Chapter 3 Liaison Arrangements – The System in Practice
50. Witnesses are cited to court by the Crown Office and Procurator Fiscal Service either postally or by being served with a citation by a Police Officer. Information to witnesses is sent with the citation which includes a "Being a Witness" leaflet (see Annex 2 for a typical example) (the leaflet is being revised and will still include references to the Witness Service, but in a more user friendly format).
51. In serious cases (those likely to be tried by a jury in the High or Sheriff Court) the witness may have been seen by a member of Crown Office and Procurator Fiscal Service staff. This is called "precognition" where a statement is taken from the witness to better inform the prosecution of what the witness is likely to say in evidence. The opportunity would normally be taken at this stage to give the witness an idea of the process which would probably follow including being cited to court and the procedure at court.
52. As stated in Chapter 2 over the last 20 years or so there has been growing recognition of the need to put victims and witnesses at the centre of the criminal justice system and close the gaps which had become apparent. In particular the gaps in updating witnesses and providing support and information on the day in court are now largely met by the Witness Service and Victim Information and Advice. However, while the Witness Service deals potentially with all witnesses at court (including those cited by the defence) Victim Information and Advice deals with specific categories only. See Annex 3 for the list of categories covered by Victim Information and Advice.
53. To facilitate the exchange of information between Victim Information and Advice and the Witness Service an operational protocol was agreed by both parties (see Annex 4 for the protocol). This was reviewed as recently as November 2005.
54. In relation to the Scottish Court Service in an effort to provide a better service to Crown witnesses a joint statement was agreed between Crown Office and Procurator Fiscal Service and Scottish Court Service in 1998 (see Annex 5 for a copy of this). This joint statement followed the public declarations of the standards by both organisations in the Charter Standard Statements. The joint statement sets out the shared and individual responsibilities in relation to Crown witnesses by both partners and includes items such as the provision of foreign language interpreters and sign language interpreters where required and the updating of witnesses on the progress of their cases on court days. Also included is an obligation on the Procurator Fiscal to inform the Clerk of Court of any special needs of witnesses which would require special arrangements to be made. The implementation of these responsibilities was left to local management discretion both on the part of the Scottish Court Service and Crown Office and Procurator Fiscal Service. No national model was rolled out.
55. Accordingly as a result of the developments in the Witness Service and Victim Information and Advice and other initiatives a witness now cited to court whose case falls within the categories covered by the Victim Information and Advice protocol could unless he opts out be expected to be referred to the Witness Service. This would in itself trigger information supplied to the witness by the Witness Service including the offer of pre-court visits and support logistical or otherwise on the day in court. Victim Information and Advice send out a Witness Service information leaflet together with their correspondence.
56. In addition for a witness covered by the Victim Information and Advice remit the expectation would be to obtain regular updates on the progress of the case and referral as necessary to specialised support agencies.
57. However as Victim Information and Advice does not cover all cases prosecuted by the prosecution system we were concerned to find out if the Witness Service was obtaining adequate information regarding witnesses not covered by the Victim Information and Advice remit.
58. We were also concerned to see whether or not there were adequate facilities for the Witness Service in the various courts, this being the responsibility of Scottish Court Service.
59. In relation to the actual court day it was important to discover how easily information was exchanged between the various parties and to seek to make recommendations which might improve the cross transference of such information.
60. Accordingly questionnaires as well as face to face interviews took place involving all the four parties - Crown Office and Procurator Fiscal Service, Scottish Court Service and Victim Information and Advice and Witness Service - a copy of the questionnaires issued to all four organisations is attached at Annexes 6, 7, 8 and 9.
61. Details regarding the questionnaires and their administration are contained within the 'Methodology' section in Chapter 1. The table below shows a summary of the number of responses in each group:
The Witness Service
District Fiscals (Crown Office and Procurator Fiscal Service)
Victim Information & Advice (Crown Office and Procurator Fiscal Service)
Scottish Court Service
62. Knowledge of the Functions of the Witness Service
All of the Victim Information and Advice respondents and three quarters of fiscal staff indicated that they were aware of the full range of Witness Service functions. A quarter of Fiscal Service respondents indicated they were only partially aware. Given the importance of identification of likely cases for the Witness Service it is important that Crown Office and Procurator Fiscal Service staff have a good understanding of what is available. Anecdotal evidence to us would also tend to confirm that knowledge of the range of functions of the Witness Service can be sketchy especially for new staff. Accordingly
We recommend that an item on the Witness Service forms part of the introductory training of all Crown Office and Procurator Fiscal Service staff and also part of the Fiscal Deputes' Core Course.
63. We also think it would be good practice for new Fiscal Deputes to spend some time (eg half a day) with their local Witness Service. Also it seems to us desirable (where possible) to "mainstream" it in other areas of training eg domestic abuse and include joint training initiatives (See also page 31, 'Training').
The Victim Information and Advice/Witness Service Protocol in Practice
64. The Witness Service, Victim Information and Advice and Crown Office and Procurator Fiscal Service were all asked to evaluate how well the protocol operated in practice. Replies from all relevant bodies (Fiscal Service, Victim Information and Advice and the Witness Service) were positive in this respect. 13 out of 14 (93 per cent) of Victim Information and Advice staff reported that the protocol worked either 'very well' or 'well'. Witness Service staff also responded positively, albeit with a larger proportion (5 out of 12, 42 per cent) reporting that the protocol worked 'quite well' as opposed to 'very well' or 'well'. Most Fiscal Service staff responses (44 per cent) fell into the 'well' category, with the remainder split evenly between 'very well' and 'quite well' (Chart 1).
