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15 June 15

Would trials be enhanced by the leading of evidence pre-recorded at an early stage? The idea is central to a research paper authored by the Lord Justice Clerk, who spoke to the Journal about it

by Peter Nicholson

It does, I fully acknowledge, raise as many, if not more, questions than it answers – and these are the questions that we would hope can be considered and explored over the next few months.”

The words are those of Lord Justice Clerk Carloway, at the launch of the Evidence and Procedure Review Report, a paper prepared by a working group under his chairmanship. Taking a radical look at certain aspects of Scottish criminal trials, the paper caused something of a stir on its publication in March. Now a series of workshops and seminars is taking place for practitioners, and others with an interest, to have their say in more depth. What, then, does it advocate?

At the outset, it should be emphasised that the “report” is not a set of final recommendations, but only a first stage. “It is very much a research exercise,” Lord Carloway told me when we met to discuss its contents. “What we have done so far is primarily exploratory.” Setting out to explore fundamental questions of how best to ascertain the truth in a criminal trial in our technological world, and ensure the accuracy of witnesses’ testimony while eliminating unnecessary delays, he and his colleagues (Sheriff Principal Craig Scott, Lady Dorrian as criminal appeals administration judge, and Eric McQueen, chief executive of Scottish Courts & Tribunals Service) studied selected foreign jurisdictions for ideas that they now present for discussion in Scotland.

From hearsay to best evidence

The principal theme, around which much of the report is centred, is the ease with which digital technology can now record the making of witness statements, even at the scene of a crime, in video and audio of a quality that can subsequently be played to a jury in court. Put simply, the proposition is that where you have a statement recorded electronically, that ought to be admissible as proof of fact, because there should be no doubt as to what the witness said.

Not that the IT is yet in place, but the investment is planned that will provide the capacity to handle this, among other developments, within the next decade.

The report employs language such as the “context of a revised concept of a modern trial”. What does that mean? “The thinking is that what we have at the moment is the same sort of procedure that they had in the late Victorian era,” Carloway replies, “so we have this idea that the best way of ascertaining the truth, of hearing evidence is by having everybody come together in the room at the same time and telling what they saw or heard. We’ve now got all these electronic devices that can record everything people say at particular times, so we have to change the dynamic of the trial to take that into account. That’s not to say that certain elements of the trial as we know it may not remain: they will, but there is considerable scope for having people’s accounts of what happened and people’s evidence recorded in advance of the formal day of the trial.”

While this would require a change in the hearsay rule, the paper argues that the rule exists as a safeguard against the unreliability of statements not seen or heard in their original form, and that it “seems somewhat antediluvian” that it should prevent the leading of evidence that does not suffer from such weaknesses. Indeed, such a contemporaneous account is likely to be more accurate than a recollection given in court long after the event.

The anticipated benefits are not confined to the accuracy of testimony. The report takes the line that as practice has developed over the last 20 years, cross-examination of witnesses has become both somewhat mechanistic, in that it often consists of taking a witness at length through their police statements and attempting to identify discrepancies from their evidence in chief, and insufficiently focused. “This is taking up an enormous amount of time at trials, especially at High Court level,” Carloway comments, “in a situation where if you recorded what the witness said at the time you wouldn’t have that difficulty. Other difficulties may arise, but not that one.”

Expert evidence would be led in the same way, as would formal, normally unchallenged evidence such as police officers speaking to the recovery of a particular item.

Managing cross-examination

First reactions from defence lawyers sounded alarm bells for the right to cross-examine, but Carloway rejects the criticisms. “I think that one of the slightly concerning things is that when we released this report there was immediate concern that somehow it was being suggested that the right which exists in domestic law to cross-examine, or the European Convention right to examine witnesses, is somehow being undermined. That is not contained in the report at all.”

Rather, the report explicitly recognises that a witness whose evidence is given in pre-recorded form will have to be available for further examination where necessary. But it states: “It is, however, important to recognise that we are not bound to a system which allows the unfettered questioning of the witness at the trial diet. If a substantial element of the evidence against an accused is available in its final form at an early stage of the proceedings, new considerations come into play.”

Carloway explains: “One of the difficulties that we’re facing in the courts today is the increased repetitive nature of cross-examination, and it’s something which causes concern in the length that trials are taking in the modern era. It often consists basically of repeating what the witness said in examination in chief, and because the judge is not aware of the line which is going to be taken ultimately, other than perhaps in the defence statement, it’s very difficult for there to be judicial management of the way in which both the examination and the cross-examination are carried out.”

The scope of any questioning would be fleshed out at the preliminary hearing, now an established part of High Court procedure, with the sheriff court set to follow under the Bowen reforms (and summary cases also). “What we envisage is that in the indictment the Crown would specify what witnesses they plan to lead by video testimony. That would be a relatively simple process of notification. The defence would then have the opportunity of stating which witnesses they wish to cross-examine, in other words what the areas of dispute are in a given situation. These are all matters that can be explored at the preliminary hearing in the High Court, the first diet in solemn procedure, the intermediate diet in a summary case.

