Item 2 on our agenda is consideration of the Vulnerable Witnesses (Scotland) Bill, which was introduced on 23 June by the Minister for Justice. To assist our consideration of the financial memorandum that was published to accompany the bill, we have witnesses from the Scottish Children's Reporter Administration: Ed Morrison, who is director of finance, and Jackie Robeson, who is head of practice. From the Scottish Court Service, we have the chief executive, John Ewing, and Cliff Binning, who is the head of operational policy and planning. We also have Philip Shearer from the Scottish Legal Aid Board. You are all welcome. Thank you for coming.
We do not wish to make an opening statement.
Has the Scottish Court Service been consulted fully on the costs that are set out in the memorandum? Are you generally content with the details that it sets out?
The answer to both questions is yes. As an executive agency of the Scottish Executive Justice Department, we were involved in discussions with Justice Department colleagues during preparation of the financial memorandum and understand the background to the estimates that are included in it.
Paragraph 110 mentions that only nine of the current 52 courthouses in Scotland have closed-circuit television and gives costs for equipping a further 10. Where does the figure 10 come from? Is it sufficient? Who will decide which 10 courthouses are given CCTV and what criteria will be used in making the decision? Do you think that, ultimately, CCTV should be rolled out to every courthouse in Scotland?
It is important to understand that the distribution of business is not even and that we have tried in the past to ensure that we have equipment where it is required. There are 49 sheriff courts in Scotland, which vary in size from Glasgow to Lochmaddy. They also vary in the amount of business that they transact. Nineteen of our courts handle 80 per cent of all court business. For that reason, it seemed reasonable to aim to expand CCTV provision to 19 courthouses, in order to maximise coverage. We want to develop the use of the technology so that we are able to have mobile facilities. If a case had to be held in one of the more remote courts and it was not appropriate to transfer it to a larger centre, we would then be able to respond to that need.
Do you think that the sum of £55,000 for CCTV is sufficient? What run-on costs for training and maintenance are involved? Are those costs recognised adequately in the memorandum?
The run-on costs are not recognised in the memorandum because they are not additional to the provision that the legislation enacts. We already provide CCTV facilities for child witnesses in a number of courthouses. We bear the costs of maintaining that service and training staff to operate it within our normal overall budget.
My question arises from paragraph 111 of the financial memorandum. How did you estimate the number of notices and applications, the time taken by the judiciary to consider them in chambers and the implications for staff salaries of supporting judicial consideration of notices and applications?
One of the difficulties in making such estimates relates to the fact that the legislation is supposed to change the culture and the use of facilities. We are building on facilities that already exist but which are not used to the extent that the Executive feels is appropriate. When projecting forward, there is a limit to how much one can rely on the historical database. The figure of 9,000 notices and applications a year is based on fairly reliable information on the likely take-up for the most serious cases in the High Court and for solemn business in the sheriff courts. The extrapolation with regard to summary business is the most questionable area. We will examine that with the Crown Office and the Justice Department as the process of phased implementation rolls out. The figure is our best estimate at the moment of the maximum end, but we will have to continue to consider the procedures.
I am sorry to jump out of sequence, but I would like to ask a question that is supplementary to one of the convener's first questions.
I do not think so, given the pattern of cases for which the facility tends to be needed. However, we will have to monitor the situation and the take-up rate.
On the use of special measures, the estimated costs in paragraph 115 are quite low. We have heard about the proposal to have mobile facilities. Why is the estimate for the number of courts that will be able to use the special measures so low? What costs might be associated with using the mobile facilities in rural areas?
The provision addresses situations in which it is necessary for witnesses to be remote from the courthouse when they give evidence. At the moment, our child witness facilities are designed so that the child goes into a separate room in the court building, which is linked directly to the courtroom by CCTV. The proposals in the bill would allow the child, in certain cases, to give evidence from a remote location, such as a social work department. That is one of the issues that we need to work through in the implementation. The court might require a member of court staff to be present at the remote end of the link; that has informed our approximate estimate of the cost. Similarly, if the court chooses to take evidence on commission, it sends people out to do that, in which case the presence of one or more members of my staff might be required. We do not expect that to occur in many cases and, in any case, that is part of the kind of work that staff already do.