65. Chart 1
In your experience, how well does the operational protocol between Crown Office and Procurator Fiscal Service and the Witness Service actually operate in practice
66. A good proportion of respondents from the three organisations volunteered further information to the effect that there was considerable goodwill in evidence among all the agencies. The Crown Office and Procurator Fiscal Service response in particular praised the contribution made by the Witness Service.
67. The Witness Service and Victim Information and Advice keep their protocol under review (as recently as November 2005 updated) and we have therefore no recommendation to make in that regard except to encourage such ongoing review.
68. However, in light of some comments made to us regarding the design and ease of use of the Witness Referral Form (used to transmit information between Victim Information and Advice and the Witness Service - see Annex 4) we thought that it might be appropriate to reconsider the design of the form. This would improve recording of data on categories of referrals. The Referral Form was revised in November 2005 to take account of Witness Service comments.
Arrangements in Addition to Protocol
69. As Victim Information and Advice do not cover all cases in court (albeit they do cover the most serious cases) we were keen to discover what, if any, mechanisms existed to advise the Witness Service of cases where witnesses might benefit from their services.
70. We asked Fiscal Service staff if there were arrangements in place locally to supply information to the Witness Service, in addition to referring those cases specified by the protocol. Almost half of responses indicated that there were, with the remaining half indicating there were none.
71. In respect of the Witness Service perspective, three quarters of respondents (9 out of 12) indicated they were informed of cases other than those covered by the protocol; the others either responded 'no' or 'sometimes' (Chart 2).
72. Chart 2
Are you made aware of cases other than those specified by the Victim Information and Advice protocol?
73. We feel there is a danger of the protocol masking as it were other cases not covered by it and that it is important for information to be given to the Witness Service by Crown Office and Procurator Fiscal Service in non-Victim Information and Advice cases. In the pilot schemes run before the roll out of the Witness Service this was done by all witness lists being sent by the Procurator Fiscal to the Witness Service and the latter writing to all the witnesses explaining its functions and offering help. This has proved too costly a mechanism (and with too low an uptake) to be continued.
74. A number of devices were cited as being used to convey information to the Witness Service including:-
- Meetings to discuss what cases were coming up. This was particularly the case in relation to the High Court and included representatives of the Witness Service, Victim Information and Advice, Victim Service and the Sitting Manager to discuss issues such as vulnerability.
- Referrals by Precognition Officers (members of Crown Office and Procurator Fiscal Service staff) to the Witness Service.
- Witness Service e-mailing Procurator Fiscals to enquire as to any special requirements.
- A local information sharing protocol between the Witness Service and Victim Information and Advice.
- The Witness Service being sent a copy of the indictment (this is the charge in solemn proceedings in the High Court and Sheriff Court which contains a list of witnesses).
- Regular meetings between Crown Office and Procurator Fiscal Service staff and the Witness Service to discuss running orders of trials etc.
- The Procurator Fiscal telephoning the Witness Service to indicate if trials were proceeding.
- The Depute Fiscal referring non-Victim Information and Advice cases to the Witness Service.
- In some cases the Police or Social Work Departments making a referral.
- Witness lists being sent to the Witness Service.
75. Given that the advance giving of information to the Witness Service (in non-Victim Information and Advice cases) is crucial to the effective delivery of service by the Witness Service and while not wishing to be prescriptive about methods we accordingly
Recommend that all Crown Office and Procurator Fiscal Service Area Fiscals and the Witness Service agree to put in place arrangements for the giving of information to the Witness Service for cases other than Victim Information and Advice cases.
In particular the giving of witness lists to the Witness Service in summary cases should be routine.
76. In the event of witnesses being cancelled it would, of course, be helpful for the Witness Service to be advised of this.
Are All Victim Information and Advice Cases in Fact Referred to Victim Information and Advice?
77. Somewhat alarmingly nearly all the Victim Information and Advice responses (12 out of 14) were to the effect that they could not be sure that all cases which should be referred to them were in fact so referred (and by implication on to the Witness Service). In some cases the Victim Information and Advice staff use a "long stop" of looking at all the cases as they have "read-only" access to the Crown Office and Procurator Fiscal Service IT system. Other Victim Information and Advice devices included checking custody lists or running IT searches on the system (called GIPS). Only slightly more than half of Victim Information and Advice Offices do this kind of checking so it is important that Crown Office and Procurator Fiscal Service staff correctly identify such cases from the start as it is the trigger for so many subsequent steps.
78. However, this is likely to be less of a problem in future as the Crown Office and Procurator Fiscal Service IT system ( FOS) including case marking now requires the Depute who "marks" (ie decides on what action to take) on a case has to select whether or not it is a Victim Information and Advice category of case. This of course depends on the marking Depute being familiar with the Victim Information and Advice categories and these are displayed on the screen but only after the Procurator Fiscal Depute selects it as a Victim Information and Advice case. It would be helpful if the FOS system could display the Victim Information and Advice categories prior to having to be selected. It is important that Crown Office and Procurator Fiscal Service staff are familiar with the categories.
79. We understand that training on the Victim Information and Advice system and categories is included in basic training given to Crown Office and Procurator Fiscal Service staff. However in practice this may not take place until some time after commencing work hence our suggestion that new Deputes spend half a day or so with the local Witness Service.
