Justice 2 Committee, 30 Sep 2003

Meeting date: Tuesday, September 30, 2003

Official Report 254KB pdf

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Vulnerable Witnesses (Scotland) Bill: Stage 1

We move to agenda item 4, which is the committee's stage 1 consideration of the Vulnerable Witnesses (Scotland) Bill. We are very grateful for the minister's presence this afternoon. We realise that this is a hefty agenda for him, but dovetailing timetables in this way has been a great help to the committee.

Minister, you will be aware that we have been busy taking evidence on the bill from a variety of individuals, parties, organisations and other groups and I know that the committee is now anxious to raise with you certain issues that have arisen. However, you might have been following the evidence that has been given and have some thoughts about the bill. Please feel free to make some introductory remarks.

I have followed the committee's deliberations and the discussions that have taken place in the Finance Committee, and it is clear that there is overwhelming support for the bill's intentions and principles. Indeed, it could be argued that the bill is long overdue. We—and everyone concerned—hope that there is an improvement in the way in which witnesses, particularly vulnerable witnesses, are treated in the court system.

However, any such improvement must always be made in the context of the need for justice to be done and to be seen to be done. It would not be desirable to consider any measures that would weaken other aspects of the justice system. That said, it is right to ensure that the justice system takes into account the interests of witnesses who are most in need. I realise that, during consideration of the bill, people will come at the matter from different perspectives; make different points of emphasis; and put forward different arguments about certain parts of the bill or the groups that will be affected. However, from the deliberations so far, there appears to be a consensus that the bill is the right way to proceed.

We know that giving evidence is often a stressful and, in some cases, traumatic experience. If justice is to be done, witnesses must be able to give the best evidence that they possibly can. It is in the interests of those who are accused, never mind anyone else, that that evidence comes out.

It is also right that anyone who performs the very important civic function and duty of being a witness and giving evidence should expect to be treated humanely by the system. We accept that some witnesses might not, for whatever reason, be able to give their best evidence without some assistance. We intend that the bill should enable those vulnerable witnesses to access that help in a way that makes their evidence all the more meaningful.

We need to strike the right balance between the rights of all parties in the case and the interests of vulnerable witnesses. The Executive conducted an extensive consultation on the proposals that are contained in the bill and, as I have said, it is clear that there are differing views and emphases among the organisations that represent the different groups in society.

The bill's current provisions are intended to enable support to be given to witnesses in need without undermining the accused's right to a fair trial. That aspect must remain fundamental. It is important to state that the party that does not call the witness will not be prevented from questioning the witness adequately. All that we seek to do is to enable the vulnerable witness to speak up and give their evidence to ensure that all evidence can go before the court. I argue that that is in the interests of justice.

It is critical to have flexibility in deciding who should be able to access help. There are several arguments for that, not least of which is that we do not wish anyone to be denied help simply because they do not fit the legal definition. We have provided some flexibility within broad parameters, which should allow the broadest range of those who require that help to access it.

Children in general will need extra support, because of their age and level of maturity. That is self-evident and is why children will be automatically entitled to use the special measures. There are many reasons why an adult might be vulnerable and need additional help. The reason could be an adult's mental capacity or the fact that they will have to give sensitive and distressing evidence that could have a profound effect on them. A person might be terrified or have come through an episode in their life that they would rather forget, but must give evidence on so that justice is done.

We felt that it would not be helpful to categorise particular vulnerable adult witnesses, as that would give the impression that some categories of adult witnesses were more vulnerable than others. Some people who otherwise display no vulnerability in their lives might, at that critical juncture, be vulnerable and need support. It would be right to extend that support to them. Rather than categorising adult witnesses, we want each witness's needs to be considered on their own merits. That is the best way to ensure that help is directed to the witnesses who need it.