What about the mobile facilities?
We already use some mobile facilities. As part of our investment in technology, we have wired up courtrooms so that we can plug in systems that would allow the mobile facilities to work with minimal disruption to the courts. We are working towards that. We do not anticipate that the mobile facilities will incur significant extra cost. We would expect to run with them anyway.
I have one final question on the assumptions that you make in paragraph 114. Are you confident that they are robust in detailing the average costs and the number of hearings that you expect?
They are robust in the sense that those are the average costs that we use when we estimate what the cost in the courts will be. The assumption about the total number of hearings is less robust. As I explained, part of the difficulty is in extrapolating to summary criminal proceedings, which is the area in which the number of hearings could vary significantly in practice. There, we have made quite a big leap. We are more confident about the figures that are quoted for the High Court and for solemn business. The figure for the summary business is very much an estimate, and it could easily be out by 1,000 cases either way. However, that is as close as we can get on the evidence that we have.
If the bill is implemented, when will be the earliest opportunity for you to review the figures?
We will continue to monitor the situation and we will discuss with the Crown Office and Procurator Fiscal Service ways in which we can collect better data on the possible use of the facilities in summary cases. We assume that the Executive will want to set up an implementation group fairly soon to work out the detail. Assuming that Parliament passes the bill, we are working towards a target of 1 April 2005 for the first-stage roll-out. We cannot settle on the final implementation programme until we have a clearer steer about what Parliament will decide the legislation should consist of. If we get the figures wrong, the normal spending review process will give us the opportunity to raise any concerns with ministers and seek additional funding if it is required.
I understand that this is an extremely difficult exercise. The main determinant of cost seems to be the assumptions that underlie the calculation of the number of vulnerable witnesses. We hope that the costs of providing CCTV and so on will be one-off costs. As a former practising solicitor, it seems to me that the approach among defence lawyers might be to make an application whenever they are in doubt, especially when it is unclear whether the client may have a mental disorder that would entitle them to be treated as a vulnerable witness under section 1 of the bill.
I have not seen the SLAB paper, and I would be interested in having a look at it. Past practice suggests that it is not defence solicitors who are likely to use the legislation but the Crown, as the legislation is focused on vulnerable witnesses, who tend to be led by the Crown. As you will be aware, in practice, the Crown leads the majority of witnesses in a case. The option will certainly be available to defence agents but, judging from our knowledge of past cases, I do not think that many defence agents will be beating a path to our door to use these special measures.
A moment ago, in response to the previous questioner, you said that your estimate could be out by 1,000 or so.
It could be, in relation to summary business. However, the phased implementation that the Executive wants will focus resources initially on the most serious cases involving the most vulnerable witnesses. We will be able to gain experience of the way in which the culture of the courts will change and we will be able to collect better information on summary criminal business. That will allow us to have a better estimate. If the estimate turns out to be wrong, the spending review process will give us opportunities to raise the issue with ministers. Matters would then come to the committee when it considers justice funding.
Section 20 sets out a wide range of possibilities for the commencement of the bill. What steps can you take to budget for the financial impact of the bill? Do you support the wide discretion that is given to ministers on commencement, or could that be problematic for your organisation and for individual courts?
We regard that provision as essential to allow the phased introduction of the measures required and, as I explained, to allow us to test how the new measures are operating in practice. We have still to discuss that with the Scottish Executive Justice Department and other interested agencies. We envisage that, initially, we will concentrate on problems in the High Court and then move on to the sheriff and jury courts. After that, we will consider the implications of the measures on sheriff court summary business. That will allow us to gain better information and experience before moving to each subsequent phase of implementation.
Do you expect that there will be implications for other capital projects in the Scottish Court Service, given the obligations that are likely under the bill?
There will be some implications for staff training and making people familiar with the measures. However, things will not be radically different. The main change will be in the width and extension of the application of the measures; we are already familiar with the principles behind the special measures.
