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Good afternoon, ladies and gentlemen. I welcome everyone to the seventh meeting in this session of the Justice 2 Committee. We have received apologies from Nicola Sturgeon, who is unable to be with us.
I have no problem with your raising the issue with the minister. However, timing will always be a fraught question. I would have found it most unhelpful if this information had been released after the committee had completed stage 1 consideration of the bill, especially as some of the areas of questioning relate to the contents of the guidance and the press release. Although it would have been nice to have received the guidance earlier, I am grateful that it has not been issued after our stage 1 consideration. The guidance is welcome.
I am not saying that the information is not helpful—it is. However, it is unfortunate that its release should have taken the form of a public launch. There is no reason that the information could not have been distributed to committee members as an indication of the Executive's thinking on these matters. It is important that the Executive respects and has regard to the integrity of committees of the Parliament, especially when a committee is considering actively at stage 1 a bill that is directly germane to the subject matter of a document.
I appreciate what you are saying, but there is often a difficulty when committees consider issues and the Executive has to respond. The Executive has done a considerable amount of work on child witnesses and has recognised that there are issues that need to be addressed. The Executive is responding so that we do not ask for things at stage 1 that it knows it intends to do, and so that our stage 1 report can focus on the issues that need to be addressed at stages 2 and 3 of the bill.
I will not prolong the discussion further. However, I reserve the right as convener to express my displeasure at the sequence of events. I am sure that the comments of other committee members have been noted.
He has.
We are sorry that he cannot be present, but we are glad that you have been able to join us.
Good afternoon, Rosemarie. One aspect of the Scottish Human Rights Centre's submission is the proposal to extend the definition of a child from the current age limit of someone who is under 16 to someone who is under 18. Your submission also suggests the extension of the provisions in the bill that relate to children who are under the age of 12. I have not seen such a suggestion before. Will you explain that point of view and its implications for the bill?
We specified an upper age limit of 18 because the United Nations Convention on the Rights of the Child defines a child as anyone who is under the age of 18, and we believe that that definition is correct. From evidence that the committee has received from other witnesses, I understand that there is a slight problem with that, particularly in relation to young adults who get married at the age of 16. The provisions in the UN Convention on the Rights of the Child allow for that. They state that anyone who gets married attains adulthood and that the provisions that relate to children no longer apply to such people, so I do not think that the extension of the bill's provisions to children up to the age of 18 would cause a problem.
I was very interested in the Scottish Human Rights Centre's submission, especially the section about how vulnerable witnesses are defined. Are you happy with the approach that the bill takes? You mention specifically people with a learning disability or a communication problem—you say that those people, instead of falling into the discretionary category, should be included automatically as people who require protection. You also discuss the question of an accused who is not a child, but who could be a vulnerable witness. I wonder why you feel that those two categories of people should be included.
In answer to your first question, we are not happy with the definition of vulnerable witnesses in the bill, which we feel is exclusive and could cause discrimination against potential vulnerable witnesses. We feel that it is very important that people with learning disabilities are included in the scope of the bill and that they should have an automatic right to special measures. The reason for that is that people with learning disabilities could be disadvantaged when they give evidence if special measures are not provided for them. The committee has already received evidence to that effect from Enable.
That additional information is useful. However, would that then make it a court's responsibility to judge who would be eligible for self-referral? Would the onus be on the courts to determine whether one grouping was more eligible than another?
If the bill were to be amended as we suggest, it would be inclusive and there would be only a small need for self-referral. However, that facility should still be available. I cannot think of anyone else who would be able to judge eligibility for self-referral. A court would be able to access any relevant evidence and have a hearing, as the bill as drafted suggests. The bill suggests that if someone wants special measures, they should go to a court hearing, which would decide whether special measures were appropriate.
No, I understood you. Your approach is an inclusive one that would abolish the hearings. You would have a finite number of hearings to cover those on the margins.
Yes.
Okay. That is clear.
The short answer is no. Much more work needs to be put into pre-trial support. We need to be able to identify a vulnerable witness at the first stage, which is when they come into contact with the police as a potential witness. From that point on, they should have a tag on their file that says that the person is, or could be, a vulnerable witness and may require special measures. That should be flagged up right through the system to the procurator fiscal and others.
Should there be circumstances in which a court could overrule an automatic right to special measures?
Such circumstances would have to be exceptional. I was talking about that with John Scott, but we could not come up with any circumstance in which a court would need to overrule the automatic right to special measures. We must bear in mind the balancing of rights between an accused's right to a fair trial under article 6 of the European convention on human rights and a witness's potential article 8 right to privacy and their article 3 right to the prevention of inhuman and degrading treatment. That is a fine balance.
How does that sit with the calls on the committee to consider extending the category of people who might qualify automatically for special measures? If the criteria were extended, almost everyone would automatically qualify for special measures. That would mean that we would be changing our whole courts system. What is your view on that?
Does that give you a hint that our courts system poses major problems for witnesses and that we need full-scale reform?
You have expressed concern about preventing the accused from conducting their own defence in cases that are not of a sexual nature. Will you expand on why you have those reservations?
As I said, the right to a fair trial in article 6 of the ECHR is a fairly serious right over which courts must take much care and attention. We are concerned that abolishing self-defence in other cases would be disproportionate. If special measures are implemented properly, they should give witnesses sufficient protection and allow self-defence by the accused.
Are there any circumstances, such as cases of alleged domestic violence, in which it would be inappropriate for someone to conduct their own defence? The crime might not be of a sexual nature, but it might be very violent. In those circumstances, would the witness be as vulnerable as a witness who was involved in a crime of a sexual nature?
The answer depends on the special measures that are implemented. For example, in that scenario, an intermediary could be involved, or evidence could be taken on commission, so that the accused was not involved directly in dealing with the witness, so their rights would be protected. I understand that a difficult balancing act is involved in such cases, but we say that the article 6 right must be protected and that special measures would provide sufficient protection.
Are you suggesting that it would be preferable to have an intermediary in court who translated for the witness and put their spin on things, rather than having the witness relate their own experiences under the protection of not having to come face to face with the accused, who would sit in the dock, but would not conduct their own defence?
That is not exactly what I said. I said that the situation would depend on the special measures that were used. If an intermediary were used, that scenario could arise, but an intermediary is an independent party. They would not put their spin on the evidence. Their job is to relate the evidence that the witness gives. I would be disappointed if any court accepted an intermediary's putting a spin on evidence. An intermediary does not have to be used. Evidence could be given by closed-circuit television or by commission.
The point is important. In principle, you do not oppose the concept of an intermediary.
No. We do not oppose the concept of an intermediary, but I thought that we were talking about self-defence. I was exploring that.
Do I infer that you prefer other means of giving evidence, whether it be on commission, by video or behind a screen?
We prefer to protect the child's rights in whichever manner is appropriate to the child. That depends on the circumstances of the case and it would be for the court to decide what was appropriate. We are getting hung up on children, but the bill is about all vulnerable witnesses. If a child or any other vulnerable witness felt threatened or intimidated, or could not give evidence directly because they were unhappy about dealing with the accused, who was using self-defence, an intermediary or any other special measure could be used.
I realise that we are not really talking about numbers, but do you have an idea of the number of current cases in which the accused is conducting their own defence? It has been suggested that the right for a person to conduct their own defence might be withdrawn. Why do people have that right currently, and how many people take it up?
I cannot give exact figures but, when we looked into cross-examination in rape cases, the numbers were very small.
It does not have to be just rape cases.
Yes, but in general the number of people who conduct their own defence is very small. However, as I say, I cannot give exact figures.
We will ask the lawyers about that when they give evidence.
I accept that only a small number of people conduct their own defence, but it is a very important small number. I also accept your definition: a vulnerable witness is not necessarily a child. However, I suspect that evidence would often be heard on video or taken on commission somewhere other than in a courtroom, so how do you square that with somebody trying to conduct their own defence? How would that work if the witnesses were somewhere else?
It would work in the same way as it would if the person had a lawyer. If someone is giving evidence by live video link, on closed-circuit television, or using any other form of special measure that has been suggested, the person who is conducting their own defence will still have the opportunity to question and to cross-examine. The right to a fair trial is therefore protected.
