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Faculty supports cross-examination restrictions at children's hearings

28 June 2017

Plans to prevent the cross-examination of children by unrepresented parties in children’s hearings proofs have been supported by the Faculty of Advocates.

Faculty was responding to a consultation by the Scottish Children’s Reporter Administration, which is looking at ways of protecting children and other vulnerable witnesses from being questioned by a person who is appearing in the case without a lawyer.

The ban would apply where the subject matter of the proceedings related to conduct by the party towards the witness or other conduct which concerned the welfare of the witness. A mandatory prohibition is proposed in some circumstances and a discretionary prohibition in others, and the Faculty agrees that there should be such a distinction.

In its response, Faculty says it is “entirely right and proper” that rules be introduced. Such questioning might be rare, but it is important to consider methods to avoid it happening. It adds that new rules would need primary legislation.

Its paper comments: “The issue is, of course, that sufficient safeguards must be built in to ensure that the evidence can be adequately tested in the interests of justice.”

Faculty belives that a system, similar to that in the criminal law, of a court-appointed representative would provide the necessary counterbalancing safeguards.

There would need to be careful case management to identify the issue at an early stage, to avoid excessive delays, and a solicitor or counsel would have to conduct the whole proof and not just the cross-examination in question.

“Legal aid will require to be made available to the relevant person to ensure his or her representation”, it adds.

“We highlight the possibility of legal aid on this basis being open to abuse, in that relevant persons who do not qualify for legal aid on financial grounds could bring themselves within the legal aid scheme in this manner, but we do not see this as a problem which should arise with any regularity, if at all.”

Click here to view the full response.


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