The bill makes it clear that it is the responsibility of the party calling the vulnerable witness to ensure that they receive the help that they need. It is right for a party to the case to ensure that their own witness's needs are met and to undertake the necessary work in submitting applications and appearing at any hearing. No one who calls a witness should do so lightly. Anyone who calls a witness should be aware of their responsibility not only to the court, but to the witness as an individual.

The bill has added safeguards to ensure that witnesses' needs are met, such as an obligation on the court to find out from the parties whether any witness is vulnerable. Although we place the responsibility on a party to the case, we also place a duty on the court to ask the parties whether any of their witnesses is vulnerable. The court will be obliged to make that double check for vulnerability. It will also be open to the court of its own accord to decide that a witness should be able to use a special measure when they give evidence.

The bill contains many other supplementary provisions that complement the aim of ensuring that witnesses' voices are properly heard, such as the abolition of the competence test. The court should have the best evidence, and the barriers that many regard as artificial and which prevent a vulnerable person from speaking up must be removed. The voice of a vulnerable person is every bit as valid in a court as any other person's voice is. It is not right that vulnerable people should have to subject themselves to a competence test for their voice and evidence to be heard.

It is clearly in the interests of justice that the court hears the best evidence, and we firmly believe that the bill strikes the right balance in achieving that objective.

I remind members that the minister is with us until about 4 o'clock. We have much material to cover, so if members' questions are as succinct as possible, that will greatly help us to cover as much ground as possible.

We have heard much evidence from witnesses about the definition of a child. In view of the international legal definition and what is regarded as the definition in Europe, quite a few people have asked us to extend the definition in the bill to under-18s, but you have chosen the age of 16. What is your view on that?

We believe that there are good reasons in Scots law for sticking to 16 as a critical age. At 16, a young person can get married, take up employment, join the armed forces and set up house. They can take many decisions that an adult would take and they would expect to be treated as adults. We think that 16 is the right age. We would create confusion if we said that for some purposes the person is regarded as a child, but for other purposes they are not.

In certain circumstances, a person could be entitled to special measures beyond the age of 16 if that were felt to be appropriate. We think that 16 is probably the right age and that there is sufficient flexibility to protect those who are older than 16 and require additional help.

The bill contains proposals that specifically protect children under 12. Have you considered whether—if you are sticking with the age of 16—those proposals should be extended to children up to the age of 16, so that all children under 16 are covered by the same provisions?

We considered that option. Twelve seems to be recognised by experts as the age at which a child's development allows them to start to play a more responsible and fuller part in whatever is going on around them. They begin to understand issues more clearly.

The evidence that we have examined suggests that very few children under the age of 12 come to court unless their appearance relates to something very serious. More children come to court when they are over the age of 12. The few children who have to come to court under the age of 12 are still very vulnerable, are at a sensitive stage in their development and might not fully comprehend everything that is going on around them. It is right to give those children automatic protection when, for example, there has been a sexual or violent incident.

The bill has not built in an automatic level of protection beyond the age of 12. That is because there is evidence that children sometimes want to give evidence, and when a child beyond the age of 12 wants to give evidence we think that, if they have that understanding, they should be allowed to do so. Again, the system is flexible enough to build in support for that child; the support could be extended in the same way as would automatically prevail for a child under the age of 12.

The proposal reflects some of the other debates that the Parliament has had over the past four years about such things as the age of responsibility and understanding. It also reflects the pattern of evidence about the age at which children start to attend court in critical numbers and what type of evidence might be expected from them.

In the case of witnesses who are under 12, the distinction is made that they must get special measures—including preferably not appearing in the court or in the building in which the court is located—in certain serious cases. Is there any intention to extend that provision to the range of cases in which young people under the age of 12 would appear?

We felt that restricting the rule to children under 12 who give evidence in sexual or violent cases was sufficient, because that will cover most children under 12 who appear in court. As the minister said, where a child who is under 12 appears in a different type of case, the person who calls the witness can make an application for the child to give evidence outwith the court, if they feel that the child would benefit from doing so. There is not a firm rule that that should be the presumption in such cases, but we do not exclude applications for any child, if that is considered to be in the child's best interests.

