Guidance on Joint Investigative Interviewing of Child Witnesses in Scotland

PART 6: USE OF AND AGENCY RESPONSIBILITIES FOR VISUAL RECORDINGS

203. The aim of this section is to describe the uses of the recordings, and the responsibilities that agencies have when using them and making them available. It sets out national guidance that should be applied.

204. On occasions where, after the initial investigative phase, after thorough investigation there is an insufficiency of evidence in law for the police to report the circumstances to the PF; and it is decided that a referral to the children's reporter is not required, the recording should be retained according to police or local authority retention policy. In other cases a report will be made to the PF, children's reporter or both, depending on the circumstances. Where a police report has been passed to the PF /Children's Reporter, this must also include the note of salient points taken during the interview and agreed between the police officer and social worker following the interview

Handling and copying recordings

205. At the conclusion of each interview the recording equipment will simultaneously produce 2 DVD discs. One disk will be a master copy and the other a working copy. It must be noted that the master copy will remain as an unedited version of the original interview and be preserved at all times.

206. In addition a third copy may be required. It is not possible to predict all the circumstances where this may occur, however they may include:

• copy for the defence or other party in civil proceedings where a court instructs a copy be made available to the defence
• copy for the Children's Reporter where a referral has been made to the Reporter as a result of a JII.

207. Third (or subsequent) copies require authorisation of at least the rank of Police Inspector.

208. The Initial Referral Discussion should consider if, based on existing information, a third copy will be required and arrange for this to be obtained. The content of all interviews must be reviewed at their conclusion and consideration given to what agencies require a copy of the interview. In all circumstances additional copies must only be made where there are very good reasons for doing so. If there is a case made out for a copy to be provided, the copying should be done by the police, with the copy itself released only against a receipted signature. The default position will always be for two copies.

209. It is vital that the production of additional copies is documented and an audit trail maintained to clearly show the location of all copies at all times. It should also record when the copies have been destroyed.

210. By their very nature, JII recordings may contain an element of inadmissible evidence such as hearsay evidence that would not be shown in criminal court proceedings. Similarly, there may be a need to edit recordings where the interview contains sensitive and or immaterial information. Under the terms of a protocol agreement between COPFS and ACPOS, editing of JII recordings must only be carried out by ACPOS under instruction from COPFS.

211. Under the terms of the Data Protection Act 1998 ( DPA), any organisation holding a JII recording has a duty to keep them safe, secure and to prevent any unauthorised use or access. The Police, Procurator Fiscal and the Children's Reporter should have their own security, retention and disposal procedures in place to ensure compliance with DPA.

212. Handling and storage of disks will be in accordance with the handling of RESTRICTED material under the Government Protective Marking Scheme ( GPMS). Definition of RESTRICTED and obligations under GPMS are outlined in Appendix G.

Points of principle

213. Visual recordings of joint investigative interviews require to be properly protected in order prevent them being viewed inappropriately and to reassure children who are interviewed and those with parental responsibility for such children.

214. Visual recordings must be made available where material and relevant in order to facilitate proper preparation of a defence in criminal cases and proper representation of parties in other cases, unless there are overriding considerations that justify non-disclosure. This is necessary in order to ensure compliance with the right to a fair hearing in terms of article 6 of ECHR.

215. Where decisions about family life fall to be taken on the basis of an investigative interview, the families of the children concerned must have access to the visual recording to the extent necessary to allow them involvement in the decision-making process, in order to ensure respect for their family life in terms of article 8 of ECHR, unless there are overriding considerations which would justify interference with such rights which may result in non-disclosure of the recording. In reaching a decision the clear focus must always be the paramount welfare of the child.

Practice to be followed

216. In criminal cases, when COPFS decide that a recording is to be used as a production, the police will prepare a transcript of the recording and COPFS will decide what in their view is disclosable to the defence. In cases where it is alleged that a sexual crime has been committed an accused person will be represented and solicitors are under a professional obligation in relation to sensitive material (see Criminal Code of Conduct, article 11).

