Vulnerable Witnesses Act - section 9: report

5. Implementation of the Act

The Scottish Government recognises that the expansion of taking evidence by commissioner places significant additional demands on the criminal justice system. In particular it requires those involved in conducting a case, to prepare to take evidence earlier than they would otherwise and also requires them to resource an additional hearing. These additional demands are particularly challenging at a time when justice agencies and partners are already experiencing acute pressures due to growth in volume of cases and the pressures caused by the pandemic.

The need for a managed approach to rolling out pre-recorded evidence was emphasised in the EPR next steps report. It recommended a staged approach to the implementation of pre-recorded evidence to avoid creating an ‘insupportable surge in demand on the justice system’s limited resources’ (SCTS, 2016). In addition, the EPR also highlighted the importance of having the right technology and facilities in place to support roll out of evidence by commissioner, stressing that this was necessary to ensure the collection of good quality evidence in an environment which, as far as possible, is not intimidating or overwhelming for a witness (SCTS, 2015).

The Policy Memorandum which accompanied the Bill recognised that there would be a number of practical and operational implications for justice sector partners associated with the implementation of the presumption and that this necessitated a phased implementation of the Act (Scottish Government, 2018). Accordingly, the Bill was specifically drafted to enable a framework for a progressive extension of the arrangements to child and vulnerable witnesses. This phased implementation was, and remains, essential to ensure that the criminal justice system can adjust to a substantially different way of taking evidence from a large number of witnesses.

To manage commencement of the Act, an Implementation Plan was developed in conjunction with justice partners, a copy of this is attached at Annex 3. The Implementation Plan set out a phased approach to implementation, meaning that presumption would be extended to different groups of vulnerable witnesses at different times. The Implementation Plan also stated that an evaluation would be conducted after the commencement in respect of the first two cohorts of witnesses, in order to assess how the presumption is operating and what impact it is having on criminal justice partners and agencies.

The Implementation Plan identified that the Act would be rolled out in the following stages:

• Phase 1 – child complainers and witnesses under the age of 18 in High Court cases that involve specific offences.
• Phase 2 – period of evaluation of how the provisions are operating in the High Court.
• Phase 3 – child complainers aged under 16 in Sheriff & Jury cases that involve specific offences.
• Phase 4 – period of evaluation of how the provisions are operating in the sheriff court.
• Phase 5 – child witnesses aged under 16 in Sheriff & Jury cases that involve specific offences.
• Phase 6 – child complainers and witnesses aged 16 & 17 in Sheriff & Jury cases that involve specific offences.
• Phase 7 - deemed vulnerable adult witnesses in High Court sexual offence cases.
• Phase 8 - all remaining deemed vulnerable adult witnesses in High Court cases (i.e. complainers in human trafficking, stalking and domestically aggravated offences).

The approach captured in this plan was intended to ensure sufficient capacity within the justice system to meet the obligations under the Act and to ensure that the intended benefits are delivered to vulnerable witnesses.

At present, the Act applies to children under the age of 18 required to give evidence in relevant cases indicted to the High Court. The impact of the Covid pandemic has meant that further rollout of the Act’s provisions has been impacted by the broader pressures and challenges facing the criminal justice system.

To support implementation of the Act, the Scottish Government has provided £2 million in capital funding to facilitate the construction of four EBC suites specifically designed to be trauma-informed spaces for taking the evidence of vulnerable witnesses. These bespoke suites, which are all fully operational, are located in Aberdeen, Edinburgh, Glasgow and Inverness. Collectively they provide capacity to accommodate over 2,000 commissions annually. The EBC suite in Glasgow was the only site that was operational at the outset of the review period with Inverness opening in March 2020 and Edinburgh in October 2022. Aberdeen EBC suite became operational following the end of the review period in October 2023. A further suite is due to open in Dundee next year. Work is ongoing with SCTS to identify other areas where additional suites are required to ensure sufficient capacity is in the right areas to meet demand for EBC hearings.

The Act remains a vital part of our ongoing plans to transform the justice system and ensure that witnesses are supported to give the best possible evidence. Further detail on work to extend the provisions in the Act to a wider cohort of vulnerable witnesses is provided at Chapter 9.

Additional Support for Vulnerable Witnesses in Scotland

Providing the right support to vulnerable witnesses is a priority for the Scottish Government. One of the principles of the Scottish Government’s Vision for Justice is to embed person-centred and trauma informed practices in the justice system, ensuring that everyone is treated in a way that minimises re-traumatisation.

