Agenda item 4 is on the financial memorandum on the Vulnerable Witnesses (Scotland) Bill. I apologise to the witnesses from the Scottish Executive and the Crown Office for keeping them waiting and thank them for coming along. Everybody now has a name-plate in front of them so I shall not go through the process of reading the names out. Do the witnesses want to make a brief introductory statement?
We have no particular desire to make an introductory statement. We are happy to go straight to questions and to help the committee as much as we can.
The same applies for us.
Thank you. The first set of questions is from Jeremy Purvis.
Will you run through the consultation that was carried out when you put together the financial memorandum? In particular, what was your relationship with the Scottish Legal Aid Board?
We worked closely with the key agencies. The table on the back page of the financial memorandum gives a breakdown of where the main costs fall. We worked closely with colleagues in the relevant agencies on all the cost areas that are listed. In particular, we worked with the Scottish Court Service and the Crown Office and with colleagues in the Scottish Executive Justice Department who deal with the police and legal aid. We also dealt directly with the Scottish Children's Reporter Administration.
If you were carrying out the consultation again, would you consult the Scottish Legal Aid Board? SLAB may not account for the lion's share of the costs—the legal aid figure in the financial memorandum is limited, but the sum is still substantial.
Yes, I probably would. Obviously, it would also be up to SLAB to decide to what extent it wanted to be involved in the drafting of the financial memorandum before the document was placed before the Parliament.
You will be aware that the board has doubts about the estimates that are given for summary cases.
SLAB raised a number of issues, including its concern that we had not costed for the number of defence witnesses. In fact, we tried to assess the overall number of witnesses, so in a sense we have costed for the sum total—there is no increase in the number of witnesses.
When in the lifetime of the legislation would you expect to have enough data to be able to review that? Would it be three months or six months in, or is there a constant programme?
What data are you talking about—the number of cases?
Yes.
We are thinking in terms of phased implementation, but that does not mean that work will not start straight away, particularly on summary cases, because those, more than High Court and sheriff solemn cases, are an unknown quantity. We need to start doing whatever monitoring we can as soon as possible—right from the word go. If we can arrange some sort of monitoring and data-gathering exercise even before implementation commences, we will. The aim is to get the ball rolling as quickly as we can. Implementation for summary cases will be phased, after High Court and solemn cases, so there will be time for that review process to provide some evidence to inform the roll-out.
Most of our questions are geared towards the Executive, but the Crown Office witnesses are welcome to pitch in. You may wish to say something specific about the appropriateness of the estimates in the financial memorandum, because your office probably has the biggest impact.
We do, but we have been in close consultation with the bill team, with fortnightly or monthly meetings to discuss the figures. At this stage, all we can give is an estimate, especially in relation to adult vulnerable witnesses. The bill extends the criteria and therefore increases the number of adults eligible for special measures. We have no knowledge of what the impact of that will be, but we hope that the phased implementation will inform the implementation group, especially concerning summary cases.
Given the uncertain nature of some of the data used in the bill in relation to the number of cases and their cost, would it not have been better to provide a range of costs rather than an estimate?
We discussed that matter. We had regular meetings with the Crown Office and the Scottish Court Service, in particular, and the issue came up once or twice. There are a couple of areas in which a range of figures might be most appropriate, one of which is summary justice. For instance, we came up with a figure of 6,000 for child witnesses, which was based on a Crown Office analysis of numbers of cases and other bits and pieces of information from the Home Office and elsewhere.
At our meeting last week, witnesses from the Scottish Court Service were rather surprised by some points that SLAB raised. John Ewing has written a letter about that. I do not know whether you have seen it, but the final sentence reads:
The difficulty that Mr Ewing refers to may be the possibility that, when the measures in the bill are first implemented, they will be new and may therefore entail additional hearings. Sheriffs and judges will always want to hear from both sides when deciding whether to grant an application for special measures. That will happen less often once people get used to the special measures and understand that they are simply a way in which certain people will give evidence. That will lead to a reduction in costs. Part of what the bill is trying to do is to change the culture. If that happens, there will be less need for hearings.
I acknowledge the difficulty in quantifying the factors, but are there any fallback mechanisms or recommendations to reduce uncertainties and risks and to control costs, to ensure that things do not run out of control?
SLAB also raised the issue of the number of hearings that might be needed and we have looked into that. In the financial memorandum, we have costed for far more hearings than the policy would envisage. As Lesley Napier said, we acknowledge that while the measures are bedding in there are likely to be more hearings than there will be in future. Any predictions would probably be based on the present situation and a consideration of the reduction in the number of hearings that we expect year on year. I do not expect that there will be more hearings. We have started with a high estimate, but we expect that costs will reduce over time.
How confident are you that you can keep within the stated upper limit?
