Chapter 5 Legislation and Implications for Witnesses Bonomy Review, Vulnerable Witnesses
194. The aim of this chapter is to provide a succinct overview of the new provisions arising from Lord Bonomy's review of the High Court and the Vulnerable Witnesses (Scotland) Act 2004 with regard to the changes for witnesses attending court and their involvement generally in the criminal justice process. It is also intended to examine what measures have been put in place by Crown Office and Procurator Fiscal Service to ensure that the new provisions are identified, met and adhered to.
195. The chapter will be dealt with in two parts, the first part dealing with the changes arising from Lord Bonomy's review which will be subdivided into a) the Crown Practice Statement on Disclosure issued by the Lord Advocate and b) The Criminal Procedure (Amendment) (Scotland) Act 2004 which is the statutory provision largely arising from the recommendations contained in Lord Bonomy's Report. The second part of the chapter will deal with matters relating to the Vulnerable Witnesses (Scotland) Act 2004.
Lord Bonomy's Review
196. Lord Bonomy's review of the practice and procedure of the High Court which was carried out in 2002 concluded that one of the frequent causes of adjournments in the High Court was that the defence were not prepared for trial due to being unable to gain access to material which was necessary for proper preparation of the defence case. Lord Bonomy recommended a number of specific changes to High Court procedure that now are incorporated in the Criminal Procedure (Amendment) (Scotland) Act 2004 (to be dealt with below) which makes numerous amendments to the Criminal Procedure (Scotland) Act 1995. Very broadly speaking, the amendments to the 1995 Act are intended to avoid delay in criminal procedure and to speed up the criminal justice process. In addition to the recommendations that have now been placed on a statutory footing, Lord Bonomy made certain recommendations regarding disclosure of Crown material to the defence. Again the purpose of these recommendations was to speed up the criminal justice process by ensuring that the defence were given early access to the details of the witness evidence upon which the Crown case was based. In response to the recommendations on disclosure the Lord Advocate has issued the Crown Practice Statement on Disclosure to support the overall programme of reform in the High Court, the principles of which are in the process of filtering down to the lower courts.
Crown Practice Statement on Disclosure
197. The Crown Practice Statement took full effect on 1 January 2005 and provided that there was an obligation by the Crown to disclose to the defence within 28 days from the date of the accused's first appearance in court all witness statements in the possession of the Crown. Additional statements received after initial disclosure has been made will be forwarded to the defence as soon as practicable as is the case of the statements of witnesses subsequently added to the indictment by s67 notice. This provision applies to all cases where the date of the accused's first appearance was on or after 6 December 2004 and the case is identified as being one which is likely to be indicted in the High Court. It is the Crown's intention to extend the principle of disclosure to all solemn cases by April 2006 and a pilot scheme in respect of Sheriff and Jury cases began in Central area on April 2005. Where the accused's first appearance in court was prior to 6 December 2004 disclosure would not be made routinely but Solemn Legal Managers would ensure that the defence were supplied with a provisional list of witnesses.
198. The Crown are in terms of the Practice Statement also obliged to provide the defence with a copy of a provisional list of witnesses within 14 days of first appearance. The list is indeed a provisional list and the Practice Statement recognises that it may be necessary to withhold disclosure of the details of a particular witness pending further investigation or if there is good reason for doing so (eg in a sensitive case involving a sexual offence the Crown may wish firstly to precognosce the complainer and explain matters more fully before the defence has the witness's details and can proceed to precognosce). Additionally there are issues of operational security to be borne in mind and for that purpose it may be undesirable to reveal the details of a particular witness until the issues are resolved. On public interest grounds it may sometimes be necessary to completely withhold the details of the witness and this is recognised in the terms of the Practice Statement. In these circumstances the details of the witness will only be withheld on the explicit instructions of the Area Procurator Fiscal or a senior manager.
199. The Practice Statement provides for disclosure of material to a solicitor who has intimated to the Crown, in writing, that he/she has been instructed by the accused. (See sections 8 and 12 of Criminal Procedure (Amendment) (Scotland) Act 2004 for full provisions regarding solicitors). Disclosure would not be made in the absence of such intimation and disclosure would not be made to accused persons not legally represented. The solicitor for the accused is required to give the Crown written notice if he/she ceases to be instructed by the accused and every office has been instructed to have robust procedures in place for the receipt of mail to ensure that the new rules regarding engagement of solicitors operate effectively. There is an additional benefit in this regard as the terms of the statutory amendments provide for service of documents, including indictments, upon solicitors who have intimated that they are instructed by the accused.
200. The duty of disclosure as provided for in terms of the Practice Statement is supplementary to the Crown's duty of disclosure to the defence of material which supports any known or statable defence or would undermine the Crown case. (See McLeod v HMA 1998 SCCR 77 and appeal cases of Sinclair 2005 SCCR 446 and Holland 2005 SCCR 417. See also Maan Petitioner 2001 SCCR 172.)
201. The duty of disclosure is a continuing one and requires to be assessed as the process develops and the Crown require to keep matters under review, in particular should a special defence be lodged by the accused. Subject to the general exceptions contained in the Practice Statement, which will be examined in detail, all statements made by a witness that are in the possession of the Crown should be disclosed and any material alteration of the witness's position from the time of the original statement to the Police should be apparent.
202. Precognitions are confidential and will not be disclosed. In any event the court would not order disclosure of precognitions as they are not admissible in evidence. ( Ward v HMA 1993 SCCR 1202) Witnesses may say something different in precognition from what they said in their original police statement and in the exceptional circumstances that the variation is a material alteration or inconsistency on a material matter or suggests something that may exculpate the accused the information would require to be disclosed to the defence. The overall principle however is that precognitions are confidential in nature and only in the exceptional circumstances highlighted would information be disclosed to the defence who would be advised to precognosce the particular witness.
203. In addition to making the criminal justice process more efficient by early disclosure of witness details and statements, certain other advantages have been identified from this new practice. The agreement of a witness's evidence can readily be identified and the necessity for defence precognition can be avoided. This is always particularly desirable in the case of a child witness and has long been recognised. There is the added benefit that full awareness by the defence of the Crown evidence against the accused can in many cases result in an early plea of guilty.
