Vulnerable Witnesses Act - section 9: report

7. Analysis of consultation responses

Background

In evaluating the operation of the Act and setting out the next steps that Scottish Ministers intend to take in respect of implementing the presumption for further groups of witnesses, the Act requires Scottish Ministers to consult with parties who have an interest in the operation of the Act:

• the Lord President,
• the Scottish Courts and Tribunals Service,
• the Crown Office and Procurator Fiscal Service,
• the Chief Constable of the Police Service of Scotland,
• the Scottish Legal Aid Board,
• the Law Society of Scotland, and
• the Faculty of Advocates.
• persons or bodies who provide support to child witnesses (within the meaning of section 271(5) of the 1995 Act).

Methodology

Consultees were issued with a list of questions that sought to elicit views on the following:

• how the Act is working in practice;
• whether it is achieving the aims of supporting relevant witnesses to participate in the criminal justice system;
• any improvements that could be made to how the Act is operating;
• whether the experience of relevant witnesses giving evidence in the High Court has changed since the introduction of the Act;
• what the impact of the Act has been on the wider justice system – positive or negative;
• whether the proposals for further rollout of the Act were still felt to be the best approach to extending the presumption to other groups of witnesses; and
• what other challenges, if any, remained with the further rollout of the Act.

Respondents were also asked to share any additional views on the operation or the impact of the Act. Respondents were not asked to specifically provide their own data or evidence as part of their responses.

Further information was also sought from specific respondents regarding the operation of the Act where it was felt that these partners had particular operational experiences that would provide additional insight into the effectiveness of specific provisions within the Act. This information has been synthesised into the general summary of responses received from consultees.

A copy of the document sent to consultees is included at Annex 5.

In asking these specific questions, the Scottish Government aimed to gather evidence on whether the Act had helped relevant witnesses to participate in court proceedings, and whether further work would be needed to support additional rollout of the Act. In doing so, the aim was to capture not only the consultee’s experiences of relevant witnesses in the High Court but also their experiences of the Act as they related to the court system more widely, in order to best support the rollout of the Act’s provisions.

The questions were also structured so as to elicit feedback where consultees felt the provisions in the Act were working well, or where they identified specific challenges in extending the Act to a wider cohort of vulnerable witnesses in accordance with the approach set out in the Implementation Plan.

As well as the consultation exercise, views on the impact of the Act, the experiences of relevant witnesses in giving evidence and the effect of provisions on the operation of the criminal justice system more broadly have also been sought through the Expansion of Pre-Recorded Evidence Implementation Group. This Group was established by the Scottish Government to support and monitor rollout of pre-recorded evidence across the criminal justice system and includes representation from across the justice system. Themes identified and views gathered through discussions at Implementation Group meetings have also been incorporated into the analysis below.

The targeted consultation was conducted in October 2023. Consultees were given four weeks to respond to the questions provided although some respondents chose to share their views without responding to the set questions provided.

Alongside the seven consultees named in the Act, the Scottish Government identified a further thirteen organisations who it was felt would have insights that would support a robust evaluation of the Act. A full list of those individuals and organisations that responded to the consultation is provided at Annex 6.

These additional consultees were identified as those organisations that have experience of working directly with child witnesses and/or adult vulnerable witnesses in addition to those organisations who engage with children who may have come into contact with the criminal justice system. The Scottish Government aimed to capture the experience of witnesses during their journey through the justice system as well as organisations who would be able to offer contextual evidence about the experience of child and vulnerable witnesses outside of their experiences in giving evidence and in court.

Responses were received from fourteen consultees in total: eight responses were received from justice partners, five from victims’ support organisations and one from a non-justice professional body.