The witnesses from the Crown Office may want to comment on that. In considering whether we can deliver the policy, we have worked closely with the Crown Office. A lot of work will have to be done on the implementation. However, the Crown Office seems content that the first phase of the implementation process is manageable.
We believe the process to be manageable in the way that Merlin Kemp suggests. We have to allow time for changes to systems, training and procedures—in the rules of court, for example. That cannot happen tomorrow. However, we believe that it can happen in the time scale that we are proposing.
I have one or two questions about work load and fees. At last week's meeting, the committee was, to say the least, mildly sceptical about some of the figures. Given the extra work that may be created by taking additional precognitions, attending additional hearings and so on, what consideration did the Executive give to increasing the fixed payments that are made to solicitors?
We will have to see how that works out in practice. We do not expect an enormous amount of additional work involving defence witnesses because, as we understand it, there are not that many vulnerable defence witnesses. The fixed fees can be reviewed and we may have to consider the matter in future.
What kind of issues would determine that final decision?
I am not an expert on legal aid, so I do not know how the process would work, but I think that the legal profession would be consulted on what the additional work load might be. However, we do not think that a great deal of additional work will be involved on the defence side; most of the additional cost will fall on the Crown side.
Has the Executive given any thought to creating a separate block fee for work done in connection with child witness notices?
From a policy perspective, that is not something that we would want to happen. Our view is that dealing sensitively with vulnerable witnesses should be part of the main stream of the work of the legal profession and the police; we would not want to flag up the sensitive treatment of vulnerable witnesses as somehow being additional work.
Last week, SLAB told us that the estimated £500 cost of a commission was questionable, given that such work could be undertaken by an advocate. Having considered SLAB's misgivings, do you think that the costs relating to commissions have been underestimated?
There might be a slight misunderstanding of what the figure of £500 represents. It represents not the total cost of a commission but the cost to the legal aid fund of sending a solicitor to that commission and is based on the understanding that, as the Crown Office would make most of the applications, it would pick up the tab for the other expenses, such as paying someone to operate the necessary equipment and so on. On the other hand, SLAB has rightly pointed out that the figure does not take into account factors such as travel and various other supplementary expenses. The figure, therefore, could be a little higher. However, I stress that £500 is an estimate of an average fee that a solicitor might charge. Depending on who the lawyer is, the cost could be higher or lower—it would be higher if counsel were involved and lower if a solicitor were involved.
Do you think that the figure is realistic? Could there be a tendency to lower staff costs by referring such work to less costly staff? Could the system therefore lead to such staff being overburdened?
I do not think so. Taking evidence on commission is as important an exercise as taking evidence in the court, so that work would not be delegated to a subordinate, lower-paid member of staff.
If the vulnerable witness were a defence witness, who would be responsible for absorbing the costs for the provision of closed-circuit television for the supporter and so on?
There are no costs attached to the supporters who are currently available in the court system. Supporters tend to be friends or relatives of the witness. Sometimes, the supporter is a social worker, but that work tends to be undertaken as part of their job. Supporters are not paid any expenses and, although the bill will give a statutory basis for supporters, it is not planned that that will alter the situation in that regard.
Are there any restrictions on who can be a supporter? Is there any guidance on what might be considered to be reasonable expenses for a supporter who was not in the categories that you mentioned?
We plan to prepare some kind of guidance for supporters. There might also be a need for rules of court. Our basic policy intent would be that supporters would not be paid. That might exclude people who want to be what we might call professional supporters. A supporter's presence is supposed to have a positive effect for the child or other vulnerable witness and, therefore, the supporter would tend to be someone to whom the witness was close. That is probably not an issue, but we will keep a close eye on the matter in case we have to make further provision to make it clear that supporters are not to be paid.
I have a brief supplementary question on supporters. Is any consideration given to the role of advocates in mental health cases? Mental health legislation now establishes advocates who have almost quasi-legal responsibilities. Was that considered?
If a vulnerable witness has an advocate working with them on a daily basis, that advocate might be a good person to act as a supporter. However, as a supporter in the court setting, the advocate would not be able to speak on behalf of the witness—that is not the supporter's role. The supporter is supposed to be there to give a sort of moral support, which is a different role to that of an advocate.
I understand that supporters would not be paid. Obviously, if a child is a vulnerable witness, parents or guardians would be expected to provide support. Would travel expenses and so on—not pay—be paid to a supporter of an adult vulnerable witness?
Such expenses would be paid to the supporter who has brought the vulnerable witness to court. Expenses claim forms are attached when witness citations are sent out. A witness who was cited by the Crown would have their travel expenses reimbursed by the Crown. That is built into our budgets.
So the situation of supporters will be the same as that of witnesses. Would the supporter be reimbursed for such expenses as travel expenses and lost wages?
Those expenses would be reimbursed if that person brought the vulnerable witness to court.
