The prosecution of domestic abuse cases at sheriff summary level

Supporting child witnesses

458. In domestic abuse cases, corroborative evidence may be provided by children who witnessed the incident. Child witnesses are those who were under 18 at the commencement of proceedings. In summary cases, this is the date the complaint is served on the accused.

459. During our inspection, we considered how well COPFS supports child witnesses in domestic abuse cases. We considered the role of child witnesses in the cases we reviewed, and we sought to understand more about child witnesses’ experience of the justice process through our interviews. While we did not interview any child witnesses directly, many of the adult victims we interviewed described, through their perspective, the experiences of their children and the impact of the justice process on them. Around a quarter of the advocacy workers we interviewed worked specifically with children.

460. Many of the issues highlighted elsewhere in this report apply equally to children, whether they are a victim of domestic abuse or a witness to the abuse of a parent or another person. In this chapter, we have sought to highlight specific issues relating to child witnesses, and some which may affect children differently.

461. In the cases we reviewed, four (7%) of the 61 victims were aged under 18. There was a widely held perception among those we interviewed that they were seeing an increase in domestic abuse cases where the victim is aged under 18. We were not able to verify this through available data.

Reporting cases involving child witnesses

462. The joint protocol between COPFS and Police Scotland requires SPRs about domestic abuse to address a range of issues relating to children, including:

• whether there are any children from the relationship or whether either the victim or the accused has children and where they reside
• whether there are any concerns about the safety of the children
• whether children witnessed or were present during the incident
• if the offence involves a contravention of section 1 of the 2018 Act, whether the offence is aggravated by involving a child
• the children’s expressed views, and the views of their parents or carers (other than the accused), on giving evidence against the accused
• any expressed views of the children in relation to the need for a non-harassment order.^[92]

463. In the cases we reviewed, we noted that SPRs did not always address all the issues listed above.^[93] For example, even where the reporting officer had listed children as witnesses, the SPR did not always provide the views of their parents or carers on the children giving evidence against the accused. Marking deputes also told us that some SPRs did not provide other information that would better assist them, such as children’s ages. Missing information can delay the marking of the case and case preparation while further information or clarification is sought from the reporting officer.

Special bail conditions and non-harassment orders

464. Some of those we interviewed were concerned that children were not always included in special bail conditions or non-harassment orders. Victims felt they had to maintain contact with the accused, despite the existence of conditions or orders, to facilitate the accused’s contact with children. While the court would expect this to be arranged through a third party to avoid the need for the victim and accused to have any contact, victims said this was often not realistic or achievable. Victims also felt that the accused’s right to contact with children seemed to trump their own safety or that of their family.

465. Prosecutors said they would seek to include children in special bail conditions where it was appropriate and proportionate to do so. As noted elsewhere though, we were concerned that prosecutors did not always have sufficient information from SPRs on which to base their decision. Advocacy workers felt children tended to be included in special bail conditions only when the children were directly involved in the incident in some way, either as a victim or a witness.

Citing child witnesses

466. In the 60 cases we reviewed, 13 children were listed by the police as witnesses in seven cases. Some children present during the domestic abuse incident were not listed as witnesses due to their very young age. Eight children in five cases were ultimately cited as witnesses by COPFS.

467. COPFS has clear guidance for staff on when it is appropriate to cite child witnesses. Whether to cite a child as a witness will ultimately be case and child-dependent. Some children will be keen to have their say, while others may be reluctant to give evidence. Children may be hesitant to give evidence for all the same reasons that any witness may be hesitant but they may also be particularly apprehensive about the thought of speaking out against a parent.

468. We considered that in two cases, children may have been cited unnecessarily. In one case, the child’s evidence was needed to corroborate the victim’s allegation. However, alternative evidence may have been available but was not pursued. Similarly, in another case where the child was cited to provide corroborating evidence, corroboration could have come from another source.

469. Of the eight children who were cited as witnesses, only one has gone on to give evidence so far. This child gave evidence by TV link and used a supporter. Of the other seven children cited as witnesses:

• for four children, the case resolved by way of a guilty plea at the trial diet
• for one child, the case was discontinued at a trial diet
• for two children in the same case, the case was adjourned. This case remains ongoing and, by the time of the next scheduled trial diet, the children will have waited over 18 months to give evidence. The case has involved numerous defence adjournments and six trial diets being fixed by the court. It appears that at least one of the child witnesses has recently disengaged from the process.

470. Some of the victims we interviewed said their children had witnessed their abuse and provided a statement to the police. Their children were cited to give evidence in some cases but not in others. Victims felt there was often a lack of clarity from COPFS about whether a child would be cited, and they wished this information could be shared at an earlier stage. They said citations for children often arrived shortly before a trial diet. Advocacy workers said they contacted COPFS to find out whether children would be cited, but they did not always get a timely response. This limits their ability to help prepare cited children for giving evidence, and causes unnecessary anxiety to children who are not going to be cited.