204. Although the provisions of the Practice Statement are new and relatively far reaching, the position is that copies of police statements have routinely been provided to the defence for some time and disclosure of civilian witness statements to the defence has been permitted where the evidence is routine or technical or where the defence have had difficulty in locating and precognoscing a particular witness. If it were to be the case that the statement was to be disclosed as opposed to a verbal summary of the witness's statement being provided, steps would be taken to ensure that nothing of a confidential nature were disclosed. This practice of redacting (blacking out material) statements to remove anything of a confidential nature has been reaffirmed by the terms of the Practice Statement which provides that redaction is permitted to obscure material considered to be of a confidential nature and not necessary for the preparation of the defence case. Any such redaction should however be obvious and will usually be achieved by generating a new copy of the statement that has been blacked out electronically.
205. In terms of the Practice Statement there have been certain measures to ensure that effective and appropriate disclosure of witness statements takes place and that witnesses can rest assured on confidentiality issues. In particular, changes are being made to the way Crown Office and Procurator Fiscal Service and the Police deal with witness statements. The changes follow from extensive work that has taken place between representatives of The Association of Chief Police Officers ( ACPOS) and Crown Office and Procurator Fiscal Service and new guidance and new statement forms have been prepared for the benefit of all Police Officers in Scotland in order to address outstanding current concerns about quality, consistency and reliability of statements. The Association of Chief Police Officers are aware of the need to ensure that all Police Officers are wholly familiar with this guidance. A National Standard Statement has been designed and is being introduced by all Scottish Forces as soon as possible.
206. The National Standard Statement is in two parts. The first part is the witness's statement itself and is designed to be disclosed. In addition to containing basic details of the witness and the witness's narrative about the particular incident, there is a section providing details about the taking of the statement itself, essentially by whom, where and when. This is a particular element of the statement that had often been omitted in the past and is essential for provenance of the statement, particularly now in light of the Practice Statement. The second part which contains information about the witness, does not form part of the "disclosable" statement and contains information about the witness purely for the Procurator Fiscal, including further personal details, details of availability for court and further detail which the Police Officer considers may be relevant to the Fiscal but not materially relevant to the case. Either part however may contain information which should not be disclosed and the Procurator Fiscal will consider both parts of the statements and decide whether the first (disclosable) part does contain something that should not be disclosed to the defence.
207. In addition to providing exception to witnesses being disclosed immediately to the defence, the Practice Statement also makes provision for the Crown to withhold disclosure of statements where the Crown does not intend to rely on the witness and such disclosure may represent a risk to the life of an individual or to other investigations or proceedings. The Crown must however adhere to obligations where something in the statement points to the innocence of the accused and must consider providing a redacted statement to ensure anonymity of the witness or simply disclosing the fact to the defence. It would be highly exceptional to withhold statements in this way and decisions to do so would only be taken on the instruction of the Area Procurator Fiscal.
208. Before statements are disclosed to the defence they will be reviewed and it will be ensured that any personal data not relevant to the case and any material that may compromise the security of an individual is removed. This would include details such as mobile phone numbers, security aspects of domestic or business premises, medical details or information about an ongoing police operation. A further example of this may be the information tending to identify the home address of a witness who fears intimidation.
209. In summary, the Practice Statement whilst providing in principle for disclosure of all statements within 28 days of the accused's first appearance in court and disclosure as soon as practicable thereafter of statements subsequently coming into the possession of the Crown, permits the following options;
Redact and disclose
210. The Practice Statement also commits the Crown to disclosure of copies of important documents at the earliest possible stage and this again is to enable defence preparation, as late delivery of documents was identified by Lord Bonomy as being another factor contributing to the number of adjournments in the High Court.
Crown Office and Procurator Fiscal Service Reaction
211. Crown Office and Procurator Fiscal Service has issued circulars and practice notes for staff fully informing of the terms of the Crown's commitments in respect of the disclosure provisions of the Practice Statement. A training package dealing with aspects of the Bonomy Reforms has been rolled out to all staff with those having responsibility for the High Court cases receiving the training prior to the Practice Statement coming into effect. The Crown Agent has also issued a General Minute providing direction on steps to be taken by the Crown to facilitate the provisions of the Practice Statement.
212. Changes have been made to Crown Office and Procurator Fiscal Service IT systems to support the changes in procedure and in particular a new Disclosure Category field has been added to allow the disclosure marking of a witness's details or statement to be recorded and amended. The whole issue of disclosure and IT is currently being considered by Crown Office and Procurator Fiscal Service Business Improvement and Innovation Unit.
213. Each Area Fiscal has been instructed to identify the appropriate person in each office who will have primary responsibility to ensure that the terms of the Practice Statement are complied with. This person will most likely be the Solemn Legal Manager for a dedicated solemn team who will already have responsibility for the strategic direction of a precognition.
214. As previously stated, detailed discussions have taken place between Crown Office and Procurator Fiscal Service and the Association of Chief Police Officers' representatives in order that police could assist the disclosure process by providing statements of an appropriate format and quality and the Standard Statements Template has been produced.
Issues of Concern
215. The new provisions mean that the terms of a statement made by a witness to police at the time of an incident will now be in the hands of the accused's solicitor at trial. There is a concern that it may be open to the solicitor to seek to challenge the witness's credibility in terms of s263 of the Criminal Procedure (Scotland) Act 1995 if the witness's evidence in court does not accord with the narrative of the statement. Given that the trial may take place some months or even years after the event there is every likelihood that, for various innocent reasons, (eg further detail coming to memory with the passage of time) the witness will narrate matters differently from the police statement and there is a concern that this leaves the witness vulnerable to challenge and a general undermining of the evidence. It is not clear at this stage if anything will be done to counter this situation which could in effect produce an "inequality of arms" position for Crown witnesses. Given that the witness makes a statement to police which is often signed by the witness and will then be produced to the defence, it may be appropriate that the witness is provided with a copy of their statement which is arguably the best reflection of the witness's evidence as it was made whilst the memory was fresh. It is arguable that police witnesses are able to refresh their memory from statements and notebooks, that defence agents have a copy of the civilian witnesses' statements and in the interests of fairness Crown witnesses should perhaps likewise have access to their police statement.