217. In criminal cases in which the recording is disclosable, COPFS will provide the defence with details of the recording and its location, in order to allow the defence to make arrangements to view the recording, or an edited copy (if any non-disclosable information requires to be withheld). Access to view the recording will be given to the defence solicitor, counsel and any expert instructed. Access will be given on further occasions if necessary (unless a request for access is unreasonable).

Requests to view recordings

218. Requests for the accused or other persons to see the visual recording may be made to COPFS. The sensitive nature of the recording means that it should only be shown to the accused where this is necessary in the particular circumstances of the case. All issues of timing should be carefully considered.

219. Where there are circumstances which require the accused to see the recording, access will be provided. A request for access will be refused if it is not in the public interest to accede to the request, or if disclosure will put the child at risk of harm or interfere with the child's right to privacy in terms of article 8 of ECHR. If a request is refused the person seeking access may make an application to the appropriate court.

Viewing of recordings

220. If it has been agreed that the accused should see the recording, or the court has ordered access for the accused, the disclosable version of the recording will be made available for viewing only by the accused together with the defence solicitor and if appropriate counsel and any expert instructed.

221. Practical arrangements will be required for viewing the recording for persons in custody or otherwise unable to attend to see the recording. The recording should not be released to any person although the accused, solicitor, counsel and expert should be given an opportunity to view the recording in private. Suitable arrangements should be made to ensure that recordings are not made while viewing takes place and after the viewing, the recording should be returned to safe storage.

Precognition

222. All parties should seek to minimise or avoid the need for precognition of the child. The defence should be encouraged to view any recording before arranging for a precognition of the child witness and to consider whether precognition is necessary and appropriate. Where only certain points require to be clarified by the defence, consideration should be given to the option of asking the Procurator Fiscal to investigate those matters as part of any Crown precognition. Procurators Fiscals have a crucial role in facilitating this.

Copies of recordings held by other agencies

223. Other persons who have copies of the recordings, such as social work departments or the Children's Reporter, will be expected to operate on a similar basis to that outlined in paragraph 218.

Family life concerns

224. Practitioners should bear in mind the current guidance of the European Court of Human Rights in TP and KM v United Kingdom (2002) 34 EHRR 2. In principle this will mean that in cases where respect for family life is involved ( i.e. where the child may be removed from home or contact with the child restricted, in circumstances that are a matter of dispute) recordings should generally be made available at an early stage for viewing by persons with parental responsibility for the child.

225. In cases in which there is also an ongoing criminal investigation, where criminal proceedings are under consideration or where there are live criminal proceedings the Procurator Fiscal should be consulted prior to any decision on access to the recording being taken. In such cases consideration will require to be given to the need to balance the rights of families, victims and those accused.

226. There will be cases where the authority holding the recording does not consider it appropriate to give access. The matter should be put before the court for adjudication as soon as practicable. The application should, where practicable, be made by the authority holding the recording. Access should generally be provided via solicitors who will be expected to give undertakings to supervise all client access and not to permit clients to retain or make copies or transcripts of recordings.

Use of recordings by the Children's Reporter

227. In children's hearings court proceedings, the Children's Reporter will generally give access to the recording only if information in the recording forms evidence, or part of the evidence, in grounds for referral and those grounds for referral are being contested before the sheriff. The Reporter will only give access to the persons who are parties to these proceedings. Access should generally be provided via solicitors, as outlined in paragraph 226 above.

Adjudication

228. It is recognised that visual recordings of interviews are a new departure and that guidance cannot cover every situation in which they may or may not be disclosed. It is to be expected that the court will be required to adjudicate and that the position will become clearer as case law emerges.

Using the recordings for other child protection purposes or other court proceedings

229. There may also be a need for on-going social work involvement to manage any risk, supervise the child, or further assess need. There may be also be a need for other court proceedings such as, residence, contact disputes, child abduction or divorce proceedings though the list is not exhaustive.

230. Recordings should be used as a means of bringing new case workers up to date, especially if this will avoid the need for the child to be interviewed again. Any such use should be agreed with the officer in charge of the log, and also recorded in it.

