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I welcome everyone to the fifth meeting this session of the Justice 2 Committee. We hope to be joined at some point by Colin Fox, who is making his way back to Edinburgh from Sheffield.
With your permission, convener, we would like to put Enable in context. We want to explain who we are to members of the committee or to others who are listening to the debate.
Thank you for that introduction, Mr Holmes; it was very helpful. Without further ado, we will proceed to questioning.
I hope that the witnesses do not find the process of being at the committee too intimidating.
In preparing our submission, we consulted people with learning disabilities, their families and carers. They feel very strongly that people with learning disabilities should be placed in the same position as children in this instance and that the right to use a special measure should be automatic. We think that the arguments that apply to children apply equally to people with learning disabilities.
I want to press you on what makes people with learning disabilities potentially more vulnerable than any other category of witness. What kind of special measures would be required for people with learning disabilities under the automatic right that you have described? For example, some people might argue neatly that the bill should list the different people who should be automatically considered for such a right, even though that would remove the court's discretion and ability to be flexible. Will you give me a sense of the balance that leads you to propose that people with learning disabilities should be considered for an automatic right?
We recognise that there are many categories of vulnerable witnesses and we do not want to say that people with learning disabilities are automatically more vulnerable than children in such situations. When we spoke to people with learning disabilities, they told us that they would be scared to go to court because they would not know anyone in the courtroom and they would be asked a lot of hard questions. They would also be worried about seeing someone who had harmed or threatened them. Finally, they felt that they would not understand the procedure and that it would be helpful to have someone present to assist them. We have based our position on comments that were made by people with learning disabilities, who confirmed overwhelmingly that a special measure would help them.
People with learning disabilities are not a militant lobby and are not good at exercising their rights. I have been involved with people with learning disabilities for years and often I have not known whether someone has a learning disability, even after I have spoken to them. It is also difficult to identify the extent of people's disabilities. For example, we deal with people who cannot read or write and others who can. Because their disabilities might not be apparent, those people should have an automatic right to special measures and the support that would enable them to communicate and give evidence appropriately.
I ask for members' co-operation in keeping questions as focused as possible. We already know the contents of Enable's written submission. Members also know the areas from which they will want to tease out further clarification.
Regardless of whether entitlement to particular measures is automatic or discretionary, there will always be a need to identify vulnerable witnesses early in the process. The Crown Office indicated in its evidence two weeks ago that it would do so through engaging with support groups. Do you see a role for Enable in that process? If so, what would its role be? Secondly, what other steps would it be important to take to ensure that vulnerable witnesses are identified early in the process so that they can be given the protection of special measures?
One of the difficulties with the bill is seeing where, and by whom, a vulnerable witness will be picked up; it is not clear on whom that responsibility will fall. Ultimately, responsibility is on the court when the case is before it, but that is late in the proceedings. We have spoken to vulnerable witnesses and people who have gone through the court process and they have indicated that there has been a lack of proactive support for them. The support that they have received has been dependent on them having a good social worker or a family member who has contacted Victim Support Scotland and other support groups and arranged a pre-court visit. The system has relied on family members doing that, and the services seem to have been reactive. There will probably be difficulty in identifying vulnerable witnesses early on in the procedure.
We will discuss self-referral later, but even that places the obligation on the vulnerable person. Should the bill be more explicit in specifying where the obligation should lie for the identification of vulnerable witnesses in the pre-court stage of the process?
We would like the obligation to be placed quite strongly on the parties to meet witnesses and provide something. A statement could perhaps be provided to the court at an early stage to state that they have met and spoken to witnesses and to indicate whether any of the witnesses are likely to be considered vulnerable.
You have highlighted a huge issue within the system. You say that, often, the day on which the vulnerable witness—I am talking not only about somebody whom you represent—goes to court might be the first time that they have met the procurator fiscal. Do you agree that the vulnerable witness often does not even know who the procurator fiscal is until they step into the witness box?
I think that that is correct. The procurator fiscal may have been given the case only the night before, so they might not have had an opportunity to speak to the vulnerable witness. In court, the witness may have no familiar faces around and no one to provide them with information.
Are you saying that if a vulnerable witness is a witness for the Crown in any case, it is desirable that the earliest possible identification of the vulnerable witness should be effected? That would usually be at the police stage. No one is a witness until the police have taken statements and decided to refer the case to the fiscal.
I think that that is usually when identification of a vulnerable witness would happen, although later on in the proceedings the fiscal would be able to identify on sight vulnerable witnesses who may not have been identified by the police. The responsibility must be on-going at all levels. When a witness is identified, a basic assessment should be made of whether they are vulnerable.