So—
Sorry, I want to be clear on that point.
I will come back.
When evidence is taken on commission, that happens, of course, in another environment. Normally, only the commissioner is present. Should the accused be present on such occasions—either the accused himself or a representative?
We suggest that the accused should not be in the same location, but should be able to speak to the commissioner. The accused would not be physically present in the room, but would be in contact.
There would be a concurrent presence so that the accused would know what was going on and would be able—either himself or through his lawyer—to cross-examine the witness.
I was going to follow up my question. You spoke about someone conducting their own defence, and you spoke about them having a lawyer. In some of the cases that have been mentioned, it is likely that the vulnerable witness might be happy to talk to the commissioner, or through the commissioner to some legal representative, but do you accept that they might feel seriously inhibited if they knew that they would have to speak to the person who was conducting their own defence? That person might be somebody who had committed rape, or a serious assault, or a serious offence against that vulnerable witness. Do you not see the difference between evidence being taken by the person conducting their own defence and evidence being taken by a commissioner? Do you not think that the witness would treat them differently?
The point about taking evidence on commission is that the individual would have no contact with any of the other parties, except the commissioner. Theoretically, there should not be a problem and, if sufficient support and information is provided to the witness, in practice there should not be a problem either. For clarity, I emphasise that a person can no longer self-defend in a rape case.
Going back to the question of appearance or non-appearance of witnesses, the committee has heard it suggested that there should be a change in the culture of children's appearances in court, with the presumption that a child should not appear in court. Does the Scottish Human Rights Centre have a view on that proposal?
It would depend on the circumstances of the case and the wishes of the child. A 16-year-old might want to have their day in court as a way of managing what they have gone through. They might be capable of dealing with that, perhaps using a screen or a supporter to ensure that the experience is not too traumatic.
One of the key intentions of the bill is to improve the experience of all witnesses—not only those who are vulnerable—of court procedure so that they can give better evidence. Given that we have already embarked on some improvements to the procedure, particularly through the Criminal Justice (Scotland) Act 2003, is there anything more that the Scottish Human Rights Centre would like to be done to improve witnesses' experience of our court system?
I have heard about the experiences of witnesses who have called our advice service, and the major point seems to be that they need more information at an early stage. They want information from the police and the procurator fiscal about what will happen and to be kept up to date. We get a lot of calls about delays and the fact that witnesses are not being informed why there is a delay. More communication with and information for the witnesses would make their experience better.
I take the point that what happens before the case goes to court makes a lot of people feel let down by the system. They do not know what is going to happen and the quality of their evidence is therefore tainted.
Yes, that is correct. It is important that all vulnerable witnesses are protected in the same way. It is also important that the implementation of the legislation is monitored. The bill will not be worth the paper it is written on if its provisions are not put into practice. At the moment, the court has discretion to prevent the harassment of witnesses; if that approach worked in practice, there would be no need for the bill. There is a real need for monitoring and evaluation of how the provisions work in practice, and for clamping down and making sure that they work. A human rights commission with an amicus curiae role should be able to intervene in a case where it was felt that a vulnerable witness's rights under article 3 or article 8 of the ECHR were being breached.
Evidence to the committee has suggested that young children and other vulnerable witnesses might be inhibited from coming forward by a fear of being sued for defamation. Have you encountered any such instances? Does the Scottish Human Rights Centre have a view on that suggestion?
We have been contacted about a number of cases regarding defamation and the argument about qualified or absolute privilege. Our opinion is that there should be only qualified privilege and that absolute privilege should not be extended outwith the court situation. We suggest that alternative measures are needed. There has been some discussion about bullying, and, rather than say that children should have absolute privilege, I think that schools and other public authorities need to enhance their anti-bullying practices to deal with the issue.
Do you think that the extension of absolute privilege could encourage people to make, with impunity, a flurry of malicious allegations?
I hope that that would not be the case, but it is certainly a possibility. That is one of the reasons why we would be concerned about extending absolute privilege. One of the fundamental tenets of our justice system is that information can be challenged, and there is less chance of such a challenge with absolute privilege. There is therefore a real need to maintain the status quo while implementing better systems for child protection in other ways.
Have you been aware of any instance where such a defamation action has been raised?
We have had contact with one family who are considering taking such an action. I am obviously not at liberty to disclose any further details.
I understand that.
From our point of view, it seems quite reasonable. Although we do not really engage with our stakeholders, you have obviously tried to do so, so I congratulate you on that.
Thank you. Are there any other questions from committee members?
On defamation, you have implied that, if people had absolute privilege, there might be a flurry of malicious accusations. Would not those accusations be investigated and dismissed if any such maliciousness were found? At the moment, somebody might make an allegation that is then proved, perhaps because there is not enough proof, and we would then find ourselves in a situation in which some people end up in court.
I am not sure that I followed your question.
Could you clarify your question?
People can be sued for defamation after making an allegation because, at the moment, they do not have absolute privilege. However, it is suggested that, if they were given absolute privilege, a lot of malicious accusations would be made. You said that you hoped that that would not happen but, if it did, surely those accusations would be investigated and the truth would come out.
In any circumstance where somebody makes an allegation against another person, that allegation would be investigated. Our concern is that more people might come forward and say things to defame a person's character, and if they have absolute privilege they cannot then be sued, even if the information is wrong. If I were a child with absolute privilege and called you something offensive and said that you were a paedophile, you could not take an action against me for defaming your character. That is wrong. If I had only qualified privilege, you could take an action against me in certain circumstances. That right needs to be retained, because otherwise people could defame people's characters without proof. Does that clarify matters for you?
Yes.
Is there anything else that you would like to say to the committee?
The only thing that I would like to highlight is the fact that we really need a culture change in the justice system with regard to how we treat witnesses. At the risk of being shouted at by the witnesses who are sitting behind me, I would suggest—[Laughter.]
We can see their expressions.
I am glad that I cannot.
Thank you for coming this afternoon. Your evidence has been very helpful to the committee.
That is correct. He sends his regrets that, due to a family bereavement, he cannot be here.
We are sorry that he cannot join us.
One of the first points in the submission concerns the early identification of vulnerable witnesses. Clearly, that is not a matter that can be laid down in legislation; it is more a matter of practice. I would be interested in your view as to how we can ensure that, from the outset, vulnerable witnesses are identified. What needs to change?
First, I thank the committee for inviting us here. We are delighted to be here and to assist in the process. We have indicated that the contextual aspects of early identification are key to the process of the identification of vulnerable witnesses. Murray Macara will say more about that.
I also thank the committee for the opportunity to speak on this topic. I hope that we do not sound negative in the next 45 minutes, as we sincerely welcome the proposals.
If the witness has a mental disorder, they should, in theory, have been picked up under the appropriate adult scheme, which is a non-statutory scheme for assisting in the interviewing of witnesses with a mental disorder. That scheme has been in operation for about five years but its application is still patchy throughout the country. There can be difficulties in ensuring that non-statutory schemes are implemented throughout the country.
Why is the experience of the non-statutory scheme patchy across the country?
Do you want me to mention resources and so on?
Absolutely.
Well, it will be to do with issues of resources, training, other work priorities, police time and so on. I think that Fife has been in the forefront with a well-developed scheme, but other areas have perhaps been slower and have not made the issue such a priority.
I wanted to tease that out for the simple reason that the early identification of vulnerable witnesses, which is so critical, could end up being patchy across Scotland. We need to learn from experience elsewhere.
We agree with the way that the bill is framed in relation to children—[Interruption.]
Will you point your microphone towards you and bring it a little closer to you? We are not hearing you clearly.
We agree that children under 16 should have an automatic entitlement to apply for special measures. As we said in our written submission, we are concerned about the drafting of the definition in proposed new section 271(2) of the Criminal Procedure (Scotland) Act 1995. The difficulty is that too much emphasis is placed on the quality of the evidence rather than on the vulnerability of the witness. We would like the emphasis to be more witness centred, if you like.
I almost certainly will.