The statistics show that very few cases involving child witnesses who are under 12 come to court. There is flexibility. If children who are under 12 come to court for other reasons, an application for them to give evidence outwith the court will be considered, although they will not automatically have the right to do so.

We have heard a lot of evidence about the definition of a vulnerable witness—that also relates to the discussion about age. I think that the Faculty of Advocates said that the definition is too wide, but others thought that the definition is not wide enough and should specifically include disabled witnesses and those with mental disorders. Is the Executive considering any changes, or is it happy with the bill as it stands? Given the evidence that we have heard, will the Executive reconsider the definition of a vulnerable witness?

We think that our proposals are sufficient and flexible enough to cover the widest possible range of people. We are concerned about introducing tight definitions of vulnerability, which would categorise some people as vulnerable, but not others. We do not want to exclude people who might be temporarily vulnerable. The definition of mental disorder in the Mental Health (Care and Treatment) (Scotland) Act 2003 would be a useful starting point, but we are worried about creating precise definitions of exactly who is classified as vulnerable. That might categorise people in an unhelpful way and might also exclude—stigmatise is not the right word—certain people. Our proposals strike a balance between identifying certain issues up front and allowing a degree of flexibility for others to be considered.

We must bear it in mind that any witness whose ability to give evidence or whose evidence might be diminished by fear or distress can be considered for special measures. Distress could mean anxiety and fear of the surroundings in which a person finds themselves when they have to give evidence in public. Distress could be caused by a person's lack of confidence or inability to express themselves. I have reflected on the debate, but I do not think that there is any great purpose in changing the current proposals.

I want to pursue one small point before I move to the issue of consistency of application, which will develop the convener's point. The Disability Rights Commission Scotland wrote to us at the beginning of the process and, I believe, spoke to Executive officials about the adoption in the bill of the definition that is set out in the Disability Discrimination Act 1995. Does the Executive intend to do that?

We are considering that issue, although our feeling is that the definition in the Disability Discrimination Act 1995 is in some ways narrower than the form of words in the bill.

We have arranged to meet the commission to discuss that point with it.

Once the officials have met the commission, we will reflect on the matter. If we believe that there is something worth pursuing, we will keep the committee informed.

I am obliged.

You are keen to preserve flexibility in the arrangements, but some would say that that comes at the expense of consistency. How will you ensure that decision making is consistent throughout Scotland, with particular regard to the treatment of adult vulnerable witnesses?

Much of that will be a matter for the courts. The legislation will be in place, training will be provided and guidance will be issued. However, it will be for individual courts and judges to decide who is considered a vulnerable witness and whether the definition should be applied in particular cases.

Many groups are concerned that there will not be consistency. I accept entirely that you do not want to list everything and that you want to retain discretion. However, as a former Deputy Minister for Health and Community Care you will be aware that the condition of people with a learning disability is not very visible. Do you think that people in that category should be entitled automatically to be treated as vulnerable witnesses, although entitlement to special measures might be discretionary?

I do not think that the one follows from the other. I honestly think that what we are proposing, the obligations that we are placing on the court and the guidance and training that will be provided will be sufficient to ensure not only that there is awareness but that the legislation is applied. We cannot say with 100 per cent certainty that there will never be a bad decision and that there will be no inconsistency. However, the way in which we are proceeding will generally allow for consistency. It will enable the widest possible group of people who need protection and support to have that protection made available to them.

It would be wrong to say that everyone who has a learning disability will automatically need to access help. Some may not, and some may not wish to. Rather than excluding those people by regulation or legislation, we want to allow them to give evidence in the same way as others in society, if that is their decision.

The point at issue is not whether people use a special measure, but whether they should automatically be considered for such a measure because of the nature of their disability.

I am mindful of the convener's injunction to us to be brief, so I will move on. How is the court expected to apply and assess the fear or distress test, which has given rise to some comment?

