Vulnerable Witnesses Act - section 9: report

1. Introduction

The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (“the Act”) creates a legislative presumption that the evidence of child witnesses (other than the accused), in cases that are to be heard in front of a jury and which involve specific offences, should be pre-recorded ahead of trial except where specific exceptions apply. The Act came into effect on 20 January 2020 in relation to child witnesses in the High Court.

Section 9 of the Act requires that Scottish Ministers must prepare a report which evaluates whether the amendments made by sections 1 and 5 of the Act have helped witnesses to participate in the criminal justice system during the ‘review period’ set out by the Act. It also requires Scottish Ministers to set out the next steps that they intend to take in relation to further commencement of the Act.

The provisions at section 1 of the Act introduce a presumption that the evidence of child witnesses in certain criminal cases that are heard in front of a jury should be pre-recorded ahead of trial except where specific exceptions apply.

Pre-recording of a child’s evidence may occur by using the special measure of “giving evidence in chief in the form of a prior statement” (usually the Joint Investigative Interview carried out by specially trained police and social worker interviewers) followed by the special measure “taking evidence by a commissioner”. Alternatively, the whole of the child’s evidence including the cross-examination may be taken by a commissioner.

The provisions at section 5 of the Act require that a Ground Rules Hearing (GRH) must take place where the evidence of a vulnerable witness is taken by a commissioner. Section 5 also introduces additional powers for commissioners giving them equivalent powers to judges when reviewing arrangements for taking evidence from a vulnerable witness and enabling them to make an order changing those arrangements, for example, requiring the use of additional special measures for taking evidence. Section 5 of the Act also gives the Court the power to conduct an evidence by commissioner (EBC) hearing before an indictment is served.

The ‘review period’ referred to in the Act means the period of three years beginning with the day that section 1 of the Act came into force for any purpose. As such, the review period runs from 20 January 2020 to 19 January 2023.

The report required by section 9, must include the following information:

• the number of witnesses to whom the presumption in favour of pre-recording in the Act applied during the review period – these are known as “relevant witnesses”;
• the percentage of those relevant witnesses that had their evidence taken by a commissioner;
• the percentage of those witnesses whom, having had their evidence taken by a commissioner, had a recording of their evidence played at trial; and
• where the evidence of relevant witnesses was not taken by a commissioner during the review period despite the court ordering it to be so, or, where it was taken but has not been played at trial by the time the report is prepared, the reasons for this.

The Act obliges the Scottish Government to consult a number of key individuals, justice partners and stakeholders in preparing the report. In fulfilling this obligation, Scottish Ministers have engaged both with justice partners that are directly involved in the operation and conduct of EBC hearings as well as with stakeholders who engage directly with vulnerable witnesses.

An analysis of the responses to this targeted consultation exercise, along with the required data, form the basis of the evaluation contained in this report. These have been supplemented by additional statistical information provided by justice partners including the Scottish Courts and Tribunals Service (SCTS) and the Crown Office and Procurator Fiscal Service (COPFS) in order to support a more rounded evaluation of the impact of the Act. The terms of section 9 are set out in full at Annex 1.

Limitations of the evaluation

It is important to note the limitations inherent in any evaluation of the ability of individuals to participate in the criminal justice system. In the context of relevant witnesses, their capacity to participate will inevitably be impacted by factors that lay beyond the scope or influence of the Act, not least the specific circumstances of their case. This is particularly pertinent in the context of the COVID-19 pandemic and its effect on the operation of the criminal justice system which has impacted on how everyone, including witnesses, engage with court processes and proceedings.

The Act came into operation on 20 January 2020, shortly before the effects of the pandemic were felt across the justice system. Those effects include additional delays in cases coming to trial. This is important context for understanding the pressures faced by the justice system and the broader circumstances in place during the review period. Further detail on the implementation of the provisions in the Act are set out at Chapter 5.