—and require some psychiatric assistance. It may be that the impact of giving evidence could be reduced if special measures were afforded to her in those circumstances. Our concern is that we should look at the witness's position.
That would be helpful. Your submission comments on the mental health aspects and I want to tease that out. I also want to get your view on the position that was put by the Scottish Human Rights Centre.
I suggest to Jackie Baillie that it will guide the witness if she phrases questions on the specific area that she is worried or concerned about. What is it that you wish to elicit from the witness?
The Law Society submission commented on the extension of the mental disorder category—I thought that my question had been understood—but I also want Hilary Patrick to comment on what the Scottish Human Rights Centre said about mental health.
As we point out in our written submission, we believe that people with mental disorders as defined in the Mental Health (Care and Treatment) (Scotland) Act 2003 should automatically qualify to be considered for special measures in the same way that children will. We made those comments because we find it almost impossible to conceive that someone either with a learning disability or suffering from a chronic mental illness would not at the very least require their needs to be considered. We support the evidence submitted by the Scottish Human Rights Centre and Enable, which points out that issues of communication must be addressed and that the questioning process should be specifically designed to deal with a person's needs.
You make it clear in your submission that consideration must be given to that element.
It must be given automatic consideration.
Qualification under the Mental Health (Care and Treatment) (Scotland) Act 2003 essentially acts as a gateway that allows a person to apply for special measures and the court to consider that application thereafter.
We really want to shift the balance to make it a presumption that such a case will at least be considered.
That is very clear.
Mr Macara, you said that early identification is essential and outlined the example of a summary criminal trial that had a domestic violence background. What are your views on the Scottish Human Rights Centre's earlier suggestion that criminal defence lawyers should be required to participate in training?
Our submission discusses the issue of training. I have to say that I noted the tone of the committee's questions to Rosemarie McIlwhan. We acknowledge that training is important in this matter; indeed, Anne Keenan attended this morning's launch of the supporting child witnesses scheme, which we recognise is important.
But should there be compulsory professional development for lawyers who find themselves working in the criminal defence sector?
I think perhaps yes, because—
Is that a yes?
That is a yes.
Thank you very much.
Continuing professional development is compulsory. However, the question we should ask is what kind of CPD should be compulsory. One can imagine other areas where it would be compulsory. Although we cannot necessarily extend such training to every solicitor in Scotland, it would be reasonable to extend it to people who practise in the criminal courts.
Solicitors who undertake continuing professional development are required to show that it is relevant to their area of expertise. Clearly, training in this area would be relevant for anyone who operated in the criminal or civil courts under the legislation.
I return to some of the issues that you raised in response to Jackie Baillie's question about the need to make a closer link between the definition of vulnerability and the stress, suffering and anxiety that are caused when a witness gives evidence. How do you anticipate that that will work in reality? In particular, how would you define undue stress and anxiety?
The important thing is the gateway principle, which I referred to earlier in relation to mental disorders. If the definition is correct and the focus is put on the witness, there then has to be a list of criteria for the consideration of the courts, as there is in proposed new section 271(2). Although every case will differ, we have a list of factors covering the areas that the courts should take into consideration. The quality of the evidence will come in at that stage. Perhaps it could be argued that "any other relevant factor" would be a genuine catch-all, as we do not have the monopoly on wisdom and there will always be cases in which unusual circumstances merit the consideration of the courts. The list of factors in section 271(2) is a good start. I would like to see some development of guidance or of a code of practice to support the list. People who work in the area need practical advice.
I move on to your position on those who are not allowed to conduct their own defence. The Law Society's position on the matter is clear. It is similar to the line that you took during the progress of the Sexual Offences (Procedure and Evidence) (Scotland) Bill. I would like you to expand on why your position on the two pieces of legislation is consistent and why the extension is not necessary. I am particularly interested in whether you believe that if the extension does not take place, women who are the victims of domestic violence will be put at a considerable disadvantage in the court.
Consistency and brevity are normally concomitant. You must do your best.
I think that three issues are involved. The answer to the first is yes; Michael Clancy has drummed into me that we have to be consistent. We expressed our genuine concerns in the first session of the Parliament and those concerns are repeated in our submission. We are concerned about the deviation from the traditional rules of conduct in the solicitor-client relationship, under which the solicitor tries to act in the best interests of the client. How can a solicitor do that when the client will not communicate with them or gives no instructions or gives inadequate or perverse instructions?
So you do not have any practical experience of those provisions not working.
That is very true, although we had concerns initially. In fairness, we came up with another idea. I think that Scott Barrie has heard me speak ad nauseam about the amicus curiae proposal, under which we thought that we could protect the witness by putting a solicitor in the court. They could be a physical presence there to protect the witness and to intervene on appropriate occasions. We suggested that having that person there might be helpful.
You have said that you have no experience of the provisions causing difficulties. However, you did not address my point about women who are the victims of domestic violence being disadvantaged. Should that consideration be taken into account?
Clearly, we are concerned about victims in that category, as we are about all victims. I hope that the special measures in the bill will assist in that process. If our idea of having an amicus curiae were picked up, those witnesses would have a representative in court with them, looking out for their interests. That would offer a way to address your concerns about such witnesses.
Mr Macara, you are a solicitor experienced in criminal defence work. The bill proposes that an accused person must be represented. Does that confront you, as a practising lawyer, with a practical problem?
Absolutely. The relationship between solicitor and client should be based on trust, and the client should have confidence in the solicitor. The client co-operates with, puts their position to and instructs the solicitor. The proposals in the bill represent a radical departure from that. An accused person, who might be stubborn in some way or see himself as principled, and elects to defend himself, will not necessarily co-operate with a solicitor appointed to represent him by the court and will not give instructions to that solicitor. How, then, is the solicitor to defend that person properly? I do not think that he can. That solicitor leaves himself vulnerable and open to criticism. He leaves himself open to the possibility that, at a further stage in proceedings, be that in the court of criminal appeal or in a civil court, he will be held accountable for defective representation, simply because he has not put the true position of the accused to the witnesses and the court. In such a situation, the solicitor might have to guess what the accused's defence is. He might have to base his approach to the case on inferences to be drawn from the evidence.
You have partly answered my question with your reference to the accused rarely choosing to conduct their own defence. However, I am struck by the fact that the Law Society is opposing measures that seek to take away that right. That seems extremely generous, given that you are probably putting some of your members out of work with that proposal. You say that the right is rarely exercised, but in your submission, you say that, depending how the prohibition in the 2002 act operates, we should in future consider extending it. Do you understand my point? You say on the one hand that you are against the extension of that prohibition, but you also say, "Let's see how it operates and we might come back to it."
If other cases arise in relation to sexual offences, we would be extremely interested to learn of everybody's experience. We would be interested to learn how the case proceeds, how the court-appointed solicitor reacts and what the judge's view is of how the system operates. Whenever the prohibition in relation to sexual offences operates, we would like to know and would like feed back on how the system operates.
I do not think that the Law Society has commented specifically on the proposal in the bill to abolish the competence test. Does the society have a view on that?
We are happy with the proposal on the competence test. We accept that merely asking a witness whether they know the difference between truth and lies does not mean that they will necessarily tell the truth.
The bill proposes abolition. Are you happy with that?
Yes.
Thank you very much.
The Law Society supports the proposal that, before special measures are authorised, there should be a hearing. We have had evidence over the past couple of weeks that such hearings would delay the process. Given that we have heard that one of the great anxieties about the court process at the moment is unnecessary delay, how can you square that with support for such hearings?
It is a difficult balancing exercise. It would be a tragedy and an irony if the bill were passed and it were to result in greater delay. I read the evidence that was given on 2 September, when the question of appeals against decisions of hearings arose. We would not be particularly happy about the prospect of an appeal arising out of a hearing that did not go the way that a particular party wanted it to, because that would inevitably lead to further delay.
I appreciate and welcome your comments that you do not anticipate that the proposal would lead to any delay. However, it seems to me that procedural reforms that have taken place, particularly in criminal cases over the past 10 or 20 years—such as some of the instances that you have already mentioned—which have often been geared towards making the court process work more efficiently, have actually had the opposite effect. People's experience is that they do not lead to greater efficiency. By solving one difficulty, we seem to create at least another one if not another two. Notwithstanding what you have said, I wonder whether we might be building something into the system that could be exploited and lead to delays.
