Pre-recorded evidence and juror decision-making: evidence review

1. Introduction

This chapter sets out the existing provisions in relation to the use of pre-recorded evidence in Scottish criminal trials, which represent one element of a broader package of special measures that are currently made available to child and vulnerable adult witnesses. It outlines recent calls for greater use of such pre-recorded evidence, which have been informed by objectives including to reduce stress for witnesses, to improve the quality of evidence provided, and to avoid unnecessary delays and inefficiency within the trial process. The chapter then sets out the aims and remit of this Evidence Review, which is situated against, but not intended to speak directly to, these calls.

1.1 Existing Provisions in Relation to Special Measures

Special measures were introduced in Scotland (via provisions now contained under sections 271A-271M of the Criminal Procedure (Scotland) Act 1995 , as amended by the Vulnerable Witnesses (Scotland) Act 2004) ) with an explicit aim to “reduce the distress and anxiety that, until now, has meant that many witnesses were unable to give their evidence” and to enable “vulnerable witnesses to give their evidence in a way which is best suited to their individual needs” (Scottish Executive, 2005: v, vii).

Witnesses under the age of 18 are automatically regarded as vulnerable, as are alleged victims of specified sexual, trafficking, domestic abuse and stalking offences. They are entitled to give evidence by use of ‘standard’ special measures, which involve either (1) use of a screen in the courtroom to shield the witness from the accused, or (2) the use of a live TV link which enables the witness to give testimony remotely, either from another part of the court building or from an external location. In addition, it is a ‘standard’ special measure to allow the witness to have a third party (often a relative, friend or representative from a voluntary organisation) act as a ‘supporter’ in the run up to and during the giving of testimony, wherever a screen or live link is used.

Adult witnesses who do not fall under the existing categories for ‘standard’ special measures entitlement can also seek the court’s permission to make use of them. Succeeding in an application to do so requires establishing that there is a significant risk that the quality of evidence may be diminished because the witness is suffering from a mental disorder, or because s/he is experiencing fear or distress in connection with giving evidence at the trial. Factors to be taken into account in determining if an adult witness is appropriately deemed ‘vulnerable’ for this purpose include whether the circumstances of the offence or nature of the evidence are apt to be particularly distressing, the relationship between the witness and the accused, the witness’ age and maturity, and any threats that have been made to the witness from the accused or persons associated with the accused, as well as the witness’ religious beliefs, sexual orientation, ethnic, social and cultural background, domestic or employment circumstances, or any physical disability that could affect the giving of evidence.

In addition, or in the alternative, to these ‘standard’ special measures, an application may also be made in criminal proceedings by any vulnerable witness to enable them to: (1) make use of a designated ‘supporter’ for live, non-screened testimony, (2) exclude the public during the taking of evidence, (3) have prior statements (usually made to the police during the investigation stage) function as evidence-in-chief, or (4) give one’s examination-in-chief and cross-examination ahead of time, before a court-appointed commissioner (usually a judge), in the presence of legal counsel for the Crown and defence, and the court clerk, but not the accused, with the video of those proceedings being submitted as evidence at trial in the place of live testimony.

In practice, as was anticipated by the legislation, it is common for vulnerable witnesses to make use of a combination of these special measures. For example, a supporter may be used in conjunction with a protective screen in the courtroom, or prior statements may be submitted as evidence-in-chief with a protective courtroom screen or remote live TV link then being used whilst the cross-examination is undertaken.

1.2 The Use of Pre-Recorded Testimony in Scotland

There has been a relatively large volume of witnesses making use of ‘standard’ special measures in Scottish courts since their introduction, with applications for screens, supporters or live TV links accounting for 99% of requests made by vulnerable witnesses from 2011-2014. By contrast, it has been reported that – until relatively recently at least – there has been “next to no use made” of the opportunity to give evidence-in-chief in the form of a prior statement or to give evidence ahead of time to a commissioner (Scottish Court Service, 2015: 13; see also Richards et al, 2008). What is more, the rules surrounding the use of such statements have developed on an ad hoc basis, without a structured approach to accommodate the full pre-recording of the investigative interview as the presumed evidential gold standard. At present, it is not standard practice in Scotland for police interviews with, or statements from, child or vulnerable witnesses to be visually recorded. This can be contrasted with the position in jurisdictions like England and Wales, where recorded ‘Achieving Best Evidence’ interviews are regularly used in lieu of examination-in-chief for vulnerable witnesses, and steps have been taken to roll out the opportunity for witnesses to also undergo their cross-examination ahead of time in front of counsel and the trial judge.