We do not want a test that is so wide that it becomes meaningless. Equally, we do not want a test that is so tight as to rule out a host of people. Vulnerability could be based on an individual's medical condition at a particular stage in their life. It could be the result of domestic circumstances that may even relate to the court case. It may be related to a phobia—some people may not be able to cope with being in the surroundings of a court. Others may feel that they are not articulate enough to get their message across. Flexibility is important. That means that decisions should be made by judges in individual cases, based on individual circumstances.

I stress that it is not the person's behaviour that needs to be assessed, but simply whether the witness's evidence may be diminished by fear or distress. That is probably a greater safeguard. The witness does not need to demonstrate fear or distress. The issue is whether the evidence would be diminished because the witness suffered fear or distress. It is probably right that that has to be proved on the balance of probabilities.

I imagine that it would be difficult to prove that in advance, so you are resting on the fact that it will be up to individual judges to make a determination, subject to guidance.

Yes, on the balance of probabilities.

Concerns were raised, in particular by the Scottish Association for Mental Health and the Law Society of Scotland, about the nature of the evidence that the court would require to assess whether a witness had a mental disorder, and whether that evidence would be made public.

We are aware of those concerns, which are legitimate, and we worry about them. We will give some consideration to that issue and deliberate on it. If it is necessary for us to produce further guidance or changes to the bill, we will do so, because we would not want confidential information and evidence about a person's personal or medical circumstances to be displayed. That issue is worthy of further consideration.

That is helpful.

I realise that we have a lot of things to get through, but I want to press the minister on one thing. The issue is striking the right balance and I take the minister's point about flexibility. The minister said that it is the responsibility of the party calling the witness to ensure that its witness gets the special measures. He also said that there is a duty on the court to identify the vulnerable witness first.

There is a difference between the automatic right of the witness to pursue something and the discretion of the judge or the court to grant it. What are your concerns about extending the automatic rights to people between 16 and 18 and to people in the categories to which Jackie Baillie referred? Are you afraid that too many cases would come before the courts, or are you afraid about the cost, or is it that if the measures are more widespread—you mentioned that in reply to Jackie Baillie—that might undermine existing court practices? Do you understand the question?

Yes, I do. Those points are valid. We are concerned about a combination of those issues. We are concerned that if we extend the rights too far and to too many, there will be so many people in that category that the system will find it hard to cope. Clearly, there would be financial considerations, but that is not the only issue. There are issues to do with the efficiency and effectiveness of the court system.

In addition—this comes back to a point that I made earlier—we need to continue to bear in mind the need to strike the right balance, because it is not only witnesses who have rights in court; others have rights as well. We do not want—if the situation were to be taken to its extreme—the accused to be the only person who actually ends up in court. Clearly, that would be absurd.

We recognise that there are some people whose evidence is as important as anyone else's and who, for whatever reason, are unable to give that evidence, and that they need some support. Let us recognise that and deal with it but, at the same time, let us not interfere with the fundamental way in which our courts operate. We may need to consider financial and organisational issues, but it is important that we do not lose sight of the way the courts work, or of the fact that there are rights on all sides in court, not just on one side.

I have a technical question, which perhaps your advisers can answer. Because of the discretionary nature of vulnerable adults' entitlement to special measures, there is no provision in the bill for the court ex proprio motu to intervene if it becomes aware that a vulnerable adult might be a witness. The court may have a legitimate concern about that witness's ability to give evidence. Is that where the saving provision under proposed new section 271G would come in? Would that provision enable a judge to take action ex proprio motu if he had concerns about the efficacy of the evidence that the witness was to give?

I will ask the officials to answer that question in detail, but it is certainly our intention, as Colin Fox indicated, to put the onus on parties to cases to identify vulnerable witnesses. We will then require the court to ask whether any of the witnesses are vulnerable. However, you are right that the opportunity exists to identify vulnerability that has not previously been picked up, as the court proceedings go forward.