471. COPFS will generally be aware of whether a child is to be cited as a witness at the marking stage or at another early stage in proceedings. While a child who is to be cited will receive communication from VIA, a child who is not cited will receive nothing. There is therefore scope for children who have provided statements but who are not to be cited to be informed of this fact at an early stage in proceedings.

Recommendation 24

At an early stage in proceedings, COPFS should proactively advise child witnesses who provide statements to the police in domestic abuse cases (and/or their parents or guardians) whether or not they will be cited to give evidence.

Special measures

472. All witnesses under the age of 18 are referred to VIA. VIA will send an initial letter to the child witness and/or their parent or guardian setting out the right of the child to special measures to support them to give evidence. Similar to the initial letter sent to victims in summary domestic abuse cases, VIA states that they would like to discuss the special measures available but that if the child or parent/guardian does not get in touch, then VIA will apply for the default special measures. The onus is therefore on the child or parent/guardian to make contact with VIA.

473. The standard special measures for child witnesses in a summary domestic abuse case are the same as those for adults. They are a TV link from within the court building or from a remote site, a screen and a supporter.

474. The default special measures which VIA will apply for if it does not hear from the child depend on the child’s age:

• for children aged under 12, the default special measures are a TV link and a supporter
• for children aged 12 to 15, the default measures are a screen and a supporter
• for children aged 16 to 17, the default measure is a supporter.

475. The default measure for a child witness aged 16 or 17 in a domestic abuse case is a supporter, while the default measures for a victim in a domestic abuse case are a screen and a supporter. In many cases, the child may not be the direct victim of an incident of domestic abuse, but they may be living in a household where domestic abuse persists. As our understanding of how domestic abuse affects children develops, and given that many child witnesses in domestic abuses cases will be giving evidence against a parent, consideration could be given to reviewing the default special measures available to child witnesses in domestic abuse cases. While we appreciate that they are simply the default measures and other special measures can be applied for, in light of our findings about the accessibility and responsiveness of VIA, we would be concerned that there is insufficient exploration of a child witness’s need and preference for alternative special measures.

476. We have already noted a perception that VIA acts as a ‘gatekeeper’ to non-default special measures for victims. The same perception existed in relation to child witnesses. Where a child witness has an advocacy worker, the worker will assess the child’s ability to give evidence and will discuss with the child what special measures may be most helpful. This information is submitted to VIA. However, child advocacy workers told us that securing non-default special measures can depend on the area and the VIA officer dealing with the case. They felt their emails to VIA about child witnesses can go unanswered, and said some VIA officers are not receptive to the worker’s input. An advocacy worker told us of a case where they requested a TV link for a child witness over the age of 12, but VIA would not support it. At trial, the prosecutor met with the child and the advocacy worker and made a verbal motion to the court for a TV link. This was granted. While the prosecutor’s intervention was welcome, VIA’s failure to request the most appropriate special measure for the child at an earlier stage will have heightened the child’s anxiety about giving evidence and hampered their ability to prepare more effectively.

477. Similar to victims, we heard that child witnesses and their families are not always informed when special measures have been granted by the court. This too affected their ability to prepare effectively to give evidence.

478. In certain circumstances, a prior statement made by a witness can be used as all or part of their evidence in chief. Prosecutors may seek to use a prior statement by a child witness as a special measure to avoid the child giving evidence in court. Where the witness still requires to be cross-examined by the defence, the use of a prior statement can at least minimise the time the witness gives evidence in court. Child witnesses may have been the subject of a joint investigative interview (JII) carried out shortly after the incident. A JII is a video recorded interview by a police officer and often a social worker in which the child describes their account of the incident. Where the JII is of sufficient quality, prosecutors may use it as the prior statement of the child in a trial.

479. We heard that prosecutors will make use of a JII where possible in domestic abuse cases as a child witness’s evidence in chief. We heard that they are often used in the Glasgow Domestic Abuse Court. Prosecutors felt that the quality of JIIs had been improving since the Scottish Child Interview Model was introduced.^[94] However, we also heard about issues which impact prosecutors’ ability to make use of a JII:

• JIIs of child witnesses are not carried out in all cases. Some victims are not supportive of their child taking part in a JII
• there can be delays in the police submitting the recording and transcript of the JII to COPFS
• prosecutors need to check the recordings and transcripts of JIIs to ensure they are suitable for use as a child’s prior statement. They then require to be redacted, disclosed and agreed with the defence. This can take time which a prosecutor in a summary case does not always have. Case preparation time is reduced for prosecutors in summary cases compared to solemn cases, and there is more support for prosecutors in solemn cases with tasks such as redaction of JIIs
• some prosecutors have experienced difficulties playing JIIs on the equipment available in court.

480. Prosecutors working on summary cases said they would appreciate more guidance on using JIIs as evidence and on redacting JIIs. They felt this would result in JIIs being used more often. Where child witnesses are required to give their evidence in chief in court, prosecutors felt they would benefit from further training on questioning child witnesses.