Over and above increases in staff training, will there be an upgrading of staff wages—to cover the additional knowledge that they will have to accrue—that you have yet to consider?
No. Staff are trained to handle a whole range of business in the courts. Their skills are rewarded in our usual pay system. Paragraph 114 of the explanatory notes mentions a possible additional cost of £92,000 to the Scottish Court Service in terms of staff costs. That has to be set beside the total salary bill of around £20 million to £21 million. The figures are absorbable in the resources that are available to us.
Paragraph 145 suggests that the main capital costs could be
That is always a possibility, but the effect will not be significant. The bulk of our capital programme is spent on large capital projects and court refurbishment. We think that the cost implications are, relatively speaking, affordable from within our available resources. Equipment will probably be the least expensive element. Changes to the court estate may be more costly. However, such changes would be made as part of a general refurbishment process. We may want to stage the changes, so we do not anticipate any significant pressures.
I share some of Fergus Ewing's concerns about the potential problems identified by SLAB—it is regrettable that you have not seen some of its comments. The board refers to evidence taken by a commissioner and talks about the commissioner being entitled to "reasonable professional remuneration" for the time spent on the task. It accepts that there will be a cost involved in attending and travelling to a commission, but it does not consider that the figure of £500 is an accurate reflection of the true cost of a commission; it believes that the costs are likely to be considerably higher. How do you respond to that?
Without having seen the papers, I do not know what estimate the board has built its comments around. On the face of it, the board seems to be assuming that the commissioner will be an advocate or somebody appointed specifically to undertake the commission. It is quite possible that a sheriff will choose to make that journey, in which case the cost is already covered in the judicial salaries bill. There are areas to be explored in the estimates. The proportion of cases when evidence will be taken on commission is one of the unknown variables. The Executive has made an estimate in the figures. We have no basis on which to challenge that estimate.
SLAB also queries the costs in relation to the so-called supporters. It says:
That is not a question for me; it is a question for the Executive. It sounds to me as though the board is focusing on the possibility, which Mr Ewing raised, of defence agents commissioning special measures for agents, in which case there would be an associated cost. The bulk of the costs have been calculated on the basis that, in the majority of situations, the bill's provisions will be used in relation to Crown witnesses. SLAB's concerns will tend to fly off in relation to that part of business.
That is despite the fact that, apparently, no provisions have been made in the financial memorandum for costs associated with supporters.
Again, that is not a matter for me.
We will have the opportunity to raise that question with the Executive next week.
To what extent was the SCRA consulted in relation to the financial memorandum? Are you broadly content with the implications of the financial memorandum for the SCRA?
There was consultation with the SCRA; two meetings were held with us and we are broadly happy with the predictions.
The Executive is clearly responsible for making the payment. What is your understanding of the measurable benefits that it seeks? What will the SCRA contribute to the delivery of those benefits?
There will be an improvement in the quality of evidence and the support measures that are available to vulnerable witnesses. We certainly have a role in supporting those measures to improve facilities for witnesses at court and we are behind them.
Aside from the fuzzy, intangible matter of quality of evidence, do you believe that there is an expectation that there will be a higher level of conviction or other tangible benefits?
We will obviously have access to measures in relation to witnesses—particularly vulnerable witnesses who are not children—that were not available before. Clearly, we will have access to evidence on commission, which is a facility available to us only on petition to the nobile officium. For our purposes, there will be much better access to facilities for witnesses.
How was the estimate of 200 hearings on special measures reached and how realistic do you think it will be?
It is our best estimate of how many hearings we can predict. We have been careful in looking at our historical data. As John Ewing indicated, our expectation is that there will be a change in culture and that, as the implementation is phased, there will be clarity about the measures that are available.
What steps could be taken over time to limit and reduce the cost of the bill or increase its effectiveness?
The process will be a lot quicker after the initial stage of implementation. After that, we will be clear about the criteria for the measures, as indicated by the courts, and things will have settled down. Ultimately, delay will be avoided.