216. Additionally, there will be a greater need for Deputes conducting trials to ensure that if a witness is being challenged by the defence in relation to a difference between their statement to the police and their evidence in court, that the defence properly put the statement to the witness in terms of section 263 of the 1995 Act and HMA v Jamieson 1994 SCCR 610 and that the foundation is properly laid if the defence seek to go down this route. It is anticipated that Crown witnesses could be subjected to particularly rigorous cross examination by defence solicitors in relation to any departure from a prior statement and trial Deputes will undoubtedly require to focus their minds fully on ensuring that witnesses are not subjected to unfair or inappropriate cross examination by the defence in regard to what was or was not said to the police by the witness and that if the witness is being cross examined on this point, that any such departure is a material one.
217. Deputes have however been reminded (more particularly in relation to use of prior statements as per the Vulnerable Witnesses Act) that they should be alert to the effect on a witness on a line of questioning and should object where the questioning is "unduly harassing". Reference is made to the case B v Ruxton 1998 SLT 1282.
218. Further concerns have been identified regarding the duty on the Crown to routinely provide details of a Crown witness's previous convictions and pending cases to the defence. There is as yet no Crown Office and Procurator Fiscal Service instruction as to whether potential witnesses should be made aware at any time that there is a possibility that previous convictions and pending cases could be put to them by the defence in the course of cross examination, although the issue is under consideration. Fiscal Deputes will have to be alert to this possibility and if appropriate take steps to ensure that previous convictions of the accused are brought to the attention of the court, whether the accused elects to give evidence or not. (See Criminal Procedure (Scotland) Act 1995, s 266 and s 270.)
219. Recently an issue has arisen as to how confident the Crown can be that defence solicitors will not disclose to their client certain information provided to them by the Crown (ie a Crown witness' home address or place of employment). It is understood that the Law Society is considering dealing with this in the code of conduct for solicitors. In the meantime defence solicitors have been required to provide the Crown with a written personal undertaking that any such personal information relating to a Crown witness will not be disclosed to the accused. This is a matter that been discussed and is being monitored at the most senior levels of Crown Office and Procurator Fiscal Service. The whole issue is particularly concerning in light of police advising that, in the course of searching homes of accused in execution of a search warrant, it is not unusual to find full witness statements and precognitions of Crown witnesses, which may have simply been given to the accused by the defence practitioner.
Criminal Procedure (Amendment) (Scotland) Act 2004
220. The purpose of the above mentioned Act is to give statutory effect to the principal recommendations of Lord Bonomy's Report. The provisions of the 2004 Act were brought into effect by the Criminal Procedure (Amendment) (Scotland) Act 2004 (Commencement, Transitional Provision and Savings) Order 2004. Broadly, the provisions now affect cases calling in court from 1 April 2005.
221. The principal reforms brought about by the Act are;
- Certain requirements are now imposed on solicitors instructed by the accused to intimate to the Crown in writing that they are nominated to act. This requirement also facilitates service by the Crown of documents on the accused via their solicitor at the solicitor's place of business. (sections 8 and 12)
- The introduction of a mandatory preliminary hearing in High Court proceedings so that the court may ascertain the readiness of the parties to go to trial. (section 1)
- Provision that preliminary matters such as objection by any party to the admissibility of evidence must now be dealt with at the Preliminary Diet in High Court cases or the First Diet in Sheriff and Jury cases. Objections to admissibility of evidence raised after the first Diet will only be heard if the court grants leave to raise the objection on being satisfied that it could not reasonably have been raised before that time. Written notice of intention to raise the objection must be given to the other party. (sections 13 and 14)
- A requirement that parties must be in a position to confirm at the Preliminary or First Diet which witnesses on the list of witnesses will be required by them in order that witnesses do not have to attend court unnecessarily. Previously the Crown were obliged to produce all the witnesses detailed on the Crown list of witnesses on the indictment. (section 19)
- An extension of the time limit for the commencement of trial in custody cases in the High Court from 110 days to 140 days (the 80 day time limit for service of the Indictment remains). (section 6)
- A change to the time limits for High Court bail cases, requiring indictment to a preliminary hearing commencing within 11 months of the first appearance on petition. (section 6)
- The replacement of the present system of trials within sittings with a system of trials on dates appointed by the court, to create greater certainty as regards when a trial will commence. (section 1)
- A change to the consequences of breach of custody time limits - an accused will be "entitled to be admitted to bail" and not "forever free". (section 6)
- Provision for trial in absence of the accused in certain circumstances. (section 10)
- New provisions to facilitate action to ensure attendance of reluctant witnesses. (sections 11 and 22)
- A reduction in sentence for an early plea. (section 20)
222. The above list of reforms is not exhaustive but is intended to highlight those reforms which should directly or indirectly impact on the experience of a witness called to give evidence at court.
223. Whilst the more specific provisions in relation to witnesses will be examined in detail, broadly speaking, in relation to witnesses, the above provisions should have the effect of improving the procedure up to and including trial in that there should now be more certainty and efficiency around the whole process which is of course desirable from the point of view of witnesses. While the main purpose of the legislation relates to High Court proceedings, many of the provisions also affect Sheriff and Jury proceedings from 1 April 2005.
Sections of Act Relating to Witness Issues
224. Section 1 in addition to amending section 66 of the 1995 Act in providing for the accused to be cited to a preliminary hearing instead of a trial diet, also replaces sections 72 to 73A in the 1995 Act which deal with matters relating to the preliminary hearing and the state of preparation generally of all parties. In addition it will now be the court and not the Prosecutor that determines the trial date in every case in the High Court. Sections 72 and 72A set out the chronology of the procedure to be followed by the court at the preliminary hearing and section 72A deals with the procedure to be adopted by the court when appointing a trial diet which can be a fixed diet or a floating diet. Section 72 (2) and (6) (a) deals with ascertaining where the accused is charged with sexual offences that a solicitor has been engaged by the accused as the accused is prohibited from conducting his own defence in such cases. Section 72 (3) deals with preliminary pleas.