Last week, the committee heard that 19 courts will be upgraded to offer a closed circuit television service to vulnerable witnesses. In response to one of my questions, I was told that those courts had been chosen after analysis of previous patterns of use.
There are two elements to that: meeting the needs that come from the volume of business, and the geographical spread. We have addressed those issues.
I understand that it is a matter for the SCS, but the Executive is, I presume, providing the funding for 19 courts. If any other court had to be upgraded, the court service itself would have to bear that cost. There are no plans to provide any additional funding, but there are no plans not to provide additional funding.
There are no such plans at the moment.
If your estimates for case numbers are shown to be too low during the phased implementation of the bill, how will you deal with that? Will you be able to secure additional funding? Is such funding available to enable you to make up that gap?
The first phase that we have talked about is within the year 2005-06, which falls within the current spending review and budget periods. We are satisfied that the first phase can be met within existing funding. As we advance towards that period, more work will be done on gathering estimates and producing more detailed figures. Obviously, the budgets for the years beyond 2005-06 still have to be finalised and, if the figures showed markedly different costings, that would be fed into the future budgeting process.
You are introducing legislation that will be implemented in a number of phases. The Finance Committee has known the Executive to introduce bills that have future costs which it says it cannot quantify at the time. Such costs could turn out to be very expensive but, because they are not in the current budget, the Executive cannot answer questions on them. On the later phases of implementation, are you clear about the time scales and are you sure that the steps that you will implement beyond the first phase are genuinely affordable?
The Executive is committed to achieving full implementation as soon as possible. We want to start planning that as soon as we can with the agencies that are involved, but there is a lot of work to be done and we cannot with any great certainty predict what will happen two or three years in advance. We are reasonably satisfied that the costs of the bill are supportable within the current spending plans.
The issue is not just about the money. We have spoken frequently to the Crown Office and to people from the different police agencies, such as the Association of Chief Police Officers in Scotland. A wide range of people in the justice system are very keen for the measures in the bill to be implemented, because they know that that is the right thing to do. The fact that there is a lot of support for the bill in the justice community is an important element of ensuring that it proceeds.
Given the tendency of members of the legal profession to spin things out ad nauseam—because the more they spin things out, the more money they make—have you taken into consideration the fact that lawyers will often call in criminal psychologists or psychiatrists in cases involving vulnerable witnesses, and that that might have a very high cost?
The Scottish Legal Aid Board raised a similar issue. It was concerned that it might face expensive requests. It will depend on the context. As we do not think that many vulnerable defence witnesses will be called, we do not anticipate that the costs will be huge in the grand scheme of things. If you are talking about reports to counter applications and so on, the bill is drafted in such a way that the defence will not have a locus to lead such expert reports, unless the sheriff or the judge is not satisfied with the application that has been made to the courts. There would be no point in commissioning an expensive report and going through the whole process if such a report could not then be used. I hope that that allays some concerns in that area.
I invite the Crown Office to comment on an observation that I wish to make, which might be as uncomfortable for the Crown Office as it is for us.
I might have to think about that. As Merlin Kemp said, the issue is about changing the culture and it is about working differently. There are practical stages at which there will be extra work; there might be extra hearings, which we will have to man and which the defence will have to man. There is obviously a cost associated with that. We do not want that to become a professional issue, as Merlin Kemp said. We expect that we will commission reports from psychologists in a number of cases in order to protect ourselves from the defence's challenging the decisions with which we are going to court. We hope to avoid the problem of their wasting their money. That was a rather rambling answer.
Are you comfortable that the balance between that which is changing working practices and that which is genuinely additional has been struck in large part by people of good will in the Executive, or should the committee reflect on that balance? That is the decision that we have to reach after you leave in about five minutes.
The balance is broadly right. It has been acknowledged that there are extra costs in the system and that the money is not the be all and end all.
On behalf of the committee, I thank you for giving evidence. As you know, we are writing a report on the financial memorandum; that will go to the relevant justice committee relatively quickly because we are working to fairly tight time scales. No doubt some of you will appear before that committee in due course.
My last question to the witnesses summed up the issue. The BMA does not get to say, "Please can we get more money because we are changing how we perform surgery." It has the right to lobby for extra money, but we do not give way. We have two obligations: one is to ensure that the Executive does not under-cost provisions and the other is to not respond to every special interest group that appears before us. I was slightly nervous about such precedent's being set. I just wanted to put that on the record.
That point relates particularly to the bill, but it applies to a lot of the evidence that we receive. Witnesses come here with an agenda, which is sometimes professional. Sometimes there are financial aspects to that and sometimes we are dealing with interest-group agendas. One of our tasks is to separate the wheat from the chaff and to determine whether legitimate concerns are being expressed or whether we are part of a negotiating process. We need to be cautious about that.
It will be next week.
We will have a draft report to read next week. Do we agree to deal with it in private?
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