In gathering the evidence and insights to inform this report, a decision was taken not to seek the views of children who had been victims and witnesses in criminal cases to inform the evaluation. There are significant ethical and practical challenges associated with seeking the views of those who are victims of or witnesses to crime, particularly where those individuals are children. It was felt that many child witnesses would be unwilling to participate in a qualitative evaluation of their experiences of giving evidence and that those who did engage would be unable to provide insights that would enable us to compare how pre-recording their evidence differed from providing their evidence at trial as many would only have been through the criminal justice system once. In addition, asking children about their experiences of the justice system necessarily requires researchers to question them about what was likely to have been an extremely difficult experience thereby risking further harm and/or re-traumatisation. Accordingly, it was felt that the potential risks of conducting a qualitative evidence gathering exercise with children outweighed the insights that would be gained from seeking the views of children about their experiences of giving evidence and that there was other work ongoing which was better placed to capture evidence and learning about children’s experiences of the justice system e.g. work associated with the development of Bairns’ Hoose.

Summary of consultation responses

The main question that the consultation set out to gather views on was whether the provisions in the Act have supported relevant witnesses to participate in the criminal justice system by reducing the barriers that they face when giving evidence.

Most respondents to the consultation agreed there was general support for the ethos of the Act and acknowledged that a lot of its aims are already being achieved through everyday practice, thanks in part to the culture change brought about by the Act.

Consultees who had direct experience of child witnesses and pre-recording their evidence felt that there has been a noticeable change in the culture around children and vulnerable witnesses. Specifically, these responses highlighted that there was a greater recognition of the impact of trauma which had started to influence the actions of justice partners through, for example, the content and format of questions posed at EBC hearings. Responses also show broad consensus among the responses that children have been aided to participate in the criminal justice system through the provisions in the Act.

Some consultees also felt that there had been a marked reduction in the number of children being required to attend Court in order to give evidence although some respondents expressed concern that a large number of children were still being required to give their evidence in Court. This disparity in perspective could be explained by the fact that, so far, the presumption only applies to children giving evidence in the High Court and does not yet apply to Sheriff and Jury cases.

However, logistical issues remain. The availability and appropriateness of facilities, the available resourcing across the system, and the backlog of cases post-pandemic have all had an impact.

There are some areas where the Act does not appear to be working as it should, and areas where respondents felt that additional resource was required to ensure a successful further rollout of the Act’s provisions. Concerns were raised about the number and location of evidence by commission suites, and the potential travel time to these suites once the presumption in favour of pre-recorded evidence is extended to Sheriff and Jury cases if no further facilities become available.

Some respondents also highlighted the additional resource it takes to conduct EBC hearings, although it was acknowledged that taking evidence by a commissioner can reduce the trial length. GRHs were singled out in particular as being resource-intensive due to the additional time and resource required to prepare for them. While consultees recognised that GRHs could support improvements in the experience of witnesses by helping to reduce inappropriate questioning by counsel it was stressed that this could only be achieved through the investment of necessary time and resource at an earlier stage in the process than where the evidence of that witness is given at trial at an earlier stage in the process than where the evidence of that witness is given at trial.

Themes arising from the consultation

A number of overarching themes were identified from the consultation responses:

• Impact of the Act on supporting relevant witnesses to participate in the criminal justice system
• Impact on improving the experiences of child witnesses when giving evidence
• Challenges to the operation of the Act
• Impact of the Act on justice partners and the wider criminal justice system
• Challenges to further rollout of the Act
• Solutions suggested

Impact of the Act on supporting relevant witnesses to participate in the criminal justice system

On the whole, respondents felt that the Act has supported relevant witnesses to participate in the criminal justice system and had led to improvements in the experience of child witnesses and victims. For children who are captured by the presumption, consultees report that the provision is working well and reducing the number of children who are required to give evidence in person.

Many respondents reported fewer children having to attend court in person, avoiding the potential re-traumatisation of giving evidence in person. Justice agencies in particular highlighted the reduction in children giving evidence in person and the child-centred nature of questioning in evidence by commission hearings.

Section 5 of the Act provides that the commissioner presiding over a GRH should take steps to ensure that the witnesses can participate effectively in the hearing, including authorising the use of a supporter and potentially deciding on the form and wording of questions to be used. The Faculty of Advocates felt that these measures were working well in supporting witnesses.