Exchange of Information pre Court Days
80. In some (usually sensitive high profile) cases Fiscal Service staff may wish to maintain close links with a witness such as at a pre-court visit. The nature of the work done by the three agencies Witness Service, Crown Office and Procurator Fiscal Service and Victim Information and Advice means there can be some overlap and we were interested to discover whether or not there was good communication between the parties when this happened.
81. We asked Fiscal Service staff if they notified the Witness Service (and Victim Information and Advice where relevant) when they wished to maintain close links with a witness in a case. A majority (61 per cent) of Crown Office and Procurator Fiscal Service staff responded to the effect that they would always or usually inform the Witness Service (and Victim Information and Advice where appropriate) (Chart 3). Only 2 out of 36 (6 per cent) indicated that would usually not.
82. Chart 3
In cases where Fiscal Service staff wish to maintain close links with a witness, are the Witness Service and Victim Information and Advice notified of the intention?
83. Victim Information and Advice staff were also asked if they received notification of when Fiscal staff wanted to maintain close links with a witness. While their replies largely mirrored those of Fiscal Service staff, with half indicating that they were always or usually told, proportionately more indicated that they were usually not told or had not experienced such a situation before (a total of 6 out of 14 replies; 42 per cent). It is not the intention of the Witness Service or Victim Information and Advice to exclude continuing contact by Crown Office and Procurator Fiscal Service staff especially in sensitive cases. What is important is that the parties are aware of this intention and this seems to be the case. Treading on each other's toes can therefore be avoided.
84. The method of communication varied.
- Telephone calls
- Through Victim Information and Advice
- By the Precognoscer in person
- Court meetings
- Discussions with Procurator Fiscal Deputes
85. There was some concern expressed to us that some Procurator Fiscal Deputes did not appear to be mindful of the need to communicate with the Witness Service. On the other side we received some concerns that the Witness Service organised court visits without telling Crown Office and Procurator Fiscal Service staff when the latter would have liked to be present.
86. Crown Office and Procurator Fiscal Service responses varied on the exchange of information pre-court from 'all information' being exchanged prior to the court day to 'very little being done until the court day'. One even indicated alarmingly that there was 'little exchange of information'.
87. Victim Information and Advice staff were asked if they had experienced any problems in the exchange of information between themselves and the Witness Service. Although 4 out of 14 replies indicated that problems had been experienced it appeared that mostly these were isolated incidents and/or had now been resolved.
88. In some cases Crown Office and Procurator Fiscal Service staff (Fiscals or Precognition Officers) might wish to continue personal contact with a victim/witness and be present at pre-court visits etc. This is especially true in child abuse cases and rape and other cases of a sexual nature where a 'bond of trust' can develop between the Crown Office and Procurator Fiscal Service members of staff and the victim/witness. This could continue to the trial stage and possibly beyond into post-trial appeals etc.
89. There is some danger of overlap here between the Crown Office and Procurator Fiscal Service staff on the one hand and the Witness Service staff or Victim Information and Advice on the other. The creation of Victim Information and Advice and the Witness Service was never intended to create 'silos' and definitive boundaries in the way victims/witnesses are treated. To obviate the danger of one or other party not being aware of this ongoing contact we accordingly
Recommend where Crown Office and Procurator Fiscal Service staff wish to have personal contact with a victim/witness at a stage where Victim Information and Advice or the Witness Service would normally be involved that an exchange of information takes place between the parties.
We consider that how this is achieved is best left to local arrangement.
Exchange of Information on Court Days
90. Previous research shows that the biggest uptake of the services offered by the Witness Service is that taken up on the actual day in court. Even if no prior contact has been made with the Witness Service usually there will be some contact on the court day itself when Witness Service staff make themselves know to the witnesses in the court buildings.
"It's a bit mixed. I don't like coming but the people here do behave good, coming here is not good in itself". (Witness, Glasgow, 2004 when asked for his overall impression of the experience of being a witness)
91. This close contact with the witness on the actual day can yield useful information for the Depute in court and by extension be useful to the court itself. It is important therefore that any information gleaned can be passed on and hopefully utilised.
92. We were anxious to discover what information was passed between the Witness Service and Crown Office and Procurator Fiscal Service staff on court days and what problems there might be. Victim Information and Advice would not normally be present at court on court days.
93. However there is daily contact in the permanent High Court sites at Glasgow, Edinburgh and Aberdeen between Victim Information and Advice and the Witness Service. In particular next of kin are met on first arrival at the High Court by Victim Information and Advice staff and this takes place at all High Court locations.
94. We enquired what kind of information was exchanged on court days. Responses included the Witness Service alerting the Court Depute to the presence of the witnesses in the building, the attitude of a witness, feelings such as fear, anxiety etc, a witness wishing to have their address withheld, transport and babysitting problems, mobility problems. Sometimes even information on absent witnesses from those present. Crown Office and Procurator Fiscal Service does not give the witness's address in court unless it forms part of the charge - this is one of the Victim Standards.
95. For their part the Crown Office and Procurator Fiscal Service response included the Depute supplying information on the running order of business, the time when evidence was expected to be taken and how long it would last, the progress of cases and general updates including excusal of witnesses.
96. Generally both the Witness Service and Crown Office and Procurator Fiscal Service staff felt there were good channels of communication and that either party would take the initiative in this. The more serious the case the more exchange of information there was likely to be.