225. Section 72 (6) (b) to (f) imposes upon the court certain duties in relation to ascertaining preparation and provide that
- the court must dispose of preliminary issues of which notice has been given including objections to admissibility of evidence.
- the court must ascertain which Crown witnesses from the list are required by the Crown and the defence to attend the trial. The Crown is obliged to cite those witnesses.
- consideration will be given to the written record. (see section 2 below)
226. Section 2 relates to the written statement of preparation (which is indirectly relevant for witnesses) and creates a new section 72 E to the 1995 Act which requires parties to "communicate" with each other prior to the Preliminary Hearing but stops short of prescribing the method of communication. From whatever form of discussion that takes place the parties are required to prepare a written record of their discussions and lodge this with the Clerk of Justiciary. The form and content of the written record are to be prescribed by the Act of Adjournal and will cover matters that require to be resolved/ considered at the Preliminary Diet.
227. Section 4 has the effect of extending prohibition on personal conduct of his/her defence by an accused to preliminary hearings.
228. Section 7 amends section 66 of the 1995 Act to provide that the Act is sufficient warrant for citation of the accused, witnesses and jurors to diets in the High Court and Sheriff Court on any day the courts are sitting (section 66(1)). It also cures difficulties in existing provisions for service of a notice on accused in lieu of an indictment in that it provides for service at the accused's domicile/place of business instead of dwelling house. (66(4) (b))
229. Section 10 amends section 92 of the 1995 Act to make new provisions for the trial to proceed in the absence of the accused in certain circumstances. Again this section is indicative of provisions in the Act designed to avoid unnecessary delay of the overall process which is of course desirable from a witness's position.
230. Section 11 introduces new sections 90A to 90E into the 1995 Act making provision in relation to warrants to apprehend witnesses in solemn proceedings. This replaces existing common law procedures in relation to warrants for absconding witnesses and also makes provisions in relation to bail for such witnesses. Section 90A provides that in any proceedings on indictment the court may issue a warrant for apprehension of a witness where; having been cited to attend a witness deliberately and obstructively fails to attend (the test is presumed to be met in absence of evidence to the contrary); or the court is satisfied by evidence on oath that the witness is being deliberately obstructive and is unlikely to attend without being compelled to do so. Upon apprehension the witness must be brought before the court that granted the warrant and where possible this should be on the first day thereafter on which the court is sitting. In relation to the witness the court can; a) detain the witness until conclusion of the diet at which he is to give evidence; b) release the witness on bail; c) liberate the witness.
231. Arguably this section has the effect of setting out exactly the court's authority in regard to reluctant witnesses and provides a degree of certainty for witnesses regarding their requirement to attend at court.
232. Sections 13, 14 and 16 whilst not directly relating to witnesses streamlines the process of dealing with objections to admissibility of evidence and unjustified challenge to uncontroversial evidence which again is beneficial for witnesses in that the avoidance of delay and uncertainty about the progress of trials should be achieved by the implementation of these sections.
233. Section 19 inserts subsection 71 (1C) into the 1995 Act stating that the court must ascertain which of the witnesses included in the list of witnesses on the indictment are required for trial by the prosecutor or the accused. This will have the effect of avoiding a witness's unnecessary attendance at court when their evidence is not required.
234. Section 22 of the Act inserts a new section 267A into the 1995 Act which consolidates and extends existing provisions regarding citation by the prosecutor of the witness for precognition. The principal effect of this section is that the Act now provides statutory authority to precognosce before commencement of proceedings and there are penalties for failing to attend/speak up.
235. Section 23 inserts a new subsection (5) into section 260 of the 1995 Act which removes the uncertainty that had existed previously regarding the production status of a witness statement should section 260 of the 1995 Act require to be invoked. Subsection (5) provides that a prior statement given by a witness is not inadmissible in proceedings on indictment only for the reason that it is not included in any list of productions in the case.
Crown Office and Procurator Fiscal Service Reaction
236. All staff primarily affected by the changes at the various commencement stages of the legislation have completed a detailed training programme which was rolled out to all staff in the course of 2005. Amendments will in due course be made to the Book of Regulations and the Precognoscer's Handbook and detailed Policy Guidance and instruction has been and will continue to be issued in the form of Circulars and General Minutes.
237. IT systems have been updated to take account of the changes ie the Act of Adjournal prescribes a form of citation for precognition in terms of section 22 of the 2004 Act and this has been added to the system. The system has also been amended to take account of the requirement for details of the accused's solicitor to be included.
238. Procedures have also been put in place to ensure that in High Court cases a "Witness Availability Letter" is lodged to ensure that when fixing a date for trial the court is given full information about the availability of witnesses. This issue relates to the formulation of the new "Police National Standard Statement" (discussed in the Practice Statement on disclosure part of this chapter).
239. Victim Information and Advice has been highlighted as playing a clear and important role in maintaining contact with witnesses referred to them, many of whom will be vulnerable witnesses, for the additional purpose of ascertaining and updating information regarding their availability for court where this is not known. Victim Information and Advice will now formally check on a witness's availability for court to ensure compliance with the legislation.
240. Provision has been put in place for the maintenance of a Witness Availability Report which will include a calendar of dates upon which the witness would have a difficulty in attending court.
241. New witness information leaflets have been created to take account of the fact that witnesses in High Court cases may be cited to a "floating" or a "fixed" trial diet.