‘…they have clearly supported children as the provisions give the court the ability to more tightly control the way in which examination and cross-examination of a child is conducted. This allows the court to determine what are the most appropriate measures required for each individual child witness and allows the court to provide a more tailored approach for each child witness addressing their specific vulnerabilities rather than a one size fits all approach. In doing this it can ensure that evidence can be taken with the minimum amount of trauma to the child’ – Faculty of Advocates

The Lord President said ‘It [the Act] is working very well indeed’, pointing out that more children are now giving evidence by commission earlier on in the process. COPFS agreed that children are now only giving evidence in the High Court in ‘exceptional circumstances’. Questioning of children was felt to be more gentle and focused rather than confrontational. Earlier capturing of evidence, according to the SCTS, can also aid the prosecution in preparing their case and aid the defence in understanding the evidence earlier. In many cases this can lead to pleas being accepted earlier.

‘…research on memory and witness testimony shows that while all witnesses forget information over time, younger children are more susceptible to forgetting than older children and adults; with children more likely to confuse memories from similar sources and more willing to guess the answers to questions when their memory has deteriorated.’ – SCTS

Impact on improving the experiences of child witnesses when giving evidence

Broadly speaking, responses from the legal profession and justice agencies were firmly in favour of the ethos of the Act and generally felt that it had improved the experience of children required to give evidence in the High Court. Where issues remained these were around the available facilities, which were noted to not always be child friendly: the Society of Solicitor Advocates noted, for instance, that asking children to attend a court building even if they then give evidence in an EBC suite can still be an intimidating experience.

Response from victim support organisations suggested a more nuanced view of the impact of the Act on improving the experience of children. These organisations reflected on the wider challenges in the justice system such as the availability of appropriate facilities for children and vulnerable witnesses and the delays caused by the impact of the Covid pandemic. Further rollout of the Act to children in sheriff court cases, and the implementation of the Bairns’ Hoose programme, will go some way to mitigating these concerns.

There are, of course, instances where children will still have to attend court to give evidence in person. Consultation responses on this point were mixed. Several respondents pointed to a recent review of the North Strathclyde Bairns’ Hoose. The review heard from participants in sheriff court cases who were still required to attend court in person.

‘Any sheriff court cases, even the one last week, the JII is played and the child is then called to answer all the same questions in court…see for the ones who are going to a sheriff court, which is 80 per cent of the kids we interview…we interview them, and then they go to court, and in lots of cases recently, the interview hasn’t even been played. The child is just then asked to give their whole evidence.’ – Review of North Strathclyde Bairns’ Hoose

Other issues included the ongoing impact of the backlog of cases causing children to have to wait for their trial dates.

‘Our members have advised that long delays in court cases are causing children to be re-traumatised. This is often years after taking part in a Joint Investigative Interview. In part the pandemic has caused further delays on top of an already slow justice system. Speeding up court cases should be a priority.’ – Scottish Association for Social Work and Social Workers.

Challenges to the operation of the Act

There are some instances in which consultees felt the presumption is not working as well as it could be. Victim support groups and justice partners both raised concerns around the facilities available to children when capturing their evidence by commissioner. Children 1^st, Victim Support Scotland (VSS) and the Society of Solicitor Advocates all highlighted issues with the facilities at Edinburgh High Court in particular.

‘…feedback also suggests specific to the Edinburgh site that having the commission suite based within a court building is still raising concerns for witnesses about potentially seeing the accused in person.’ – VSS

The location of the suite within an intimidating and formal court building, and the anxiety – however unlikely – on the part of a witness that they may encounter the accused all contribute to an environment which is not as trauma informed as it could be. Respondents noted that witnesses are sometimes asked to arrive at the same time or that there is not enough space for vulnerable witnesses in specialist witness rooms are overbooked, leading to vulnerable witnesses waiting in crowded and busy shared waiting areas. The Society of Solicitor Advocates raised further concerns about the technology available in the Edinburgh suite which sometimes impeded communication between legal teams. COPFS also raised concerns about the technical issues that can be associated with pre-recorded evidence, particularly in JIIs, where poor sound or visual quality compromises the evidence of the witness. COPFS also stated that courtrooms are not always set up for effective playback of pre-recorded evidence, leading in some cases to times where not all of the jury members can see the witness giving evidence. The Lord President, however, felt that while ‘there will always be scope to increase the number of facilities and improve them, for the most part the facilities work well’.