The Crown Office has been rolling out its victim information and advice service throughout Scotland. What experience do you have of that service? Has its introduction meant easier identification of witnesses who may be vulnerable and provision of support to them, which you have said is needed, so that they know what will be expected of them in court and are better prepared to go into court and give evidence?
I have not come across the victim information and advice service a great deal and those people to whom we have spoken who have recently gone through the court system have not had much involvement with it. I might be wrong, but I understand that the organisation is more of a signposting organisation that provides information and advice rather than additional support.
I want to turn to the possibility of an accused person's being present while evidence is being taken on commission outwith the court, which is one of the bill's special provisions. Are you concerned about that proposal?
Things will depend on the circumstances of each case and on why evidence is being taken on commission. If, for example, a person is ill in hospital and cannot go to the court, it might be appropriate for the accused to be there. However, if there is another reason for evidence being taken on commission—for example, the person might find it too difficult and distressing to come to the court—we would hope that measures would be taken so that the person was not further distressed by the presence of the accused when evidence was taken.
So you would not go as far as some people whose evidence we have taken. It has been suggested that having the accused present when evidence is being taken outwith the court premises might be an impediment to the person who is giving evidence.
It must come down to the circumstances in each case. We hope that the provisions will be applied in the spirit in which they are intended and that sensitive decisions will be taken. Television link-ups, for example, could be used where they are appropriate.
I want to turn to a more technical matter—the competence test. Your written submission says that you support the abolition of the competence test, which the bill provides for. If the test is abolished, is there a risk and concern that a witness with learning disabilities will end up in open court and will be required to give evidence, albeit that they will be subject to measures that the court might have determined to be appropriate?
There is concern that people with learning disabilities in general will end up in court giving evidence without special measures if there is no automatic entitlement. The competence test simply establishes whether a person knows the difference between a truth and a lie; it does not establish whether a person is more likely to tell the truth. Just because a person knows what is and is not a lie does not mean that they will tell the truth. In fact, some people would argue that the more intelligent a person is, the more chance there is that they will tell a lie in court—however, we will put that matter aside. For such reasons, we want the competence test to be abolished.
Has the Executive consulted adequately on the bill? Would it have been appropriate for it to have examined any other areas?
I do not know how much the Executive has spoken to people who have been vulnerable witnesses, although the bill team certainly asked for Enable's views. We introduced the team to people who had been through the criminal justice system, which I hope was a positive experience. Obviously, we would like the consultation of those whom the bill will affect to be as wide as possible.
I have one final question, which was not covered in the earlier line of questioning. Could pre-trial support be covered by a code of practice, or something like that, rather than having to be written into the bill? Could it be dealt with by taking a commonsense approach in agreement with the Crown Office and Procurator Fiscal Service? I am talking about the pre-court element.
We hope that it could be dealt with by taking a commonsense approach, but that is not happening just now. Clearly, steps have to be taken to ensure that that happens and that people are properly supported.
Are there any more questions for our witnesses?
I have a question on self-referral. You said that some witnesses called for provision to be made to give witnesses the power to make an application in their own right to be treated as a vulnerable witness. Is self-referral desirable? If so, are there any impediments to that facility being made available? Could you expand on that?
Self-referral is important. As I said, there is a high risk that witnesses will not be identified until late in the proceedings, which may involve them turning up at court, being identified as vulnerable, a new date being set, them suffering distress at having to go to court in the first place, and additional delays. Self-referral would help from that angle.
Point 4 of your submission states:
In a large number of cases, the person who is best placed to be the supporter will be someone who is known to the vulnerable witness; often, they themselves may also be witnesses. Normally, there is no restriction on someone giving evidence then sitting in the public gallery and hearing the rest of the case, so we cannot see why there should be a restriction on them sitting in front of the public gallery where they can provide support.
Do you mean beside the witness? You feel that that would be a good thing?
Yes, definitely.
I think that that is what others have said.
Thank you both for coming here this afternoon and for the fullness of your evidence, which I am sure my colleagues on the committee have found to be very helpful. It has assisted our understanding of the submission that you made.
We would like to make a few introductory comments.
That may have assisted members in cutting down their questions. You have covered areas that I know some members wanted to explore. I am aware that Jackie Baillie has a slight difficulty time-wise, so perhaps she could go first.
Those opening comments were helpful, but I want to tease out the automatic right to special measures. The bill as currently drafted gives the courts the power to determine what special measures should be put in place and, indeed, even to deny special measures. My understanding is that the bill currently provides no right of appeal in the case of a court finding against the need for special measures. First, do you think that that is right? Secondly, does that afford adequate protection for children?
I will pass that over to one of my colleagues. Jackie Baillie may well know how we would answer that question, but it would be useful for one of my colleagues to contribute.