I am aware that, like our previous witness, you might not have seen the submission from SLAB. However, the board is concerned about the children's referral proceedings because the legal aid that is available to parents and children cannot be recovered from judicial expenses. The board fears that that will put pressure on the legal aid fund. Do you agree with the board on that issue?
There exists the potential for that to happen. Again, it would depend on the response to the application for measures.
Further to that, paragraph 127 of the explanatory notes says that the SCRA has estimated that implementation of the bill's proposals would result in additional costs for it of £200,000. However, no indication is given of any of the assumptions on which that figure is based. Are any of the staff and resources costs that are involved in making applications and arrangements not covered in the figure?
The figure reflects our best estimate of staffing costs. We looked carefully at the measures that we take at present, the measures that we will be able to invoke and the effect that those will have on our organisation. The figure is the best estimate that we can give. The major costs relate to our ability to use measures for vulnerable witnesses who are not children, as those measures have not been available to us before. We predict that the most substantial costs will arise in that area, given the nature and range of our cases and the vulnerability of the witnesses involved in them. The figure reflects preparation time, making applications and staffing time in court.
This question might better be asked of the Executive, but can you give an indication of the range of the costs? I understand that the figure is your best estimate, but do you have an idea of what the upper limit might be?
No. It would be difficult to give a breakdown. The figure is a reasonable estimate based on what is available. We want to be part of the process of phased implementation. It is clear that some cases overlap with the criminal process. We need to be clear that the costs are not reflected twice and we have tried not to do that.
I have a small supplementary question about the additional staff costs. Will those costs be incurred through staff training and regrading or through additional staff?
The money would not be spent on regrading. Like the Scottish Court Service, we feel that our staff can deal with the measures. The costs relate not to regrading but to the additional staff capacity that is required to take on the work.
Thank you for your evidence. I suggest that the witnesses from the SCS and the SCRA stay on for a wee bit in case any supplementary questions arise out of the next part of our evidence taking, in which we will hear from Philip Shearer of the Scottish Legal Aid Board. Philip, as I said to the previous witnesses, you have the opportunity to make an opening statement if you wish.
I am happy to proceed straight to questions.
I want to return to the line of questioning that we followed with previous witnesses. You have expressed your concerns about the Executive's methodology in estimating the likely number of cases in which vulnerable witnesses might be involved. Can you explain why you have those concerns and why you are not satisfied with the assumptions that we heard about from John Ewing?
The assumptions are based on Home Office research in England and Wales into the total number of vulnerable adult witnesses and on information from the witness service in respect of child witnesses. We were not clear from the financial memorandum whether the figures included defence witnesses, as opposed to just witnesses for the Crown. Equally, we were not clear about how the figures relate to civil proceedings. We are also concerned that consideration should be given to the potential for witnesses being cited, both in civil and criminal cases, as opposed to just the people who actually give evidence. I appreciate that that is somewhat speculative, but we are concerned about whether the financial memorandum takes into account the total number of people for whom such applications could be sought.
Was SLAB consulted on those estimates?
As far as I am aware, the board was not consulted. The board is a non-departmental body, not an executive agency of the Scottish Executive.
Are you saying that, if the legislation is implemented, there will be an increased desire to use the special measures?
That comes down to the issue that members raised earlier about a future litigation culture. For example, as Fergus Ewing pointed out, defence agents may wish to obtain expert reports to counter what is said by the Crown. The Crown may find that there is an increased use of such measures in civil proceedings. In contested and acrimonious custody disputes or in contact or residence actions, there could be an increased demand from clients to use special measures.
We heard from John Ewing about the review process. Would that be a robust way in which to see how the bill is implemented? Would SLAB want to take part in that process?
That gets into questions that are really a matter for ministers. Obviously, we will monitor within the demand-led service that we fund.
Finally, as Fergus Ewing has mentioned, the total figure presented in the financial memorandum is £3.95 million. We have been told that that estimate is at the top end. Do you agree with that figure or would you not support it because the assumptions are flawed?