Other consultees felt that the formal language still used in some EBC hearings made the overall experience child-unfriendly.

‘Research on how Solicitors examine and cross examine children in Scotland shows that Solicitors have historically not altered their questioning technique when questioning a child, regardless of the child’s age. This highlights that provisions require to be in place to protect children from inappropriate, misleading and/or confusing questions’ – Victim Support Scotland

The introduction of Bairns’ Hoose provision will go some way to mitigating a number of the issues raised by consultees. Children will be able to access Bairns’ Hoose facilities instead of attending court buildings or other buildings which may not be set up appropriately for their needs. Bairns’ Hoose facilities will also have on-site provision from support organisations so that vulnerable children can access support in one place. The Pathfinder Phase of Bairns’ Hoose is ongoing with six Pathfinder sites announced on the 23^rd of October 2023,

Barnardo’s Scotland reported in their response that child-friendly language is not always used making the experience less victim-centred than it should be. Barnardo’s also gave the example of a recent experience of a child witness during which the lack of care given to her was re-traumatising:

‘The child was cited to appear at the High Court to give evidence against the accused. Despite the Barnardo’s worker questioning this requirement with other professionals, both in terms of necessity and also the impact on the child, the child had been asked to attend in person. On arriving at the High Court, there was a level of confusion from court officials about where, when and why they were there. After a period of time, it transpired that there had been a deal reached on the charges outside of court, yet the victim had not been informed or told that they were no longer required to attend on the day. This experience was felt to lack compassion and was not child or victim-centred. It was the view of the Barnardo’s worker that the Act has certainly not been applied in practice for this child victim.’ – Barnardo’s Scotland

Impact of the Act on justice partners and the wider criminal justice system

Many respondents agreed that a general change in the culture around child and vulnerable witnesses had taken place since the introduction of the Act, with a positive impact on the judicial system. Questioning of children was generally seen to be more sensitive, child-focused, and non-confrontational. Most respondents who gave an opinion about the expansion of pre-recorded evidence to other groups of vulnerable witnesses were in favour of the expansion.

Justice partners generally felt that the Act had been positive for the justice system. The Lord President felt that the provision of pre-recorded evidence made it easier to schedule trials with a greater degree of accuracy, as it was possible to know how long the evidence would take. SCTS agreed referencing the EPR and research contained therein, which indicated that an earlier understanding of the evidence can lead to shorter trials. In their experience, referencing the Lord Justice Clerk’s Review into Improving the Management of Sexual Offence Cases which SCTS supported, evidence taken by commission has also led to more cases where the evidence is clearer at an earlier point in the trial process, and therefore more pleas have been entered. The Lord President also felt that the quality of evidence was improved by taking it on commission, and the Faculty of Advocates agreed that commission hearings were less traumatic for witnesses and provided better evidence.

The majority of respondents who commented on the impact of the Act on the court system and justice partners commented on the resource-intensive nature of taking evidence by commissioner. A number of consultees were concerned about the available resources, personnel and funding to support the taking of evidence by commission. Several consultation responses identified a lack of, or a lack of suitable, resources for the taking of evidence by commission. These include not only a shortage of appropriately trained legal professionals to take evidence, but also a lack of capacity in the existing facilities for taking evidence by commissioner, as well as issues with the existing facilities themselves. Related to capacity was the need for additional funding to support more legal professionals to take evidence, more professionals to have the appropriate training to ensure evidence is taken in a trauma-informed way, and the expansion of more facilities to enable the taking of evidence. These issues are discussed further below.

