Justice Committee

Meeting date: Tuesday, November 20, 2018

Official Report 795KB pdf

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Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill: Stage 1

Good morning, and welcome to the Justice Committee’s 30th meeting in 2018.

The first item on the agenda is an evidence session with the Scottish Government bill team for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome from the Scottish Government Karen Auchincloss, criminal justice division; Lesley Bagha, criminal justice division; and Louise Miller, legal services directorate. I invite Karen Auchincloss to make opening remarks.

Good morning, and thank you for the opportunity to make opening remarks on the bill.

The main purpose of the bill is to improve how children, in the first instance, and vulnerable witnesses participate in our criminal justice system, by enabling the much greater use of pre-recorded evidence in advance of trial.

The bill builds on the work of the Scottish Courts and Tribunals Service’s evidence and procedure review, which made recommendations on how to improve the treatment of vulnerable witnesses in the Scottish criminal justice system. Those recommendations included proposals on how to protect vulnerable witnesses—focusing on children in the most serious cases—from further traumatisation, by introducing a new rule that they will pre-record their evidence.

The main reform in the bill is to create a new rule for children under 18 who are complainers or witnesses, to ensure that, where they are due to give evidence in the most serious cases, they will have it pre-recorded, unless an exception applies. The new rule applies only to solemn cases; committee members will have noted that the bill makes no provision in relation to summary cases. However, in a summary case it is currently possible to pre-record under the current legislative provisions.

The bill does not extend the new rule to a child who is accused. That was considered, but it was decided that it was not appropriate, given the practical issues. Those issues are expanded on in the policy memorandum. Again, it is important to note that, under the current legislative provisions, the evidence of an accused person can be pre-recorded.

The bill includes a power for the proposed new rule to be extended to adults who are deemed vulnerable witnesses in solemn cases. That will potentially include complainers in sexual offence, human trafficking, stalking and domestic abuse cases. The Scottish Government considers that those categories of witness would benefit from the greater use of pre-recording; the power therefore ensures that the bill’s most significant reform can be extended beyond child witnesses in due course.

As committee members will be aware, evidence by commissioner is the special measure that is used to allow for evidence to be pre-recorded in advance of a criminal trial. The benefits of the approach are that the date and time for evidence by commissioner can be scheduled in advance, avoiding uncertainty for vulnerable witnesses, the atmosphere is less formal than that of full court proceedings, and evidence can be recorded directly or via remote videolink from another location. The evidence is then played at the trial without the witness having to be present.

The bill removes legislative barriers that might have a detrimental effect on the greater use of pre-recorded evidence. If appropriate, a commission could happen prior to service of an indictment, although, as committee members will note from the policy memorandum, in the short to medium term it is considered that applications for evidence by commissioner to be taken in advance of the indictment are likely to be rare.

The bill introduces the concept of a “ground rules hearing”, to ensure that all parties are prepared and the issues set out in the practice note are considered. It is important to note, however, that the bill provides the flexibility for the ground rules hearing to be conjoined with another hearing, if appropriate.

The bill also makes provision with regard to the role of the commissioner, to ensure that the commissioner has the same powers as a judge to review the arrangements for a vulnerable witness giving evidence and to encourage that the same judge undertakes the ground rules hearing and the commission, where that is reasonably practicable.

Finally, the bill makes provision for a new, simplified intimation process for standard special measures for child and deemed-vulnerable adult witnesses, which, where it applies, will streamline the current process by making it an administrative rather than a judicial process.

Good morning, and thank you for your opening remarks. Will you outline the special measures that are in place at the moment and how the bill will affect them?

The bill does not change the special measures as they operate at the moment. Standard special measures are those that witnesses are automatically entitled to, such as a screen, a supporter and a television link. Non-standard special measures are those made on application, such as evidence by commissioner, use of a prior statement—something that has been recorded before, whether or not that is written down—or a joint investigative interview by a police officer and social worker.

The bill does not change how special measures operate at the moment; it creates a new rule that, in certain circumstances, a child who is under 18 would have their evidence pre-recorded by using the special measure of evidence by commissioner.

For the avoidance of doubt, are we definitely talking about children under 18?

Yes.

Will you say a bit more about the main benefits of pre-recording evidence? We are aware of the obvious benefits of removing the vulnerable person from a stressful situation, but it would be useful if you could expand on that and on how the bill seeks to encourage the greater use of pre-recorded evidence.

As I said, the commission would be scheduled, so the witness would know exactly when it would take place, which would take away the uncertainty of timings. The environment is meant to be less formal for a child or a witness who gives evidence.