Before you do that, perhaps I could ask for your co-operation. There will obviously be areas of questioning in which the three of you will entirely agree about the response. I am in your hands as regards choosing which representative should respond. I am afraid that we will run out of time if we have an answer in triplicate to every question.
We must consider the issue from the child's perspective. At ChildLine, we hear regularly that the major thing that sometimes stops children even reporting what has happened is the fear that they will have to give evidence in front of the person who is accused. That really terrifies them.
The right to appeal has been raised by others. If a court refuses a special measure, should there be a right to appeal?
Yes.
The answer to that is obviously yes, but our position is that special measures should be automatic. That should not be a matter for discretion. That is the point that we want to make.
The bill gives an automatic right to special measures except where it is considered that a trial may be significantly prejudiced and that that risk outweighs any risk of prejudice to the child. The Crown Office and Scottish Executive officials whom we heard from last week were quite strongly of the view that that is an extremely tough test, which they did not expect to be used very often. Notwithstanding that, do you fear that that get-out clause—if I may call it that—would be over-used and be open to abuse?
The problem with a discretionary entitlement is that there is always room for error. Our view is that we should take out the room for error and make the provision of special measures automatic.
I think that you heard the evidence from the previous witnesses, with whom we explored the early identification of vulnerable witnesses, which will be crucial regardless of whether entitlement is automatic or discretionary. It was suggested that the bill may not oblige certain people, such as the police or other parties, to identify vulnerable witnesses. Would you support such an obligation?
We highlighted in our report the need for such early identification and for case management, so that the best informed decisions could be taken from the earliest point in the process. We produced a flow chart that showed how we thought that that would work. As our colleagues from Enable were saying, when a child or other vulnerable witness first makes a statement—either as a witness or as the victim of an offence—and people are aware that the matter may end in court, decision making must be brought to bear from that point onwards.
That would normally be at the police stage.
That is right. We highlighted the fact that, once the police have taken a statement with a view to forwarding the case to the procurator fiscal—or elsewhere, depending on the type of case—that is the point at which decisions should be made. We likened it to the children's hearings system, which was established with a view to bringing together multidisciplinary expertise in legal, welfare, health and mental health matters, to allow informed decision making about what is in the best interests of the child. That is the approach that needs to be taken, rather than everybody working away in their own field and then suddenly appearing in court and expressing a different view.
I accept that, but is it your firm view that, rather than early identification happening only by way of good practice, there should also be a statutory obligation on the different agencies?
Yes.
Would those agencies be the police alone, or the police and the fiscal, or would defence agents be involved if the vulnerable witness was a defence witness? Have you thought about those details?
We are proposing that there should be a children's justice section within the Justice Department that should be charged with all aspects of anything material relating to child witnesses, although we have not described how that would work. That would cover the whole process, from the point at which the children first tell their story, usually to the police, right through to the point at which they are given special measures. Our view is that they should not be appearing in court. We want somebody in the Justice Department to be charged with that responsibility, because we do not think that a culture change will come about otherwise.
May I make a slightly provocative point? I imagine that there will be cases in which, with the full agreement of the parents, a child—a child over 12, let us say—is a witness, and the parents say, "We are perfectly content for our child to be a witness in this case, and we have discussed it with the child." That would beg the question of whether the automatic entitlement is required. Is there wisdom in leaving some flexibility in the system?
Our stated position is that the child's entitlement should be automatic, but that the child should be able to opt out of it if he or she wishes. That is especially likely to be the case with a teenager, who may feel that they want to stand up and give their evidence in court. They may do that for a variety of reasons; it may be their way of managing the trauma that they have experienced. The child's interests should be paramount in making that decision, but the entitlement should be automatic.
I would like to add a quick rider to that. It is very important that decision making is informed, and that goes for parents, for children and for young people. Parents need information and advice from the people who are dealing with the health or social work aspects of their child's case. People cannot just be left to make decisions and then to pick up the pieces.
Parents tell us in retrospect that if they had known what the experience would be like, they would not have allowed their child to be put in that position. That cannot be in the interests of justice, nor is it in the interests of democracy. One of the key tenets of democracy is that people must be willing to bear witness. If children learn that that is a negative or damaging experience, that will undermine our democracy further down the line. As well as practical issues, there is an important philosophical point about the kind of society that we are building.
I am grateful for that point, which leads me to a question about age. In your paper "Child witnesses talking", Susan's and Wendy's stories are good illustrations of the fact that children do not enjoy going to court. We must do something about that. You say that the age limit under which children would not have to appear in court should be 18—a matter that we have explored in previous evidence sessions. I am not sure why the bill has picked on 12; it could equally have picked on 11, 13 or 15. Your submission suggests that the age of a vulnerable child could be anything below 18. Will you say a bit more about why 18 and not 12 should be the cut-off point?
