemn cases, applications were sometimes made but not used. For instance, the example at Stirling sheriff court was for screens, and although the application was made, the matter was agreed on the day so the special measure was not needed. The records available indicate that both CCTV and screens are being applied for.
Summary
3.187 This research counted around 200 children being cited in the High Court each year, of whom around 30 were aged under 12, and around 50-60 children went on to give their evidence each year. However, the true numbers being cited are higher. During one 7 month period when all witness lists and indictments were examined individually, a total of 161 child witnesses were identified, and grossing this up suggests an average of around 23 children being cited per month in the High Court (or 280 a year).
3.188 In the first year of adult implementation, over 50 VW applications were made 41, and including these meant that in child year 2/adult year 1 so far, at least 9% of High Court cases included a child witness, or a witness for whom a VW application had been submitted.
3.189 In solemn cases in the 6 study sheriff courts only, around 200 children are being cited each year, including up to 60 under-12 year olds. Around 40-50 children go on to give evidence each year. Very few vulnerable adult witnesses were identified in the study courts, so a rule of thumb is that around 5-6% of sheriff court cases involve vulnerable witnesses, and so far these are all children. In the study sheriff courts, the proportion of children giving evidence without SMs fell substantially between the baseline period (two thirds of children who gave evidence did so without any SM) and child year 2 (14% did so).
3.190 Very few defence vulnerable witnesses were identified and there were very few applications made by the defence for their witnesses or for vulnerable accused persons. Little remains known on the numbers of witnesses in the Children's Hearings System. However, data collected by the study sheriff courts suggests that by year 2, reporters in some areas were making increasing numbers of applications for special measures.
3.191 By many measures the first year of implementation resembled the baseline; in other words, it took a year for the Act's effects to begin to be seen. Because of the implementation arrangements, there was a gradual change from petitions towards CWNs, rather than a sudden switch, especially in the sheriff courts, as petitions were still being used for cases reported to the fiscal before the Act came into force. From year 1 to year 2 therefore, the effects of the Act became more apparent. There was a more definite drop in the number of children without notices or other applications in the study sheriff courts, from around 80% with no CWN or application in year 1 to around half with no CWN in the first two thirds of year 2, and indications that the number of children without CWNs in the High Court was falling markedly in year 2.
3.192 There seems no indication that many specialist reports are still being produced to accompany CWNs or VW applications as a matter of course, although many adult cases in the High Court were still on-going at the time of the research, so the papers were unavailable. This work has also shown that very few VW applications were made for adults in the first year of adult implementation in the sheriff courts, or in other words that very few adult VWs were identified by the system in that year.
3.193 After 2 years in force, some of the Act's provisions were in effect still not available. No remote sites had been used successfully in the High Court to enable witnesses aged under 12 to give their evidence away from the courthouse. Nationally, there was only one example of a prior statement being played in court in place of evidence in chief and it was outwith the study courts (Richards et al, 2007). Delays in implementation of evidence on commission mean it is still only a partially implemented provision. The biggest hurdle to SM availability is lack of preparation of infrastructure, notably facilities for remote sites, and some available sites are not 'remote', because they are within other courthouses.
3.194 Very few applications indeed were refused, even before the Act, but late arrangements most often resulted in supporters being used. Of the special measures themselves, CCTV seems a consistently popular option, particularly in the High Court. Screens became less common after the baseline period in all study courts and once CCTV is offered as a matter of course, it may seem more attractive than screens, where the witness can still be seen by the court and accused person. The use of supporters increased by year 2, and while this may be related to recording practices (on witness notices) it may again be because they are being offered as a matter of course.
3.195 The use of CWNs has certainly made information on special measures sought more standardised, including when no special measure is required. They are the surest way to record that the vulnerable witness has had the options explained to them. The Act has also reduced drastically the amount of time spent by the courts waiting for specialist reports in support of measures.
3.196 Overall, the Act is likely to have been the major factor (along with changing court cultures) in the decreased number of children giving evidence without SMs in the study sheriff courts. It has had less clear effects in the High Court, where the number of children identified giving evidence without SMs was relatively low both before and after the Act. The requirement that CWNs should be submitted for all witnesses aged under 16 in solemn criminal proceedings is not yet being met, however. Submission of CWNs is also required for child witnesses cited in referrals to the sheriff from Children's Hearings, but lack of data meant that the research was not able to draw conclusions on their use by children's reporters.