The bill creates a framework for the greater use of pre-recorded evidence. Behind that is Lady Dorrian’s introduction last year of a revised practice note, to encourage greater use, as members are aware. The practice note is quite comprehensive and sets out in great detail what the court and parties should consider before a witness gives evidence, such as the removal of wigs and gowns and the location where the witness gives evidence. For the witness who pre-records in advance of the trial, which could be some months later, that day is the end of the process.

That currently happens under the new guidance in the High Court practice note. The bill provides for a ground rules hearing, which will have to happen before the commission takes place and can be incorporated into a preliminary hearing. It will mean a lot of focus on making sure that the parties are ready before a child or vulnerable witness gives evidence, which will involve consideration of what kind of questions there will be, whether everything is appropriate and whether breaks will be needed. That added scrutiny and preparation would probably not happen at the moment.

Karen Auchincloss mentioned the power to expand the scope of the new rule. It would be helpful to hear what timeframe you think is realistic in that regard. What was the reasoning behind having an initial focus and providing for a power to extend the rule? Was it about phasing the approach in, in an orderly fashion, or are there capacity issues?

The bill’s main focus is on children, because we wanted to start somewhere and to target the most vulnerable. That is not to say that other people are not vulnerable. I accept that some stakeholders would like the bill to go a bit further, a bit more quickly. However, a fundamental point is that this is a significant change to how evidence is taken at the moment. It is important to get it right, for the practice note to bed in and for people to get used to the new way of working.

We accept and recognise that other categories of witness would benefit from this special measure on the way in which evidence is taken, but we are keen to get it right from the very beginning. The danger if we expand too quickly is that witnesses will not benefit. We are working with stakeholders on a potential implementation plan in relation to how the bill’s various powers could be used. Should we target certain cases for deemed-vulnerable adult witnesses or specific locations? We are very mindful that a lot of people would like the powers to come in quickly, but it is important that we do not rush.

When will the implementation plan be ready? I presume that broad timeframes will be attached to the plan.

We are working with stakeholders on potential implementation. When the cabinet secretary comes to give evidence after the new year, he might be able to update the committee.

The one thing that we have learned from our discussions and, indeed, from what is happening in other jurisdictions, is the importance of ensuring that, if there is an ambition, the work is done properly and there is time for monitoring and evaluation. Because these proposals deal with very vulnerable people, we have to get them right. Even though, as Karen Auchincloss said, evidence by commissioner has been around for a number of years, it has been used relatively infrequently, and we cannot say enough how much of a substantial and significant change these proposals represent. Of course, it depends on the views of the committee and the Parliament, but the proposal is for a legal rule that, in a sense, will be relatively inflexible and could make a massive change.

We therefore have to ensure that we get it right. It is a matter of not just making a legislative change but making sure that all the practical changes that go along with it are made, too. We are in close contact with our counterparts in London, who have been undertaking pilots on the various versions of pre-recording evidence under sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999. One of the big lessons that we have learned from our counterparts is that things probably take even longer than we think and, to get it right, we need to build time into all the stages to monitor, evaluate and learn from the experience before we roll things out to the next stage.

The Government’s current position is that, as has come out in the evidence and procedure review and the work that we have done, the initial focus should be on children, but for any power in future, the issue will have to be carefully evaluated and considered. Ultimately, that is a matter for Parliament and ministers.

Thank you.

Good morning. On your point about the importance of the ground rules hearing, we have discussed how lines of inquiry can be pursued with questioning agreed in advance and how, depending on the answer that a witness gives, the commissioner might need to pursue a line of questioning that was not predictable at the outset. Is the expectation that the guidance notes will cover how that situation should be handled, or is it likely to fall to the discretion of those conducting the commission?

It will probably fall to the discretion of the individual in question and whether they think that they need to bring back a witness. That will certainly be a matter for the court. When we developed the ground rules hearing policy, we took quite a lot from how things operate down south, where the system is quite similar. In fact, I think that writing all the questions down is a prerequisite. We asked people down south whether the situation ever arises where someone discloses something else or says something unexpected, but the feedback was that because parties have fully considered all the issues and looked at the evidence and disclosures that they have, the issue has not tended to come up. However, it could happen.

Questions could be supplied for a ground rules hearing—indeed, the High Court might think it appropriate to do so—but an issue to take into account is the broad content involved and ensuring that questions are asked that the child can understand. I would have thought that if something unexpected were to come up in a commission, the commissioner—who would be a judge or sheriff—would still have the flexibility to say, “I want to pursue this line of questioning.”