I confirm the minister's point. The review provisions in proposed new section 271D will enable the court or the party calling the witness to review the current arrangements at any stage if vulnerability comes to the court's attention. For example, where a vulnerable witness application has not been made but it comes to the court's attention that a witness could be considered to be vulnerable, the court will be able to review provision for that witness under the section. That can be done at any time before or even during the trial.

I presume that that does not depend on a previous order's having been made.

That is correct.

Can the court at that point step in as of new and on its own initiative?

Yes.

That is helpful.

It is not inconceivable that, as a case develops, a witness might develop some vulnerability that could affect the evidence that is to be given.

Some witnesses have raised concerns about the stage in proceedings at which vulnerable witnesses are identified. You have said that the bill puts the onus on the party calling the witness to identify witnesses as being vulnerable, and that there is a safeguard measure that would allow the court to intervene. The problem that has been flagged up, which probably applies particularly to Crown witnesses, is that procurators fiscal and courts encounter witnesses late in proceedings, either close to or—in the court's case—at trial. It has been said that there is a need for much earlier identification of vulnerable witnesses so that they get support throughout the experience. How will you ensure that witnesses are identified as early as possible in proceedings? Is there any need to place an obligation on any other agency in the bill? For example, if the police perceive weakness or vulnerability when they interview a witness, they could be obliged to notify the fiscal of that.

At the very least, we would expect two weeks' notice, but we would prefer much longer notice than that. That would allow not only for identification, but for the witness to be briefed on how the proceedings will develop and on what support is available to them, and for discussion with those concerned about whether there is a need to access any special support or assistance. If measures that allow early identification and early exchange of information can be taken in dealing with the various agencies, we would consider such measures. The more the parties to the case know, and the earlier they know it, the better. We will look at that matter again, but it is certainly our view that identification of vulnerable witnesses should be made at least two weeks before the court case, and preferably much earlier.

I am sure that there are changes that would be required in the operation of the Crown Office and Procurator Fiscal Service, but you know that the fiscal who conducts the trial will probably meet the witnesses for the first time on the day of the trial. It might be precognition agents who meet the witnesses before that. How will you ensure that vulnerable witnesses are identified early enough in the process for the provisions of the bill to work properly?

We are aware of certain difficulties in the Crown Office and the Scottish Court Service and we will have further discussions with those bodies. They are very keen to ensure that as much as possible is done at the earliest stages; however, Nicola Sturgeon has identified a legitimate area for concern. That is something that we will continue to discuss both with the Crown Office and with the Scottish Court Service.

It has been put to us that it might be a good idea to allow witnesses who think that they are vulnerable to refer themselves as vulnerable witnesses. Is that something to which you would give consideration?

That is a difficult question. We are aware of the debate that has taken place; a number of good points have been raised. At this stage, I would not automatically say yes or no to that question because we need to reflect on the debate. I can envisage certain circumstances in which one could argue easily that it would not be appropriate for witnesses to refer themselves as being vulnerable, but some cases have also been identified in which it might be helpful. At some point, we will need to strike a balance, but the discussions so far have been helpful in drawing out the arguments. We will go back and look at those arguments again and, if necessary, come back with proposals for change.

I would like to raise the question of civil proceedings in which a matrimonial interdict or an interdict under the Protection from Abuse (Scotland) Act 2001 is sought. Although there might not be any question of vulnerability, if an interim interdict is contested, a woman who has been subjected to domestic violence might have to appear in court and be confronted by the person for whom she is seeking the interdict. Such matters are handled according to a very tight time scale, so that people do not have to wait for weeks and weeks to have an interdict confirmed. Could people who were seeking interdicts because of domestic violence be considered automatically for classification as vulnerable witnesses, or will agents automatically make those applications?

