Lawyers at bay
The High Court has issued directions on taking the evidence of a vulnerable witness, with a view to ending traditional examination and cross-examination. What does it mean for trial practice?
After a fairly lengthy consultation period, and under the chairmanship of the Lord Justice Clerk, Lady Dorrian, High Court of Justiciary Practice Note No 1 of 2017 came into effect on 8 May 2017. Statutory provision for making special measures available to vulnerable witnesses has been a feature of the criminal courts for more than a decade, but it has been suggested that the day-to-day practical application of these measures sometimes leaves much to be desired, in terms of the quality of the experience for the witness, and perhaps more controversially in respect of the perceived quality of the evidence.
This is particularly the case with the taking of the evidence of a vulnerable witness by a commissioner. The perception of the judiciary is of a common deficiency in cases where there is a child witness, a deemed vulnerable witness or other vulnerable witness; it is suggested that there is failure by the parties (both Crown and defence) to address their minds at a suitably early stage to the question of whether a commission is necessary for that witness. Early conduct of a commission is perceived as having benefits, not only in the earlier capture of the evidence but also in giving more time for addressing issues such as editing and admissibility.
New best practice
The practice note itself sets out what the court regards as best practice. Broadly speaking, the goal of the practice note is to ensure that children (defined in terms of the UN Convention on the Rights of the Child as those under 18 years old), so far as possible, are not required to give evidence in an adult courtroom, and that their evidence be taken at as early a stage in proceedings as possible. Instead, in accordance with the practice in many Scandinavian countries, the default manner of taking initial evidence in serious cases involving children as the complainer in offences listed in sched 1 to the Criminal Procedure (Scotland) Act 1995 (in which it might be noted that the cut-off age still remains at 17 years), will be a joint investigative interview (JII). It is proposed that similar interviews take place when children are witnesses to serious offences such as homicide, rape or other serious sexual offences, and female genital mutilation.
The vision assumes that the training of joint investigative interviewers will be extended and become consistent across Scotland to create a pool of highly trained, expert, approved forensic interviewers. It has been noted that in the current model, a child making a disclosure/allegation may first speak about it to a teacher or relative. By the time it comes to a trial, that first allegation might have been repeated to social workers, police officers, doctors, the procurator fiscal and Witness Support. The case might be referred to the children’s reporter; if contact proceedings are ongoing a bar reporter might interview the child, and ultimately questions may be asked in court by two lawyers and a judge. This might not be perceived as the most child-friendly procedure, nor one likely to establish truth easily.
One of the central goals of the new system is, over time, gradually to cease the practice of examination and cross-examination of children by lawyers; the child’s evidence will be taken in normal circumstances by a trained and skilled forensic interviewer armed with details of the Crown and defence positions. In order for the complainer or other vulnerable witness to be kept out of the courtroom during the trial, the JII will inevitably require to be followed up separately with visually recorded cross-examination and further examination, conducted using procedures for the taking of evidence by commissioner.
The practice note expressly states: “Parties need to consider proactively at an early stage whether any witness is, or may be, a vulnerable witness. In High Court proceedings, if the Crown intends to seek the special measure of a commission that must be intimated to the defence at the earliest opportunity so that appropriate legal aid cover can be arranged without delay. Similarly, the defence must intimate any such intention to seek a commission as soon as possible.”
The notion of taking the evidence of a child or vulnerable witness other than in the courtroom is a novel one in Scots criminal procedure. In the most serious cases, it is anticipated that evidence will not be heard by the jury “live”, but will instead be taken before a commissioner, who will inevitably be a judge of the High Court.
For the purpose of the remainder of this piece I shall assume (1) that the witness has been deemed vulnerable; (2) the initial interview has been by JII; and (3) there are trial issues disputed by the defence in respect of which the witness’s evidence is important. Thus, special measures and a vulnerable witness application are required (1995 Act, ss 271-271M, with particular reference to s 271I).
The question that arises is how to obtain the “best evidence”. This does raise the question of how “best” is to be defined in the context of a vulnerable witness, particularly where the initial statement to police might be based on a recollection of events of some antiquity.
The view taken by the judiciary is that there are other and better ways in which the defence case can be put before the jury than in the form of cross-examination of a child witness. It goes without saying that this will require a complete cultural change in the approach of defence solicitors and counsel to the preparation and presentation of the defence, and would seem perhaps to require some judicial training. Whether it will ever be possible to demonstrate that this evidence is qualitatively “better” than evidence given in court is a question for another day. The guidance requires a practitioner to “have regard to the best interests of the witness”. There will though be cases where, for a number of reasons, the interests of the client conflict with the interests of the witness, and it is proposed that defence practitioners take careful note of any concerns regarding the fairness of trial procedure that might emerge as the model develops.
It is proposed that the defence becomes involved in the process of evidence taking earlier than is the case at present, and that where appropriate the Scottish Legal Aid Board will grant sanction for all necessary preparatory work, both in respect of perusal of the interview and in formulating the approach to the commission hearing.