The one thing that we have been keen to stress with these proposals is that nothing about them stops the legitimate testing of a witness’s evidence, which is absolutely key and important in all of this. This is about getting the best evidence in a more controlled environment, but that does not mean that cross-examination will be limited in any way.

Presumably the other end of the spectrum is that where a child does not provide an answer, because they either cannot recollect or are uncertain of something, there will be limitations on how far that can be pursued. Will there, at some relatively early point, be an agreement that the answer is what the child provides?

Yes.

You have said that the procedure is used at the moment but nothing like to the extent that is anticipated. Even though there will be a phased process, with evaluation taking place before the next phase is rolled out, has the Scottish Courts and Tribunals Service said anything about the financial implications of this expansion? Does it believe that it has the resources at the moment to manage the process through to its conclusion, or will that depend on the evaluation that takes place, subject to the legislation coming in?

The financial memorandum sets out a range of estimated costs, because at this stage we just do not know how many people will go on to give evidence by commissioner. For children, the costs start off at half a million pounds. If all children are cited, the costs rise to about £3.5 million. If you extend that to adults who are deemed vulnerable witnesses—again, this is very much an estimate, because we do not how many would go on to do this—the costs go up to about £14 million.

Clearly there are significant resource implications for the court service, the Crown Office and the Scottish Legal Aid Board. Although the costs are set out in the financial memorandum, decisions that are taken in the spending review will also come out in due course.

11:15  

I understand that the equipment, technology and so on that are needed will be an expansion of what is currently used, rather than there being a requirement for different equipment.

That is absolutely correct. It is an important point. The equipment is not used much now, and the Scottish Courts and Tribunals Service has recognised that, if the proposals are agreed to, it will need to upgrade its venues and information technology to ensure that it is ready. You will probably have seen the Scottish Government’s recent announcement of funding of £950,000 for facilities in Glasgow to be upgraded to provide vulnerable witness hearing suites and sensory rooms and have state-of-the-art facilities, so that Glasgow can start taking more evidence by commissioner. We are closely involved with the court service in looking at other areas, possibly including mobile equipment. Alongside the legislation, ensuring that the practical infrastructure is in place is an important workstream. The court service is doing a lot on that right now, and I am sure that, when it gives evidence to the committee, it will be able to give you a lot more detail on that work.

If members have supplementary questions, I ask them to make those questions absolutely on point to ensure that we do not stray into areas that we want to cover later.

I want to ask about the reasons for not applying the proposed rule on pre-recording evidence to the child accused. I think that that is covered by subsections (7) and (8) of proposed new section 271BZA of the Criminal Procedure (Scotland) Act 1995, which provide that an exemption would apply, for example, if

“the giving of all of the child witness’s evidence in advance of the hearing would give rise to a significant risk of prejudice to the fairness of the hearing”,

or

“it would be in the child witness’s best interests to give evidence at the hearing.”

Who makes that judgment?

Sorry, was your first point about the child accused?

Yes. Obviously, exceptions exist in the legislation as it stands.

The bill does not extend the new rule to the child accused at all; such children are not within the scope of the bill. The exceptions apply for children under 18 who will be caught by the new rule.

With regard to those children, then.

The exceptions are extremely tightly drawn. I would not envisage a situation in which they would be applied, but the provisions give a bit of flexibility in the interests of justice or for circumstances in which there is a significant risk to the fairness of a trial. However, the position will be that, in the vast majority of the cases for which the bill provides, children who are under 18 will give pre-recorded evidence.

Who makes the overall judgment on the risk to the fairness of the trial? Who does that decision rest with?

It rests with the court and the judge.

On the current and expected future use of prior statements, Lesley Bagha alluded to there being more evidence, because there will be more evidence gathering by commissioner. That is already happening; do you expect the same level or an increase?

Pre-recording can happen in several ways. If all the child’s evidence were to be given in advance of the trial, that might happen through a prior statement—that is, when just the child or witness’s evidence in chief is recorded, which can be done in writing or by video recording. Karen Auchincloss touched on that. In Scotland, there is less use of video recording by the police, but there is one circumstance in which that happens more often: the joint investigative interview, which is led by the police and social work team, who interview the child and record their evidence. As there are child protection issues, the police and social work team look at things from that point of view.

That interview could be introduced as part of the pre-recording of the child’s evidence, as a prior statement, although it would not cover the cross-examination or re-examination, which might be done by the process of evidence by commissioner. Alternatively, all the witness’s evidence could be gathered by a commissioner. There would be just the one hearing, in which the commissioner could ask various questions and record all the evidence for the trial. There are several different mechanisms for recording evidence in advance.

Can you update us on the development of the national standards for joint investigative interviews? A recommendation in favour of that approach was made in 2017.