Issues of Concern
242. Even at this relatively early stage, figures released by the Scottish Executive show that the Bonomy reforms are already starting to have a real impact on High Court cases. It has been recognised that during the first six weeks of implementation of the new procedures more that 1,000 witnesses who would normally have been required by the Crown to attend court did not have to be cited to come to court. Preliminary Hearings have also been hailed as a success and figures released for the period 4 April 2005 to the week ending 13 May 2005 show that of a total of 107 cases which called at Preliminary Hearings 39 (34%) pled guilty, 44 (41%) were continued to another date and trials were fixed in only 24 (22%) cases. A plea of guilty was expected in some of the cases that were continued to another date and in those which did not plead guilty witnesses would not be cited until the case was set down for trial, thereby resulting in a significant reduction in the inconvenience and stress which would have been caused in the past. Most recent figures indicate that the number of adjourned cases has fallen from 1,000 last year to 125 in the first six months since introduction of the reforms - but many of these are pre-Bonomy adjourned cases and the true rate of adjournment of trials seems to be much smaller. Crown Office and Procurator Fiscal Service estimate that on current projections up to 50,000 witnesses may be spared court attendance in the course of the first year of the reforms. Figures now indicate that half of the accused are pleading guilty in the new preliminary hearings.
243. Clearly the overarching principle of Lord Bonomy's reforms is that of preparation and flowing from that principle would be the preparation time allocated to the Procurator Fiscal Deputes who are ultimately to conduct the solemn trials. There appears to be a fairly common practice whereby Procurator Fiscal Deputes routinely have access to papers for up to two weeks before the Sheriff and Jury sitting (and longer by arrangement if required) and therefore have adequate time to properly prepare the trials. We would naturally encourage this practice in all offices to enable proper preparation time for court staff.
244. The Vulnerable Witnesses (Scotland) Act 2004 (hereafter referred to as the Act) came into force on 1 April 2005 and amended the Criminal Procedure (Scotland) Act 1995. It in turn was amended by the Criminal Procedure (Scotland) (Amendment) Act 2004. The Act is being commenced in stages from April 2005 to October 2007 with the first stage of commencement of special measures largely relating to child witnesses in solemn criminal proceedings.
245. Section 1 of the Act amends section 271 of the 1995 Act in that it makes provisions that are designed to make it easier for children (under 16) and vulnerable adult witnesses to give their best evidence in court and aims to introduce greater certainty regarding the measures that are available for those witnesses. The amended section 271 of the 1995 Act now consists of section 271A to 271M and defines a child witness as a person under the age of 16 years when the indictment is served upon the accused and sets out the special measures available to such witnesses. It also provides a definition of a vulnerable adult witness for the purpose of considering the requirement for special measures where there is a significant risk that the quality of their evidence will be diminished by reason of mental disorder or fear or distress in connection with giving evidence at the trial. Additionally the Act provides that Scottish Ministers have the power to make provision for other special measures by statutory instrument. The Act applies to criminal and civil proceedings, including Fatal Accident Inquiries and court proceedings in relation to children's hearings. Section 2 of the Act amends section 71 (1A) of the 1995 Act in that it imposes a duty on the court to consider at a preliminary hearing whether there are any child or vulnerable adult witnesses. This duty must be fulfilled by the court at a first diet in a Sheriff and Jury case and at a preliminary hearing in a High Court case. Where an order is made at a preliminary hearing it may not be the subject of appeal.
246. Until April 2006 most provisions will apply only to solemn cases involving child witnesses, which were reported to the Procurator Fiscal on, or after 1 April 2005. There are a number of provisions which relate to both sheriff summary and solemn cases which were also implemented in April 2005 and these are;
- Identification evidence was brought within the ambit of the routine evidence provisions under section 281 A of the Criminal Procedure (Scotland) Act 1995. This applies in solemn cases where the Police Report is received on or after 1 April 2005 and to all Sheriff summary cases on or after 1 April 2005 regardless of the date of receipt of the Police Report. Section 4 of the Act provides that if a child has previously identified the accused in an identification procedure before the start of the trial, a report is lodged which has to be served upon the accused in accordance with notification periods set out by the Act. If not challenged by the accused, the identification evidence will be received in evidence and there is no need for the witness to make a dock identification.
247. ( NB. The new VIPER parade has recently been introduced which should greatly enhance the potential benefit for child witnesses of the use of the above section as it facilitates possible identification of the accused via video as opposed to the witness having to view the accused in a "live situation".)
- In respect of all complainers (not just children) there is now a provision for expert psychological or psychiatric evidence for the limited purpose of rebutting an adverse inference about the credibility or reliability of the complainer arising from the subsequent behaviour of a complainer in sexual offences. (Section 5) The provision applies to cases reported as detailed above.
- Abolition of the competence test for all witnesses in criminal and civil proceedings. This applies to cases reported as detailed above. (Section 24)
248. There have been further stand alone provisions implemented which relate to solemn cases only and they are as follows:
- An accused is prohibited from conducting his/her own defence in solemn cases involving a child witness under the age of 12 years where the offence involves certain violent offences and where the Police Report was received on or after 1 April 2005. (Section 6)
- An accused may be prohibited by the court from conducting his/her own defence in solemn cases involving a child witness where the offence involves certain violent or sexual offences and where the Police Report was received on or after 1 April 2005. (Section 6)
- Pre-trial procedures are introduced in solemn cases involving certain violent or sexual offences to determine whether the accused has instructed a solicitor and whether there is a child witness. This enables the court to consider whether a Child Witness Notice should be lodged and to consider special measures. The provision applies to solemn cases where the Police Report was received on or after 1 April 2005. (Section 7)
- An accused is prohibited from conducting the precognition on oath of a child witness under 12 in certain violent offences in solemn proceedings where the Police Report was received on or after 1 April 2005. (Section 6)
The Special Measures
249. The Act consolidates three of the special measures currently in use being;
- Use of screens (s 271K)
- Use of live TV link within the courthouse (s 271J)
- Use of a supporter in court (s 271L) (in conjunction with above measures)
250. These measures are described as "standard special measures" in the Act and are now available in every Sheriff and every High Court location to relevant prosecution and defence witnesses, including the accused, who are under 16 years. Child witnesses will now automatically, on notice having been given to the court, have the right to one or more of these standard special measures as opposed to the situation in the past where, in order to secure any of the special measures an application in terms of section 271 of the 1995 Act had to be made to the court, within whose discretion the decision lay. It would have been necessary to produce a report to the court setting out specific reasons why the child witness would require use of the special measures to give their evidence and the application was frequently opposed by the other party.