We can consider only the areas that we have highlighted in our submission, which gives an analysis of the possible legal aid implications. It would not be appropriate for me to comment on the Executive's estimates for the totality of costing.
Of course, the total annual running costs are estimated at just under £4 million and the one-off costs at £1.2 million, which makes a total of £5.2 million.
We have attempted to analyse the bill in detail to pinpoint where we think there could be implications of a litigation culture developing. In our day-to-day business, we are—as Fergus Ewing will be aware from his professional practice—used to dealing with, for example, requests for authority to obtain expert reports and to undertake unusual steps, such as commissions, in civil and criminal cases. We have tried to look at how that links into our experience of litigation culture and how it interacts with the legal aid family of funding. That is where our concerns arise. We have pinpointed areas where we think costings might be slightly on the light side. There would be implications if, for example, a litigation culture develops in which there is greater demand for expert reports.
Does the problem lie in the definition of a vulnerable witness, which your submission says is "extremely wide"? Are you saying that the definition is too wide?
That is a political question for ministers in this Parliament. All that we can identify is the fact that the definition is very wide and would cover a very wide range of witnesses giving evidence in our civil and criminal courts.
I seek your thoughts on two particular questions. First, why do you think that the fees are not sufficient where evidence is to be taken by a commissioner?
You have to look at the procedural steps for commissions as a package. For example, a lot will depend on who the commissioner is. If it is the judge, it may be a different matter, but there will be attendant costs. A solicitor may require to attend if a sheriff court proceeding is involved. If a High Court proceeding is involved, the solicitor will still need to attend, but he will instruct counsel or a solicitor advocate, and costs for shorthand writers and transcripts will be involved. It is suggested that video evidence will be taken. We can imagine the litigation culture developing in such a way that a solicitor will want to review the video evidence to ensure that the transcript matches up. At the end of the day, there will be a client who will wish to test the evidence that a witness has given.
You also seem to be concerned about the vagueness of the role of supporter and the fact that no costs seem to have been allocated to that. Can you expand on that?
Yes. We were concerned that the memorandum suggests that various costs would potentially fall on the fund. The supporter has a wide role, but the financial memorandum does not suggest whether there will be any cost implications. That requires clarification.
Do you look on the bill in the way that many members of the general public view it? They feel that, while it is a necessary step, at the end of the day it will just be an extension to the lucrative gravy train that is legal aid.
I would not describe legal aid as a gravy train. I am afraid that I simply cannot answer that question.
I have a quick point of clarification on consultation. Did you take part in the consultation on "Vital Voices: Helping Vulnerable Witnesses Give Evidence"? Were you consulted on the Executive's policy statement that arose out of that consultation? We heard that you have not been consulted on the financial memorandum.
In answer to your first question, the board was consulted, and I understand that it submitted a response to the Executive in that exercise. However, I am not aware of any input into the policy statement. As far as I am aware, we were not consulted on the financial memorandum.
I do not know if you know the answer to this question, but I would be interested if you could take a stab at it. How does the bill compare to international best practice? Do we have any case study material that supports the methodology that is outlined in the bill?
That goes beyond my role as an officer of the central funding authority for legal aid. I am not aware of the legal aid implications of such a step in other European or Commonwealth jurisdictions. You are asking a question that goes beyond matters on which I could possibly comment.
I have a brief supplementary question. Given that people in other sectors in public life and private enterprise attempt to benchmark themselves against international comparators, do you not think that that would be a sensible thing to do?
That question should really be directed to the Scottish Executive and ministers.
You and other people have expressed concerns that in various areas the financial memorandum does not adequately reflect costs. What would the Executive need to do to make that situation more acceptable? Should the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 (SI 1999/491) be amended or could something be done within the budget lines that are available to SLAB?
In general, it is important to understand that legal aid is a demand-led service. As a result, the ultimate cost of the legislation to the legal aid fund and any administrative resource implications will very much depend on the demand that is placed on the fund in the new litigation culture.
Will you be a bit more specific about the pressure on fixed payments? I appreciate that SLAB finds it difficult to manage a demand-led and pressured budget. However, you will need to make more specific arguments about the areas where you feel that the Executive or other parties have not adequately identified particular issues. What are the specific pressure points in this matter?