The Lord President recognised that ‘there is considerable justification for prioritising rapid expansion of evidence on commission’ but noted that commission hearings are resource intensive and require the support of both suitable facilities and suitable personnel. The Lord President felt that providing a transcript of EBC hearings could be beneficial to judges and other parties, and could go some way to offsetting the additional demands on court system resources by allowing judges to identify and remove inadmissible material before it is heard in court. This would help to reduce time in court and prevent juries hearing inadmissible material and then being told to ignore it. This, however, of course does not cover all the additional resource challenges which will follow from increased provision of pre-recorded evidence.

It was also noted by one respondent that pre-recorded evidence is not always the best option in the interests of justice. One respondent held concerns that pre-recorded evidence does not always have the same impact on juries as live evidence, and a statement recorded ahead of time may not be able to capture issues that later become relevant by the time of trial. There are also cases where witnesses may choose or prefer to give evidence in person, particularly in cases where a witness may have been of an age to be captured by the Act when the case was indicted but have turned 18 or older by the time of the trial. The needs of the witness must remain finely balanced with the best interests of justice.

Challenges to further rollout of the Act

Respondents generally felt that the ethos of the Act was a positive one and that further rollout should continue. Justice partners, however, were particularly concerned about the financing and resourcing of further rollout. Victim support organisations were concerned that delays in advancing the rollout would mean that fewer vulnerable children received the appropriate support needed to allow them to give their best evidence. Key areas were identified:

• Resources

The pressures on the physical estate, as well as the time pressures associated with taking evidence by commission, was a repeated theme among consultation respondents. EBC hearings and GRHs require a greater degree of preparation from legal professionals.

SCTS reported that GRHs and associated administrative steps have increased in accordance with the growth in EBC hearings. SCTS also report that the suites in Glasgow and Edinburgh supporting the High Court are already running at near full capacity, with concern that the existing facilities would not be able to accommodate the additional demand that would be place on them by the rollout of the Act to Sheriff Court cases.

‘…concurrent running of commissions Monday to Friday in both Glasgow and Edinburgh from October 2022. This has occurred at the same time as an extended court recovery programme, which has required additional trial courts, and procedural sittings and the associated staffing, judicial and legal and justice sector responses.

At this juncture meeting the needs of the presumption and ad hoc applications for adults, means the designated Glasgow High Court and Edinburgh evidence by commission facilities are at near capacity.’ - SCTS

Both the Law Society and COPFS also picked up on the need for more EBC suites in order to meet the increased demand for commission hearings that will be associated with the rollout of the Act.

Alongside the need for physical resources to support EBC hearings, respondents noted that the additional time pressures associated with conducting EBC hearings were impacting on the effectiveness of the Act. GRHs and the additional administrative burden of taking evidence by commission all impact on the time required to appropriately prepare for and conduct a commission hearing which supports a child to give their best evidence. The Scottish Association for Social Work and Social Workers also commented that the time it takes for a case to come to trial is re-traumatising for children.

‘Court process can drag on for children who are trying to move on in their lives. This time lapse is also difficult for all witnesses in high court cases including professionals.’ – Scottish Association for Social Work and Social Workers

• Personnel

A number of respondents raised concerns about the number of available legal professionals to support a further rollout of the provisions of the Act. The Society of Solicitor Advocates felt that there are ‘insufficient lawyers to allow the Courts to take all proceedings by way of evidence on Commission [sic]’. Taking evidence by commissioner was acknowledged to be much more resource intensive, with the Lord President recognising that judges also need additional time to process the statements to see how the material could feature at commission and at trial. The Lord President and COPFS both reflected that parties must prepare for a commission in the exact same way as they would prepare for a trial; the preparation time is fundamental for the proper conduct of the hearing.