Transcription

231. Transcription is a very time consuming process and is not routinely required.

232. Where there is a good reason to require a transcript ( e.g. for use court proceedings), great care must be taken to ensure that the transcript not only captures the verbal content of the interview but also includes references to any non-verbal actions or responses. The contents of the transcript should be checked and confirmed by the interviewers.

233. If the case is going to proceed to court then it is essential that transcripts are checked with great care. The full transcript will require to be lodged prior to the production of any edited copies. It is useful for the sheriff or judge and jury members to have a transcription of the evidence to be presented. If there are to be Children's Hearings court proceedings, then a full transcript may need to be lodged (see paragraph 232)

234. If the recording is edited, for example to remove hearsay evidence or evidence relating to a different alleged offence, only the edited version of the transcript will be required for those who will view the recording.

235. There is always the possibility that a plea will be entered. This means there is a balance of timing to be struck. If in doubt however, a transcription should be undertaken. Defence requests for transcriptions should also be made to the PF.

236. In children's hearings court proceedings, when the application is in relation to grounds which involve an allegation of an offence by the child, the criminal standard of proof is required. In these cases the need for transcription will be the same as for criminal proceedings.

237. Maximising audio quality helps minimise the need for transcription. Any transcriptions made must be stored securely with the recordings and other records. Under the terms of the Data Protection Act 1998, any organisation holding JII recordings (or transcriptions) has a duty to keep them safe, secure and to prevent any unauthorised use (see Appendix G).

Using recordings in court

238. The use of a visual recording as evidence in chief in criminal trials is a special measure under the VWA, and applications to deal with the child's evidence in this way should be included in the child witness notice.

239. The other special measures available to child witnesses under the VWA should not be overlooked for use when a child is watching the recording and/or being cross-examined. These will also need to be sought on the child witness notice in advance and can include, giving evidence from behind a screen in the court room; over a live CCTV link from another room in the court or other building; using a support person in court; or by precognition.

240. Almost all Scottish courthouses have facilities to play DVDs, but not all courtrooms are permanently equipped and the availability of live TV links and remote locations particularly may be limited. This means that facilities need to be 'booked' and this is done through the Electronic Service Delivery Unit ( ESDU) of the Scottish Courts Service ( SCS).

241. Allowing a witness to refresh his or her memory by showing the witness the recording the day before the hearing is common practice in courts in England and Wales. Section 85 of the Criminal Justice and Licensing (Scotland) Act 2010 makes provision for witnesses to refresh their memory by seeing their witness statement when giving evidence. Under the VWA, if a previous statement is to be used as evidence-in-chief, there is no need for the witness to adopt the statement. However, the child may be asked to watch the recording, or an edited version before being asked questions in cross examination

242. Admitting the recording as evidence-in-chief does not remove the requirement for the child to be available for cross examination in criminal proceedings unless there are exceptional circumstances (under section 259 of the Criminal Procedure (Scotland) Act 1995). If a visual recording is to be played, then the Crown is aware of the possibility that a child witness's first experience of giving evidence might be cross examination. Therefore the prosecution may assist the child witness by clarifying part of their evidence in examination in chief.

243. In civil proceedings, visual recordings can be used as evidence because the use of hearsay evidence is permissible. They can be routinely used by the children's reporter for instance, as the main evidence in court proceedings relevant to Children's Hearings where the burden of proof is lower and evidence does not need to be corroborated. The exception to this is in relation to a ground of referral which involves an offence by the child, where the standard of proof is the criminal standard. Cross examination may still be required. In other forms of court proceedings the use or otherwise of the visual recording will be subject to application to the sheriff of judge.

244. A change to both Court of Session and Sheriff Court civil rules has been requested to ensure that access to these sensitive productions is limited to appropriate persons (for example the defence and relevant expert witnesses), they are not borrowable from court processes without the consent of the Judge/Sheriff and that any viewing takes place at an appropriate location under specified conditions.