I can only express the hope that that does not happen. Let me give an example of what happens at the moment. If the Crown feels that it is necessary to make a screens application so that a vulnerable witness can give evidence behind a screen shielded from the accused, that is invariably dealt with one or two weeks before the date that is set down for the trial. From my experience, I cannot think of an instance in which the need for a screens application has delayed the trial because the Crown or someone else thought about it only as an afterthought. The system tends to work fairly well. The application is made at a point sufficiently far in advance of the trial that it is not a cause for delay of the trial.
Unless the trial has been changed at a very late date to a different court. That has happened.
If arrangements are made in one court and the trial is transferred to another court, the arrangements made in the original court would carry forward to the subsequent court.
I do not mean to prolong this discussion, but some of our courts have practical difficulties with such arrangements. The case might well have been cited in a different court for that very reason. There have been examples in which that has not been able to happen, but that is perhaps a side issue.
We hope that if the hearing is held well in advance of the trial, everybody should be clear on what the position is on issues such as how the evidence is to be taken. If that is canvassed at an early stage, parties will not be faced on the day of the trial with situations that they had not anticipated. Our hope is that the hearing will address such matters and have them aired well in advance so that the trial does not need to be put off at a late stage.
Does the Law Society have a view on whether significant changes will be necessary to the physical infrastructure within our criminal courts for the implementation of measures necessary for vulnerable witnesses? Obviously, that will have a resource implication.
I imagine that there will not be a difficulty for the High Court in Glasgow or Glasgow sheriff court, but there will clearly be a difficulty for Lochmaddy sheriff court, which sits perhaps two or three days a month. The proper implementation of the scheme will have resource implications, which I suspect are a matter for the Scottish Court Service to address. I see that the issue has been addressed in earlier submissions. It would be a matter of concern if the provisions were extended to the district court given the major implications that they would have on the proceedings in the district court. For example, I think that the district court in Helensburgh sits two days a month. I do not know that the bill should properly be extended to the district court. I say that mainly because of the resource concerns.
I want to turn to one or two technical issues. I apologise if I have missed these in your written submission. The bill provides for a presumption that the accused will not be present when evidence is taken on commission. What is the Law Society's view on that?
We cannot imagine a situation in which the accused would be present for that. The accused would need to have the facility to see and hear the evidence, but I think that that is built into the bill. We cannot come up with a situation in which we could see that it would be appropriate for the accused to be present when the evidence is taken on commission.
We also discussed the issue this morning with another colleague who has been a solicitor for 30 years. In the criminal sphere, I have simply not come across evidence on commission. I can imagine taking evidence on commission from somebody who is seriously ill, where it might be necessary to go to hospital to take the evidence from them so that that evidence is preserved. In practice, solicitors who practise in the criminal sphere do not have great experience of doing that. Those who practise in the civil sphere will have more experience of it.
In the criminal sphere, it would seem a bit bizarre to have the accused in the same room when the evidence was being taken on commission, although we would preserve the accused's right to hear and see the evidence being taken.
Evidence on commission is always going to be rare, as it is not the best kind of evidence because the person cannot be cross-examined on it. Such evidence is never going to be the first choice and would be taken only in fairly exceptional circumstances—for example, if somebody was ill or could not cope with the cross-examining process.
The suggestion has been made, today and at other committee meetings, that there should be a change in culture regarding the physical presence of children in our courts. One suggestion is that we should change the culture around the presumption that children will not give evidence in a court environment. What is the Law Society's view on that?
Murray Macara referred earlier to the launch of the "Supporting Child Witnesses Guidance Pack", which we were involved in producing. Along with several agencies, we participated in drafting the guidance on questioning child witnesses. On the first page of that document, reference is made to the fact that children should not be required to be witnesses in a case unless it is absolutely necessary. That is set out as one of the first tenets and we agree with that view. In every situation, we should consider whether it is necessary to cite the child witness in the first place and what the best way for the child to give their evidence is—whether by way of remote television link, outwith the presence of the court, or by any other means. We should consider the best interests of the child in the specific circumstances of each individual case.
So, you favour the presumption that the child should give evidence outwith the court.
It would be necessary to consider the circumstances of every individual case.
You would prefer the flexibility of discretion being applied.
Yes.
I listened to what Rosemarie McIlwhan said. The circumstances of a 15-year-old giving evidence in relation to assault and robbery are significantly different from the circumstances of an 11-year-old giving evidence as the complainer in a sexual case. The court must identify the specific needs of the individual witness, and their degree of vulnerability must be taken into account.
You, too, prefer the flexibility of discretion and the treatment of each case on its merits. Does the Law Society have a view on the possibility of children and other vulnerable witnesses being inhibited from giving evidence because of the fear that an action of defamation could be raised?
None of the members of the Law Society who are here today has any experience of that. I am sorry that we cannot assist further.
Are you satisfied with the consultation process in which the Executive has engaged on the bill?
Yes. It has been very inclusive. We have consulted both the Executive and the bill team a great deal and we are delighted with the level of consultation.
Do committee members have any further questions to ask or points that they would like to make?
No.
On behalf of the committee, I thank all three of our witnesses for appearing before us. You must forgive us if, at times, our questioning seemed unusually fastidious. We were trying to tease out specific responses on technical issues, and we are grateful to the three of you for providing such full answers.
We welcome the fact that measures are to be taken to assist vulnerable witnesses, but we have a number of concerns about the bill and the way in which it has been drafted. As I understand it, it had been intended that the Faculty of Advocates should be given the opportunity to comment on the bill, but for some reason we did not get that opportunity, hence the lateness of our response.
There is a paper that attempts to summarise those points. We hope that you have received it.
I have just been made aware of that paper. It will be circulated to committee members. I do not think that it was received in sufficient time for the clerks to effect a distribution.
When did we get that paper? It would have been useful to have read it before today. Clearly, not having read it puts us at a disadvantage.
You could not have read it before today because it was e-mailed to the clerk this morning. Sorry about that.
It is all right, we are glad to have it. While members are glancing through the paper, I ask you to expand on the point that you said was causing you concern and to which you said that you would return. Was the aspect that concerned you the giving of evidence-in-chief in the form of a prior statement?
That is one aspect. I think that Mr Gilchrist wants to deal with that.
One of our concerns in that regard is that, although the explanatory notes refer to a previous statement being
Is it your fear that a prejudice would arise to the accused because neither he nor his agent could cross-examine properly?
It would certainly be impossible to cross-examine effectively. However, the problem is more fundamental than that, because one can envisage a situation in which one would properly object to the evidence-in-chief being admitted at all whereas the best that can be done in this circumstance is that evidence that might be unfair would be admitted and would be subject to challenge only by cross-examination.
You are arguing that, without the inclusion of the safeguard, the normal right of a criminal defence lawyer to consider the admissibility of evidence that might be led in chief and to have a debate before the presiding judge on that issue would be removed by the statutory conferment of the right to introduce evidence-in-chief by way of a prior written statement.
Without the safeguard of having a record of how the evidence had been obtained, that would be a possibility.
The concern is that proposed new section 271M, as drafted, does not require the way in which the statement was obtained to be transparent; only the statement would be produced. Leading questions are not permitted in court and they should not be permitted in the process of obtaining a statement to be produced in chief.
I thank you for drawing attention to that matter. Members have particular areas of interest that they want to ask you about.
I was interested in your presentation and will catch up with the written submission. However, something jumped out at me from the first page, which mentions the "truly vulnerable" witness. How would you define a witness who is truly vulnerable, as opposed to vulnerable?
I do not think that I can give such a definition. It is difficult to identify a vulnerable witness by criteria, although it can be said that somebody is a particular age or has a certain medically certifiable illness. It is difficult to identify a vulnerable witness or a truly vulnerable witness, or whatever words one wants to use.
Is your position that nobody should be automatically entitled to be considered for special measures and that the matter is ultimately at the discretion of the judge?