The Law Society of Scotland raised concerns about the number of professionals at all levels of the justice system, stating ‘the increasing use of commissions has placed an already stretched system under ever greater strain’, with more cases and fewer available professionals every year. While not directly linked to the rollout of the Act, the Law Society felt that the demands of the Act could place additional pressure on a judicial system which was already feeling the lack of a suitable number of qualified professionals. Police Scotland and SCTS both raised concerns about the resources available to allow evidence to be taken by commissioner.

Some respondents were concerned about the available facilities and the impact they could have on the quality of evidence given. The Law Society of Scotland felt that the facilities for pre-recording of evidence – including the ability of the people taking evidence to operate in a trauma-informed way – were critical to ensuring that the evidence was of good quality. The Society of Solicitor Advocates felt that there were insufficient lawyers available to take all evidence by commission, and further felt that the quality of evidence was sometimes denuded by the view among some judges that children and vulnerable witnesses should never be subject to cross-examination.

• Funding

The general response from consultation respondents was that increased funding would be necessary to support further rollout of the Act. This would ensure that sufficient staff, appropriately trained, are available to take more evidence by commissioner, prepare cases appropriately, and question child and vulnerable witnesses in a trauma-informed way which preserves their ability to give best evidence. It would also allow for additional suites to be built to accommodate the extra evidence by commission hearings that would be required once the provisions of the Act apply in Sheriff Court cases. No consultees offered a view on what amount of additional investment should be made.

The Society of Solicitor Advocates felt that ‘there would require to be massive investment in the Criminal Justice System to ensure that there were enough [p]rosecutors and [d]efence [c]ounsel and [a]gents to allow this reform to be properly successful’. The Law Society felt that Legal Aid provision remained in ‘crisis’ and that sufficient funding would be required to ensure that provision could continue. The Faculty of Advocates also suggested that additional funding would be needed to ensure the success of further rollout of the Act.

• Delays in the court system

Respondents recognised that giving evidence by commissioner often allows for evidence to be given earlier in a trial than giving evidence in person. However, existing delays in the court system contribute not only to additional trauma for a witness, but also to the general pressure on existing facilities and legal professionals. Meanwhile, the number of cases coming to court continues to grow, and many case are very complex and require a great deal of preparation and court time.

The Scottish Association of Social Work and Social Workers, alongside VSS, both felt that the rollout should be sped up so that more vulnerable witnesses can benefit from having the presumption of pre-recorded evidence extended to them.

‘In order to achieve equity and consistency in approach and limit re-traumatisation of future witnesses, it is necessary to roll out the presumption to other categories as quickly as possible’ - VSS

Solutions suggested

There was strong support for further rollout of the Act, despite the potential issues involved in further expansion of the Act’s provisions. Most consultees felt that the Act’s provisions should be rolled out to other vulnerable witnesses in other courts. Some consultees suggested ways in which the challenges involved in the rollout of the presumption could be mitigated.

Consultees felt that collaborative working with other partners was key to ensuring progression of the rollout. In particular, some consultees felt that greater links with the Bairns’ Hoose project would be beneficial to child witnesses, ensuring a number of services are available in one place and reducing the need for witnesses to travel to EBC suites in court buildings and elsewhere.

Finally, some consultees recommended that more wrap-around support from victims’ organisations would help to further the aims of the Act, allowing more vulnerable witnesses to give their evidence in a supported and trauma-informed manner.

Conclusions

In general, respondents to the consultation felt that the Act had had a positive impact on children giving evidence in the High Court. Children are being better supported to give their best evidence that they can through the provision of evidence by commission suites, GRHs and other measures designed to reduce re-traumatisation. On the whole, respondents felt that the Act had had a positive impact on the justice system as well, with high quality and timely evidence taken by commissioner contributing to less time spent in court.

There are, of course, ongoing challenges to the further rollout of the Act’s provisions. Many of these have been known to the justice system for some time, including funding and resourcing challenges. The provision of sufficient EBC suites that are suitable for the needs of the witnesses using them was also raised by a number of respondents.