That is right. That was a recommendation by one of the sub-groups from the evidence and procedure review. A lot of work is being done on that at the moment. As you will be aware, there were areas of good practice in joint investigative interviews, but there were also many areas that the review group felt could be improved, particularly in relation to the IT but also in respect of training and guidance.

A lot of work is under way. My understanding is that it is focusing mainly on the training that will take place for people who conduct such interviews. A revised training programme is being developed and there is an intention to design national standards. All that work is going on in sync, and it is very much in tune with the idea that, if we are to have more pre-recording, we have to get the pre-recorded evidence up to the best possible quality. A lot of work is going on in that regard and will carry on.

Karen Auchincloss mentioned in her opening statement that the policy memorandum outlines the reasons why the bill does not extend to child accused persons. Will you briefly set out those reasons, perhaps as bullet points?

Obviously, a child accused has a completely different status from a witness—for example, the child already has access to legal representation and has a choice about whether to give evidence. As I said, it is technically possible for an accused person to pre-record evidence, but that has never happened, to our knowledge, so it did not seem to be sensible to apply a rule to a category of person when the special measure is already available but has never been used.

Over the summer, we did more work with a lot of stakeholders. Some of that has just been published online. I think that in it there is recognition that pre-recorded evidence would not really work for an accused person. However, a point came out about the wider support that child accused persons need. We will have to take that and consider it.

A lot of work was done on the matter. In responses to the Government’s consultation, many people were in favour of including child accused persons in the bill, but when we spoke to people, we found that that would raise practical issues and could be very prejudicial. Normally, an accused person—including child accused persons—would, on the advice of legal counsel, decide whether to give evidence only once they had heard all the Crown evidence against them. If evidence were to be pre-recorded, that would be done in advance. None of the advantages of pre-recording that we have talked about, such as the person not having to attend the trial, would apply, because an accused person has to be there and listen to the trial in the courtroom, but their case could be prejudiced, which would strike at the heart of the policy, which is about the best interests of the child.

As Karen Auchincloss said, once we actually talked through the issue, a general consensus grew that pre-recording is not the answer.

On the point about supporting the child accused, we heard during our visit to the High Court yesterday that there are things that could be done now that are not being done and which would not need to be included in the bill. For example, a child accused does not have to be in court—they can listen to the evidence in a separate room. Obviously, that is a bigger legal question that is not to do with the bill.

Good morning, panel. I first have a supplementary on that supplementary, then I will go back to Jenny Gilruth’s question.

Do the rules on child accused persons take cognisance of the Age of Criminal Responsibility (Scotland) Bill, which is with the Equalities and Human Rights Committee?

Yes. We work closely with other Scottish Government officials, especially when there are connected policy interests, so we have been engaging with the officials who are involved in that bill. As I said, and as Lesley Bagha touched on, although we recognise that pre-recording is probably not the best special measure, a lot of wider support work could be done that would benefit from further consideration.

From what I have seen, that work seems to fit the ethos of that other bill.

My next question is on joint investigative interviews. I declare an interest as a registered social worker who has been involved in such interviews. You might not have exact statistics, but roughly how often are they currently used as pre-recorded evidence?

To be honest, I would be guessing if I were to give you a number, so it is probably better if we write to you with specific information. However, I understand that many more joint investigative interviews happen than are admitted in court. That is partly because their quality is not good enough to meet the test for being accepted in court as a prior statement. Obviously, there would ultimately have to be a court case, so we want to change that situation by improving the quality of those interviews.

Would you like us to find out the numbers—if they exist—and write to the committee on that?

Yes, please. That would be helpful.

I want to ask about the nuts and bolts, but before I do that, I have a question about your comment that the bill in some ways formalises existing practice and seeks to extend it. I will ask another numbers question. How many children currently give evidence through the special measures and how many more will benefit following enactment of the bill?

The numbers were extremely low, but they have steadily increased since the introduction of the practice note. From April 2018 to August 2018, there were 82 applications for evidence by commissioner in the High Court, of which 71 were for children and 11 were for adults. We must recognise that it is important not just that the numbers go up, but that overall quality and consistency improve across the board.

If the bill is passed in its current form, the maximum number of children involved would be about 759, and about 2,000 adults would be deemed to be vulnerable witnesses. The numbers that would result from the bill are quite significant. It is encouraging to see that the numbers have been steadily increasing since the practice note was issued.