97. We were concerned to find out from the Witness Service if information they supplied appeared to be utilised. A standard 'blue' form is used for this purpose. Nearly all responses (11 out of 12) from the Witness Service indicated that it either always or usually was, only one respondent said 'sometimes' which is encouraging. Two Witness Service respondents went out of their way to say there was great rapport between Fiscal Deputes and the Witness Service staff which again is very encouraging. Examples from the Witness Service perspective of when this might fall down included no feedback on information supplied, concern over whether information given to Victim Information and Advice was fed through to trial Deputes, pressure of time on Deputes preventing them seeing witnesses, pressure of business and easier in some courts than others.
98. We asked both the Witness Service and Crown Office and Procurator Fiscal Service if they had encountered any difficulties in the process of exchanging information. Just over half of the Witness Service responses said they had encountered difficulties. Curiously the vast majority of Crown Office and Procurator Fiscal Service responses were to the effect that there had been no difficulties although the High Court was cited as a problem area because of late availability of information.
99. Chart 4
With reference to the exchange of information between Fiscal Service and Witness Service Staff, have there been any problems encountered on this process?
100. It was clear that in the vast majority of cases relationships between the various parties were extremely good and only isolated examples of problems such as "attitude" were reported by both Crown Office and Procurator Fiscal Service and Witness Service staff. Breakdowns in relationships were noticeable as exceptional highlighting (as ever) the importance of good relationships in making any system requiring co-operation among different bodies work smoothly and effectively.
101. Particular problems identified by a minority of Crown Office and Procurator Fiscal Service staff included the following.
- Inexperienced Depute misunderstanding about witness timetabling
- Failure to communicate relevant information to the Witness Service
- Failure of the Witness Service to advise Depute that they were involved
- Incorrect information relayed to Depute in court
- Some Deputes trial focussed and not witness focussed and not communicating well with the Witness Service
- Exchange of information only taking place on the day
102. From the Witness Service perspective difficulties included:-
- Difficulties in speaking to the Fiscal Depute before the court started
- Poor feedback eg when a case was being adjourned
- Lack of training for Fiscal Deputes
- General access to Fiscal Deputes
- Difficulty in getting a running order from Fiscal Deputes
- Witnesses not updated every two hours in accordance with the joint statement
- Fiscal Depute's manner with witnesses
- Information passed on appeared not to be considered
103. We asked Crown Office and Procurator Fiscal Service what from their perspective use was made of the information given by the Witness Service in particular how did this information affect conduct on the day.
104. Responses indicated that the information could be used to:-
- Influence the running order of cases
- Give priority to nervous witnesses
- Extra information given by the Witness Service could affect plea negotiation
- Witnesses could be put on standby
- Depute could speak to a witness to try to allay concerns
- Information could affect the way a witness was treated within the court
105. Generally the responses were that the Fiscal Depute could receive helpful information about witnesses and would try to accommodate issues brought to their attention in their overall management of the court. However this depended on competing priorities.
106. We only too well appreciate the onerous duties on Fiscal Deputes on court days and the many conflicting demands on their time. However, given the importance of witnesses to the whole criminal justice system and the smooth running of the court we recommend that (as is good practice anyway)
Wherever possible prior to the start of the court that there is an exchange of information between the Court Depute and the Witness Service staff to enable both parties to be as fully briefed as possible.
Passing of Information While Court Sitting
107. Once the court commences it normally continues until the lunch break typically 1.00pm. The Court Depute is normally "trapped" in the courtroom and not normally free to go into the witness room (which might itself raise a few problems after the court has started).
108. We asked Crown Office and Procurator Fiscal Service staff if they were directly involved in relaying information to witnesses during the court day. Only 6 respondents (17 per cent) from Crown Office and Procurator Fiscal Service indicated that they were 'directly involved' in relaying information to witnesses. The majority of responses were that they were 'sometimes involved' (64 per cent), with the remainder (19 per cent) indicating that they were 'not involved at all'.
109. Not surprisingly these comments were qualified to the effect that the Fiscal Depute tries to see vulnerable witnesses before and after a case and it also depended on the nature of the information, needs and other factors and whether the Fiscal Depute was able to get out of court. It was recognised that it was not always possible for a Fiscal Depute to get out of court and this was where the teamwork of other personnel came into play.
110. The responses from the Scottish Court Service personnel were interesting. Typically in court the Sheriff Clerk is present during court proceedings frequently in a similar situation to the Fiscal Depute and unable to leave the courtroom. In addition the Sheriff or Judge has a Court (or Bar) Officer employed by the Scottish Court Service who carries out various functions while the court is sitting including normally the calling in of the witnesses and handing productions to the witnesses as they are referred to.
111. Of the responses from the Scottish Court Service a sizeable number (17 replies; 44 per cent) indicated that there was either very little or no involvement by them in the exchange of information between the Fiscal Depute and Witness Service, while just under a third indicated that there was 'quite a lot' or 'a lot' of involvement by court staff. The remaining replies (around a quarter) indicated 'a little' involvement by court staff in the exchange of information between the Fiscal Depute and Witness Service. (Chart 5)
112. Chart 5
To what extent do court staff get involved in the exchange of information between the Fiscal and Witness Service?
113. The most frequently mentioned person on the staff of the Scottish Court Service who did get involved was the Court Officer. Uniquely the Court Officer has an opportunity to leave the courtroom and be a conduit for the exchange of information between the court and/or the Fiscal Depute and the witnesses and/or Witness Service.
