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Children and vulnerable witnesses kept from court under new guidelines

29 March 2017

Extensive new guidelines for taking the evidence of children and other vulnerable witnesses on commission are set out in the High Court of Justiciary Practice Note (No 1 of 2017) published yesterday.

Speaking at an event to launch the new guidance, Lady Dorrian, the Lord Justice Clerk, described the practice note as a “Significant step in improving the way in which vulnerable witnesses are treated in our criminal justice system”.

The practice note will help reduce further the need for vulnerable witnesses to give evidence in person in court. It was developed with the assistance of a working group with membership from all parts of the justice sector, including the judiciary, the legal profession, justice and children’s agencies, the third sector and academia.

It takes forward the work of the Evidence and Procedure Review. Led by Scottish Courts & Tribunals Service, under one strand of its work the review has recommended short, medium and long-term ambitions for making the way in which children and vulnerable witnesses give their evidence less stressful and more likely to produce comprehensive, reliable and accurate testimony. 

In its Next Steps report, the review called "as a matter of priority" for consideration to be given to how best to improve on the current practice in relation to taking evidence by a commissioner (on oath in avance of trial).
The new practice note sets out how to make these improvements.

At present, commissions are used in some trials involving young and vulnerable witnesses, but there is little by way of guidance on how they should be conducted. The note builds on learning from other jurisdictions, and requires that, before a commission can take place, the parties must appear at a court hearing to discuss in detail all the measures that will ensure that a witness can give their evidence at the commission fully and with the minimum risk of further trauma.

These include practical arrangements, such as deciding on the best location and environment for the recordings to take place, the timing of the session, and what aids to communication may be required, all taking into account of the specific needs of the witness.

On the taking of evidence itself, Lady Dorrian commented: “A successful commission depends not only on the practical arrangements, but also on the nature of the questioning. There has been a great deal of work done to show that if questioning is adapted to match a witness’s capacity to understand and respond, the quality of the evidence elicited can be transformed and the witness’s experience improved immeasurably.”

The practice note therefore requires the parties to consider and discuss in advance the lines of inquiry to be pursued, the form of questions to be asked, and the extent to which it is necessary to put the defence case to the witness.

Lady Dorrian highlighted the Advocates Gateway, which has a range of toolkits for those preparing to question vulnerable witnesses, as "not something that any party should be fearful of, and it is not intended to constrain the parties unduly; the evidence from experience in England suggests that the requirement to think about lines of questioning in advance has benefited everyone”.

A further group has been looking at how to improve the quality and consistency of interviews conducted initially by police and social workers which can then be used as a witness’s evidence in chief. This will report in due course.

Lady Dorrian concluded: “In all aspects of the work being undertaken we should never lose sight of the underlying aim. That is to secure a justice system which allows the guilt or innocence of an accused to be determined on the basis of the best possible quality of evidence available, in a manner that does not cause undue distress or harm to any participant in the process, and which is transparently fair, efficient and effective."

Welcoming the new guidance, Justice Secretary Michael Matheson said the Government wanted to ensure that children and vulnerable witnesses "have all the necessary support to reduce anxiety and ensure they can give their best evidence, while maintaining the necessary rights of accused persons".

He added: “As I have said previously, we must strengthen our system of support for child and vulnerable witnesses and I consider that in many cases the use of pre-recorded evidence will be the best way to do this.

“We will offer practical and financial support to take forward this important aim as well as considering whether further legislative changes are necessary to enable the even greater use of pre–recorded evidence for child and vulnerable adult witnesses.”

Click here to view the practice note.

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