I have no difficulty with children and with objectively verifiable criteria, but I have much more difficulty with other types of witness. There should not be automatic measures; the court should be addressed and should make decisions about the criteria. That process exists in the current legislation.
I am trying to tease out the distinction between categories of vulnerable witnesses who should be given automatic rights to be treated as vulnerable witnesses and discretionary special measures that should apply. I am unclear whether you are saying that there can be automatic categories as long as there is discretion to define what special measures would be appropriate.
I am sorry, but the unclearness is probably my fault. I have no difficulty with saying that certain types of witness should have special measures and with proceeding to decide as a matter of discretion what those special measures will be, but I have difficulty with trying to define a vulnerable witness with reference to the criteria in proposed section 271 in respect of non-children and non-mentally ill people. That would be an extremely difficult exercise to carry out.
If you were rewriting the section, how would you do so?
I would find it difficult to change or improve the wording or the criteria.
So you just do not like the section at all.
It is not a question of not liking it, but of having a problem with the exercise that is being carried out, which is inherently difficult. The criteria include the risk that the quality of evidence will be diminished by
You mentioned "objectively verifiable criteria", but the submission from the Faculty of Advocates Criminal Bar Association questions whether teachers, social workers and others provide an objective view. Whom would you have provide an objectively verifiable view on whether somebody should be considered for special measures?
I do not agree that social workers or teachers are not capable of giving a view that the court can take into account. What I am saying is that it is difficult for the court to reach a decision without hearing from everyone who has an interest. That is what should happen.
You are focusing on the distinction between entitlement and discretion. It is worth saying that even under the present procedure—which, obviously, is discretionary—it is extremely rare in my experience for an application for special measures to be refused. It is also extremely rare for an application even to be opposed, unless it is manifestly unfounded. The fear that I perceive to be behind the concerns is, in reality, rather overstated.
I do not know whether you have had the chance to review the evidence that we received last week, but in the past few weeks we have received what I would suggest is persuasive evidence that a major difficulty lies in the adversarial nature of our court system. That affects all witnesses, but vulnerable witnesses in particular are affected. I am well aware that the Faculty of Advocates has expressed severe concerns about moving too far away from a presumption of innocence and towards the overprotection of witnesses. Where should the line be drawn? Are you suggesting that the current system is adequate, or do we need to do something? I take Mr Di Rollo's point that he finds it difficult to offer us a satisfactory definition, but we have to do something to protect witnesses who find the adversarial nature of giving evidence too traumatic.
We have to do a great deal to protect vulnerable witnesses. A lot is done at the moment and a lot more could be done and no doubt will be done. The bill will help, but in our paper I suggest certain ways in which it could be improved. Special measures will no doubt assist in many cases, which is a good thing. I have no difficulty with that whatsoever.
You said that "we are stuck with" the system that we have, which is a slightly pejorative phrase. Do difficulties arise because of people's experiences with the adversarial process in court?
There are advantages and disadvantages with the adversarial process. We have seen some of the advantages in London in the Hutton inquiry: when it becomes adversarial, it becomes more helpful in getting at what actually happened. I have no doubt that there are disadvantages as well, but I would suggest that the adversarial process has some advantages.
Do you take the view that, in that context—even allowing for the facility of judicial direction to the jury to dismiss all those aspects as in any way reflecting on the accused and not to take the measures into account—there will be a prejudice in the minds of the jury against the accused?
That is potentially the case. In a situation in which all witnesses of a certain type are treated in a particular way, it is much easier to say to the jury that everybody is treated like that.
I was struck by your comments about the accused because, of course, the bill does not make provision for the fact that the accused might be a vulnerable participant in the process. Is it your submission that, unless there is available to the accused a defence or plea of insanity—
No. The bill says that the accused can be treated as a vulnerable witness. My concern in that regard is that, in such situations, the Crown would not have an opportunity of saying to the court that no special measures should be taken in relation to the accused person because it was nonsense to say that they were a vulnerable witness. That is a fundamental problem with the way in which the legislation has been put together.
Sorry. I misunderstood what you were saying.
The situation can be put right quite easily, however.
I would like to follow up the line of inquiry relating to special measures. Some of the measures already exist, such as screens.
They all exist.
What has been your experience of the effect of those measures on the quality of evidence that is given in the court?
Speaking as a prosecutor, I have had favourable experiences of the use of any special measure, whatever it might be. There is no legislation on whether someone can accompany the witness, but the court can allow that, and it can work extremely well. Screens and CCTV can also work well.
Does the use of special measures affect detrimentally the jury's opportunity to see the witness giving evidence and the accused's response to that evidence? Do the measures in any way detract from that process?
I think that they can detract from the process, which is another reason why I stress that, in an ideal world, if the process will not upset the witness, it would be better if the witness gave evidence in court. I am also a former prosecutor and I can think of cases in which, because the witness's evidence was given on CCTV, it made less of an impression on the jury than it would have done if the witness had been in court.
Is that true generally, or only in certain instances?
I am saying that it can happen, not that it does happen. We ask witnesses to give evidence in court because it is thought that, in our system, doing so provides the best opportunity for a jury to assess whether the witness is credible or reliable. Any step that takes the witness away from the jury might have an impact on that.
Is not the reason for that impact the image that is projected that the right way to give evidence is the traditional way in court? Last week, the Scottish Child Law Centre gave us persuasive evidence that we need to move away from that view. The difficulty lies with people who take such a view, which, I realise, means juries. The fact that we provide special measures in some cases while, in others, young children are persuaded to give evidence in court promotes that image. If there were a presumption that all evidence from children would be given through special measures, your argument would be diminished.
I do not have a difficulty with the presumption that children, particularly young children, should not have to give evidence in court. I am all in favour of that. I do not know how juries think—we are not allowed to inquire into that. I was simply saying how the use of special measures seemed to me, as a prosecutor, to affect certain cases.
Surely we must listen to children's experiences. The vast majority of children who have given evidence in court think that it was a bad experience, irrespective of the outcome.
I do not disagree with that. I am simply saying that I have experience of cases in which the witness's evidence had less of an impact than it might have done on the people who had to decide the case. The committee must be alive to that potential downside of the bill.
That downside is a result of the nature of our system.
Yes.
I want to explore some issues that other witnesses have raised. Both of you have been prosecutors. What is your view of the fact that a child witness might decide not to give evidence if they have to stand up in a witness box in court? If that happened, the witness would be lost. Other committee witnesses have mentioned the huge reluctance among people to give evidence in court. Would not it be better for witnesses to give evidence on commission—which would be at least something—rather than not at all?
I do not have a difficulty with that, again subject to the fairness of the evidence. I go back to the first point that I made about the potential difficulty that I have in relation to admitting prior statements as evidence. I do not have a difficulty with the proposal if the fairness of the trial is preserved in the context of whatever special measure is being used. It is better to have the evidence than not to have the evidence.
Will the bill, if it is passed, improve the way that our courts operate or hinder the court system? We have heard that people are worried that some of the measures might delay what happens in court.
It is difficult to give a clear answer to your question. The bill is a demanding piece of legislation for everyone and every time that such legislation is passed, people have to absorb what it says, consider it and deal with the new situation that emerges. Certain features of the bill are capable of assisting the process. Most of the bill's provisions are already in existence. There seems to be a perception that more needs to be done to ensure that the courts make the right decisions in certain cases. I hope that the bill will improve matters, but I suggest to the committee that certain aspects of it need to be considered more carefully and that it could be improved in a number of ways.
In general, our approach is that the thrust of the bill is good and that it is a worthwhile exercise. We have focused on areas where we think there are problems. One example is the provision on expert evidence as to the credibility and reliability of the complainer. That provision will cause real problems.
Which section is that?
It is section 5, which will insert proposed new section 275C into the 1995 act.
So you think that, as the bill stands, it might delay things more than they are currently delayed.
Certain problems are going to arise, such as the issue of resources. Not all sheriff courts can deal with the special measures—not all have CCTV facilities, for example. Witnesses will have to be moved to other courts and evidence will have to be dealt within other courts. That will cause delays in cases.
