Vulnerable Witnesses Act - section 9: report

10. Methodology and limitations

This chapter provides an overview of the methodology used to collect the data to meet the reporting requirements as set out at Section 9 of the Act as well as the limitations associated with the data collected.

Methodology

SCTS and COPFS do not routinely collect the data required as part of the reporting requirements set out in the Act. It has therefore been necessary to work with SCTS and COPFS to devise a methodology for capturing this data for the purposes of enabling Scottish Ministers to evaluate and report on it.

Identifying the number of “relevant witnesses”

The process decided on for identifying the number of relevant witnesses to whom the section 271BZA presumption applied during the three year review period was predicated on the number of specific applications made to the courts for the use of special measures for those witnesses to whom the presumption applied. Despite the existence of a presumption that relevant witnesses will pre-record their evidence ahead of trial it is still necessary for parties to make an application to the Court for the purposes of making the necessary arrangements for this evidence to be taken and/or used at trial and to determine whether a relevant exception should be applied. Additionally, parties are also required to notify the Court via an exception application where they intend for a relevant witness to provide evidence at trial to enable the Court to satisfy itself that the relevant exceptions have been employed appropriately. It is these application forms submitted to the Court that form the basis for establishing the number of witnesses to which the presumption applied during the review period. Given that the data for calculating the number of relevant witnesses relies on the submission of applications to the Court, it is not inconceivable that a small number of relevant witnesses may have been missed as a result of applications not being submitted or being mislabelled.

Using existing management information, COPFS collated a list of all the relevant witness applications under section 271BZA or exemptions made to the Court during the review period and shared these with SCTS for the purposes of cross-checking this list against their own records for the number of applications for special measures they had received. SCTS does not hold specific data on applications made under section 271BZA therefore a comparison required to be made again special measure applications generally. This list includes applications made by the defence. During the cross-checking exercise conducted by SCTS it was identified that, in some cases, COPFS data did not correlate with that of SCTS in so far as they applied to cases/relevant witnesses to which they had submitted an applications. Any discrepancies in this data were then discussed between SCTS and COPFS with a view to providing greater certainty on the number of relevant witnesses identified.

Identifying the proportion of relevant witnesses who had their evidence taken by a commissioner

To arrive at the number of those relevant witnesses that had had their evidence taken by a commissioner, it was necessary for SCTS to manually review the court minutes and other data and associated information reasonably available to them for each relevant witness identified to confirm whether an application under s271BZA had been made and specifically whether it related to EBC, and in turn whether an EBC hearing had been granted and in turn conducted. In doing so the number of application for exception, use of prior statement only, whether applications have been moved or withdrawn, were also identified and confirmed in so far as possible. This gave a cumulative number of relevant witnesses to whom the various circumstances that applied was then produced. This figure is current as of 5 December 2023.

Identifying the proportion of relevant witnesses who, having had their evidence taken by a commissioner had their evidence used at a trial diet.

To establish the percentage of relevant witnesses who, having had their evidence granted by the court and then taken by a commissioner, had their evidence used at a trial diet by the time this report was published, SCTS manually considered the court and other data and associated information reasonably available to them for each case in which a relevant witness(es) had been identified to determine whether the trial had occurred and the evidence played at trial or otherwise. This figure is current as of 5 December 2023.

Establishing the reason that the evidence of any relevant witness had not been taken by a commissioner by the time the report is prepared, despite a court having made an order authorising its being taken in that way.

The reason why the evidence of relevant witnesses had not been taken by a commissioner was identified through a process of manual collation whereby court minutes and other data and associated information reasonably available to them were interrogated by SCTS to determine the reasons why those individuals who were scheduled to give their evidence by commissioner had not done so. This was then assessed against a list of prescribed reasons agreed between the Scottish Government, SCTS and COPFS to determine the number of those witnesses who fell into each category. This list of reasons is as follows:

(i) the case was resolved by a guilty plea from at least one accused;

(ii) the indictment/case was deserted;

(iii) the witness/a party failed to appear at the Evidence by Commissioner hearing so it did not proceed;

(iv) the witness disengaged during the Evidence by Commissioner hearing;

(v) the Evidence by Commissioner hearing has not yet taken place;

(vi) the Evidence is no longer required;

(vii) the EBC is no longer required; and

(vi) other reason.

Where the reason was uncertain or not readily identifiable by the SCTS this was discussed where possible with COPFS and the applicable reason from the prescribed list agreed identified. Where this was not possible the category of ‘other’ was used.

Identifying the reasons why evidence taken by commission might not have been played at trial

The reason why the evidence of relevant witnesses was not played at trial was identified through a process of manual collation whereby court minutes and other data and associated information reasonably available to them were interrogated by SCTS to determine whether a trial had taken place, if so whether it had been played and, if not, the reasons why this evidence had not been played/applied. This was then assessed against a list of prescribed reasons agreed between the Scottish Government, SCTS and COPFS to determine the number of those witnesses who fell into each category. This list of reasons is as follows:

(i) The case was resolved by a guilty plea from at least one accused.

(ii) The indictment/case was deserted.

(iii) The witness gave live evidence or live evidence in part (as applicable) at the trial instead of their Evidence by Commissioner recording being played.

(iv) The trial has not yet taken place.

(v) Other reason.

Where the reason was uncertain or not readily identifiable by the SCTS this was discussed where possible with COPFS and the applicable reason from the prescribed list agreed identified. Where this was not possible the category of ‘other’ was be used.

Limitations

As with any evaluation there are of course limitations associated with the data collected in meeting the reporting requirements set out at section 9 of the Act and what insights it can provide about whether it has supported witnesses to participate in the criminal justice system.

As highlighted above, the statistics in this report are not routinely collected by the Scottish Government or its justice partners which means that a bespoke methodology by SCTS and COPFS for the purposes of gathering this data was required, much of which was conducted through manual collation and interpretation which may therefore be subject to human error. In particular, the evidence collected relied on recording applications made to the court for relevant witnesses to have their evidence pre-recorded ahead of trial. This clearly relies on relevant applications being submitted for relevant witnesses to give evidence in cases indicted to the High Court and it may be that, in rare instances an application was not submitted or that it was submitted incorrectly which means that a small number of relevant witnesses may not have been captured in the data provided or included in correctly.