The issue is a difficult and subjective one, because children develop at different rates and have different capabilities at different ages. We must also consider how the bill fits in with other legislation on the ages at which children are considered to become adults. This matter is exceedingly confusing for us, so what must it be like for a child trying to understand whether they are considered to be a child or an adult in different circumstances?
That view is informed by the United Nations Convention on the Rights of the Child, to which Britain is a signatory. The convention states that the age of childhood is under 18. All the charities in justice for children take the view that young people should not be dealt with in adult courts until they are 18. We support the extension of the children's hearings system to cover children up to that age. As young people under 18 do not have the right to vote and are not recognised as fully adult, it is logical to say that they are in the domain of childhood. With young people who are approaching adulthood, one would expect fewer special measures to be used, if they are used at all. However, where necessary, children should have the right to use them.
I think that my question will take us outwith the remit of the bill, but this highlights the ridiculous situation that we have with different ages being used for different purposes. I understand your proposals and am quite supportive of them, but if your definition of a child were accepted, a young person who is married with kids would be entitled to be treated as a child before the adult courts. Is that sustainable?
No. The matter is probably outside the realms of the bill, but we agree that we must examine the ages at which children are entitled to do certain things and have certain rights. The ages are all over the place: 8 is the age of criminal responsibility, and people can get married when they are 16, but they have to be 18 to vote. There are people who can be held criminally responsible, but cannot vote. Those issues must be considered and we think that the Parliament should do that.
It is nice to see the witnesses again. In your written submission, which was welcome, you claim that there are two major omissions from the bill, one of which is the establishment of a child witness support service. Why is it fundamental to include such a measure in the bill?
Our submission draws on our experience. We have given examples of cases and we will provide other evidence for the committee on tape and through a visit. It is clear from that evidence how isolating and frightening the experience is for children and how unclear children are about what will happen. For example, children regularly describe the fiscal as "my lawyer", because if the accused has a lawyer, the fiscal must be their lawyer.
Unfortunately, when gaps exist in the information that children get about what is going on, they often turn that into the idea that they must have done something wrong and that they have not been clear enough. They often assume, wrongly, that it is their fault that things are being held up and that they are not being believed. That adds tremendous pressure to an already pressurised experience for them.
How would a child witness support service fit in with the existing court procedures, including those concerning leading evidence? Would we have to go back to the drawing board?
No. The Executive has undertaken quite a bit of work on a child witness support service. Between 1996 and 1999, the famous Lord Advocate's report was produced, so we are not starting from scratch. Many people have given the idea much attention. It is important to recognise that such a service must be put in place because children need it.
Does justice for children support fully the recommendations in the Lord Advocate's report, which has been around for some time, as you said?
We support elements of that report, but we are concerned that provision is nebulous. That is why it is important to have a children's section in the Justice Department. From our experience, it is clear that coherent provision is lacking where children are concerned. A body or bodies must be charged with overseeing what happens to children in our justice system, from when they first give their statements to when the case is closed and beyond.
Justice for children's letter to the committee of 12 September included harrowing accounts of three individuals' experiences. I will return to Scott Barrie's question. Is anything happening that might have mitigated those three individuals' experiences? I ask because I note that they were interviewed a year ago and that some years have elapsed since what happened in court.
A witness support service is available for children in some places, but the weakness is that it is not consistent or guaranteed. Also, there is no statutory requirement for a child witness support service. Such a service will therefore exist sometimes in some places, and in other places not at all. It might depend on a particular organisation having the resources to provide the service or being able to invest its time in it. Overall provision is incoherent and cannot be guaranteed. Our experience from talking to children and young people is that they feel cut adrift. That has not changed.
Unfortunately, we still hear of the same kind of things that happened in those case examples.
The convener asked our previous witnesses from Enable about the abolition of the competence test. Why is that important and why do you support abolition?
Because of all the arguments made by our colleagues from Enable. The test is very subjective. It seems quite discriminatory to apply it to one group of people and then, on the basis of that test, to debar them from giving evidence. We would therefore say that the test should not exist at all. People's evidence should be taken from their statement, however they give it.
One thing that often confuses children and young people is that they come to court to tell the truth, but then, once they have told the truth, they are questioned again and again and again, and made to believe that in some way they have given the wrong answer. If anything confuses them, it is that experience. The competence test does not deal with that.
In your written evidence, you mentioned the need for training. Where will training be required? Who will provide it and who will be responsible for offering it?
