Vulnerable Witnesses Act - section 9: report

8. Is the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 supporting relevant witnesses to engage in the Criminal Justice System?

Participation in the Criminal Justice System

The Act does not include a definition of what is meant by enabling relevant witnesses to “participate” in the criminal justice system and nor is the concept defined in existing legislation. It has therefore been necessary to look elsewhere to consider how best to measure participation in this context as the basis against which an evaluation of the effectiveness of the provisions in the Act can be conducted.

For the purposes of this evaluation, we have considered principles of participation developed in a recent study (Jacobsen and Cooper, 2020) conducted by the Institute for Crime & Justice Policy Research (ICJPR) which explored the concept of effective lay participation in courts and tribunals. That study was designed to consider all aspects of lay participation in the courts, encompassing a far broader range of participants than simply vulnerable witnesses such as, for example, jurors and accused. It is also important to note that the Act only deals with one specific aspect of a vulnerable witness’ interaction with the criminal justice system, namely the giving of evidence, it is not intended to change or enhance the ability of vulnerable witnesses to participate in the criminal justice system throughout the entirety of their cases such as, for example, when and how information about their case is conveyed to them. As such, not all of the principles identified are relevant and this report restricts its consideration to the following principles of effective participation which are directly relevant to the giving of evidence:

• providing and/or eliciting information for the court – This principle applies to the way witnesses can provide information (including evidence) and how the court will enable the witness to provide it.
• protection of well-being -This principle relates to the introduction of adaptations for vulnerable witnesses and how they may be sought and applied according to the needs of the vulnerable witness and the case. (Jacobson and Cooper, 2014)

This chapter considers both of these principles to assess the extent to which the Act has supported relevant witnesses to participate more effectively in the criminal justice system.

This chapter considers the key trends emerging from the data and information that was collected for the purposes of this report regarding the key reforms made by the Act, namely the introduction of a presumption in favour of pre-recorded evidence, the requirement to conduct GRHs and the additional powers granted to a commissioner. It considers these trends against the data that exists on the use and application of pre-recorded evidence prior to the introduction of the Act for the purposes of evaluating whether the Act is enabling witnesses to better participate in the criminal justice system based on the two principles set out above.

Key findings relating to the introduction of the Act and its impact on supporting relevant witnesses to engage in the criminal justice system.

The presumption has generated a significant increase in the number of applications for EBC hearings for child witnesses, the number of orders that have been made, the number of EBC hearings that have been held and the number of recordings of evidence given at EBCs that have been played at trial – Since the introduction of the Act, an average of 25 applications per month have been submitted to pre-record the evidence of child witnesses in the High Court. This is eight times as many applications as the monthly average for EBC hearings in 2017. While data shows that the volume of applications to pre-record the evidence of child witnesses increased in 2018, the average number of applications per month during the review period was twice that of the monthly average in 2018.

Many more child witnesses are therefore receiving the benefits of being able to pre-record their evidence ahead of trial – An average of 15 relevant witnesses gave their evidence at an EBC hearing each month during the course of the review period compared to an average of three per month in 2017. This represents a fivefold increase in the number of EBC hearings for child witnesses in the High Court. Four times as many child witnesses gave their evidence through an EBC hearing during the Three-Month Evaluation period than in the whole of 2017. The increased use of EBC hearings was reflected within responses to the consultation which highlighted a step-change in the number of child witnesses that were not required to give evidence live at trial.

Adult vulnerable witnesses in High Court cases also appear to be benefitting from a much wider use of pre-recorded evidence - A number of respondents to the consultation highlighted that since the introduction of the Act, a culture change has occurred in the High Court around the taking of evidence by commissioner. This is borne out in the data collected for the Three-Month Evaluation which shows a dramatic increase in applications to pre-record the evidence of vulnerable adult witnesses.

Ground Rules Hearings have played a key role in taking evidence by commissioner from vulnerable witnesses – Respondents to the consultation highlighted that GRHs are important in moderating the tone and content of questions directed towards vulnerable witnesses and to enable the Court to consider any additional measures that may be required to support that witness ensuring that “evidence can be taken with the minimum amount of trauma”.

It is important to acknowledge, however, that there are some challenges associated with pre-recording the evidence of a vulnerable witness. In addition to the positive conclusions set out above, the evaluation also demonstrated where the Act could be operating more effectively.