I do not know how agents or others will proceed in the future, but such classification would not be automatic. Classification would come down to the same list of conditions or checks that I mentioned earlier—the responsibility on the party and the responsibility on the court—with no automatic inclusion. We believe that the definitions are wide enough and we hope that the understanding is clear enough to ensure that it would be taken for granted that a woman in such circumstances would expect to be treated in the way that has been suggested.

I assume that Maureen Macmillan was talking about proceedings in the sheriff courts.

Yes, I was.

As you will see from the bill, we have left to be made in rules many of the details of how the provisions will work in the sheriff courts. That is because there is a body called the Sheriff Court Rules Council which has responsibility for making rules for the sheriff courts. There is a similar body for the Court of Session.

The Sheriff Court Rules Council will have to look at the provisions and consider how the rules can be made to take account of all situations that might arise. If the committee is expressing that concern, I am sure that we can take that back to the council so that it is aware of that when it considers the appropriate rules for civil proceedings.

The sheriff court is generally able to adapt its proceedings. Civil courts have the power to be quite flexible in adapting their proceedings to meet a range of circumstances. If something has to be done as an emergency, it should be possible for the court to hold a hearing at short notice and to make the appropriate arrangements. I think that there is sufficient flexibility in the sheriff court rules at the moment, but we can certainly bring the issue to the attention of the rules council, which can consider the issue when it examines the bill in more detail.

I would appreciate that.

Are you saying that the Sheriff Court Rules Council could create an automatic category? Have I picked that up correctly?

No. It would be a procedural change. The rules council creates procedural rules that support the basic policy and intention of legislation. The rules cannot change the legislative framework, so they would not create automatic entitlement. However, they could put in place accelerated procedures for dealing with applications where that was necessary.

Before we leave that subject, I seek clarification. Am I correct in understanding that proposed new section 271C(2), which deals with vulnerable witness applications, would not require the application to include information about why the party citing the witness thinks that the person is a vulnerable witness?

Again, that will be determined by the rules that will be made to support the applications. We would expect that an application would contain sufficient information for the court to make a decision on it. Our intention is that the applications should be dealt with in chambers.

I am surprised about that because section 271C(3) goes on to say what the vulnerable witness application ought to contain. It seems strange that the application need not mention the most important thing, which is the reason why the individual should be deemed to be vulnerable. It seems to me that the court could be denied information at what might be a critical stage. Should not that be in the bill?

I thought that it was implied that the information would be in the application.

We will certainly consider that issue, convener. I am not convinced that it is absolutely necessary, but we will go back and look at the issue again to see whether anything further is required.

We have received many written submissions that have welcomed the idea of establishing a child witness support service, which was recommended by the Lord Advocate's group. What consultations have you had on that? Has there been any feedback? How does the child witness support service relate to last week's announcement about the establishment of vulnerable witness officers?

The reference to vulnerable witness officers in last week's announcement was part of a commitment to set up a new unit within the Scottish Executive that will bring together all the strands in the Justice Department into a dedicated co-ordinated team. From 2004-05, we will invest an extra £1 million in that service. A number of practical measures will flow from that. In essence, we want to ensure that the child's needs are taken into account and that the right arrangements are made. People will act as champions of good practice across the system.

There is still work on child witnesses that is not complete. However, last week's announcement was an important commitment to take that work forward and it cannot be seen in isolation from what we are discussing today. We are putting in resources to back up that commitment. Bit by bit, we are creating a framework that will protect children who are subject to the courts system in whatever capacity, and which will allow them to give the best possible evidence.

Will the child witness support service be part of the new unit?

Whatever comes from the Lord Advocate's deliberations will be considered closely. In the Scottish Executive Justice Department—separate from the work of the Lord Advocate—we are pulling together everyone who deals with vulnerable and child witnesses. Progress has been made on the range of recommendations from the Lord Advocate's working group on child support. That is part of our continuing work as we slowly but surely make progress to ensure that we support those who are most vulnerable in the courts.