251. Three "further special measures" are also provided for in terms of the Act for children under the age of 12 years. One of the further special measures, the taking of evidence by a commissioner expands the circumstances when this might be used beyond the previous provision for evidence taken on commission. Two new further special measures introduced are;
- Evidence from a site outwith the courthouse where proceedings are taking place (available to children under 12 in certain sexual and violent offences) (s 271B)
- Evidence in chief in the form of a recorded prior statement (s 271M)
252. The terms of the provisions in effect provide for a "two tier" system of measures for child witnesses, being the "standard special measures" to which there is an automatic entitlement for child witnesses under the age of 16 years and "further special measures" which requires a specific application to the court. There is a general rule that children under the age of 12 are to give evidence away from the court building in which the accused is appearing where the alleged offence involves crimes of a sexual or violent nature, abduction and plagium.
253. The party calling the child to give evidence (and the court) will have to consider the opinion of the child when deciding which special measure would be in the best interests of the child and the views of the child witnesses and their parents/guardians are to be taken into account. The views of the parent/guardian will be considered so long as the parent is not the accused. If the views of the parent/guardian differ from that of the child then it is the views of the child that will be preferred (s 271E). Children over the age of 12 are presumed to be able to give a view and in the case of children under 12 the age and maturity of the child is to be taken into account when determining whether they can express a view.
254. Regarding child accused, the Act sets out provisions for allowing the child to give evidence with the use of special measures but subject to modifications. The factors to be taken into account to assess vulnerability are amended to take account of the fact that the child will have legal representation. Also the child accused is not entitled to use screens when giving evidence.
Child Witness Notice
255. There is now a requirement for notices for witnesses under 16 (Child Witness Notices) to be lodged with the Sheriff Clerk or Clerk of Justiciary and intimated to other parties at least 14 clear days before the preliminary hearing in High Court cases and 7 clear days before the first diet in Sheriff and Jury cases. (s 271A of 1995 Act and in accordance with the procedures prescribed in the Act of Adjournal (Criminal Procedure Rules Amendment No 3) (Vulnerable Witnesses (Scotland) Act 2004) 2005). The court must consider the Child Witness Notice within 7 days of it being lodged. (s 271(5))
256. The Child Witness Notice should specify the special measure(s) considered by the party citing the child to be appropriate or, if considered appropriate should state that the party considers that the child should give evidence without special measures. If the Child Witness Notice relates to a "standard special measure", it will be granted without the need for a hearing. Where the Child Witness Notice relates to further measures and the court is satisfied with the terms of the notice, the further measure will be granted without the need for a hearing. However, if the further special measure is sought but the court is not satisfied that it is appropriate in the circumstances a hearing will be needed to address the question of the requirement for any further special measures sought.
257. In situations where the party citing the child considers that the child should give evidence without any special measures and this accords with the views of the child, the court if satisfied can authorise the child to give evidence without any special measures and a hearing will not be required. If however the party citing the child takes the view that the child should give evidence without special measures and there is no such view expressed by the child, a hearing will be necessary.
258. If the court is not satisfied with the terms of a Child Witness Notice it will fix a date for a hearing and ordain the parties to appear. The party not calling the witness cannot object to the fact that special measures are to be used but where a hearing is fixed the parties will be given the opportunity to be heard. Where a hearing is fixed the court may:-
- authorise further special measures in addition to standard special measures authorised already;
- authorise the use of such special measures as the court considers appropriate;
- authorise that the child shall give evidence without any special measures but again only if the child has expressed such a wish and the court deems this to be appropriate OR the child has not expressed such a wish but the court deems that the use of any special measure would give rise to a significant risk of prejudice to the fairness of the trial or to the interests of justice AND that risk significantly outweighs the risk of prejudice to the interests of the child.
259. There is provision for review of the arrangements for the taking of the evidence up to and including the giving of that evidence by the child and the court can make an order regarding the arrangement both at the request of the party calling the witness or of it's own motion. It can add a special measure or substitute a measure considered to be more appropriate. It can also make an order that the special measure no longer be used if the child indicates such a wish or it becomes clear that there may be a risk of prejudice.
Overview of Phasing in of Provisions of the Act
- APRIL 2005….Special measures for child witnesses in solemn cases (and Children's Hearings court proceedings) but not as regards evidence on commission. Introduction of provisions relating to identification procedures, use of expert witnesses and abolition of the competency test in Sheriff summary and solemn cases.
- NOVEMBER 2005… Partial commencement of taking evidence by a commissioner for child witnesses in solemn cases (and Children's Hearings court proceedings).
- APRIL 2006…..Special measures for Vulnerable Adults in solemn cases.
- APRIL 2007….Special measures for child and vulnerable adult witnesses in Sheriff summary cases. (Subject to Summary Justice Reform timetable)
- OCTOBER 2007….Commencement of special measures for vulnerable witnesses (including child witnesses) in civil cases, including Fatal Accident Inquiries.
260. The Act extends the definition of a vulnerable adult witness as being a witness where there is a significant risk that the quality of their evidence will be diminished by a) a mental disorder or b) fear or distress in connection with giving evidence at trial. (Section 271 (1) (b))
Crown Office and Procurator Fiscal Service Reaction
261. The Act clearly has far reaching implications for Crown Office and Procurator Fiscal Service regarding identification of vulnerable witnesses, complying with the provisions of the Act in relation to them and ensuring that all facilities are put in place to enable use of the measures to be made available to witnesses in terms of the Act. Indeed at this stage there appears to be a presumption in favour of a child having the use of at least one special measure when giving evidence in court. In response to all of this, Crown Office has embarked on a significant programme of work to seek to ensure that the provisions of the Act can be implemented.
262. A number of working groups have been set up by Crown Office to deal with a) training of staff in relation to vulnerable witness issues; b) steps to be taken to comply with the terms of the legislation; c) issue of best practice guidance.
263. A Protocol has been devised between Crown Office and Procurator Fiscal Service and Scottish Court Service in order to set out principles to ensure the smooth and effective conduct of proceedings involving the giving of live TV evidence by children.
