Vulnerable Witnesses Act - section 9: report

4. The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019

As noted in Chapter 3, it has been recognised for some time that certain groups of people, including children, face additional barriers in engaging with the criminal justice system where they are the victim of, or witness to, a serious crime.

Legislative provision has evolved to make specific support available to these groups of people, described in law as ‘vulnerable witnesses’.^[6] Research has demonstrated that for vulnerable witnesses, the experience of having to recount traumatic events in an unfamiliar and often intimidating court environment is not only harmful but can also impact on their ability to give an accurate and credible account of events (SCTS, 2015). In response to the findings of the EPR and subsequent work taken forward by SCTS, the Scottish Government introduced legislation to the Scottish Parliament which sought to make it easier for vulnerable witnesses to access special measures which would enable them to pre-record their evidence ahead of trial. This became the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019.

By introducing a presumption in favour of specific special measures which eliminate the need for witnesses to give their evidence at trial, the Act aims to improve their ability to participate fully in the criminal justice system. This is set out in the Policy Memorandum (Scottish Government, 2018) which accompanied publication of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

What does the Act do?

The Act creates a new rule that where a witness is under the age of 18 and they are due to give evidence as a victim of or witness to certain serious offences, they will be entitled to pre-record their evidence ahead of trial unless a specific exception to this rule is applied for and granted by the Court.

In order to establish this presumption, the Act makes amendments to the existing legislative framework that governs the special measures available to vulnerable witnesses when giving evidence in criminal cases as set out at Section 271 – 271M of the Criminal Procedure (Scotland) Act 1995.

Who does the Act apply to?

Those to whom this rule applies are known as a “relevant witness” within the legislation.

In determining the circumstances in which the presumption applies, the Act specifies that this rule is only applicable in cases that are heard under solemn procedure and which must involve at least one of the offences (or an attempt to commit any of the offences) listed below:

• murder;
• culpable homicide;
• assault to the danger of life;
• abduction;
• plagium (child stealing);
• certain sexual offences;^[7]
• domestic abuse;
• an offence that is aggravated by involving abuse of a partner or ex-partner by the perpetrator;
• human trafficking;
• modern slavery; and
• female genital mutilation

By focusing the presumption on these serious crimes, the aim of the Act is to capture those cases in which witnesses who may be required to give evidence are most likely to face challenges in engaging with the criminal justice system due to trauma experienced as a result of being a victim of, or witness to, the offences alleged.

The Act also includes provisions which enable Scottish Ministers to bring forward regulations that change the list of offences to which the presumption applies. This recognises that, in future, it may be necessary to expand this list in response to developments in our understanding of the impact that trauma has on the ability of vulnerable witnesses to give evidence.

While provisions in the Act establish the presumption specifically for children, in bringing forward this legislation, the Scottish Government recognised that other categories of witness could also benefit significantly from making greater use of pre-recorded evidence. Regulation-making powers were therefore included in the Act which enable the presumption to be extended to certain other groups of vulnerable witnesses i.e. deemed adult vulnerable witnesses. Scottish Ministers have already committed to use these powers to expand the Act beyond child victims and witnesses.

It was recognised that delivering the presumption to increase the use of pre-recorded evidence would place significant additional demands on the criminal justice system. It was therefore agreed with justice partners that it was necessary to adopt a staged approach to implementing the Act to avoid overwhelming the system. The Act was therefore specifically designed to provide a framework for the progressive extension of the presumption to other categories of vulnerable witness i.e. adult deemed vulnerable witnesses such as those who are the victim of a sexual offence, domestic abuse, human trafficking and/or stalking in solemn cases.

The focus of the implementation of the Act to date on children, reflects a consensus among justice partners that the presumption should initially be prioritised towards those witnesses that are the most vulnerable (Scottish Government, 2018). To date, the presumption has been commenced in respect of child witnesses giving evidence in the High Court in cases involving relevant offences. Further detail on the proposals for future implementation of the Act is provided at Chapter 9.

Exceptions to the Presumption

The Act recognises that pre-recording the evidence of a relevant witness will not be appropriate in every case to which the presumption applies. The Act therefore provides that evidence must be pre-recorded unless certain exceptions apply. For example, the Act gives the Court the power to override the presumption where it considers that taking evidence from a witness in advance of trial would risk the fairness of proceedings or would not otherwise be in the interests of justice.^[8] Crucially, in determining this, the Act requires the Court to satisfy itself that the risks to the fairness of proceedings outweigh any potential risks to the interests of the witness. This ensures that the application of the presumption does not jeopardise an accused’s right to a fair trial as set out at Article 6 of the European Convention on Human Rights (ECHR).

Additionally, provisions in the Act also allow the Court to override the presumption where the witness expresses a preference to give their evidence at trial provided that the witness is over the age of 12 on the date of commencement of the proceedings of which the relevant hearing forms part. This exception recognises that some witnesses want to give live evidence at trial and the Act permits this provided the Court considers it is in the best interests of that witness (bearing in mind their expressed preference).

Reforms to Existing Special Measures

In addition to both introducing the presumption and setting out the circumstances in which it applies, a key feature of the Act is the reforms that it makes to existing special measures that were already available to the courts for the purposes of pre-recording the evidence of vulnerable witnesses. These special measures, namely taking evidence by a commissioner and giving evidence in chief in the form of a prior statement, had been among a suite of special measures available to the courts for many years. Prior to the introduction of the Act, however, there was no presumption in place.

One of these reforms is to require that a Ground Rules Hearing (“GRH”) must take place in advance of an EBC hearing where the special measure of taking evidence by a commissioner is used to secure testimony from a vulnerable witness. Crucially, GRHs are not only required to take place in those cases to which the presumption applies, but rather must be used in all circumstances in which this special measure is adopted.

The objective in introducing GRHs is for the Commissioner or other judge presiding over the hearing to satisfy themselves that all parties are prepared for the EBC hearing and to ensure that proper consideration is given to the conduct of that hearing. Accordingly, the Act sets out those issues that the Commissioner must consider at the GRH including the length of the EBC hearing, any additional support that the witness may require to participate fully in proceedings and, where appropriate, the form and wording of questions to be asked. GRHs are typically conjoined with the Preliminary Hearing

In addition, the Act also includes provisions intended to encourage the same judge, where practicable, to conduct both the GRH and, acting as a Commissioner, the EBC hearing. This is to encourage greater consistency in how cases involving vulnerable witnesses are managed as they progress through proceedings.

A further reform introduced by the Act was to enable EBC hearings to be conducted prior to the service of an indictment on the accused. This provision also applies to all cases in which the evidence of a witness is taken by a Commissioner, not just those which involve a relevant witness. The aim of this provision is primarily to recognise that it may be necessary to take the evidence of a witness at the earliest opportunity and before an indictment has been lodged in order to advance criminal proceedings against an accused. For example, where a witness is terminally ill. It also recognises that capturing a witness’ evidence at the earliest opportunity can improve the quality of their evidence by enabling them to provide a more accurate and contemporaneous account (SCTS, 2015).

While the Scottish Government acknowledged when it brought forward the Act that pre-indictment EBC hearings were likely to be rare, these provisions were included in the Act in order to both future-proof the legislation and to provide the flexibility should this be considered appropriate in any specific case.