As far as fixed payments are concerned, if we have a high number of summary criminal cases that have more procedural steps than at present and therefore more attendant costs, there might well be pressure to submit a request to the board to treat some cases as exceptional. That would mean lifting them out of the fixed payment regime and into the more expensive regime of detailed fees. However, until we see what happens in practice, we will not know what such pressure would be. At the moment, we can simply flag up for Parliament the potential for any additional procedural steps to mean additional work for a solicitor and therefore an increase in the potential cost of a case. That might persuade some solicitors to see a particular case as exceptional.
Has SLAB carried out any work on anticipating the criteria against which it might make judgments about circumstances in which it would consider applications for special treatment sympathetically or maintain the fixed payment ceiling?
We are already dealing with—and will continue to deal with—requests to treat cases as exceptional, although such cases amount to a relatively small number out of the whole cohort of grants for summary criminal legal aid. Obviously, we will also deal with any new challenges or issues that arise from other justice sector legislation as it comes along.
I suppose that I am asking you to be specific about the provisions in the bill that will generate such issues. I appreciate that, in general, any additional legal steps or hurdles could give rise to the problems that you have identified. However, can you quantify specifically the implications of the bill's provisions or are your concerns in that respect more general?
It is a general issue. For example, a contest over whether the court decides that a witness is vulnerable might well mean an additional hearing. That in turn might mean that a solicitor will have to sit down and decide whether the case will take a much more expensive route and involve a lot more procedure and work. We can highlight that kind of general issue.
But you cannot really give us a specific example. Could we resolve the matter through the better judicial management of special cases that involve vulnerable witnesses?
The judicial management issue is completely separate from that of the fund. We will be dealing administratively, as we are at present, with the potential for requests to treat cases in a different way. The issue is parallel to that of how cases are dealt with judicially.
I apologise: I should have declared earlier a possible interest, namely that I am a member of the Law Society of Scotland. My court days are over, however, and if there is a gravy train, I have no ticket and am not a passenger. Any cross-examination that I will be doing will be here and not in any court.
It is difficult for me to give an arithmetical estimate, as it will depend on the extent to which agents and clients wish to take advantage of the steps available. As we have said, in family actions there is a culture where people tend not to seek costs from each other in order to resolve disputes. Moreover, the court might not make awards of costs against the unsuccessful party. That being the case, less money will come into the fund to offset the total cost incurred, although money will still come into the fund that is available to offset the cost of the measures to some degree. Our concern is that the most likely involvement of vulnerable witnesses might arise in family actions as opposed to personal injuries actions.
So some estimate should be available. The column for legal aid has an entry of zero against "Applications (civil)" in the table on page 22 of the financial memorandum. There should be some provision, but you are not able to provide us with an estimate.
If an expert report cost £250, that would perhaps be an additional £250 cost to the fund.
I would have thought that there must be an estimate of such provision.
That is rather difficult for me to answer. The question should be aimed at the Executive.
Thank you for your evidence. I again thank all the witnesses from whom we have taken evidence this morning. There will be an opportunity to refer to some of the issues that we have discussed today when we take evidence from the Executive next week.
I was wondering whether there will be an opportunity to question representatives of the Scottish Court Service on its consultation and to consider that evidence together with the financial memorandum, if appropriate. We have heard that SLAB was not consulted, and I would be interested to know who was consulted.
The consultation was done by the Executive.
The Executive is responsible for the consultation with external bodies, including SLAB, that was carried out in preparing for the bill. The Scottish Court Service would not have carried out the consultation.
I was referring specifically to the financial memorandum. Should we take up the issue with the Executive?
Yes, it should be brought up with the Executive. It might be useful if the Scottish Court Service or the Scottish Children's Reporter Administration could make some comments once they have a chance to read SLAB's evidence. If the Scottish Court Service wished to give us information next week, that would be helpful to us.
We would be happy to do so.
Previous
Item in Private