264. IT systems have required to be updated to provide templates for the Child Witness Notice and Vulnerability Report which is completed by Victim Information and Advice in every petition case.
265. Training for staff has commenced and is presently being rolled out to all staff in Crown Office and Procurator Fiscal Service. Additionally, discussion forums have been set up for the purpose of identifying problems/gaps in guidance, to obtain feedback in relation to experiences of the impact of the Act and to identify good practice.
266. Policy Group at Crown Office are currently working on revising the relevant chapters of the Book of Regulations to take account of the legislative provision of the Act and it is expected that the updating of these chapters will be completed by the end of 2005.
267. Detailed guidance has been issued to staff in the form of circulars and minutes which will continue to be issued as each part of the Act is phased in. Instructions have been issued to staff not to wait until phase three of the Act but that they should implement guidance contained in Chapter 16 of the Book of Regulations and current circulars and minutes which outline special measures currently available for summary cases.
268. The responsibility of each member of staff has been identified in relation to addressing vulnerable witnesses and dealing with issues arising and this has been stipulated to include:-
- Case markers who have responsibility for identifying when a case has a child or adult vulnerable witness, referral to Victim Information and Advice and consideration of whether there is a need for identification procedure to be invoked.
- Precognoscer who must form a view as to whether it is likely that the child will be required to give evidence, assess the child's ability to give evidence using the precognition process and decide in consultation with Victim Information and Advice which measure/s may be appropriate. The precognoscer must also draft and prepare the Child Witness Notice and advise Victim Information and Advice to update the Vulnerability Report if necessary. Close liaison between the precognoscer and Victim Information and Advice will be essential.
- Solemn legal managers who must oversee the progress of the case and ensure compliance with the legislation. Appropriate pre-precognition instructions must be issued, dates set and liaison undertaken with Scottish Court Service regarding arrangements for special measures. The legal manager must also ensure that adequate liaison takes place between Victim Information and Advice and the precognoscer and should consider the need for expert reports. The solemn legal manager must also ensure that Child Witness Notices are dealt with and must authorise any action taken by the precognoscer and Victim Information and Advice re special measures.
- Victim Information and Advice who also have a role in ensuring that the child and parents/guardian are aware of the special measures available and should ascertain the views of the child and the parents regarding the special measures. Victim Information and Advice must obtain information from the witness regarding vulnerability, open and update Vulnerability Report, liaise with Witness Service re pre-trial visit and make decision with the precognoscer re appropriate special measures.
- High Court Indicters must revise the Child Witness Notice, arrange for lodging and service, serve ID Parade Report if appropriate and also if appropriate serve notice on accused that he is barred from representing himself.
- Sitting managers in the High Court must instruct any follow up work and advise Victim Information and Advice and precognoscer of the outcome of any court decision regarding special measures.
- Deputes conducting hearings and trials must be fully aware of the terms of the vulnerable witness provisions, ensure that all steps are complied with until conclusion of the case, check with Victim Information and Advice regarding any changes or additional information and be aware of requirements should case be re-indicted. The Trial Depute must also ensure to check that the Child Witness Notice is lodged and dealt with, check feedback from pre trial visit, review special measures and if appropriate ask for non-statutory measures.
269. Crown Office and Procurator Fiscal Service have also worked closely with the Scottish Executive in various groups dealing with implementation of the provisions of this Act. In the interim new insert leaflets for child witnesses going to court have been devised by Crown Office and Procurator Fiscal Service, are in circulation and advise of special measures available. Child witness information booklets have been published by the Scottish Executive and a CD Rom (for parents and children) has been prepared which provides further information and includes a virtual tour of a courtroom and further information about special measures. A guidance pack on the Act has also been produced for practitioners. An adult vulnerable witness information booklet is also being produced. The information booklets for witnesses will be used by Victim Information and Advice staff to assist parents and children (and eventually vulnerable adult witnesses) when forming their views. Work is ongoing with the Association of Chief Police Officers in Scotland ( ACPOS) in order to develop guidance to assist Police Officers in identifying vulnerability as a significant challenge for Crown Office and Procurator Fiscal Service will lie in identifying those adult witnesses who may be entitled to a special measure. Work is nearly completed on developing practitioner guidance on identifying vulnerability for the purposes of the Act in recognition of the fact that a significant challenge will lie in identifying those adult witnesses who may need special measures. This is being undertaken with the involvement of the Crown Office and Procurator Fiscal Service together with other stakeholders including Victim Information and Advice, the Witness Service, the Scottish Court Service and the Association of Chief Police Officers in Scotland ( ACPOS). The phase of the Act extending to vulnerable adult witnesses in solemn cases and Children's Hearing court proceedings will commence in April 2006 and consultations are being arranged through the Scottish Executive Justice Department Working Group, with a wide range of interest groups eg Scottish Women's Aid, Rape Crisis.
Issues of Concern
270. The implementation of this Act is in the early stages and review of developments will be very closely monitored. There remain many issues which Crown Office and Procurator Fiscal Service continues to give active consideration to with a view to developing guidance and best practice. Indeed there are many new issues to be considered which will undoubtedly require very difficult judgement calls at various stages of the process. The terms of the Act introduce new untested ground where there is no guiding case law and whilst in theory the provisions should assist children and vulnerable adult witnesses in giving evidence, there are concerns as to possible practical difficulties developing in the actual trial setting. Even before the case reaches the trial court there is a concern that child and vulnerable adult witnesses may have expectations about the range of special measures available, only to find out as the trial approaches that for whatever reason the court has refused the use of an additional special measure in the particular circumstances of the case.
271. Witnesses failing to attend for precognition is a very common problem that precognoscers have to deal with and it is unclear how a precognoscer can deal with framing a Child Witness Notice in situations where a child witness has, for whatever reason, failed to attend for precognition and their views could not be obtained.
