Joint thematic report on the provision of services to witnesses

Revised November 2005

Victim Information and Advice is part of the Crown Office and Procurator Fiscal Service

BACKGROUND

This protocol is supplemental to the agreed " Operational Protocol between Victim Information and Advice and Victim Support Scotland". In conjunction with that protocol, it sets out agreed arrangements between Victim Information and Advice (part of the Crown Office and Procurator Fiscal Service) and the Witness Service (part of Victim Support Scotland) covering referrals and related information exchange between Victim Information and Advice Officers and Witness Service representatives. Both protocols are intended to form the basis of a developing working relationship between Victim Information and Advice and Victim Support Scotland (including the Witness Service) and will be the subject of regular review to improve their terms and practicability.

AGREEMENT

1. Relevant provisions of the agreed " Operational Protocol between Victim Information and Advice and Victim Support Scotland" apply at all times. This protocol has been agreed at a national level and local staff should not enter into any local agreements that are contrary to the terms of this document.

ROLES

2. There is a presumption that all Crown witnesses will be referred to the Witness Service who will carry out any pre-trial court visit (sometimes referred to as " PTV").

3. However, there are occasions when this will not happen. In such cases the Crown Office and Procurator Fiscal Service and the Witness Service should agree in advance who will be conducting the visit. Other staff present during the visit should have the role of observing only. Any issues of concern or differences of view between agencies that arise during the visit should not be discussed in front of the witness.

4. Examples of cases where the Witness Service may not conduct or be the only agency present during the visit include:

• Very sensitive cases where Crown Office and Procurator Fiscal Service needs to manage all aspects of the case and will therefore wish to be present;
• Where another agency is already involved and it is agreed that it would be to the benefit of the witness that this agency conduct or be present at the pre-trial court visit;
• Where the witness expresses a preference for another agency to conduct or be present at the visit; and/or
• In certain cases calling at the High Court in Edinburgh and Glasgow where Social Work Services staff will carry out the visit.
• In a very limited number of cases it may be necessary for Crown Office and Procurator Fiscal Service to carry out the pre-trial court visit without the involvement of the Witness Service, eg where the case concerns issues of national security.

5. Victim Information and Advice will flag the importance of pre-trial court visits in any communication with witnesses where this is relevant (including appropriate letters and leaflets). The Witness Service will provide Victim Information and Advice with adequate supplies of the general Witness Service leaflet, which Victim Information and Advice will send out to witnesses in all relevant cases.

6. The Witness Service will encourage all witnesses who fall within Victim Information and Advice's remit to undertake a pre-trial court visit.

7. Victim Information and Advice may greet certain witnesses/bereaved next of kin when they arrive at court diets and facilitate their introduction to the Witness Service and any other relevant agency, but will normally not remain with them all day. The Witness Service and any other relevant agencies will be advised of any such arrangements in advance.

8. The Witness Service will convey decisions made in court proceedings to witnesses who are in court but will not normally convey the reasons for case decisions. The Witness Service may however facilitate communication with Victim Information and Advice or other Crown Office and Procurator Fiscal Service staff where the witness wishes an explanation. Victim Information and Advice and/or other Crown Office and Procurator Fiscal Service staff will normally provide explanations/give reasons to witnesses where that is permitted.

9. Victim Information and Advice will provide information about decisions made in court proceedings (including bail, adjournments, verdicts and sentences) to all witnesses who fall within their remit, including where these decisions have been previously conveyed by a Witness Service representative at court.

REFERRALS

Referral by Victim Information and Advice - 'Opt-Out'

10. Where there is a possibility that a 'special measure' may be applied in relation to a witness for the purposes of them giving evidence an opt-out system of referral to the Witness Service will be used by Victim Information and Advice Officers. Such witnesses will include, but will not be restricted to, all child witnesses, all victims/survivors in cases involving sexual offences (including historical abuse cases), all witnesses with learning difficulties and next of kin in crime related deaths. Victim Information and Advice Officers should also include in the opt-out system any witnesses who may be subject to significant fear or distress in connection with giving their evidence. Separate provisions will apply to witnesses under the Vulnerable Witnesses (Scotland) Act 2004.

11. Under the opt-out system, Victim Information and Advice will advise the witness in writing at least (where possible) four weeks before the Trial Diet that their details will be passed on to the Witness Service on/after a specific date (normally two weeks from the date of the letter) unless they indicate that they do not wish this to happen.

12. Where there is a possibility that a 'special measure' may be applied in relation to a witness for the purposes of them giving evidence, Victim Information and Advice will advise the witness as above, but send the relevant letter at least (where possible) six weeks prior to the Trial Diet.

13. In these cases, where the witness does not opt out, Victim Information and Advice will provide the Witness Service with a completed " Witness Service Referral" form (as referenced in Paragraphs 16 to 20) at least (where possible) four weeks prior to the Trial Diet for cases where there is a possibility of special measures and two weeks prior to the Trial Diet for all other cases. Attempts should be made to include as much information as possible and, where mobile telephone numbers are quoted, they should identify to whom the number belongs. Details of any known vulnerability or disability should be passed to the Witness Service as this may affect the manner in which they approach the witness.

14. A Witness Service leaflet will be included with all letters sent by Victim Information and Advice detailing the opt-out or opt-in (see below) systems of referral.