Anyone involved in taking statements from children, or interviewing them, or examining their stories or evidence, should have training in how to communicate with children. The point that Anne has just made illustrates that very well. Children will say things such as, "They asked me a question and I answered it and told the truth, but then they asked again." If you ask a child the same question three times, they begin to think that they have got it wrong and will then say something different. People who interview children need to understand that. They need to understand that you cannot subject children to multiple questioning. I would suggest that you should not do that to adults either. We believe that training in interviewing children, questioning them, and understanding their development is important for all who are involved in taking statements, or are involved through the justice service.
Our report makes it clear that that training should be mandatory. As Margaret McKay has said, that is especially important for people who have contact with children. However, contact should be kept to an absolute minimum. The bill does not address the number of precognition agents or the number of times a child will be interviewed. That whole process must be managed by someone with the authority to ensure that the child is not subjected to multiple interviews by untrained—or even trained—people, or by people who are not working to standards.
This important subject has already been touched on by Nicola Sturgeon. It would help the committee if you could tell us what should be done. You have spoken about a multi-advisory service that would kick in at the beginning of the process. Does that need to be an especially complicated procedure? Are you saying that, at the stage at which a child witness is identified—I cannot think that anyone would identify such a witness earlier than the police, when they are called to investigate an alleged crime—something should be triggered to ensure that the child is dealt with separately, interviewed appropriately and led down a safe route through the criminal process?
Absolutely. That captures our argument well.
You said that training should be mandatory. Would there be a need to review that training and measure whether it is working effectively? Your evidence has highlighted some of the difficult experiences of children who have gone to court. Any training that was offered would, I assume, need to be benchmarked. If that is the case, how would you envisage that being done? Would that be a job for the youth justice section that you propose within the Scottish Executive Justice Department?
We envisage that such a section would be responsible for commissioning and evaluating training. It would test out the extent to which change had taken place with users and people who had gone through the training. It is critical that that responsibility be lodged within the Justice Department. Mandatory training is not a strange idea. South of the border, judges who hear children's cases must have had statutory training before so doing. That is not the system in Scotland, but the idea is not completely strange.
Are you satisfied with the adequacy of the consultation process?
It has, in some ways, been a model consultation as far as we are concerned. We have felt very consulted by the relevant sections of the Scottish Executive Justice Department, the police and the bill team. We would probably always say that the voice of children has not been heard well enough. If it had been, more progress would have been made towards the kind of far-reaching solutions that we are considering.
I have two other questions. You have all examined the bill and you obviously have considerable experience of children in court. What is your view of the fact that the bill excludes the district courts from its primary provisions, but might cover them through subordinate legislation? Do you think that the district courts are any more or less important than any of the other courts? I am interested in your observations.
We can see why the district courts might have been excluded. It would be rare for children to be involved in cases that come before a district court. If they were, the district court should not be excluded. However, we have not formed a strong view on that. That is probably for the same reason that the district courts are not covered by the bill: the sort of cases that come before them. The same principle should apply as with other courts.
The issue for us is how a child experiences the district courts. If a child were to appear before a district court, the same issues would arise.
You devote quite a lot of the ChildLine Scotland submission to the threat of defamation action. We might hear from others later about that, but I would like you to give us a bit more reasoning why the threat of defamation action should be taken away.
Our main points are covered in the submission from justice for children, with which we are involved and which we support fully. We discuss defamation at length in our own submission, which was submitted in addition to that from justice for children. I have had quite a lot of contact in the past with Donald MacKinnon, who raised the issue initially.
Roughly what percentage of calls does bullying account for?
It accounts for one in four calls.
So 25 per cent of the calls that ChildLine Scotland gets relate to bullying.
Yes. The calls are usually about child-to-child bullying but, on occasion, they are about bullying by adults—indeed, sometimes by teachers—although such calls account for only a small percentage.
From your collective experience, how many defamation actions are you aware of?
I am not aware of there being a huge number of them. However, we are concerned that people will pick up on such cases once they become aware of them. Children are quick to pick up on concerns that exist in the public arena. That is particularly relevant if such concerns stop them speaking about issues.
At the moment, children—or, indeed, anyone—have only qualified privilege in making allegations. We want that to be made into absolute privilege if the allegation or report is made to the appropriate authority—not if it is generally broadcast, used as gossip or bruited about. The need for a child to report to the proper authority—whether that is a head teacher, the police, a social work department or the head of a children's home—is usually spelled out in child protection guidelines.
I see that you covered that point in your submission.
My view is that the problem should be addressed. At present, the matter is not being addressed anywhere and provisions to deal with it appear to fit in with the aim of the bill. If the bill does not address it, I hope that it will be addressed elsewhere quickly.
Let us be clear: the actual number of defamation actions that are raised seems small.
Yes.
