New vision to change children's and vulnerable witnesses' court experience

Category: Special protection measures

2nd October 2017

The SCTS has published a report that describes a radical new vision for the way children and vulnerable adults should be treated in court.

The next in the series of reports from the 'Evidence and Procedure Review, the Report of the Pre-Recorded Further Evidence Work-Stream':

  • looks at ways to encourage and improve the use of taking evidence by a Commissioner - the current system where a child or vulnerable witness can be questioned in advance of trial, under the supervision of a judge;
  • recommends changes to the legislation to shorten the gap between initial interview and further examination - a proposal that the Scottish Government has been consulting on over the summer; and
  • sets out a long-term vision initially for children, to be extended in due course to other vulnerable witnesses, which takes inspiration from the Barnahus (Children's House) model in place in Scandinavian countries.

The report identifies the twin benefits of reducing trauma to young and vulnerable victims and witnesses and improving the reliability and comprehensiveness of the evidence that is given, thus enhancing the quality of justice and the fairness of a trial.

Marking the publication, the Chair of the working group, the Lord Justice Clerk, Lady Dorrian, said:

"In a civilised society, all those who come into contact with the criminal justice system must be treated with respect, and be allowed to engage meaningfully with it.

"For children and other vulnerable witnesses, this means finding ways to take their evidence in an environment and in a manner that does not harm them further, but allows their evidence to be given and tested fully and appropriately.

"In the first Evidence and Procedure Review report three years ago, we acknowledged that Scotland was still significantly lagging behind those at the forefront in the field of measures to achieve this; and that we need to develop our own, Scottish, solutions to the challenge.

"This report is another step in the journey to put Scotland amongst the world leaders in delivering fair and effective justice for all, including the most vulnerable in society."

The report looks at ways to improve how children are questioned within the criminal trial process, focusing mainly on the testing of their evidence through cross-examination.

The Report of the Pre-Recorded Further Evidence Work-Stream looks at the next steps to encourage and improve the use of taking evidence by a Commissioner. Many of the report's recommendations are already being put into place following the introduction of a High Court Practice Note, developed with the assistance of Lady Dorrian's working group.

The report also recommends changes to the legislation to shorten the gap between initial interview and further examination by allowing an application for a commission hearing to be made prior to an indictment - a proposal on which the Scottish Government has been consulting over the summer.

The report then sets out a long-term vision for a radical new approach that could be introduced at first for children, but then extended to other vulnerable witnesses. Taking inspiration from the Barnahus model in place in Scandinavian countries and being introduced across other European jurisdictions, the working group considered that children under the age of 16 years who are complainers in cases involving the most serious crimes should be spared involvement in the court process altogether. Such children should have their complete evidence taken in the course of visually recorded forensic interview(s) conducted by highly trained, expert forensic interviewers who are skilled in taking the evidence of children. In this model, there would be no direct questioning of such children by lawyers.

The report recognises that realising this vision would require a fundamental shift in practice. It would require increased investment to establish a body of highly trained, skilled and experienced interviewers and to upgrade equipment and facilities in which to conduct and visually record forensic interviews.

Chief Executive of the SCTS, Eric McQueen, said:

"The Evidence and Procedure Review has, over the past three years, shone a light on the need to transform the way in which we take the evidence of children and vulnerable witnesses. This report sets out an ambitious and radical vision for the future which we intend will inform the debate and development of policy, and will contribute to enhanced justice for everyone."

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