114. We further enquired of the Scottish Court Service about whether or not they were aware of any problems in the exchange of information among the prosecutor, court staff and the Witness Service. The overwhelming response was that they were not aware of any problems in the exchange of information.
115. In response to a question about the involvement of court staff in relaying information to witnesses the majority of replies (90 per cent) were to the effect that court staff were involved in directly relaying information to witnesses. Again the Court Officer was cited most often as the member of staff directly involved in this activity.
116. In one case indeed it was explained that it was part of the Court Officer's duty to keep witnesses updated and inform them as to what was happening in cases.
117. In another case the Court Officer updated the witnesses on progress of cases and also discharged witnesses on the instructions of the Procurator Fiscal. There was only one direct 'no' reply regarding this direct involvement and that was qualified to the extent that change was on its way. One respondent went further and commented on the good relationship between the Witness Service and the Court Officers and noted that the Witness Service assisted the Court Officer in providing information as required.
118. We also enquired specifically of Crown Office and Procurator Fiscal Service staff as to who was responsible for directly relaying information to witnesses if not them and the replies included the Court Officer (most frequently), the Police Liaison Officer, the Witness Service itself or the Sheriff Clerk.
119. Keeping witnesses informed of the progress of cases during the court day is seen by us as a crucial matter for maintaining the goodwill of witnesses who come to court. The joint statements between the Crown Office and Scottish Court Service provide that there should be updates (subject to local arrangements) every two hours. It would appear that giving two-hourly updates is not done in many cases and that in any event we would wholeheartedly endorse the recommendation in Lord Bonomy's report that the updates should be at one-hourly intervals. Two hours to be left waiting "in the dark" as it were is far too long.
120. We understand and appreciate the willingness of Scottish Court Service to use the Court Officer as the main conduit of information in this regard.
121. This function is carried out by the Macer in the High Court but observed more often in the breach. We repeat Lord Bonomy's comment that it is good practice and should be the norm. We accordingly
Recommend that the Court Officer/Macer acts as a conduit for the exchange of information between the prosecutor in court and the Witness Service or the witnesses themselves and this should be done on an hourly basis.
122. We appreciate that in practice this may pose difficulties but it should be the main aim in all courts and is the least witnesses can expect. It will of course mean that the trial prosecutor needs to communicate this information on this regular basis to the Court Officer or Macer.
123. As the Joint Statement on Crown Witnesses between the Crown Office and Procurator Fiscal Service and Scottish Court Service is now 7 years old and much legislation and developments (such as Victim Information and Advice and the Witness Service) have taken place we
Recommend that the time would be ripe for the Crown Office and Procurator Fiscal Service and Scottish Court Service to re-visit the joint statement and update it in line with these developments.
124. An important device in making the process of appearing in court as a witness easier is the offering of a pre-court visit especially in serious cases where witnesses may be particularly vulnerable for whatever reason. The expectation given the new legislation is that demand for such visits will increase. One Witness Service office visited commented on increased demand since the Vulnerable Witnesses (Scotland) Act 2004 came into force and anticipated that this will continue as more parts of the Act come into force.
125. The provision of a pre-court visit is something which the Witness Service would offer to any witness. Occasionally as noted above members of Crown Office and Procurator Fiscal Service may wish to either conduct the pre-court visit or at least be present during it and our above comments apply to that situation.
126. By definition pre-court visits involve the Scottish Court Service and we were interested to see whether or not contact arrangements were adequate for this purpose.
127. In responses from the Scottish Court Service staff no-one indicated that they were not made aware of pre-court visits and that there were a variety of methods of making court staff aware of these. Inevitably the suppliers of the information to the court service varied between the Witness Service and occasionally either the Procurator Fiscal's Office or through Victim Information and Advice.
128. In only two cases was there a reply to the effect that little contact was made in terms of notification of pre-court visits and that was due to the fact that the Witness Service knew of the court commitments and had access to the court without the assistance of the Clerk. The overwhelming majority of contacts however came from the Witness Service.
129. We looked at what action was required of the court service to accommodate these visits. In the majority of cases positive action was taken by court staff in either clearing the court, fixing a date when the court was not sitting, meeting the Witness Service and the witness, showing people around, keeping the court diary clear for the visit and even demonstrating the live TV link where required. In another case a member of staff would be available to demonstrate the use of screens if that was required in the case and another response added that the court visit would be used as an opportunity to discuss any special problems such as disabled access.
130. We were given information at one location that there could be difficulties on occasion arranging court visits if on the day of the trial as one local Sheriff objected to that. (He was concerned about possible contamination issues such as identification of an accused who might be in court at that time.) There would also on occasion be difficulty with the timing of a visit especially for witnesses who have far to travel.
131. It would appear, however, that generally there are no logistical problems in allowing witnesses access to courts in advance of the court date to familiarise themselves with the surroundings and to some extent the procedure.
132. We accordingly have no specific recommendation to make regarding access to courts.
Accommodation for the Witness Service
133. We were keen to find out whether or not facilities were provided for the use of the Witness Service in the various courts. As previously stated the vast majority of contact for the Witness Service happens on the court day and clearly access to witnesses by the Witness Service is crucial in that regard.
134. All the Witness Service respondents indicated that there was space provided for them in the court building although in some cases it might have to be shared.