I suppose that there is the practical question: why sue a child, who might have no assets?
My concern is about the impact of such cases on many children—it is not a question of there being only a small number of cases.
I have a further question, which was prompted by what the convener just said. You say that the number of cases is very small now, which I accept. You made the point that children read newspapers. Ten years ago, we perhaps did not have the problems with antisocial behaviour that we do now, and we did not have the problems with defamation cases. Do you think that such cases are likely to arise more often because those that have taken place have been highlighted?
Our concern is that defamation cases could arise more frequently, and that that would form a barrier to children coming forward about relatively serious incidents.
Do you believe that that is because it is a new phenomenon?
It is not so much because the phenomenon might be new; if an action appears to have been successful, there is a danger that people will use the same avenue again.
Once a case reaches court, would not there be absolute privilege?
Alison Cleland, who will give evidence later on behalf of the Scottish Child Law Centre, might be better qualified to speak about legal matters. However, as far as I understand it, absolute privilege applies in court but qualified privilege applies in all the interviews that take place under proper procedure.
Your concern is about the pre-court stage.
Yes. Although adult professionals might follow the procedure to the letter, it is still possible for a young person or child to be subject to a successful defamation action, as the law currently stands.
Thank you for your forbearance and for your toleration of our many questions on diverse subjects. Your evidence has been helpful to us all.
The main point that I want to make to the committee is that you are dealing with institutional inertia. The criminal justice system has worked on the basis of oral evidence for centuries and that is the way in which its practitioners want to continue. That does not mean that they hate child witnesses or vulnerable witnesses; it means that, if you do not insist that they change the way in which they approach child witnesses and vulnerable witnesses, they will continue to do what they do in the way that they currently do it.
I was struck by your phrase, "mandating of change". I am sure that that will resonate with the committee.
That follows on from my point about institutional inertia. We need to make a clear statement to the court system that the situation becomes different as soon as child witnesses or other vulnerable witnesses are used.
Just for clarity, are you drawing a distinction between children under 12 and those over 12?
No. I am not addressing any specific issue about under-12s at the moment. When I mention child witnesses, I mean those who are under 16.
Thank you.
As is suggested in the report "Justice for Children: The welfare of children in the justice system", as soon as a child witness is involved in a case, the child witness support service would start a process of proper support for and assessment of the child's needs. Who else would do that? Ask the fiscals, the defence agents and the courts whose job that could possibly be. No one has time to do that now.
How do you envisage the proposed witness support service fitting in with existing court structures? Do you think that we need to go back to the drawing board?
At the risk of sounding as if I am slightly ducking the question, I endorse the Justice for Children report and its recommendations. It explains that the witness support service would be based within the justice service; it must be right in the heart of the justice system and not just some add-on that a witness might get a chance to go to if they happened to be in an area that has a good service. It has to be available in every case, so it must be based within the Justice Department. To be honest, I am probably better able to answer questions about evidence and the detail of the court system rather than questions about the Justice Department. I hope that that is okay.
I hear the arguments for a child witness support service, and they have merit. In any case in which there are or might be child witnesses, it is important to ensure that such witnesses are identified as early as possible. One of the problems with the existing system is that it can be late in the day before that is obvious.
Yes; that makes sense.
I will move on to special measures. Do you think that the proposals in the bill give sufficient protection to the rights of children who give evidence? Do you think that their rights should be strengthened in any way?
Children's rights are not sufficient and, yes, they need to be strengthened.
In what respect?
I ask the committee first to accept one of the primary proposals in the Scottish Child Law Centre's submission, which is that we must try to keep children out of court because the adult-centred and combative court process is distressing and damaging for them, particularly in abuse cases. If we start from that principle and consider the special measures, almost nothing will be helpful.
Do you support—I think that I read in your written submission that you do—the argument made by justice for children that there should be no judicial discretion to override the right to special measures, despite the fact that that discretion is framed in the bill in such a way as to make it quite a tough test to pass?
The bill makes that a tough test. I will answer the question but first let me describe the real test that the bill provides. The court may not make an order allowing the child to give evidence with special measures if that would give rise to significant risk of prejudice to the fairness of the trial. In my view, that is the test that will be argued in almost every case involving a child witness if the bill is left as drafted. We have seen that happen when other new, supportive measures have been introduced. I stress that that will be the real test.
I have a great deal of sympathy with the argument that Alison Cleland has advanced. However, if everything that she has said were to come to fruition and we were to proceed in that way, how would courts, sheriffs and juries view that new way of giving evidence? Although our courts, which have historically used an adversarial process, may take into account some of the needs of vulnerable witnesses, at the end of the day such witnesses still have to give their evidence, be cross-examined and go through everything else that creates the intimidation that has been mentioned. Even if we were able to achieve what you have suggested, how would we guarantee that we would get the outcomes that we hope for and that people would not see two different standards of evidence?