You have said that you think that the bill will be a demanding and complex piece of legislation and your submission mentions the need for training and advice to be available to all the agencies involved. Perhaps I can give some advice to the mathematician at the Faculty of Advocates: the paragraphs in the faculty's submission are numbered 1, 2, 3, 4, 5, 5 and 7—6 has been missed out.
Oh well—thank you very much.
That will be 500 guineas. [Laughter.]
We have had a programme for trainee advocates since the early 1990s. There is a need to consider whether that training deals adequately with vulnerable witnesses in particular. I think that we should consider ways of improving our training. No doubt, the faculty will have to consider and implement improved training for us all in dealing with vulnerable witnesses, and that needs to be a continuous exercise.
So the Faculty of Advocates conducts its own training of trainee advocates.
Yes.
Who do you envisage providing the training for the other agencies involved in the process, such as solicitors and the police? Do you draw on outside agencies to help you with the training of trainee advocates?
We have worked with expert witnesses, including doctors and accountants, for certain types of cases. As far as vulnerable witnesses are concerned, we have worked with certain medical practitioners and have practised doing drills with them. That involves a mock case, with trainees practising taking their evidence. That has the effect of training the doctor in answering questions and training us in asking them—it helps us both. Aside from that, we have not so far considered involving outside agencies to any great extent. However, there is no reason why that could not be considered.
My colleagues have mentioned that cases sometimes take a long time to reach court. Might it be appropriate to train advocates who get involved in cases involving vulnerable witnesses? Of course, training might be general, rather than about the specifics of a case. Should training take place for advocates who are not involved in cases with vulnerable witnesses? Do you take my point?
Any advocate going into a trial involving vulnerable witnesses ought to have received training, which would include the handling of those witnesses. That is part of our job.
You say "ought to", but is it part of the faculty's disciplinary regime? Is some check done on the training that has been provided to advocates?
It is part of the training programme that everybody now undergoes before they are even allowed to call as a practising advocate. Many of the suggestions in "Guidance on the Questioning of Children in Court", which was launched today, are mirrored in the advocacy training that our trainees now get.
I have questions about your children's justice section proposals, but before we move on to that, I have a final question about training. You said that you train with doctors and accountants—professional people, just like advocates—but it strikes me that many of the people who go to court are not professionals and, unlike advocates, are not used to going to court. It would perhaps be helpful if advocates, whether acting for the Crown or for the defence, had an opportunity to engage with Victim Support Scotland and Scottish Women's Aid to take on board their experiences from the other side of the legal system of what it is like to be a witness in court. That would assist your training process, so will you consider doing it?
I do not see any reason why not. It is obviously difficult to practise on a real vulnerable witness—no one would contemplate doing so. However, there is no doubt that we can learn from people with experience of dealing with such witnesses and I have no difficulty at all with your suggestion.
We have held seminars for our members on how to deal with child witnesses. People who are recognised as being particularly good at that have come to share their experiences and I hope that we have built up a knowledge pool on that basis.
In your response to "Vital Voices: Helping Vulnerable Witness Give Evidence", which the Executive issued, you suggested that it would be helpful if a children's justice section were created within existing structures. What do you anticipate to be the main benefits of your proposals, and what are the possible negative effects? Will they take up resources and add unnecessary layers of bureaucracy, which already appear to exist?
I find it difficult to deal with that question just now as I was not involved in preparing the response. I do not feel capable of giving you an answer that does justice to the thinking behind our proposals. Perhaps it would be all right to come back with a written response in due course.
I am afraid that I am in the same position.
We were given a copy of your response to "Vital Voices" as your evidence to the committee. I spent considerable time wading through "Vital Voices" and measuring it against your response, so it is unfortunate that you are not in a position to give the information and detail that is required. A written response would be helpful, particularly on whether your proposals on the children's justice section would increase bureaucracy and take up unnecessary resources.
Can that information be made available in writing?
I am sure that it can.
That would be helpful.
It is rare.
Given that taking of evidence on commission could arise, are you concerned about the bill's proposals for it?
Only two things concern me. The first is whether the accused should or should not be present. That should really be left to the court to decide; I do not see difficulty with leaving that decision to the court. If the witness is vital—the main witness in the case, for example—then to exclude the accused from hearing and seeing that witness would be an important change. The court should make the decision and there should not be automatic provision that the accused be not present. It is a basic feature of criminal procedure that the accused is present at the trial. That is in section 153, I think, of the Criminal Procedure (Scotland) Act 1995. It is a very important principle. Having a commission is fine and not having the accused present is also fine, if it is justifiable. However, that should be left to the court to decide.
Do you mean it should be left to the judge?
Yes—it should be left to the judge and, I should add, not to the commissioner, which is what the proposal suggests at the moment.
The other aspect to consider is who will ask the questions. It is not entirely clear from the provision as it is framed whether what we understand to be the traditional way of conducting a commission would operate. The traditional way is that the commissioner acts qua judge as referee, and the two parties ask the questions. In the consultation document, there is at least a suggestion that the procedure might be used in the expectation that the commissioner himself or herself would ask the questions—on behalf, I presume, of both parties. If that is the intention, it is a radical step and it is difficult to imagine how it would work in practice. It is difficult to imagine how the parties would be able to communicate to the commissioner the line or the approach to questioning that they wished to take, or to see how they could be sure that the commissioner understood that and was able to deal with it effectively.
I note your profound concerns over expert evidence on the credibility and reliability of the complainer, as covered in section 5 of the bill. I gather that your principal concern has to do with what you see as the one-sided nature of the provision.
It is one-sided—there is no doubt about that. Only the complainer can take advantage and the provision does not seem to allow the accused to lead evidence in the opposite direction, which is a problem. For example, it allows the Crown to lead a psychologist to say that the complainer is telling the truth, but it is usually the jury that decides whether a witness is telling the truth. It should be for the jury to decide that, and not for some expert witness. With the provision in its current form, if the defence wanted to lead evidence—which the Crown has led—to say that the expert was wrong, it would not be permitted to do so. Proposed new section 275C(2) says:
You are also concerned about the absence of a definition of expert. Is that because of concerns over restricting the right of the accused to question the validity of the—
The problem is that we do not have any system in Scotland for accrediting experts. Anyone can come along to court, say that they are an expert in a particular field, and give their evidence. It is for the fact-finder to decide whether they are prepared to rely on that evidence or not. Once you allow expert evidence to be introduced in order to decide whether somebody is telling the truth or not, potentially you allow expert evidence from just about anybody to say that a particular witness is to be believed or not. The bill uses the phrase "psychological or psychiatric evidence". My concern is that psychological evidence covers a multitude of sins. I am not entirely sure what kind of expert the bill would sanction. What kind of psychologists are we talking about? What qualifications would they have? What professional bodies will they be members of? What expertise will they have?
So, would your preference be for proposed new section 257C to be swept away?
Yes.
Would you also prefer to rely upon the conventional position of the jury making its own determination as to credibility or reliability.
That is my personal view, but there is room for a different view, which is that we should have expert evidence. If we are going to do that, we should be careful about the way in which we go about it; I do not think that the provision as framed is adequate.
I tend to perk up a bit when the word "radical" is mentioned. I want to press you on one thing. You may have answered this, but so that I am absolutely clear about it, are you uncomfortable about plans to prevent the accused's being present when evidence is given on commission, unless a judge in court has said that he is happy with it? Are you saying that you are unhappy about taking away the right of the accused to be present, unless the court has decided that it should be taken away?
That is right.
That is an important distinction for me. I have some sympathy with the idea—I am sure that we all do—that the legal rights of the accused are very important. You are saying that it is important that those rights be preserved, but if the judge says that the accused does not have to be present, you are quite happy with that.
Absolutely.
I want to ascertain your view on the competence test. You say in your earlier paper that you want it to be retained, but the bill proposes to remove it. I do not see anything on that in your current paper.
You must understand that the Faculty of Advocates is 400 people, and if you ask each one of them you may well get slightly different views on certain things—we all have different experiences. We are doing our best to represent a view, and to help to give you some assistance in relation to these matters. For my part, the competence test is not particularly helpful and I am in favour of getting rid of it. That said, one thing that will happen is that the defence may well cross-examine the witness and ask them whether they know the difference between the truth and telling lies, or questions to that effect. I do not think that we could do anything about that, but it might happen.