To give that a bit of context, those 82 applications were for a period of just five months, whereas in the previous period of almost a year, from April 2017 to March 2018 when the High Court practice note was introduced, there were 62 applications. The committee can see that there was a substantial increase, although it is as nothing compared to the increase that would occur under the proposals in the bill, which is why they are seen as such a big change. However, even the current increase is quite a big change to get used to and be set up for. The High Court practice note seems to be having a positive effect already.

It is useful to have that context.

You have said that the proposal is just for dealing with solemn cases. Can you explain the rationale for not extending it more broadly to summary and sheriff court cases, which would involve much larger numbers?

As I said, the bill is a framework to encourage and start greater use of pre-recording of evidence. We have focused on the most serious cases because that is an appropriate place to start. However, if to do so were deemed to be appropriate, the special measures could be used in the sheriff court at summary level. However, as Daniel Johnson suggested, the number of people in sheriff courts at summary level is significantly higher than the number for solemn cases.

Would the Government look to review how the practice might be extended in the future using non-legislative means—or legislative means, if they were required?

Since the introduction of the practice note, there has been a period of monitoring and review by the court service. Clearly, the Scottish Government has an interest in that. If the bill is passed in its current form, there would be a period of continuous monitoring and evaluation as we commenced the various powers.

The ultimate aim is for the approach to become the norm. However, that will take a bit of time because it is a culture-and-practice thing. The current special measures for evidence by commissioner are already in legislation, so we will not need to introduce further legislation—the facility already exists and people can use it.

It is for Parliament to consider whether it would be appropriate to have a rule that is relatively inflexible or to leave things being dealt with on a case-by-case basis. As my colleague said, it is possible to apply for special measures in summary cases, if that is appropriate.

The current proposal in the bill is that the provision will apply to children under 18 in certain solemn cases, but the bill also proposes quite wide powers to remove the list of offences, which would ultimately mean that such measures would apply to all children under 18 in the High Court and in sheriff court solemn cases—which would be massive—and that they would be extended to all adults who were deemed to be vulnerable witnesses. Even the proposal for the first group is a big change: to go down that road would be huge. We need to manage expectations about how far we can go down it and how quickly.

I turn to ground rules hearings. Given the discussion that we had yesterday with people at the High Court and from your evidence, it is clear that those hearings are critical to establishing how evidence will be taken, and to ensuring that the sensitivities that we all hope would be considered are considered. As we heard from Rona Mackay, some people do not know that they can ask that particular provisions be used or approaches be taken in court.

What safeguards are in place to ensure that those questions are asked, and that we do not just rely on the defence counsel and the prosecution to know to ask the right things or to agree to a particular approach? What would prevent, many years down the line, a particularly aggressive defence counsel, who does not agree to particular lines of questioning or approaches being taken, from taking advantage of that system?

11:30  

The practice note is comprehensive. At its heart is the idea that the vulnerable witness and their needs are put first. The practice note also references what is called the advocate’s gateway, which is used in England and Wales to provide, for advocates, comprehensive training in how to cross-examine children. Whether the practice note is followed is a matter for the judge in each case, but I understand from feedback that I have received that the numbers have started to increase, that people are getting used to taking evidence by commissioner, and that the practice note is being followed and considered.

My final question is about timelines. Even in the speediest of circumstances, it can often take 18 months to two years for a crime to come to trial, and that is for something that is recent, not historical. How much earlier in the process will the proposal enable evidence to be taken, given that we all agree that, by and large, with some caveats, the rough rule of thumb is that the sooner evidence is taken, the better?

The bill will remove or amend current provisions by allowing a commission to happen prior to the service of the indictment—the current legislation defines commencement of proceedings as being from service of an indictment. The proposal means that a commission could happen after an accused person has appeared on petition—which is, obviously, some time before service of the indictment. That will remove the legislative barrier. It had been highlighted to us that that might be why commissions do not happen earlier.

We set out in the policy memorandum that, in the short-to-medium term, we would not expect a lot of commissions to happen pre-indictment, because it is only at the point at which the indictment is served that the accused knows all the charges that they face. The proposal will remove that requirement and ensure that there is a little bit more flexibility, so that when the provisions start to bed in and people get used to them, there might be cases—it would be done on a case-by-case basis—in which it might be appropriate to have a commission before service of the indictment. That would be a matter for the Crown Office and the defence, because—obviously—the defence still has the right to cross-examine.

In practical terms, what will that mean? Are we talking about a few weeks earlier, a few months earlier or even a year before the trial?

I can write to the committee with a better indication of the timescales, but my understanding is that somebody could appear on commission and it could be six or eight months later that the indictment is served. We recognise that some cases take far too long between the initial report and their getting to court.