In its 2015 ‘Evidence and Procedure Review’, the (then) Scottish Court Service observed that practitioners in England, Australia and Norway – despite jurisdictional differences in the modes through which testimony is taken and integrated into trial proceedings – are “convinced that there are clear benefits to be had from a systematic and structured approach to the use of audio-visually recorded forensic interviews as a witness’ principal evidence, and from the recording of cross-examination” (2015: 25). What is more, the report goes on to state “these benefits accrue both to the witnesses themselves, in terms of their ability to cope with and recover from the ordeal, and to the administration of justice, in terms of greater certainty and efficiency” (2015: 25). It advocates for the more routine use of pre-recorded interviews as evidence-in-chief in cases involving vulnerable witnesses, together with the accompanying use of pre-recorded cross-examinations of witnesses ahead of trial, and supports a longer term aim of reducing significantly the time delay between these two evidential stages.

In tandem with these developments specifically in relation to special measures, criminal justice policy-makers and practitioners have been increasingly aware of the need to “bring trial procedures rooted in the Victorian era into the modern, technologically-enhanced society today and in years to come” (Scottish Court Service, 2015: 3). Though not without its operational challenges, the use of pre-recorded evidence could be vital in this context, promoting a more responsive and efficient criminal justice system, whilst retaining due respect for its central pillars of truth-seeking and fair process. Affording an opportunity ahead of trial for all witnesses, vulnerable or otherwise, to provide testimony could be seen to increase the prospects for justice, by preserving a more contemporaneous account that is perhaps more likely to be accurate and complete in its recounting of events (Westera et al, 2013a). With this in mind, the Scottish Court Service’s ‘Evidence and Procedure Review’ also set out to explore whether “substantial improvements can be made to the administration of justice with the widespread use of pre-recorded statements in place of testimony in court and a more imaginative use of live-link technology” (2015: 9).

1.3 Recent Proposals and Initiatives

In 2016, the ‘Evidence and Procedure Review – Next Steps’ Report was published, recommending that “initially for solemn cases, there should be a systematic approach to the evidence of children or vulnerable witnesses in which it should be presumed that the evidence-in-chief of such a witness will be captured and presented at trial in pre-recorded form; and that the subsequent cross-examination of that witness will also, on application, be recorded in advance of trial” (Scottish Courts and Tribunals Service, 2016: 28). Later that year, the Cabinet Secretary for Justice outlined his vision for the greater use of pre-recorded evidence by child and vulnerable adult witnesses (Scottish Government, 2017: 7). In March 2017, new High Court guidance (Practice Note 1 of 2017) was issued, which came into effect from May 2017. This built on experience from other jurisdictions and required that, before evidence could be taken by a commissioner, the parties must appear at a court hearing to discuss in detail all the measures that will ensure that a witness can give his / her evidence fully and with the minimum risk of further trauma: this should include consideration of the location and environment for the recording, the timing of the session, what communication aids may be required, the lines of inquiry to be pursued, the forms of questions to be asked and the extent to which it is necessary for the defence case to be put to the witness.