135. We asked further if the facilities provided in court were adequate - half of all respondents indicated that they were. Another third also said they were adequate although there could be a problem for volunteers and witnesses where confidentiality of communication could be an issue (Chart 6).
136. Chart 6
Are the facilities provided for your use in court buildings adequate for your needs?
137. Two respondents said that accommodation wasn't adequate and they cited in support of that:-
- Lack of space for volunteers and witnesses;
- Accommodation too small;
- Stuffy rooms;
- Lack of adequate toilet facilities;
- No restriction on movement of accused persons;
- Poor refreshments in court;
- Health and safety issues not passed on from Scottish Court Service to the Witness Service.
138. We similarly asked the Scottish Court Service personnel to comment on the facilities provided by them for the Witness Service. Nearly all (36 out of 39 responses) indicated that they did provide facilities although again they echoed the sentiment of the Witness Service that in a small number of cases these facilities had to be shared with for example Social Work and Police. Three replies indicated that there were no such facilities available although all said that a new court building was being constructed and this problem would be addressed in the new building.
139. Both the Witness Service and Scottish Court Service are well aware of the need for adequate accommodation and it would appear within the confines of the existing court buildings that these needs are being addressed as well as they can be. In addition where future buildings are being constructed the needs of the Witness Service are being factored into the design. Clearly we would hope that that would continue to be the case.
Representation of the Witness Service on the Court Users' Group
140. Most courts have a Court Users' Group which includes the various professionals who either use or contribute to the court and typically includes local Sheriffs, local Defence Solicitors, the Procurator Fiscal's Office, the Police, Social Work, Sheriff Clerk and usually the Witness Service.
141. Given the importance of the Witness Service in providing a service to witnesses in the court it seems to us desirable that the Witness Service is represented on Court Users' Groups. Accordingly we asked the Witness Service if they were indeed represented on these groups. The majority indicated that they were although there were one or two locations in which they were not represented but in one of these the Sheriff Clerk had an open door policy where they could discuss matters and in addition to that there were quarterly meetings with the Sheriff Clerk.
142. The same question being answered by the Scottish Court Service produced a very similar level of reply not surprisingly. The responses indicated that in two courts the Witness Service were not represented although in one of these they were represented on a sub-group of the group itself and in another case membership was under active consideration.
143. We have already commented on what we see as a need for increased input into induction training for all Crown Office and Procurator Fiscal Service staff on the Witness Service as training can play a crucial role in the delivery of a service and the effective use of what is available.
144. In this section we were concerned to find out to what extent the Witness Service and Crown Office and Procurator Fiscal Service assist each other in their respective training.
145. To that end we asked the Witness Service whether Crown Office and Procurator Fiscal Service had an input into Witness Service training.
146. The vast majority (11 out of 12) responded that they did. One even volunteering information that the training was wonderful.
147. Not surprisingly the majority of responses from the Crown Office and Procurator Fiscal Service also indicated that they got involved in Witness Service training. The forms of training included:-
- Victim Information and Advice providing regular input to Witness Service training.
- Procurator Fiscal Deputes providing training on the role of the Fiscal and court procedure. This in the form of PowerPoint presentations, lectures and question/answer sessions.
- Procurator Fiscal meeting new recruits to the Witness Service as part of their induction.
148. We would certainly encourage training provided by each organisation for the benefit of the other on their respective roles, functions etc and that this be on an ongoing basis.
Suggestions for Improvement
149. As the best judges of what improvements can be needed and might be effective are the people actually involved in the day-to-day delivery of the service we took the opportunity of asking all four organisations for their suggestions for improvements. We received a considerable number of these and they are broken down into the various organisations.
Victim Information and Advice
150. More than half of the Victim Information and Advice respondents volunteered suggestions for improvements and other comments. These included:-
- Witness Service are invited to some Victim Information and Advice meetings and Victim Information and Advice staff give some input to the training of Witness Service staff. This is found to be helpful in raising Victim Information and Advice's profile and awareness of processes. It is suggested that other areas might do the same.
- The management of the Witness Service Referral Form could be improved as it's time consuming e-mailing back and forth and it is not a "live" document (the Referral Form was revised in November 2005 and the most recent version is at Annex 4).
- Some joint training particularly in relation to the Vulnerable Witnesses Act would be welcome.
- It would be useful to meet Witness Service staff occasionally.
- Witness Service should develop a better working relationship with the Clerks in court to be better able to track cases. Occasionally the Witness Service are unaware of when new dates are set at the intermediate diet stage or when adjournments are granted.
- The Witness Service needs a higher profile in particular a desk at reception in courts. The current arrangements don't encourage a witness to request help.
- It would be helpful for the Witness Service if someone could negotiate on their behalf the possibility of doing morning court visits.
- There are difficulties experienced regarding missed or late referrals to the Witness Service. This was seen not as a failure of existing procedures but rather an internal training issue but had been identified thanks to the local excellent working relationship between Victim Information and Advice and the Witness Service.
151. On the more negative side there were two responses as follows:-
- The paperwork is cumbersome.
- Liaising with the Witness Service is generally a very time consuming process.
Scottish Court Service
152. By far and away the responses here were positive reflecting the existing practices and good working relationships between the various parties.
153. The court service respondents supplied a few suggestions for improvement.
- It was suggested that there could be improved lines of communication.
- It was suggested that the Witness Service had not been proactive enough in evaluating the performance of their volunteers on information provided by court staff. This was qualified however to the effect that following the appointment of a full-time dedicated officer that the situation had improved.