The Scottish Government is bringing forward a range of policies to support children and vulnerable adults to give their best evidence in court. These include the Bairns’ Hoose model, the Scottish Child Interview Model, the pilot of Video Recorded Interviews, and the Victims, Witnesses and Justice Reform (Scotland) Bill.

Bairns’ Hoose

Bairns’ Hoose is Scotland’s approach to the Icelandic ‘Barnahus’, which means ‘child’s house’. Bairns’ Hoose is a transformational, whole-system approach to delivering child protection, justice, health and recovery for children who have been victims or witnesses of abuse or violence, as well as children under the age of criminal responsibility whose behaviour has caused significant harm or abuse.

The Scottish Government has introduced a three-phased approach for the development of Bairns’ Hoose in Scotland. The first phase, the Pathfinder phase, launched in October 2023 with the announcement of six Pathfinder Partnerships marking a significant milestone for the development of Bairns’ Hoose. The Pathfinders will demonstrate how the recently published Standards work in practice in different contexts, enabling the design of a national Bairns’ Hoose model and the support required to achieve this. A Fund of up to £6m will support the Pathfinder phase in 2023-24 with a similar level of investment expected in 2024-25.

Scottish Child Interview Model

Bairns’ Hoose builds on the momentum of the Scottish Child Interview Model (SCIM) for JIIs, which is being introduced nationally from 2021 to 2024.

The Scottish Child Interview Model is a new approach to joint investigative interviewing which is trauma informed. By maintaining the focus upon the needs of the child in the interview, it seeks to achieve best evidence through improved planning and interviewing techniques. It has been purposefully designed to minimise re-traumatisation of children and young people and the accompanying training programme equips interviewers with the knowledge and skills required for the specialist task of forensic interviewing.

Informed by international research on forensic interviewing, and incorporating an evidence-based interview protocol, this ground-breaking approach to interviews for vulnerable child victims and witnesses in Scotland which is currently being rolled out across the country, supported by £2 million of Scottish Government funding.

Local authorities and Police Scotland have worked jointly to lead the development and implementation of this new model of practice, in collaboration with their wider protecting children partners. There is growing evidence of improved experiences and outcomes for children and young people.

24 local authorities, 11 policing divisions and 10 health boards are currently live in practice with the SCIM. Many involve cross-authority partnerships, working collaboratively across regions to deliver this new approach. Remaining areas are currently undertaking preparatory work to install the new model of practice and it is expected that the SCIM will be available in every area by the end of 2024.

Video Recorded Interview (VRI) Pilot

The Scottish Government has been working with partners (Police Scotland, Crown Office and Procurator Fiscal Service and Rape Crisis Scotland) to support a pilot to visually record rape complainers’ initial statement to the police within Edinburgh, Dumfries and Galloway, as well as the Highlands and Islands.

The two-year pilot project was launched on 1 November 2019 and formally extended until 1 May 2022.

Where appropriate, the aim of the pilot is for COPFS to use these interviews as the complainer’s evidence in chief should the case proceed to trial, and to make an associated application to facilitate the cross-examination of the complainer by means of an EBC hearing.

An interim review of the pilot is currently underway and when sufficient numbers of cases involved from the pilot progress to trial, a full and meaningful evaluation will be completed.

While the pilot has formally concluded, VRI still operates within the areas that formed part of the pilot approach, with training continuing to be rolled out by Police Scotland.

Victims, Witnesses, and Justice Reform (Scotland) Bill

The Victims, Witnesses, and Justice Reform (Scotland) Bill seeks to establish a specialist sexual offence court, taking forward the recommendation of the Lady Dorrian Review and designed to put the experience of victims at its heart through specialist, trauma-informed approaches.

The Sexual Offences Court is part of a package of reforms proposed by the Bill which are intended to improve the experiences of sexual offence victims in their interactions with the criminal court system.

Provisions in the Bill seek to introduce an automatic presumption in favour of pre-recording the evidence of complainers in cases that are indicted to the Sexual Offences Court. Introducing a presumption towards the pre-recording of evidence for complainers was a core tenet of the Sexual Offences Court as recommended by the Lady Dorrian Review and builds on existing commitments to expand the use of pre-recorded evidence.