We could not guarantee the outcomes—we have to be honest about that—but at the moment we are in the worst of all possible worlds. If special measures are introduced, they will be seen as an add-on, as an extra and as something odd that the jury will immediately be suspicious about. The jury may not hear all the arguments, but it will see the suspicion of the defence lawyers, who might suggest that in some way an attempt was being made to shield the child because the child's evidence was somehow untrustworthy.
I want to be clear about the matter. Without reference to the type of case—which might be a sexual abuse case, a criminal case involving assault or fraud or, indeed, any case in which a child under 16 happened to be a witness—is your view that, without any discrimination, there should be a presumption that the child does not give evidence in court?
Yes. That is based on the belief that the status of a child's psychological and linguistic development is different from that of adults. I mentioned in my written submission that, in South Africa, an intermediary is used. That intermediary asks a child witness questions, as the system accepts that, if we use technical court language or even ordinary language, children and young people might not have the same understanding of it, particularly in a court setting. I would be delighted to provide the committee with literature on the subject.
I would like to interject, as what you are saying is important. In your judgment, the deficiencies that you perceive would not be adequately addressed by the bill's provisions for supporters, for example.
That is correct.
If a 14 or 15-year-old, for example, is giving evidence and is apparently confident in doing so, in your judgment it should not be possible for the accused or his advisers to see that individual in person to make a judgment about whether that person was being honest or deceitful.
That is correct.
Do you see any dangers in that?
I do, but that is a matter for others to speak to the committee about. How we take a child's examination in chief and cross-examination must be carefully considered. That is important.
I do not seek to diminish your experience, but do you agree that the court forum in family-law matters is different from that in criminal trials and prosecutions?
The forum is less hostile, but I am not sure that the impact will not last for the long term and possibly be as damaging. That is my worry as a lawyer who has represented children in that process. However, I accept that the forums are different.
Is it your belief that asking children—as defined by the bill, because we currently have no other definition before us—to appear physically in court has a damaging effect on them either in the short term or in the long term?
It is my belief that it might have. There is currently no way in which the court can have a knowledge or understanding of the effect of the experience on a child. We do not know.
You propose the introduction of an intermediary, but might not that cause conflict? The defence agent might resent the way in which the questions are put; he or she might not like the translation and think that it alters the terms of the question. Would the issue be better addressed by training—as previous witnesses to the committee suggested—for all those who deal with vulnerable witnesses?
I think that the introduction of an intermediary would be resented by the defence counsel, but that would not necessarily be a bad thing. We must remember that the defence lawyer's job is to put her client's case to the child and see whether she can undermine the child's credibility and reliability. That is her job and she must continue to do that. Within the current rules of cross-examination, a wealth of different techniques—the type of language and questions—can legitimately be used that lend themselves to confusing children and undermining their credibility and reliability.
The presiding judge is certainly under an obligation to ensure that no unacceptable line of questioning is pursued with a child witness.
That is correct, but very often things do not happen in that way. You will be aware that, in England, there is judicial training and judges will intervene, but only to a very limited extent, because the defence team must be allowed to put its case to the child witness. Training will not be enough. We are talking about a way of thinking—a way of approaching witnesses and cross-examination—that is embedded in the system.
If training is not enough, how will the addition of a third party help? The defence agent will want to ask their questions and pursue their line of questioning. I am not sure how introducing a third person will address the problem. I would have thought that the issue would be more appropriately dealt with through stipulating what the sheriff or the judge can consider appropriate in the court or through ensuring that acceptable language is used so that the child being questioned understands it.
I accept that there might be something in your suggestion if we had a system in which only people who were trained to communicate with children to a high level were, in certain types of cases, able to put the questions to children. The understanding in South Africa was that it was unrealistic to expect criminal lawyers, who deal with all sorts of cases, to become instant experts in child psychology and child psychiatry. Moreover, the suggestion that only certain types of lawyers could be involved in certain types of cases was regarded as dangerous. We could go down that road, but that system would work only if certain judges and lawyers dealt with certain types of cases.
Surely there is an obvious practical difficulty, given the fact that myriad cases in which there is a child witness come before our criminal courts. Therefore, would we not arrive at an impossible position? It is in the public interest that criminal cases are processed efficiently, swiftly and, of course, fairly, with due regard to the characteristics, sensitivities and needs of all witnesses. However, if your proposition were taken to its logical conclusion, there would be an impossible backlog of cases, because we do not have enough judges, prosecuting counsel or defence solicitors with special training in dealing with child witnesses. Is not your underlying concern to ensure that, when a child is required to give evidence to a court, every possible safeguard is in place to prevent the experience from being harrowing and distressing and from causing long-term upset to the child?