At the moment, I presume that it is a judicial decision as to whether, on the submission of arguments by the parties, someone is competent or not.
That is right.
That leaves the flexibility to be applied by the court, whereas the removal of the competence test will mean, I presume, that the individual will be brought into court and may or may not be subject to special measures.
I think that that is right.
The issue will not be whether the person is competent, it will be, "You are in court. Do you merit special measures as a vulnerable witness?"
That is right.
Even so, that person might end up giving evidence whereas, in the present situation, a judicial view might be reached that the person is not capable of giving evidence and should not be in court.
Yes, that is right.
I want to come back to the commissioning of evidence. Clearly, you have some doubts about the way in which the bill is framed at the moment. Will that lead to defence agents' delaying things, or claiming that their clients are not getting the best? I suppose that I am asking whether the provisions will, at the end of the day, help or hinder the bill. Will defence agents end up having rights of appeal against decisions because they have not been heard?
That is not in the bill.
No. I am wondering about the taking of evidence on commission.
The short answer to your question is that the commission procedure could help, provided that it is used properly. However, difficulties might arise in practice with ensuring that the defence can put all the questions that it wants to put at the commission, and that we do not have to return to the witness after the commission is concluded to ask questions in the light of matters that turn up later. If things are done as they should be, that should not happen. All that I am saying is that a demand to use the procedure properly is being made of those in the system who are responsible.
That is a difficult practical problem. I understand that one purpose of pushing for evidence to be taken on commission is to record the evidence of a vulnerable witness earlier. In an adversarial process and in the process that we have, the defence does not know the Crown's case until late in the day, so it cannot participate in the commission.
That is my point.
Unless we change the disclosure rules to allow the defence to be told the Crown's case much earlier, the evidence will not be successfully recorded earlier.
Therefore, problems and delays could be caused.
That could happen.
I have one more question that combines two points. Your submission says specifically that proposed new sections 271H(1)(f) and 271N of the 1995 act "should be deleted". The provisions concern subordinate legislation and the district courts. Those are only three words, so will you expand on why you say that?
We say that because we think that special measures should be introduced by the Parliament, rather than by the Executive through subordinate legislation. Proposed new section 271H defines special measures as a number of procedures and
It is obvious that you feel strongly about it.
As for the district court, if a case that involves a vulnerable witness is worth prosecuting, that should be done not in the district court, but as a summary case in the sheriff court or in a higher court.
If the procurator fiscal decided that a case should go to the district court and you, as a prosecutor, thought that you had a vulnerable witness and that the case should not go to the district court, who could change the procurator fiscal's decision?
That decision could not be changed.
I understood from the Crown Office's evidence to the committee that fiscals do not put cases with vulnerable witnesses into district courts, so that problem should not arise.
Although it should not arise, it could. I sat in a district court for several years, and I heard evidence in two cases from vulnerable witnesses—there was no question about that. There must be a way to ensure that that does not happen.
Identification of the witnesses in advance is important. The committee discussed that with Mr Macara. There is a limit to what legislation can achieve. We must ensure that the people who are responsible for those decisions make them properly.
The bill envisages only the possibility that the provisions might extend to the district court. As it stands, the bill does not apply to the district court.
That is correct.
I do not want to agonise over evidence on commission, but I am struck by your concerns about the process. I see no provision for appeal by the accused under proposed new section 271I. Does that section create a danger of contravening the European convention on human rights? For example, the accused might be excluded because the commissioner—against representation—had decided not to have him present and the presumption under that section would be that the accused would not be present. Representations might be made, but the commissioner apparently has the power to reject those representations. Where would that leave the accused, if he feels genuinely that he has been denied natural justice under the process?
I am not sure whether such a rejection of a representation to be present is contrary to the ECHR. I have not applied my mind to that particular question. However, I do not think that it is fair, whether or not it is contrary to the ECHR. The accused should at least be entitled to tell the judge that they want to be present. The judge should then make a decision on that. The other party should be able to satisfy the judge that the accused's presence is not justified or not required, and that it should be dispensed with. If there is justification, the court will decide that the accused will not be present or, if there is no such justification, it will not.
Most witnesses so far have said that the Executive has been quite open in consulting them on the bill. You hinted at the start of your presentation that you had not been consulted. Is that the impression that you were trying to give?
That was not intended. We were concerned that the committee had not received an advance written response from us on the bill. When we were asked to give evidence by the Faculty of Advocates, we became aware of that and we tried to do something about it—we tried to find out why that response had not been provided. We could find nobody among the faculty's officials who had any record of having received a request for a response on the bill.
Do you believe that the Executive has consulted effectively on its proposals?
We were given an opportunity to respond to "Vital Voices", which I think is the most important point. There has, however, been a problem with giving the committee the information that we want it to have, and we are sorry that it has been late in arriving. I am not sure why that was. Something seems to have gone wrong somewhere.
I hope that we have at least partly cured that by turning up here this afternoon.
I think that, from the committee's point of view, you have ably cured that by turning up this afternoon. Do the witnesses wish to make any further points?
There is one quite sophisticated point concerning item 2 in our submission, which we have not discussed in detail. I am sorry that our numbering was incorrect, and I am grateful to Mr Fox for pointing that out; we are not very numerate in the Faculty of Advocates, obviously.
So you are saying that the inclusion of that phraseology is perhaps an expressed, if inadvertent, direction not to have a fair trial.
Almost.
It is the second part of the section 271A(11)(b).
If, as we suggested,
A fair trial is a fair trial.
Correct.
That must be the determining factor.
Given that many members do not believe that that is the intention, I suggest that we clarify the matter with the ministers.
We will certainly seek ministers' view on that.
Very good.
Do you have any other comments?
I hope that we have made ourselves clear on the points that we wanted to make.
I thank the witnesses for being present this afternoon. From the length of time that we have taken over your evidence, you will see that we value your input. We appreciate that you have done a technical appraisal of the bill as it stands; it has been of great assistance to the members. Thank you for your forbearance.
Thank you for that and for giving us the opportunity to come to the committee.
I will send you my bill.
In the interests of the comfort of committee members I announce a five-minute break. I hope that our next two witnesses will understand and be sympathetic as we have been sitting here for two and a half hours.
Meeting suspended.
On resuming—
I welcome back committee members and, on their behalf, I also welcome Rowan Steele and Heather Coady from Scottish Women's Aid. I apologise to them for the slight delay in bringing them forward to give evidence. As they will have gathered, the discussion with the previous witnesses was rigorous but important and the committee felt that it needed time to explore the issues. We are pleased to have the witnesses here and we appreciate their submission. Without further ado, we will crack on. We will try to finish the meeting at around 5 o'clock.
The session with the previous witnesses demonstrated that we have a robust and, perhaps, adversarial justice system. Some people have argued that the system needs a fundamental cultural change. Do you subscribe to that view? If so, what steps should be taken to effect that change, while protecting the concept of the inherent fairness of trials?
A cultural change is needed. We welcome the bill, but attitudes must also be changed. One of the steps that we request, which has been mentioned in other evidence, is the provision of more training to increase awareness. Scottish Women's Aid is mostly concerned with domestic abuse, which is a complex, difficult issue. In cases involving domestic abuse, there is even more need for greater awareness that witnesses might not be able to give the best possible evidence in court.
In what way would more training be beneficial? Who should provide the training and how should they do it?
Training on issues such as domestic abuse must be made more widely available, because a greater understanding of the issues that affect women, children and young people who experience domestic abuse is needed.
Under the bill, special measures will be automatically conferred on children, but they will be discretionary for adults. Should they be extended so that they are automatic for everyone? Is there inconsistency between the automatic rights and the discretionary rights? Have you thought about the big question, which is on the balance between extending the rights of potentially vulnerable witnesses and buttressing or protecting the overall right to a fair trial for everyone?