- Another suggestion was to set up local working groups to agree local protocols.
154. There was one fairly lengthy comment from Scottish Court Service which detailed points as follows:-
- There was a lack of information on when there might be "vulnerable witnesses" beyond the statutory definition of such.
- Both Crown Office and Procurator Fiscal Service and Scottish Court Service relied too much on e-mails as a principal method of cascading information which wasn't good enough given the risks involved. Joint face-to-face training including local representatives of all the organisations was suggested. In particular this would be helpful so that all parties understood what was expected of them and they were "all singing from the same hymn sheet".
155. Several suggestions were received from the Witness Service for improving the existing arrangements some of which echoed previous sentiments. These included:-
- To continue to include victim/witness training to Fiscal Deputes and Victim Information and Advice staff.
- Training on the role of the Witness Service and its developments.
- Police to ensure that they record the correct information eg contact numbers.
- Procedures to be put in place so that people don't slip through the net.
- Procurator Fiscal Offices to provide a witness list to the Witness Service.
- More open communication.
- Flagging up possible witness issues at the marking stage in non-mandatory referrals.
- Streamlining of Fiscal staff in any one case.
- Routine update of progress of trials.
- It would be helpful to know what is going on in court (ie progress of work).
- Useful to know if witnesses are countermanded as it has an effect on the Witness Service's resources.
- Read-only access to Scottish Court Service data to get dates and outcomes.
- Improved multi-agency communication.
- Share good practice eg one area attends solemn team briefings which allows information to be shared. This same area had a "on-call" system where vulnerable witnesses could be called to attend when needed.
- It would be useful to know if interpreters are involved.
- All posters (that is of the Witness Service) are in English and it might be helpful to have translations of these.
- The court to provide information on why witnesses are to be released.
- Ensure Fiscal Deputes are in court on time so that there is no delay.
- Priority to be given in child witness cases (Policy anyway).
- Ensure witnesses are countermanded in time to save them travelling to court when they are not required.
156. Again although this was a list of comments there was a general acknowledgement in the responses that the Victim Information and Advice staff worked very hard and co-operate with the Witness Service.
Crown Office and Procurator Fiscal Service
157. A large number of suggestions were received from Crown Office and Procurator Fiscal Service staff. These included:-
- Members of Crown Office and Procurator Fiscal Service staff could spend a morning with the Witness Service to get a better idea of what they did. This had been done recently in one office with success.
- General training for new Depute Fiscals/trainees on the role of the Witness Service and Victim Information and Advice.
- Awareness raising of the role of Victim Information and Advice for new Fiscal Deputes and Precognoscers and a brief guide regarding role/timeline of Victim Information and Advice and the Witness Service once a referral has been made.
- Local joint training including arrangements for children and court visits.
- Fiscal input to Witness Service training and more formal liaison between Sitting Manager and Witness Service before sittings.
- An annual meeting/more formal contact between the Area Procurator Fiscal and Witness Service Co-ordinator to ensure arrangements are working well and to look for ways to improve.
- Additional staff for Crown Office and Procurator Fiscal Service to allow time for such liaisons.
- Better recording on Crown Office and Procurator Fiscal Service papers regarding what happened with witnesses at court.
- The Witness Service providing feedback to Victim Information and Advice about cases they are involved in so that the Crown Office and Procurator Fiscal Service system can be updated.
- One service rather than many so that there would be one point of contact for witnesses.
- Depute Fiscals making more time to consult with the Witness Service and extending witnesses the courtesy of advising them regarding a running order of business.
- The Witness Service should be more proactive in getting time with the Fiscal Depute.
- A suggestion for training could be a case study where everything that could go wrong did go wrong and showing how things should be done.
- The Witness Service should attend the Court Users' Group.
- The sending by the Witness Service of a form showing the results of a pre-court visit.
158. Having made these specific points a number of respondents went on to emphasise that it was recognised that the giving of evidence and coming to court is a daunting experience for the witnesses and that the criminal justice system did not sufficiently take care of them in the past. It was pointed out that the Fiscal Deputes do not always have time to speak to witnesses and that the Witness Service have taken work from Deputes' shoulders. In addition the Witness Service provided a valuable presence in court for witnesses needing a friendly face or someone to give advice. The needs of witnesses had often been neglected through pressure of business and the Witness Service was a valuable resource to counteract that. In addition the Witness Service was very helpful in assisting Fiscal Deputes to resolve witness related problems on the day of the trial.
159. All these suggestions for improvement, comments etc from the four agencies have been listed to give a flavour of the areas of concern felt by the various parties. There is considerable overlap among these and many of the points have been covered in the previous issues.
Further Analysis of Questionnaires
160. The information gathered from the questionnaires was fundamental to the production of this report. In order to fully utilise this information, additional forms of analysis were considered and/or carried out.
161. Initially we considered each questionnaire to examine whether the responses to particular questions were predictive in any way of responses to others. This involved cross-tabulation of each question with every other (for each questionnaire). This allowed us to consider questions and responses where we anticipated there might be an effect in addition to those where relationships between questions and responses were unknown eg were Witness Service respondents more likely to say 'no' if asked about problems in the exchange of information with Fiscal staff if they answered 'very well' to the question about how well the protocol operated in practice?
162. There were no such predictive relationships found and this was true for all questionnaires. The one exception was where we found that Fiscal staff who were in an office where staff had been involved in the training of Witness Service staff were slightly more likely to have a full awareness (as opposed to only partial awareness) of the functions of the Witness Service than staff who were not.