Yes. You mention the difficulty of ensuring that everybody is appropriately trained when there are so many courts dealing with so many cases. That is precisely one of the reasons why the South African model, which is based on an oral evidence tradition, went down the road of having intermediaries. That allows the courts to decide, for example, whether an intermediary to deal with language matters is required for a vulnerable child witness. Rather than trying to cover every court and every eventuality, the South African model focuses on the point at which questions are put.
For the sake of clarity, because I know that none of us is an expert in the South African legal system—
I am not an expert, either.
Is it your understanding that a child witness's evidence is led through an intermediary in all South African criminal and civil cases?
My understanding is that an intermediary is mandatory only in criminal cases. I think that an intermediary is discretionary in civil cases. However, I can check that.
There would obviously be practical difficulties in providing appropriate training for everybody.
I appreciate that.
However, I believe that the issue is more fundamental than that. I am not sure that providing training within an adversarial system for defence agents to communicate better with kids is appropriate or possible, because a defence agent could have conflicting duties. Communicating sensitively with a child might undermine the defence agent's job of representing their client and testing the evidence.
If the bill required special measures to apply to child witnesses under 16, court practice would quickly change. I believe that such a requirement would be helpful.
We discussed the issue of age with the ladies from justice for children. You have talked about the age of 16, the bill talks about the age of 12 and other people talk about the age of 18. Where should the line be drawn and why?
My answer will be annoying for members, but I honestly think that, if we are to decide where to draw the line, we should ask young people and use their answer. At present, the age of legal capacity is 16 and a funny grey area exists between the ages of 16 and 18. The issue does not necessarily matter, except for lawyers. The United Nations Convention on the Rights of the Child states that special measures are required for children up to the age of 18. We should ask young people about that. They will have a view on how much protection, freedom and support they will want when they are older. The age does not really matter as long as we are consistent and are prepared to follow through the decision.
I turn to a completely different issue, which I raised with the witnesses from justice for children. Perhaps you have more experience in this matter than they have. What is your opinion of the fact that the bill treats district courts differently from sheriff courts and the High Court?
I am afraid that I do not have a useful opinion on district courts; I have no experience of them.
That is fine.
Mr Pringle, do you wish to develop further the aspects of evidence by video and on commission or are you satisfied with what was said earlier?
The issue was pretty well covered. Does Alison Cleland agree that, as others have said, the accused should not be present when a vulnerable witness is interviewed on commission?
Yes.
I will come to Karen Whitefield in a moment but, for clarification, if evidence were given by video or taken on commission, is it your view that the interrogation should be undertaken by the intermediary?
Ideally, yes. I hope that you do not think that I am being naive. You might decide simply to rethink the issue, or you could provide in the bill for the Scottish ministers to introduce intermediaries later. I realise that it is not easy. You could provide that intermediaries will be one measure, but evidence will primarily be taken from children away from the court. The presumption could be that special measures will apply and that, where possible, those special measures will ensure that the child is out of the court process, with intermediaries coming along later, if we are being realistic.
I have a final, brief question, which touches on the earlier evidence from justice for children. Have you encountered cases in which children have been the subject of a defamation action?
No.
Your submission touches on your concerns about time delays, and in particular the fact that decisions will be taken on special measures just a few days before cases go to court. I appreciate your view on having an automatic right to special measures but, given how the bill is drafted, how can time delays be addressed?
It would be of assistance if you required the child witness notice to be lodged no later than 28 days before the proof, and if you removed the ability of courts to allow notices to be lodged later than that. Get rid of that. Make it clear to anybody who is involved in a child witness case that if they want a child to be there, they had better lodge their child witness notice and they had better lodge it on time. If it is in the rules, I assure you that lawyers will do it, because they will want their witness to be there.
I have a wrap-up question. Did you feel adequately involved in the Executive's consultation on the bill? Do you have any comments on the consultation process?
Yes, I thought that it was inclusive. We would have liked more children and young people to be involved. We realise that it is difficult to identify those who have been involved in the courts, although the Executive did attempt to do that by asking people to be involved. I hope that we will get better at that.
There are no final questions from members, so I thank you not just for the rigour of your evidence, but for the robust way in which you responded to questions, because I realise that—unlike justice for children—you were unsupported and were sitting very much in the hotspot yourself. The intensity of the questioning reflects the committee's obvious desire to get to the root of the principles and the elements of the bill, to which it is so important that we give balanced consideration. We appreciate your coming before us this afternoon. Thank you for your presence here.
Meeting suspended.
On resuming—
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