Pre-recording evidence of child and other vulnerable witnesses: consultation analysis

Executive Summary

Between 29 June 2017 and 29 September 2017, the Scottish Government consulted on pre-recording evidence of child and other vulnerable witnesses. The focus of the consultation was on addressing identified legislative and practical gaps within the current arrangements for enabling child and other vulnerable witnesses to have their evidence pre-recorded in advance of trial, with a particular focus on strengthening and improving the current arrangements for evidence being taken by a Commissioner.

The consultation received 47 responses, comprised of 16 individuals and 31 organisations. The major themes to emerge from analysis of responses to the consultation were as follows.

Presumption in favour of child and other vulnerable witnesses giving pre-recorded evidence

• Overwhelming support for the longer-term aim of a presumption that child and other vulnerable witnesses should have all of their evidence taken in advance of a criminal trial.
• Majority supported an amendment to the Criminal Procedure (Scotland) Act 1995 to include the use of (a) prior statements as evidence in chief and (b) evidence by a Commissioner as standard special measures.

Transitional arrangements for moving to pre-recorded evidence for child witnesses

• Respondents generally favoured the initial focus to be on all younger child witnesses and complainers.
• Focusing initially on serious crimes heard in the High Court was largely supported.

Right to choose to give evidence in court

• Balance of opinion fell towards maintaining the right to give evidence in court for all witnesses regardless of age but on the basis that current practice in supporting child and vulnerable witnesses is improved.
• It was suggested that provision should be made for the event they changed their mind as to the method they wished to use.

Child accused in criminal cases

• Vast majority considered that a child accused should also be able to give pre-recorded evidence in advance of a trial due to the acute vulnerability of the accused child.
• Many believed there were differences to be considered between how a child complainer or witness could give pre-recorded evidence and how a child accused could do so.
• Respondents detailed a range of procedural issues to be considered including the tactical nature of the decision of whether an accused gives evidence, the lack of statutory procedure for taking evidence by Commissioner before service of the indictment and usually it is not clear what requires to be proven until service of the indictment.
• Due to the range of complex procedural issues involved, it was suggested that further work should be undertaken to review the approach for child accused.

The timing of taking of evidence by a Commissioner

• The majority felt that legislation should provide for the taking of evidence by a Commissioner before service of the indictment due to the current lengthy delays within the criminal justice process.
• Issues of disclosure, procedure and resourcing were given as further barriers to the taking of evidence by Commissioner before service of the indictment.
• Solutions proposed included wider cultural changes, increased resources, piloting and learning from the experiences of other jurisdictions to address identified barriers.
• The need for highly trained Commissioners and suitable locations for the taking of evidence was highlighted.

Ground Rules Hearings

• Almost all respondents were strongly in favour of the introduction of a ground rules hearing.
• Respondents highlighted the need to hold the hearing as soon as possible in the process, but with enough time for adequate preparation.

Role of the Commissioner

• The majority who commented were in favour of the same individual sitting as a Commissioner and presiding as the judge at the trial citing the benefits of familiarity and consistency for the witness. However, several highlighted potential issues with the scheduling of trials and the availability of judges.
• The Commissioner having the power to review arrangements for the vulnerable witness giving evidence was supported by a majority of respondents.
• The majority of respondents were also in favour of the Commissioner being the ultimate decision maker on which questions were appropriate to be asked during a pre-recorded examination.

Other significant issues raised

• The use of the Barnahus model as a desirable long term aim for Scotland.
• The need for similar changes to those proposed in this consultation to be made to the civil and children's proof hearing procedures in Scotland.
• The quality of Joint Investigative Interviews.
• The role of intermediaries.
• The need for on-going monitoring and evaluation of the system.