Referral by Victim Information and Advice - 'Opt-In'

15. Any witness who asks Victim Information and Advice to refer them to the Witness Service and/or to arrange a pre-trial court visit for them will be referred to the Witness Service, using the " Witness Service Referral" form (as referenced in Paragraphs 16 to 19), subject to the restrictions outlined in Paragraph 3.

All Referrals by Victim Information and Advice

16. Where Victim Information and Advice is making a referral to the Witness Service, the Victim Information and Advice Officer should complete the " Witness Service Referral" form, a copy of which is attached at Annex A. This should include information about the witness' vulnerability and/or additional support needs unless the witness is not willing for this information to be divulged. A copy of this form will be saved electronically in order to be able to access and amend it later in the case if required. A hard copy will be printed out and placed on file, with the file minutes updated as appropriate. An electronic copy will be sent to the relevant Witness Service representative, thereby effecting the referral.

17. Where the Victim Information and Advice Officer becomes aware of any additional relevant information the appropriate "Witness Service Referral" form should be updated and copied as in Paragraph 16. This process should be repeated as many times as appropriate.

18. Where the Witness Service representative becomes aware of any additional relevant information they should update the appropriate "Witness Service Referral" form sending an electronic copy to the relevant Victim Information and Advice Officer. This process should be repeated as many times as appropriate but must be completed immediately following any pre-trial court visit, even where no additional observation has been made.

19. If the Witness Service representative is unable to make contact with the witness, or for some reason a pre-trial visit does not take place, notification of this must be relayed to the Victim Information and Advice Officer.

20. Information recorded on the "Witness Service Referral" form will be shared by Victim Information and Advice with other Crown Office and Procurator Fiscal Service colleagues as appropriate.

21. Where no referral is made through the 'opt-out' system or by witness request, Victim Information and Advice can only discuss limited information with the Witness Service. This information is restricted to basic case details, the name of the witness and whether the witness is an adult or under 16 years of age. No other personal information regarding the witness can be shared without explicit permission from the witness.

22. Both agencies will keep records of the number and category of referrals made and will carry out periodic checks jointly to ensure that these records are being maintained satisfactorily.

23. Witness Service staff will periodically notify the Victim Information and Advice Business Managers of cases in which child witnesses have presented at court without a referral having been made using the form at Annex B. The Victim Information and Advice Business Manager will thereafter make enquiries to ascertain the reason for the non-referral.

24. Victim Information and Advice and Witness Service staff should monitor the quality of the information contained in the forms received and should bring examples of bad practice their line manager so that corrective action can be taken.

Self-Referrals

25. Victim Information and Advice will ensure that details of the Witness Service are communicated to all witnesses within their remit, so that each individual has the opportunity to contact the Witness Service directly. Victim Information and Advice will, however, in all cases offer to make a referral on behalf of the individual and follow the process referred to above.

Referrals in respect of cases to which the provisions of the Vulnerable Witnesses (Scotland) Act 2004 apply

26. Phase 1 of the Vulnerable Witnesses (Scotland) Act 2004 introduced an entitlement to one or more special measures for child witnesses (aged 16 or under at the commencement of proceedings) when they give evidence in Solemn proceedings. The views of the child and parent/guardian must be considered when deciding which special measure is in the best interests of the child.

27. Victim Information and Advice staff are responsible for issuing the Scottish Executive's "Being a witness" booklet to children and for ascertaining the views of children and their parents in relation to special measures. This is normally done following precognition when the Victim Information and Advice Officer will meet with the child and demonstrate the "Being a witness" CDROM.

28. When meeting with children and their parents/guardians the Victim Information and Advice Officer should ascertain if there has been any contact with any other Agency as they may have information about support needs or vulnerabilities that could be important.

29. The Victim Information and Advice Officer should make the child and parents/guardians aware at this stage that, notwithstanding the terms of the legislation, the ultimate decision as to which special measure should be granted is a matter for the court and what is sought may not always be granted or appropriate for evidential reasons.

30. The Victim Information and Advice Officer should discuss the role of the Witness Service with the child and parents/guardians and, at this stage, determine whether they are content for a referral to be may made subsequently to Witness Service should the child be required as a witness.

31. If consent is obtained, the Victim Information and Advice Officer, at this stage should then complete the Witness Service Referral Form and pass it to the Witness Service on the understanding that the referral is not to be actioned until such times as the Preliminary Hearing or First Diet have been held. The Victim Information and Advice Officer will contact the Witness Service as soon as the result of any initial hearing is known.

32. However, with the consent of all concerned the Victim Information and Advice Officer will have the discretion to make a formal referral earlier if it is considered to be in the best interests of the child or if there has been a specific request by the child or parent/guardian to see special measures in operation.

33. The Witness Service will have staff available for familiarisation visits at any remote sites and will also be available on the day of the trial to provide emotional and practical support if required.

IMPLEMENTATION

34. The terms of the original Victim Information and Advice/Victim Support Scotland Referrals and Information Exchange Protocol became effective on 5 January 2004 and were subsequently revised on 29 November 2004. This revised protocol and accompanying materials are to take effect from 9 January 2006.

Agreed November 2003
Revised November 2004
Further revised November 2005

Annex A
"WITNESS SERVICE REFERRAL" FORM

Annex B