481. We heard that children and their families are often encouraged to take part in JIIs after being told by the police that they will not have to give evidence at court. It is not always made clear to them that the JII may only be the child’s evidence in chief, and that they may still require to go to court to be cross-examined by the defence. When a citation for the child to attend court is later received, children and families can feel misled, and their confidence in the justice process and in justice agencies can be affected.

482. We heard that there can be a lack of joined up thinking about the special measures put in place for a child witness and those put in place for the victim who is often the child’s primary carer. For example, if the child is giving evidence from a remote site but the parent is giving evidence in the courtroom, it can be challenging for the parent to manage this logistically and to ensure the child has appropriate support.

483. Trials may sometimes be part-heard. This often benefits witnesses who have attended and are able to give their evidence, even if other witnesses are not available. However, we heard that a lack of care can be taken when citing witnesses for the remainder of the trial. In one case we heard about, a child completed their evidence on the first day of the trial. The child was re-cited to give evidence on two further occasions, despite their evidence being complete. We also saw insufficient care being taken in relation to the citing of witnesses in our case review. In one case, an adult victim was re-cited for a trial diet despite the charges involving her having been resolved by way of a plea at an earlier trial diet.

484. We heard that it is important for child witnesses to meet the prosecutor in their case when they attend court and were told of examples in which this had made a significant difference to the child. In one case, a prosecutor met with a 14-year-old witness at court and discussed the need for an NHO and its contents. In another case, the same prosecutor spent time with a child witness, reassuring them about the trial process.

485. Within Scotland, significant efforts are being made to limit the need for children to give evidence at court. This includes the Scottish Government’s commitment to developing support for child victims and witnesses based on the Barnahus concept^[95] and increasing the pre-recording of children’s evidence in High Court cases.^[96] The desire to provide more support to children by pre-recording evidence in solemn proceedings in the first instance is understandable – such cases involve more serious offending and typically take longer. Nonetheless it is important to be transparent about what support is available for child witnesses in summary proceedings. Support measures proactively offered by COPFS in solemn cases are not as widely available in summary cases. Advocacy workers were frustrated that child witnesses in summary cases do not currently receive the same support at court as those called to be witnesses in solemn proceedings, despite being just as vulnerable.

Delay

486. While delays in the justice process can negatively affect all victims and witnesses, most of the victims and advocacy workers we interviewed felt that delays had an even greater impact on the wellbeing of children. They said children often felt unable to move on with their lives until the case had concluded and they faced disruption to their schooling. Some victims said they would not report offending again, in light of the impact it had on their children.

Case study

One victim told us about how the domestic abuse case had affected her young child. The victim allowed the child to take part in a JII because she was assured, incorrectly, this would mean the child would not have to give evidence at court. The child was nonetheless cited to give evidence. The trial has been adjourned on multiple occasions. On some occasions, the victim and her child were advised of the adjournment in advance so they did not attend court. On other occasions, they attended a remote site to give their evidence by TV link. On these occasion, they were advised to leave because of an adjournment, sometimes after a lengthy wait. They were not advised of the reasons for the adjournments until an advocacy worker sought this information on their behalf. A few months passed between each trial diet. A few years have now passed since the incident, and the trial has not yet taken place. The victim said the child becomes distressed each time the trial is adjourned.

Communicating with child witnesses

487. Currently, VIA’s approach to communicating with child victims and witnesses is based on the child’s age:

• if a child is aged under 12 years, information is sent to the parent or guardian in a letter. There is no direct communication with the child
• if a child is aged between 12 and 15, a letter is sent to the parent or guardian enclosing a letter to the child. The parent or guardian may then choose whether to pass the letter to the child
• if a child is aged 16 or 17, a letter is sent to the child directly. No information is sent to the parent or guardian.

488. This approach is based on the view that a parent or guardian is better placed to explain matters to a younger child. The approach can be tailored to the needs of an individual child by VIA, if it is thought another approach would be most appropriate. A new policy on communicating with children has been developed in line with the principles of the United Nations Convention on the Rights of the Child, but is not yet operational.

489. We saw some examples of effective communication with child witnesses in the cases we reviewed. For example, in one case, a victim was anxious about her child attending court to give evidence. VIA responded promptly to her calls, provided reassurance, arranged appropriate special measures, and put her in touch with a prosecutor who could answer specific questions.

490. However, communication with child witnesses was not so effective in other cases. For example, in one case, a mother requested that VIA send all communication to the 16-year-old child witness via the mother, as she was concerned that the child would struggle to understand letters due to having autism. Despite this request, VIA continued to send letters directly to the child. More positively, there were several phone calls between VIA and the mother regarding special measures for the child.

491. The issues highlighted elsewhere in this report in relation to communication with victims apply equally to communication with child witnesses. Therefore, addressing recommendations made elsewhere should help address similar challenges in communication with child witnesses. Additionally, there is a need to provide more support and training to VIA staff who engage with children. We heard that many VIA staff are reluctant to speak directly to children, however mature, and would rather speak to a parent. This stemmed from a lack of confidence in dealing with children.