Vulnerable Witnesses Act - section 9: report

Executive Summary

The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (“the Act”) introduces a presumption in law that where children under the age of 18 (other than the accused) are giving evidence in criminal cases that are to be heard in front of a jury and which involve specific offences, their evidence should be pre-recorded ahead of trial except in specific circumstances.

The Act requires that this evidence must either be recorded in advance of trial at an Evidence by Commissioner (EBC) hearing or given in the form of a prior statement.

The purpose of the Act is to reduce the risk of re-traumatisation to vulnerable witnesses arising from the experience of giving evidence and to support them in providing their best evidence.

The Act requires that Scottish Ministers report to the Parliament on the first three years of the Act’s implementation.

Implementation of the Act to date

To avoid overwhelming the justice system with increased demand for pre-recorded evidence, the Scottish Government has adopted a phased approach to implementation of the Act. This involves gradually rolling the presumption out to different groups of child and adult vulnerable witnesses in stages as set out in an Implementation Plan agreed with justice partners.

To date, the provisions of the Act, have been commenced in respect of children under the age of 18 giving evidence in relation to cases which are to be heard in the High Court involving specific offences.

Delivery against the Implementation Plan has been supported by £2 million in capital funding from the Scottish Government which supported the construction of four EBC suites specifically designed to be trauma-informed spaces for taking the evidence of vulnerable witnesses. These are located in Aberdeen, Edinburgh, Glasgow and Inverness and together provide capacity to conduct over 2,000 EBC hearings a year. A fifth suite is currently under construction in Dundee and will provide further capacity once it becomes operational.

Implementation of the presumption in accordance with the timelines set out in the Implementation Plan has been affected by the impact of the Covid-19 pandemic on the justice system and the subsequent pressures arising from the backlog of cases created.

Key data collected to evaluate the effectiveness of the Act

Data collected by the Scottish Courts and Tribunals Service (SCTS) and the Crown Office and Procurator Fiscal Service (COPFS), demonstrates that:

During the course of the review period, there was a total of 870 witnesses to whom the presumption applied – that is witnesses under the age of 18 who were required to give evidence in relation to cases involving specified offences indicted to the High Court (“relevant witnesses”).

Of these 870 relevant witnesses, a total of 650 (75%) had their application to provide evidence by commissioner approved by the Court. The vast majority of those applications not approved were because that witness no longer needed to give their evidence by commissioner (e.g. because the accused had tendered a guilty plea or because the witness’s prior statement was approved to be used as their whole evidence at trial thus removing the need for further evidence to be taken at an EBC hearing).

Of the 650 relevant witnesses who had an application for their evidence to be taken by commissioner approved by the Court, as at 6 December 2023, 503 (77%) progressed to an EBC hearing. There were 147 relevant witnesses who did not give their evidence at an EBC hearing despite having an application approved by the Court. In a significant proportion of these cases, the reason an EBC hearing did not take place was because evidence was no longer needed from that witness e.g. the accused tendered a guilty plea or the case was deserted by the Crown. Another significant reason for EBC hearings not progressing was because of the failure of relevant witnesses to attend, this accounted for 51 of the 147 relevant witnesses (35%) who had applications for EBCs granted but where these did not take place.

As at 6 December 2023, of the 503 relevant witnesses who gave their evidence at an EBC hearing, 373 (74%) of those have had a recording of that evidence played at a trial diet. The most common reason why evidence has not been played at a trial diet is because the trial has not yet happened which accounts for 49 (33%) of those recordings which have not been played at trial.

Consultation responses

The Scottish Government consulted a number of key individuals, justice partners and stakeholders who have an interest in the operation of the Act.

Respondents were generally supportive of the ethos of the Act and acknowledged that many of its aims are already being achieved through everyday practice. Many respondents felt that there has been a noticeable change in the culture around taking evidence from children and vulnerable witnesses, with a greater recognition of the impact of trauma and more support available for children to participate in the criminal justice system.

Some respondents felt that fewer children were being required to attend Court in order to give evidence, although some highlighted that children were still being required to give their evidence in Sheriff and Jury cases.

Concerns were, however, expressed about areas where the Act was not felt to be working as it should, or where improvements could be made. The availability and appropriateness of facilities, the available resourcing across the system, and the backlog of cases post-pandemic were all highlighted as areas of concerns related to the effectiveness of the Act at supporting vulnerable witnesses to participate in the criminal justice system.

Key findings of the evaluation

An evaluation of the data and information gathered demonstrates that the Act has delivered the following benefits:

• the Act has generated a significant increase in the number of applications for EBC hearings for child witnesses, the number of orders that have been made, the number of EBC hearings that have been held and the number of recordings of evidence given at EBCs that have been played at trial;
• many more child witnesses are receiving the benefits of being able to pre-record their evidence ahead of trial;
• adult vulnerable witnesses in High Court cases also appear to be benefitting from a much wider use of pre-recorded evidence; and
• Ground Rules Hearings have played a key role in taking evidence by commissioner from vulnerable witnesses.

The evaluation also identified some challenges associated with the operation of the Act, namely that:

• the proportion of applications approved by the Court that actually progress to an EBC hearing has fallen in comparison to the equivalent proportion in 2017. Reasons include because the evidence of the witness was no longer required, or that the EBC was no longer required (e.g. because evidence had been agreed). However one other reason for this was witnesses failing to attend EBC hearings. Additionally, there were significantly fewer applications, orders and EBC hearings in 2017 compared to the review period;
• implementing the Act is resource-intensive and places additional pressures on the justice system; and
• the facilities for conducting EBC hearings and the technology for playing recordings at trial require to be kept under review to explore what improvements can be made to the development of future suites and facilities.

The evaluation concludes that, while there are some challenges associated with the operation of the presumption, the Act is supporting witnesses to participate in the criminal justice system. This conclusion is based on the evidence of a substantial increase in the use of taking evidence by a commissioner, a special measure that is known to improve the quality of evidence provided by vulnerable witnesses and to reduce their risk of re-traumatisation both of which are key tenets of participation in the criminal justice system.

Next steps for implementing the Act

The Scottish Government remains committed to further implementing the Act so that the presumption in favour of pre-recorded evidence extends to all groups of child and vulnerable witnesses identified in the Implementation Plan.

Scottish Ministers recognise the need to work closely with justice partners in implementing the Act and are taking this forward as part of wider work underway to deliver a person-centred, trauma-informed justice system.

Work is ongoing with partners and stakeholders through a cross sector implementation group and Scottish Ministers will publish a revised Implementation Plan by the end of March 2024 which sets out the next steps for implementing the Act.