The proportion of applications approved by the Court that progress to EBC hearings has reduced – Since the introduction of the Act, the percentage of those applications for pre-recorded evidence that are approved by the Court and which progress to an EBC hearing has reduced by 9% compared to the equivalent figure in 2017. Reasons for EBC hearings not going ahead include where a guilty verdict from at least one accused has been accepted (13%), the evidence of the witness was no longer required (7%), or the EBC was no longer required (e.g. because evidence had been agreed) (16%). Of particular concern however, is that in 35% of cases in which an EBC hearing was granted but not conducted, this was because the relevant witness failed to attend the EBC hearing. This issue was also highlighted in the data collected for the Three-Month Evaluation. The reduction in applications for EBC hearings being approved by the Court should, however, be considered in the context of the significantly higher proportion of applications being submitted to the Court and the many positive reasons why a relevant witness may not be required to give their evidence at an EBC hearing such as where a guilty plea was tendered by the accused.

Implementing the Act is resource-intensive and places additional pressures on the justice system – This emerged as a key theme from the responses to the consultation with justice agencies in particular reflecting the additional demands and burdens placed on them by both EBC hearings and GRHs and the need to ensure that the wider impacts on the criminal justice system of further implementation of the presumption are considered. The need for a rollout of which recognises the impact of the presumption on the criminal justice system is key to the approach set out in the Implementation Plan informed through the findings of the EPR and the Scottish Government’s engagement with justice partners.

The facilities for conducting EBC hearings and the technology for playing recordings at trial could be improved – Some responses to the consultation highlighted concerns about the facilities for conducting EBC hearings, in particular those that were located within existing court buildings. It was felt that the experience of going into a court building to provide evidence could be intimidating for vulnerable witnesses.

Does the presumption support witnesses to provide information to the court?

As established in Chapter 3, research has shown repeatedly that requiring child and vulnerable witnesses to provide their evidence at trial can have a material impact on the quality of the evidence that they are able to provide. The daunting and often pressurising environment of the courtroom can affect their ability to recall events and to articulate these clearly and cogently under cross-examination. Moreover, the fact that the trial often takes place many months or years after the incident(s) that the witness is being asked to answer questions about can also impact on the accuracy and reliability of their account. A key reason that the EPR recommended much greater use of pre-recorded evidence, including the taking of evidence by a commissioner, was that it could significantly improve the quality of evidence from vulnerable witnesses enabling the jury to get a more accurate account of events to inform their verdict in these cases.

On the basis of the data collected for this evaluation alone, it is evident then that the Act has supported witnesses to participate in the criminal justice system by significantly increasing the number of witnesses who are able to give their evidence at a time and in a place that supports them to provide their best evidence. This is of course further enhanced by the requirement to conduct GRHs in advance of an EBC hearing to ensure that all parties are prepared for the hearing and to ensure that the questions remain focused on the issues in dispute.

Respondents to the consultation have, however, expressed concern with delays in extending the presumption to additional groups of vulnerable witnesses. It is important to note, however, that the Courts, upon the application of a party, retain the power to make an order that the evidence of a vulnerable witness be pre-recorded where they consider it appropriate to do so. Indeed data shows that the High Court is already frequently granting applications for taking evidence by commissioner from adult deemed vulnerable witnesses.

It is important to acknowledge, however that there remain challenges with implementation of the presumption particularly in relation to the number of witnesses who fail to attend EBC hearings. It is significant, however, that the prevalence of failure to attend by witnesses is relatively low comparative to the number of EBC hearings that take place. Over the three year review period, 51 relevant witnesses did not give evidence by commissioner because they failed to attend EBC hearings whereas, 503 relevant witnesses did give their evidence by commissioner.

Does the presumption protect the wellbeing of witnesses?

As with improvements in the quality of evidence, it has also been established that the ability of vulnerable witnesses to pre-record their evidence ahead of trial reduces the stress associated with giving evidence and reduces the risk re-traumatisation.^[12] It has already been established above that the volume of EBC hearings for relevant witnesses has substantially increased as a result of the introduction of the Act. This means a better quality of evidence from those witnesses but also means that their wellbeing is better protected during their interactions with the justice system. This is a theme that emerges strongly from the consultation with many respondents pointing to an improved experience for the many witnesses that have pre-recorded their evidence ahead of trial.

Returning to Jacobson & Cooper’s (2014) principle of effective participation, protection of well-being, we determine that the significant increases in the volume of EBC hearings both for relevant witnesses and for adult deemed vulnerable witnesses has led to improved participation in the criminal justice system; more vulnerable witnesses are providing evidence at a time and in an environment that supports improved wellbeing comparative to giving evidence in Court.