There is a wider context to the matter. Obviously, with the bill, we are looking at pre-recording. However, in the summer, the Cabinet Secretary for Justice announced—I think—£1.1 million of funding to help the court service and the Crown Office to reduce the amount of time that sexual assault cases take to get through the system. In our policy memorandum, we supply a lot of the wider context, too. In a sense, the issue that we are discussing is just one part of what needs to be done; we need also to consider the wider issues.

We are aware of a number of issues. The various parts of the justice directorate and the ministers, with the court service and the Crown Office, are considering how we might address those issues other than through pre-recording.

There have been a number of references to the practice note. Can you say a bit more about it? Is its author Lady Dorrian? What regard does the legislation have to it? Is it a dynamic document—is it evolving?

I sat on the practice note sub-group, which was one of the sub-groups of the evidence and procedure review. I was there as a Government observer, alongside representatives of the legal sector and the third sector. Lady Dorrian chaired the group, which dealt with a number of practical issues that were raised on the back of the initial evidence and procedure review—for example, what might be done to enable greater pre-recording. The court service developed the practice note, but that was done with input on how the process could work from all the sectors.

The practice note is quite lengthy. I believe that the sub-group considered the issue for about a year before Lady Dorrian issued the practice note, which I think was in May 2017.

The High Court can bring in practice notes, which it does regularly. The note could be updated at any time. Right now, the practice note is only for the High Court. It will be for the court service to decide whether it wants to deliver a similar note for sheriff courts. We understand that, at the moment, if there are commissions in the sheriff court, parties take cognisance of the High Court practice note, but the sheriff court does not have its own one.

In respect of the bill, we have picked a few key elements of the ground rules hearing that we think should be in primary legislation. In a sense, it is better to limit what is in primary legislation, compared with what is in the practice note, for the very good reason that the practice note is a fluid document that is easier to amend as lessons are learned.

The court service is currently evaluating the success of the practice note. The committee may be aware that the service very recently issued its first evaluation report, which was about how the guidance for the practice note is working in the High Court, and it received very positive feedback. I think it intends to do a second evaluation report in the next few months, so I am sure that there will be a further update. Lessons that are learned in the evaluation will result in further adaptations—that is for the court service to provide more information on.

Is this something that it is nice to do, or that has to be done, or, because it exists, is followed in any case?

Do you mean the High Court practice note?

Yes.

The High Court practice note is a very important vehicle because it means that all the parties to a case, not just the court and the judiciary, are aware of what is expected of them, and it provides form and guidance. It sounds as if the note is already having a positive influence—the increasing numbers of applications and how prepared they are shows that there is a lot of merit in it. Clearly it is also a “nice” thing to do, but it seems that it is having a very positive influence as well, so it is probably more than that.

Thank you very much.

Some submissions expressed concerns about the possibility of miscarriages of justice. In her opening remarks, Karen Auchincloss talked about the setting being less formal, but some people might suggest that the process will be taken less seriously. For example, it will not allow a jury to see a contemporaneous cross-examination. How reassured are you that miscarriages of justice will not happen?

I am very reassured of that. Some people might think that the process is less serious because it is less formal, but at the heart of the process is protection of the most vulnerable people. By using a less formal setting in which they might feel more relaxed, we are likely to get better evidence. In the interests of justice, obtaining the best evidence can only be a good thing.

The process will still be under judicial scrutiny. We must remember that, often, the witnesses give evidence on very traumatic matters. What we might see as a more informal setting could probably still be very intimidating for such witnesses. As they happen at the moment, commissions are informal in a sense, but there is still legitimate questioning on difficult subjects.

On your point about the jury not seeing the witness give evidence, as part of the Scottish Government’s research into commissioning of juries, in—I think—the last year we published an evidence review that relates to how pre-recorded evidence is seen by jurors. The review was particularly interesting in respect of the evidence of child witnesses, in that it did not show—as one might have expected—that such evidence carried less weight or lost anything due to prejudice. The review was positive in that respect. If the committee does not have a link to that evidence report, I can send it.

I thought some of the conclusions from that report were very interesting.

In the bill, there is an exception to the rule about pre-recording evidence, which is if it would

“give rise to a significant risk of prejudice to the fairness of the hearing”

and

“that risk significantly outweighs any risk of prejudice to the interests of the child witness”.

That is interesting phrasing, because it suggests that any risk of prejudice to the child’s interest would outweigh the fairness of the trial.

That is already set out in legislation on other matters relating to special measures, and it is accepted. The right to a fair trial, as set out in article 6 of the European convention on human rights, runs underneath any decision that is taken on the matter.

Would the fairness of the trial remain paramount?