“I’m not suggesting there would be some enormous lengthy hearing at the preliminary stage, but in some situations the court will be asking, ‘Why do you want to cross-examine this witness: there doesn’t seem to be any dispute about what they are saying?’ Also in certain situations, as we already have in sexual offences, the court may restrict cross-examination to certain areas, in other words exclude certain areas that are deemed irrelevant. We then have much more judicial control of cross-examination, but we are not suggesting, or I’m not, that the right of cross-examination is other than coming under effective judicial control.”

I ask whether bringing in case management of this nature is likely to open up new avenues for appeal on the ground of prejudice. Carloway responds that experience to date of preliminary hearings suggests otherwise: although it has taken some time, “We have now got to a stage where the legal profession respond very well to what is expected of them in relation to advance preparation... Our adjournment rate of High Court trials is relatively low, and that is judicial case management I think working effectively and I haven't heard recently any significant criticism of the way in which the High Court is working.”

As diets would take place following disclosure of recorded evidence, whether cross-examination is needed will be discussed on the basis of knowing what the actual testimony will be. Carloway suggests that one reason why cross-examination is sometimes so lengthy may be that the defence – or Crown – are not sure what the evidence will be until it actually happens. “If they actually know what the evidence is, because it’s been recorded, they have an ideal opportunity: the theory is that they ought to be able to take a much more focused approach to it.” Such, he adds, has been the experience with child witnesses in England where, the review group found, cross-examination of children has become much more focused partly because of new rules under which judges set limitations both in relation to the type of questions and as to the time cross-examination will take: “It becomes a much more prepared art.”

Trust the jury

The report renews Lord Carloway’s push to simplify the law of evidence by removing technical exclusions so that finders of fact “are generally free to consider the quality of evidence and to attach such appropriate weight to that evidence as they think fit”. It goes on to suggest that juries now have a level of education and sophistication that the law in past times was reluctant to assume; but how far can procedure be taken in this direction and still be suited to jury determination?

“We have this of course already in sexual offence cases and children’s cases, where the examination in chief particularly of children is simply played to juries,” Carloway replies. “We’re in an age in which juries, or at least the younger members of juries, are used to seeing people talking on screen, and regard that as entirely normal, so the answer is, I think we can take this quite some distance in having a great deal of the evidence which is heard in trials done by means of electronic recording. In summary cases perhaps even more so, where you’ve got a sheriff who can not only look at the material, he can do so outwith the time parameters of a trial”

He accepts that opinions within the profession vary, but suggests that the limited number of appeals in relation to verdicts indicates that the jury system remains sound. Research as proposed by Lord Bonomy's Post-corroboration Safeguards Review – just published at the time of our interview – which would use “shadow juries” not involved in the actual verdict, may throw further light on this.

Ideas agenda

Ultimately, the paper is engaging in “clear-sky thinking”, and the programme of seminars now in progress reflects the desire to engage the profession in working through the issues raised. Having advanced the propositions in a recent speech that lawyers have a duty to be proactive in maintaining a legal system that is fit for purpose, yet often act as an obstacle to law reform, the Lord Justice Clerk is hopeful of constructive input.

“No doubt there is lots of chat in common rooms, but if you try to analyse who is coming forward with ideas to improve the system, it could be said that the legal profession have not been at the forefront of developing reforms of court rules on evidence and procedure,” he comments. “If they have better ideas, we would be glad to hear what they are, because if we proceed on the basis that especially those operating in courts are the best people to know what is wrong with the system, and how it can be improved, then we really ought to be reaching out and trying to get the profession to tell us what their ideas are.”

“The consultation process starts now.”

A programme of workshops across Scotland to discuss the report is being developed. For an up-to-date schedule see the news section of www.scotcourts.gov.uk

Children in the system

The report also deals in a lengthy chapter with how the courts should hear the evidence of children and vulnerable witnesses. While a range of protections are already available, the report concludes that experience elsewhere, such as in England & Wales, Australia and Norway, suggests that Scotland can go much further.

Here again the aim is to capture the evidence, especially of children, as soon as possible after an incident, to prevent the problems that have arisen where months or years elapse before a trial. Two possible approaches are put forward, depending how radical a change is preferred.

In terms of providing the most suitable environment for the child, the report favours the model of the Norwegian Barnehus, a custom-designed facility, away from the court building, where a single specially trained interviewer carries out a forensic interview within a few weeks of an incident, video recorded, under judicial control, and with counsel present to represent both sides but not taking part directly. If that involves too great a culture shift, the report’s preference is for the “Full Pigot”, named after a 1989 report by Judge Thomas Pigot QC, now adopted in Australia and being piloted in England, which involves pre-recording both the evidence in chief and the cross-examination of the complainer in certain cases. Questioning is conducted in accordance with online guidance to be found in the “Advocate’s Gateway” (www.theadvocatesgateway.org/toolkits), which sets out age and development-appropriate methods. There is provision for further questioning if that becomes necessary, but otherwise the child is enabled to move on with their life.

“The introduction of either model will require significant effort and expenditure in terms of facilities and infrastructure, legislative and procedural change and, critically, training for all those involved,” the report states. “The Review was not equipped to research in any detail the implementation costs of the two approaches.”

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