163. We then considered questionnaire responses on an area-level basis, in addition to the fundamental Scotland-level analysis we had carried out, looking for congruity of responses (or otherwise) on comparable questions.
164. Based on Crown Office and Procurator Fiscal Service business areas, we were able to group returns for organisations that had more than one return per area, to facilitate cross-analysis on relevant questions.
165. The Crown Office and Procurator Fiscal Service business areas are:
- Argyll & Clyde
- Dumfries & Galloway
- Highlands & Islands
- Lothian & Borders
166. Analysis was carried out on those questions that had been asked 'across' organisations to examine whether there was congruity of responses amongst agencies on an area basis.
167. We considered the answers to the question put to District Fiscals about whether there were arrangements in place locally (in addition to the Crown Office and Procurator Fiscal Service (Victim Information and Advice) protocol) to provide information to the Witness Service and the answers to the question put to the Witness Service about whether they were made aware of cases other than those specified by the protocol, on an area by area basis.
168. It was apparent that in areas where Fiscals did not have specific local arrangements in place to provide information to the Witness Service, Witness Service staff nonetheless reported that they did still get information about cases other than those specified by the protocol (this was true in all but one area).
169. We considered also the responses from all relevant agencies (Witness Service staff, District Fiscals and Victim Information and Advice staff) to the question asking how well the protocol actually operates in practice.
170. It was reassuring to find that agencies were broadly in agreement as to their perception of how well the protocol actually operated in their area. However, bearing in mind that no totally negative replies were received from any agency in response to this question (the most negative replies were those who said 'quite well', rather than 'well' or 'very well'), this would be expected.
171. Another question asked about any problems experienced in the exchange of information between agencies - specifically Fiscals were asked about the exchange between themselves and Witness Service staff on court days, and vice versa. We considered the responses from both agencies, by area.
172. Bearing in mind that taken as a whole the Fiscal responses were generally more positive in this respect, it was therefore worth considering the area perspective to examine whether there were problems perceived by both agencies in particular areas. Interestingly, both agencies indicated that they had experienced problems in the exchange of information in 3 of the 13 areas. In a further 4 areas, both the Fiscals and Witness Service staff agreed that there were no such problems. In the remaining 4 areas there were differences in perception such that the Witness Service staff felt there were problems while the Fiscals did not. While not seeking to find reasons why, it is likely that the perspective of a Fiscal, with often many considerations re business in court on any given day (communication with the Witness Service being only one), may well be different from the perspective of a member of Witness Service staff whose considerations are focussed on witnesses only.
173. We considered also the responses from Scottish Court Service and Fiscal staff to the question asking each whether they were involved in relaying information direct to witnesses in court. We knew that there had only been one definite 'no' response from Scottish Court Service staff - the majority said 'yes', with a few reporting that they relayed information direct to witnesses 'sometimes'. Interestingly, the one 'no' response was from an area where Fiscal staff said 'no' also. However, we were pleased to note that the Scottish Court Service 'no' response was qualified to the effect that change was on its way.
Good Practice Points
174. A number of good practice points arise from these and we would suggest that all four organisations take note of these points and try to disseminate them as good practice. The main ones identified by us are as follows:-
- In solemn cases (ie those tried by a jury in the High or Sheriff Court) the holding of regular meetings involving Sitting Managers, Depute Fiscals, Victim Information and Advice and Witness Service representatives to discuss cases coming to court in the course of a sitting in order that issues of vulnerability and potential difficulties can be identified and addressed.
- The existence of a local information sharing protocol between the Witness Service, Area Fiscal and Victim Information and Advice. This may involve developing e-mail contact for the purpose of flagging up special requirements, maintaining a practice of sending the Witness Service a copy of the indictment when it is sent for service upon the accused and routinely sending the Witness Service a list of civilian witnesses for cases set down for trial.
However care needs to be taken that local arrangements reflect national agreement and protocols and relate to local delivery of these.
- The Witness Service attending the Court Users' Group and having adequate accommodation within the court building, preferably with a reception desk at a prominent place within the court.
- Annual meetings/more formal contact between the Area Procurator Fiscal and the Witness Service Co-ordinator to ensure arrangements are working well and to identify areas for improvement.
- Provision of feedback to Victim Information and Advice from Witness Service about cases they are involved in so that Crown Office and Procurator Fiscal systems can be updated.
- Standby arrangements being considered where practical.
- Prosecutors whenever possible making an effort to speak to vulnerable witnesses before and after the case is heard in court.
- Depute Fiscals being introduced to and being involved in the training of new members of Witness Service staff.
- The Witness Service being involved in the induction of a new Depute Fiscal at local office level, ie the new Depute spending a morning with the Witness Service.
- Witness service staff providing an input to Fiscal Office training days.
- The Witness Service and Victim Information and Advice should explore ways of effectively managing the Witness Service Referral Form as the current system of amending and passing the document back and forth is thought to be cumbersome.
- The Witness Service should consider increasing their advertising within courts (eg bigger, brighter posters at entrance of court buildings).
175. Although we have made some recommendations for improvement the system in practice works well and the various parties work together to provide a good support service for victims and witnesses attending court. There is no doubt that the provision of a Witness Service fills a need and goes some way to making appearing in court as a witness a less unpleasant experience than it might otherwise be.