Decisions must be compliant with the convention—even the decisions of judges. The wording that we use in the bill is already used in the Criminal Procedure (Scotland) Act 1995. It is not new wording. It can therefore still be seen to provide for a fair trial. The miscarriage of justice point has been raised with us before, so it is an issue to which we are very sensitive.

I cannot speak for other people and what they might personally think about miscarriages of justice, but there might be a fear that we are in some way trying to remove or limit the right to cross-examination, or that we are trying to stop proper testing of evidence. We have tried to make it clear that we are absolutely not doing that. That is not the policy intent—it is about having more focused questioning in more appropriate circumstances. It is not in any way about the defence not being able to put legitimate questions directly to the witness, which is still absolutely the intention.

I presume, however, that you accept that the provision will require a cultural shift—or a shift in mentality—in the adversarial process that we have?

That is right. It is a movement towards saying that our having a more trauma-informed way of approaching children and vulnerable witnesses does not mean that we are removing the accused’s right to a fair trial by testing their evidence. Enabling a witness to get their evidence out should not undermine fairness to anybody else. What we are doing is letting them tell their story and then allowing legitimate questions. Whenever such concerns are raised, we always work with the legal sector to try to alleviate them. Our intention is not at all to undermine fairness. It is about providing better circumstances in which vulnerable children and other witnesses can give their evidence, and that it can be properly tested at all times.

In its submission, the Faculty of Advocates suggests that it should be a requirement that “sufficient safeguards” are in place to ensure fairness. What do you understand such safeguards to be, and are you comfortable that they are in place?

We would probably have to have someone from the faculty here to say exactly what its concerns are. It has previously said to us—and I am sure that it will say so in its evidence—that it is slightly concerned that the way in which the bill has been drafted might mean that it is possible for just a prior statement to be submitted to the court and for there not to be any form of cross-examination or evidence by commissioner. We are 100 per cent clear that that is not the policy intent. The bill has been drafted in that way just to explain the ways in which pre-recording can happen. If a defence agent ever wanted to cross-examine such a witness, that could happen, but it would have to comply with the European convention on human rights.

What we have tried to allow for in the bill—and where concern has sometimes arisen—is that there is a real possibility that a child’s prior statement might be taken and the defence might not have any questions. If that is the case, we do not want a commission to have to be set up and for everybody to be sitting there, only for the defence to say that it has no questions and for the child to be sent away. We have to allow for some circumstances in which the prior statement might be the only evidence. However, if the party that has not called the witness wants to do any questioning, that will still happen.

I understand that, but I might pose the question again. If the Faculty of Advocates—a very powerful voice—has said that sufficient safeguards need to be in place, presumably you will have taken time to understand what such safeguards would be and, if you think them legitimate, to build them into the legislation.

Absolutely. We have had a number of meetings with the Faculty of Advocates, and its representatives have been very helpful and supportive in that respect. A key safeguard is that everything that is set up for the ground rules hearing and the commission is always done under judicial scrutiny, so the judge is always there to ensure that a fair trial can take place. That is one of the main safeguards, and we are not removing it in any sense. In the same way, we want to ensure that nothing further goes. We will listen to the faculty’s evidence in due course and, if there are further safeguards that we have not thought of, we will absolutely take them on board. As I have said, it has been very constructive in its dealings with us, and we hope that it will carry on being so.

Fulton MacGregor has a supplementary question.

I hear what the Faculty of Advocates has said, and I think that it has been very constructive, but it sounds as though the bill is, in essence, providing a safeguard for the court process by changing the environment in which vulnerable witnesses give evidence. Do you agree with that?

As I touched on earlier, the hope is that the approach is about somebody being able not just to give evidence but to give their best evidence, and the bill’s provisions have always had that in mind. They are not just about getting evidence but about securing the best evidence from the child or the vulnerable witness.

And thereby safeguarding the court process.

Yes.

What is your opinion of the Barnahus model? Will the bill bring us any closer to that?

The first thing to say is that the bill is absolutely not about Barnahus. I have previously had some involvement with that concept, and the main thing that I would say about it is that it is a general concept.

11:45  

It is often talked about as the Barnahus model but, as it has slowly been rolled out in different parts of Europe, each country has adapted it according to its circumstances and what works best there. Before Barnahus was moved to another unit, I had formal dealings with it. I went over to Europe as part of the European Union promise project—I do not know whether you have heard of that—which was an EU-funded programme that brought together representatives from lots of different countries to find out about Barnahus. Some of them were setting up the model and some were just considering it. Initially, representatives of the courts service and Children 1st went to the meetings; I went to the very last meeting. It struck me that I was the only justice representative there, although perhaps there was a police officer there, too. A lot of people who work in health and child protection went, because a lot of what Barnahus is about is the trauma-informed child focus.