272. The issue of identification may be particularly difficult later in the process if a special measure is to be used and an identification parade has not taken place. In these circumstances the court would have to be persuaded that use of the special measures amounted to circumstances such as would justify the granting of a warrant for an ID parade to be held, or may impact upon the availability of certain special measures in some cases. Consideration will have to be given to corroboration of the child's identification of the accused.
273. The practical implications regarding the use of a prior statement of a child cause concern as it is unclear whether the prior statement will be the only evidence from the child or whether the child will give evidence in court in addition to the prior statement being presented in evidence. The defence obviously have a right to cross examine and there are concerns as to conduct of cross examination when the evidence in chief has been in the form of a prior statement. If a prior statement is used and the child gives evidence does this mean that the defence can cross examine on both and what effect would this have on the child and the impression of the child's evidence? Again, Deputes in court will have to be very aware of ensuring that a witness is not subject to "unduly harassing" cross examination in relation to a prior statement and specific guidance has been issued in relation to this point (as referred to above in relation to disclosure of a witness's police statement).
274. The legislation is silent as to whether a witness should be allowed access to the prior statement in advance of giving evidence in court and there is understood to be a divergence of judicial opinion on this matter. The Crown will therefore require to proceed cautiously in the use of a prior statement and seek the appropriate guidance if it proposed to use this special measure. It is understood that any potential admissibility issues in relation to the prior statement should be dealt with at the preliminary hearing.
275. The taking of evidence by a commissioner was partly commenced in November 2005. It is unclear what will happen in this situation if the defence ultimately take an objection to the admissibility of certain parts of the evidence and at what stage in the process this would be done. It is unclear whether objections would be dealt with at the stage when the evidence is being taken on commission or whether it would be at the point when the evidence was being led in court. Practitioner guidance was published in November 2005 (Crown Office guidance issued in December 2005) which seeks to clarify a number of matters for those who might select this special measure and be responsible for making it work. The guidance was drawn up with assistance from the Crown Office and Procurator Fiscal Service and the Law Society, along with other stakeholders and covers issues such as ruling on admissibility, the presence of the accused at proceedings and different approaches to holding a commission. Additionally if sections 274 and 275 of the 1995 Act are to be invoked it would appear that evidence on commission would not be appropriate as an additional special measure. In announcing the partial commencement the Scottish Executive also stated that it would be remedying this problem by amending the legislation during 2006.
276. Certain difficulties may present themselves if the child is giving evidence from a remote site (ie if the witness is required to refer to documentary or label productions).
277. Clearly the requirement for full information regarding vulnerability of child and other witnesses will exert pressure on Police Officers to ensure they provide all relevant information about the witnesses in the terms of the Police Report and police statements. It is understood that Scottish Executive guidance is available to Police Officers in regard to this and this will be built upon by the Lord Advocate's guidance to the Police. It is anticipated that a revised Standard Prosecution Report will in due course provide "tick boxes" of vulnerability and mandatory fields dealing with issues such as "fear and distress". These fields would normally be in the confidential remarks material annexed to statements so as not to be disclosed automatically to the defence, although the prosecutor would always require to consider whether such material ought to be disclosed.
278. The relevant part of the Act relating to vulnerable adults in solemn cases is due to be introduced in April 2006 and at this stage is an unknown quantity given the very narrow definition of an adult vulnerable witness as stated in section 271 (1) (b) of the Act (.....those whose quality of evidence will be diminished by a) a mental disorder or b) fear or distress in connection with giving evidence). It is conceivable that a huge number of witnesses could fall within the latter part of the definition as civilian witnesses are commonly fearful of or distressed by the prospect of giving evidence in the relatively alien environment of the courtroom.
279. As a result of the Bonomy reforms from the point of view of the Witness Service there are concerns that although the number of witnesses they would normally require to deal with has fallen by 17 per cent during this same period, however, the volume of Witness Service work with children under 16 has risen by 20 per cent. This is presumed to be due to the implementation of Phase I of the Vulnerable Witnesses (Scotland) Act 2004 and revisions made to the Victim Support Scotland/Victim Information and Advice Protocol to take account of same. Additionally the 'go live' date for implementation of Phase II of the Vulnerable Witnesses (Scotland) Act 2004 approaches in the absence of the supply of any meaningful information to the Witness Service regarding the numbers of witnesses who might potentially be eligible for special measures and hence the Witness Service cannot make the appropriate arrangements to be in a position to accommodate and support affected witnesses. However, we understand that an early output of the monitoring and evaluation of the Act will be an estimate of the numbers of vulnerable adult witnesses that pass through the system.
280. The provisions of the Vulnerable Witnesses (Scotland) Act 2004 have implications for information gathering and sharing for the Police, Crown Office and Procurator Fiscal Service including Victim Information and Advice and for the courts and the Witness Service. Given that the Act only came into force in April 2005, there have been no cases which have proceeded to trial at this moment in time although cases involving child witnesses affected by the Act should be proceeding through the courts in the very near future and will undoubtedly be very closely scrutinised and monitored in order to continually assess the effect and implications of the Vulnerable Witnesses (Scotland) Act 2004. Victim Information and Advice figures from April to September 2005 indicate that 728 child witnesses were referred to them.
281. All parties welcome the new provisions and are actively engaged in joint activity to ensure their proper implementation and are committed to effective delivery. The terms of the reforms resulting from Lord Bonomy's review of the High Court (Disclosure and changes to the Criminal Procedure (Scotland) Act 1995) along with the Vulnerable Witnesses (Scotland) Act 2004 seek to make far reaching improvements to the criminal justice system from the point of view of witnesses. In addition to there being a significant reduction in the number of witnesses who will be required to attend at court and give evidence, the whole court process should be less intimidating and stressful for those witnesses who do ultimately have to attend at court and give evidence. It is clear that the overall package of reform requires, and is being given very careful consideration by the criminal justice partners charged with delivery. The introduction of the reforms is at a very early stage and many benefits and concerns have been anticipated. Whilst the Crown Office and Procurator Fiscal Service have embarked on a wide and detailed programme of work to facilitate the reforms it is apparent that close monitoring and scrutiny will be required at each stage of the "phasing in" of the reforms which will take place over the next few years.