I can understand why it would be difficult to extend special measures to everybody. Our view would be that, certainly in cases of domestic abuse, special measures could perhaps be automatic. I can understand why the bill extends such rights to children but not to other categories of witness. However, it would be good to use special measures in cases of domestic abuse, as it is a complex matter that involves many issues to do with safety for women and children. The current system does not always protect women and children, and there is a case for saying that they should fall into the category to which special measures are automatically extended.
You think that victims of domestic abuse should be given the same automatic entitlement that is extended to children.
Yes.
Jackie Baillie made a point about the adversarial character of the court. The other side of the question whether to extend the rights of witnesses is the issue of protecting, at the same time, the overall integrity of the trial so that there is fairness for everyone. Have you considered that side of it?
The bill demonstrates that the balancing act between the rights of witnesses and the rights of the accused is difficult and will not always be straightforward. It is a difficult choice to make, but if one can accept that children are inherently vulnerable I cannot understand why one cannot extend the rights of witnesses in special cases such as domestic abuse, where there is a high chance of intimidation and of some retribution afterwards.
I want to explore further whether victims of domestic abuse should have an automatic right to be treated as vulnerable witnesses. Anybody could come along and say, "We should have automatic rights to be treated in this fashion." The courts will have discretion to consider "fear or distress", which is quite a wide category. Is that not sufficient to encompass people who have been subjected to domestic abuse and who may be vulnerable?
It might well be, and it is a good provision in that sense. Our concern is that, because it is discretionary, we will rely on a certain amount of awareness of the issues. I cannot say that, on the whole, that level of awareness is always present.
Do you have any evidence of the courts not using discretionary measures that are available in other circumstances relating to domestic abuse?
Can you give me an example of what you mean?
Your argument seems to be that a measure that is discretionary might not be used: is there evidence to support that view?
There is definitely evidence—of course, it is anecdotal—from women and children who have spoken to us. We hear from local groups that such witnesses often do not feel supported or looked after and do not have a very good experience. Their needs and wishes are often not taken into consideration. One example is that of a sheriff who said to a young person who had asked for special measures, "Oh no, you'll be fine." The assumption was that the young person looked okay—they looked like they would be able to handle the situation.
I will move on to the identification of vulnerable witnesses. The earlier that that is done, the better. What is the ideal stage at which identification should happen? Do you envisage there being a role in that for the voluntary sector and, in particular, for Women's Aid?
The process of identifying a potential vulnerable witness should start as quickly as possible.
Is that in the context of possible criminal proceedings, rather than civil proceedings?
Possibly in both circumstances. That is an interesting point. In relation to issues of contact and residence, a woman may be involved in civil proceedings but might not necessarily want to stand in front of the abuser and discuss in that setting what has taken place in the home. She may need some protection. There is definitely an issue about intimidation, although the evidence on that point is also anecdotal.
I have a very specific question; a yes or no answer will do. Do Women's Aid, the voluntary sector and Victim Support Scotland have a role in that early identification and support?
Absolutely. Yes.
Your written submission indicates that you would like to see a prohibition on the accused conducting their own defence in a trial. You state that that should not be a matter for the court's discretion in cases of domestic abuse; it should be prevented. Why is prohibition necessary?
That would be a very difficult situation for any vulnerable witness to be in. What we have heard from witnesses—I imagine this is the reason for the bill—is that their experience in court is such that they say, "I am not doing that again. I would not put myself through that again." We do not want that situation to arise. We want people to be able to go to court and have confidence that they will not feel mistreated, that they will be able to give their evidence in the best possible way and that the outcome will be fair.
The Scottish Human Rights Centre, in both its written submission and the oral evidence that its representative gave today, indicated that it believed that any further extension of the kind that is being proposed by Women's Aid could seriously undermine the right of the individual to a fair trial. How does Women's Aid, with all its experience of dealing with women and children who are vulnerable and who are the victims of domestic abuse, respond to that? Do you believe that the right to a fair trial would not be protected if the prohibition were to be extended?
I would ask how a trial can be fair if it involves a witness who is not able to give evidence honestly, or to contribute to the fairness of the trial, because they feel intimidated.
How many cases of domestic abuse, or cases involving women who have been subject to violence, are you aware of in which the accused has conducted their own defence? In your experience, are there many such cases? You have been here for so long that you might have heard me ask the representative from the Scottish Human Rights Centre the same question. She said that she thought there were very few such cases.
I cannot answer that. The only thing that I can say in my defence is that the legal issues worker who worked on our submission was not able to be here today.
I am not trying to press you. The likelihood is that there are very few such cases. I just wondered whether you might have thought that there were more of them.
Would it be possible for us to find out about that and respond to the committee? I have a funny feeling that the number might be higher in civil cases, as opposed to criminal proceedings, but I would like to check on that.
It would be helpful if you could do that. We do not want to put time-scale pressures on you, but the sooner we have any information, the easier it will be for us to digest it. We are in your hands.
We will get back to you as soon as we can.
The bill as it stands does not provide for self-referral in relation to vulnerable witnesses; an application must be made by either side in a case. Is that undesirable? Do you think that some form of self-referral should be provided, so that a witness is in control of deciding whether to ask the court to be treated as a vulnerable witness?
That would be a step in the right direction. The nature of domestic abuse means that it can be very difficult to have someone argue on one's behalf. The fact that the situation is tricky has to be kept in mind when an application is made. It would be easier if we could make the system as flexible as possible for witnesses who felt that they would be in a vulnerable position.
I appreciate that it might be difficult for you to answer my next question, as it might not be within the ambit of your experience. In dealing with cases of domestic abuse—whether they take the form of a criminal prosecution or whether they involve going down the civil route to seek orders, maintenance and so on—is it your impression that most women in such difficult domestic situations can probably cope with the court appearance and the rigours of giving evidence if they are given support? Do those women perceive the whole experience to be alien and, in a sense, difficult to understand? Is that what is deterring them?
That definitely plays a large part, but it is not the only reason. There are a great many issues, strands and reasons why women do not come forward and give evidence. An element of that is the experience in court, but many women who have not given evidence in court before do not know what to expect. Our experience is that they expect that they will be treated well and that they will get a fair outcome. However, once they have been to court, it is common for them to say that the experience was horrible, that they would not do it again, that they did not feel safe and that they feel even more vulnerable.
Do members want to raise any other issues that we have not touched upon?
No.
It seems that everyone has exhausted their flow. Before the witnesses leave us, are there any points that they would like to make in conclusion?
There are only a couple of points that have not been touched upon, although they were covered in the evidence-taking session with the Faculty of Advocates. The first point is the special measures that need to be put in place in civil proceedings and how they are to be paid for; that includes the question whether the special measures would have to be paid for by the person who was bringing the case.
You referred to that in your submission.
Yes. There are definite pros and cons to the use of expert witnesses, but expert evidence can be essential, especially when domestic abuse is involved. In some situations, a woman's past behaviour can affect her evidence in court, despite the fact that her behaviour was dictated by the abuse that she experienced. Her behaviour needs to be explained in the light of her experience. That relates to our other points about the special measures for women who have experienced domestic abuse. Scottish Women's Aid should be able to give expert evidence in such cases.
You heard the observations that were made by the Faculty of Advocates about the provision of expert evidence. As long as there is fairness to both sides, the faculty has no problem with the giving of expert evidence other than a concern about what "expert" is. In the bill as drafted, the facility to lead expert evidence is given only to the complainer. Do you want the provision to be drafted in that way or do you accept the reservations that were expressed by the Faculty of Advocates?
Was it concerned that that might affect the fairness of the proceedings?
Yes. The Faculty of Advocates pointed out that the right was given to only one side. That point probably strikes a chord with some of us in terms of natural justice. The committee agreed to put the point to the minister for clarification. Are you concerned that, in order to provide balance, the right could be extended to the other side in the case?
That is a difficult question. We are in two minds about the issue. We can see that the current provision could be good, because it is useful to use expert witnesses in certain cases. One example is the children's support worker in Fife who was called to give expert evidence in a contact and residence case. Her evidence gave an insight into how the abusive behaviour was impacting on the children.
I thank the witnesses for appearing before the committee. I apologise again for the delay and thank you for your forbearance in accommodating our needs. Your evidence was very helpful. We appreciate your making time to come and speak to us this afternoon.
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