The report of the Pre-Recorded Further Evidence Work-Stream Group of the Evidence and Procedure Review Child and Vulnerable Witness Project, chaired by The Rt Hon Lady Dorrian, which coincided with the issue of this new Practice Note, also proposed a broader initiative to enable greater use of pre-recorded evidence for vulnerable adult and child witnesses. More specifically, it set out a ‘Level 1’ vision for children under the age of 16 who are complainers in cases involving the most serious crimes, who should have their complete evidence taken in the course of a visually recorded forensic interview conducted by a trained forensic interviewer, without any direct questioning being undertaken by lawyers. While the Report suggested that this ‘Level 1’ response may well be extended to other vulnerable adult and child witnesses in the future, the Group recommended a more limited response in the interim (mindful of resource implications and the need to ensure adequate training to meet demand) whereby in the majority of cases tried in the solemn courts, complainers aged 16 and 17, child witnesses, and vulnerable adult witnesses should have their investigative interview or witness statement visually recorded for use as their evidence-in-chief, with cross examination and further examination being undertaken using procedures for the taking of evidence by a commissioner and thus also avoiding the need to come to trial to give evidence, unless the witness chooses to do so. In June 2017, a consultation document was produced by the Scottish Government, seeking responses by the end of September 2017 on a number of related issues, including whether the longer-term aim of law and policy in this area should be the presumption that child and other vulnerable witnesses should have all their evidence taken in advance of a criminal trial, and if so how best that should be phased in to allow for appropriate piloting and implementation.

1.4 The Remit and Aims of this Evidence Review

These developments in relation to the availability and use of special measures by child and vulnerable adult witnesses (and, indeed, proposals for a shift towards digital courtrooms for a broader range of trial participants) inform the context in which this Evidence Review has been conducted. However, the remit of this Evidence Review is focussed specifically on the impact upon juries of the use of these alternative forms of trial arrangement. Mindful of the difficulties of disentangling the effects of the video / TV medium from the timing and conditions of testimony, and reflecting the parameters of many of the key studies in this area, the Report includes discussion of the impact upon jurors of live-links as well as the use of pre-recorded evidence specifically.

As identified above, the primary logic behind the use of live-link and pre-recorded testimony (and indeed other forms of special measures) is to enable witnesses to give their best evidence by ameliorating a number of stressors associated with giving testimony in the courtroom, in the presence of the judge, jury and the accused. Previous research has confirmed that witnesses tend to appreciate this opportunity and often report that it helped them to give their account more effectively (Murray, 1995; Hamlyn et al, 2004; Burton et al, 2006). Despite this, research with criminal justice practitioners has highlighted concerns regarding the extent to which use of such mediums can influence the jury’s credibility assessments, their deliberations and ultimately their verdicts regarding the accused’s guilt.

Some commentators have worried that allowing witnesses, and in particular complainers, to give testimony outside of the courtroom sends a signal to jurors about an inability to face the accused, which can either be seen to suggest that the allegations are true or, conversely, that the witness is deliberately lying (Cashmore & De Haas, 1992). Meanwhile, others have suggested that the presentation of the witness on a TV screen reduces jurors’ ability to read body language in order to pick up on non-verbal cues of deception or veracity (Brackel, 1976; Grant, 1987; Montoya, 1992; Davies, 1999); and others have expressed concern that evidence presented on a TV screen will be less vivid and have less (emotional) impact on jurors than live testimony (Eastwood & Patton, 2002; McMillan & Thomas, 2011). The aim of this Evidence Review is to outline and evaluate existing research that sets out to directly test the legitimacy of these concerns.

1.5 Outline of Structure

In the absence of being able to observe the deliberations of ‘real’ juries in a number of jurisdictions, the majority of the research examined in this Evidence Review involves simulation experiments in which the responses of mock jurors are recorded and analysed. Though offering an important glimpse behind the closed doors of the jury room, there are a number of methodological challenges associated with this form of research which must be borne in mind. Chapter Two provides an overview of these.

Thereafter, the Review turns to the substantive findings arising from these simulation studies in respect of the impact upon jurors of receiving testimony from a witness via a pre-recorded video or live TV link. Chapter Three explores the existing research in the context of child witnesses, whilst Chapter Four focusses upon the evidence base regarding vulnerable adult witnesses, particularly in the context of sexual offences. In Chapter Five, attention turns to a small but significant body of research that examines the optimal conditions for introducing pre-recorded evidence for jurors.