When I was over at that meeting, I spent a bit of time talking to one of the main people responsible for bringing the Barnahus model to Europe. He is a gentleman called Bragi Guðbrandsson. He was the director general of the child protection agency in Iceland, but I think that he has left that job, because he is now a committee member of the United Nations Committee on the Rights of the Child.

I spoke to him because I was looking at Barnahus from a justice point of view. He was clear that Barnahus could work in an adversarial system, although most systems that have set it up are inquisitorial. There would be no problem with Barnahus, but adapting it to an adversarial system would mean that you would not tend to have the one-stop-shop of Barnahus with one forensic model interview. You could still have bits of pre-recording, because Barnahus is much more about wraparound services, forensic medical examination, therapy and advocacy, and about all that happening in one place.

Currently, the Scottish Government is just exploring the Barnahus concept and whether it could be adapted for Scotland. That work is at the exploratory stage now.

You have not mentioned the streamlined process for arranging the use of standard special measures. The bill provides for an automatic entitlement and makes the process administrative rather than judicial. Will you talk about that?

At the moment, if somebody is automatically entitled to standard special measures, they are automatically entitled. However, as the legislation is framed, the applications and notes go to the judge, so this provision is just to free up judicial time and to make it more of an administrative process. Another thing with standard special measures is that people are automatically entitled to them and no other parties can object. The provision will make the process more administrative and less of a judicial rubber-stamping exercise, which will free up time.

Is there no concern that, by making it an automatic administrative process without the judge casting their eye over who is before them, someone who needs not just the standard measures but others might slip through the net?

As it is framed at the moment, the legislation has review provisions so that a court or judge could review it if they thought that the most appropriate special measure had not been applied for. The new rule has review provisions built in as well.

My question is on something slightly separate. The SCTS evidence and procedure review referred to research that indicated that the current system of examination and cross-examination is not a good way to obtain accurate evidence from a vulnerable witness. That is referred to several times in our papers, which is interesting. Can you give us a bit more detail on what the evidence said? Is the research scalable to not only other vulnerable witnesses but the whole system as it stands?

Yes. The evidence and procedure review looked at the adversarial system; probably, it was looking at a bigger picture than that. In relation to Mr Finnie’s questions about the sub-group on joint investigative interviews and Lady Dorrian, I mentioned that that was, in part, looking at a longer-term vision that could be achieved by potentially moving from that system to having just one forensic interview for a case. I think that it was level 1, so it was only for certain child witnesses. That was very much seen as being a long-term vision.

Obviously, Lady Dorrian and the courts service can speak for themselves, but it is safe to say that that could not be done quickly. In a sense, what is being proposed by the Scottish Government is a first step to getting the whole system used to pre-recording being the norm. That does not happen at the moment.

Whether we currently have the best system is probably beyond what we can comment on, but a lot of interesting things came out of the evidence and procedure review with regard to getting to the truth and how to find out about it. It was about starting a journey towards a more inquisitorial system, whether or not that is the end point. We are at the very start of the journey in Scotland; we are not used to pre-recording and evidence being taken in advance. It is about starting that and it becoming the norm.

I leave it to the courts service, which has been much more involved, to comment on the research in detail, in case I misrepresent it. It was part of a much more extensive possible vision for the future for Scotland, rather than something that could happen immediately.

But if that is the start of a journey, how do you respond to the suggestion—criticism is perhaps too strong a word for it—that the ability to extend the category of vulnerable witness by regulation only provides Parliament with insufficient scrutiny over that category?

At present, it is proposed that that will be by affirmative procedure, so there is still sufficient scrutiny. It is hard to see in what other way that could be done. If the committee or Parliament were not happy with what is proposed, further evidence could be given. An extension could not just happen in a vacuum; there would have to be broad discussion about it and how it would be done.

One reason why it is good to have the flexibility and still have the parliamentary scrutiny that comes with it being done by affirmative procedure is that, if something is too flexible, there is a much greater risk that something comes in before the system is ready for it to be handled, which could have a detrimental effect on vulnerable witnesses.

There absolutely will be parliamentary scrutiny. If, in future, regulations are brought forward to extend the category to include deemed vulnerable witnesses, parliamentary scrutiny is built in. It would not just be done by a commencement order as that power would have to be put before the Parliament.

That concludes our questioning. I thank the witnesses for attending. We suspend briefly to allow a change of witnesses.

11:51 Meeting suspended.  

11:56 On resuming—