Challenging the witness
One of the most crucial areas, and one which is new to most practitioners, is the extent to which it is necessary to “put the defence case” to the witness. The practice note invites parties to have regard to the observations of the Court of Appeal in R v Lubemba  1 WLR 1579, in which the court reviewed the recent English case law and quoted in detail the English Advocacy Training Council (“ATC”) report, Raising the Bar: the Handling of Vulnerable Witnesses, Victims and Defendants in Court. At para 51 the court said, concerning restrictions on cross-examination of a child witness in a sexual offence case: “As we have already explained, a trial judge is not only entitled, he is duty bound to control the questioning of a witness. He is not obliged to allow a defence advocate to put their case. He is entitled to and should set reasonable time limits and to interrupt where he considers questioning is inappropriate.” Similar observations were made in R v Barker  Crim LR 233.
In practice, the advocate must now adapt his/her questioning tactics to the witness, rather than the witness being required to answer questions put in an unfamiliar manner. The first question that will leap out to every defence lawyer is: how do we present the accused’s case to the jury/judge if we are not allowed to challenge the main witness? Any defence application for further questioning will require to specify what issues the applicant wishes to have covered, and why a further interview is the only way to address these issues. This may require the biggest cultural change in attitudes to trial procedure by practitioners and judges. Ever since the accused became a competent witness in their own defence, the paradigm model for trial has been that the evidence of witnesses is tested by cross-examination, then at the end of the Crown case a decision is made whether the accused gives evidence.
It is not a requirement of law that every point to be made by the defence must be put in specific terms to Crown witnesses before evidence may be led/submissions made in support of the defence. It is now proposed that the ideal mode for questioning of child witnesses be by further interview, wherever possible to be conducted by the same forensic interviewer who conducted the original interview(s). Where it is not possible for the same forensic interviewer to conduct the further interview, it should be conducted by another forensic interviewer who is familiar with the case. There will be no opportunity for the Crown or defence lawyers to question the child complainer direct at any of the interviews.
Where the defence feels that the only way to test the reliability of the child’s evidence is by a re-interview, the defence submits a set of lines of inquiry which, if the court agrees, will be formulated into questions by the forensic interviewer. It is not really possible to put a specific set of questions, as many questions will be wholly dependent on the answers given to preceding questions. Where the defence considers that the second interview has not addressed the questions properly, a further application will be required as above. This may also require a degree of judicial retraining as there are those who make, or allow to be made, critical comments if this is not done.
Some at this stage, might ask whether this proposed model conforms with article 6 of the ECHR. That, though, provides at para (3)(d) the right of the accused “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.
In cases where it is intended to rely on a prior statement or statements as evidence in chief, it is particularly important that the commission should proceed at as early a stage as possible, having regard to the observations of the court in MacLennan v HM Advocate 2016 JC 117 at paras 21 and 28.
The court expects all areas of potential disagreement to be identified at as early a stage as possible. There will be a “preliminary hearing”, preferably some weeks or months prior to service of an indictment. This manifestly requires proper legal aid funding, including sanction for counsel/solicitor advocate to be in place. The approach to gathering the evidence of child complainers is required to be in a way that:
minimises the likelihood of subjecting the child to further harm or trauma;
takes into account the child’s communication needs; and
allows the child to give all of their best evidence as early as possible after the alleged offence is reported.
The court will consider the application. If minded to grant it, the court will agree which issues can and cannot be covered in the further interview. This will require a set of procedural rules; what is anticipated is something similar to the current procedure for determining applications under s 275 of the 1995 Act, with perhaps a procedure for expedited appeals.
The defence will no longer be required to put their case directly to child complainers. However, where the defence challenge the truth or the content of the visually recorded evidence at trial, the defence must inform the court of the basis of that challenge.
It is anticipated that there will be a court dedicated to taking evidence on commission. One issue that is likely to arise in practice will be that of very short commission hearings: the point in dispute in some cases might be a very short one. For example, where a child of nine has not seen a murder committed but has seen a neighbour, whom he names, dropping an object into a bin from which the murder weapon is later retrieved, the court will likely favour that evidence, if challenged, being taken on commission albeit the point in issue might be a straightforward issue of identification.
On the other hand, where the disputed issues are more substantive and the defence may wish to put a wholly different scenario to the witness (for example, where the place where alleged abuse took place and the child’s age at the time can be rebutted), at the preliminary hearing the issues will be much wider. In terms of the practice note the court expects to be addressed on the appropriate form of questions to be asked (it may consider asking parties to prepare questions in writing), the anticipated length of examination-in-chief and cross-examination, whether breaks may be required, the scope of any questioning permitted under s 275 and how it is to be addressed, the scope of any questions relating to prior statements, and where any documents or label productions are to be put to the witness, how this is to be managed and whether any special equipment or assistance is required.
Scrutiny the key
The biggest issue for the profession will be adjusting to a new world where former methods of trial preparation no longer apply, and in particular where challenges to Crown evidence need to be focused, but not put in person to witnesses. Taking a case to trial because the accused faithfully tells you “the witnesses will not speak up” now becomes fraught with danger. However, there still remains a risk if prosecutors base their preparation and presentation on the opposite side of the coin, viz: “no child complainer is ever mistaken or dishonest”. Fair trials require the evidence of every witness, regardless of age or other vulnerability, to be granted an appropriate degree of forensic scrutiny, and if the bathwater of repetitive and aggressive questioning is discarded, the baby of a fair trial must remain safely held.
Douglas Thomson, solicitor advocate, is a consultant with McArthur Stanton, Dumbarton, and a member of the Law Society of Scotland’s Criminal Law Committee