I want to ask about applications for special measures. We have already touched on the fact that the court can intervene, if it thinks it appropriate, in the operation of special measures. However, some witnesses have expressed the concern that there is no right of appeal if an application for special measures is rejected or not granted in the terms requested by the applicant. Would you be willing to look into that?

There is a dilemma. We are proposing something for the best of reasons, in order to ensure that justice is afforded to everyone in a court case. As I have said, we accept that some people need extra support. We have to balance that against the rights of the accused. We do not want to destroy the system of justice. However, how do we cope with persistent complaints that trials take too long, that they are adjourned or are put off, and that witnesses come to court only to be sent away? What happens if the system allows either party the right of appeal—whether it is the right of appeal for someone who has been denied special measures, or the right of appeal for someone who does not think that the other party should be in the special measures category? Should we introduce another element of delay that would allow appeal after appeal? Not only would that add to the burden on the courts and to the costs, but it would add to the pressures, fears and anxieties of witnesses. I do not know how we can easily resolve that. Our proposal is probably right in the circumstances. I wish that I could say that there would never be a problem and that no one would ever be treated unfairly, but I could not give that guarantee. However, I would be worried about introducing a set-up that led to a continuous process of appeals that would add to everyone's burdens.

Last week, the Faculty of Advocates argued quite strongly that there should be hearings for applications to do with special measures. Would allowing such hearings, at which all parties could argue their cases, address the problem of appeals?

If the court is not satisfied with an application, there could be a hearing—that is provided for. I suppose that that is slightly different from an appeal.

The Faculty of Advocates argued very strongly that hearings should not take place only when a court was dissatisfied. The faculty believed that the Crown would be seriously disadvantaged on occasions when it did not have the opportunity to have a hearing. The faculty also believed that defence agents could have legitimate concerns and that questions could arise over whether a trial was safe.

We have to try to strike a balance. As I said, if a judge were in any doubt about a notice or application, a hearing would be held at which the other party had a right to be heard. We would be concerned about an automatic right to object, because it could be abused and could create delays and uncertainty. We want to try to change the culture in our courts and to make people more confident about appearing in courts. We would have reservations about introducing further impediments to a speedy solution. It is also right to say that evidence would be questioned and that special measures would not be prejudicial. I wish that I could give you an easy answer, but there is not one.

Last week, the Scottish Human Rights Centre's representative told us that she could not imagine a circumstance in which special measures would be revoked. Do you agree that that is likely, or can you imagine such circumstances? If so, what would they be?

My officials and I discussed that before the meeting. It is difficult to identify such circumstances. If we engage in speculation, that will lead us in a direction of its own. I cannot add anything on that that would be useful to the committee's deliberations.

The Faculty of Advocates gave evidence to the committee last week and one of its concerns was about proposed new section 271H(1)(f) of the Criminal Procedure (Scotland) Act 1995, which refers to

"such other measures as the Scottish Ministers may, by order made by statutory instrument, prescribe."

The Faculty of Advocates said that special measures were so important that they should not be left to secondary legislation and that extra measures should receive as much parliamentary scrutiny as the bill does. The faculty is concerned that that provision allows ministers to add measures that should come to the Parliament for discussion.

Such measures would be discussed by the Parliament. An order that was made under that section would require an affirmative resolution, so the Parliament would have the opportunity to discuss the matter.

The Law Society of Scotland suggested that the bill should emphasise more the impact of giving evidence on the witness, and not just the impact on the quality of the witness's evidence. Do you see a distinction between those two matters? What is your view on the Law Society's proposal to strengthen the bill's provisions on the impact of giving evidence?

I do not quite follow you.

I understand that the fact that a witness must go to court to give evidence can have an impact on them—the witness might not even want to go to court. However, the bill places more emphasis on the quality of a witness's evidence. I do not know whether a distinction exists; the Law Society made the distinction.

We are talking about defining someone's vulnerability, which relates to the impact that fear or distress might have on the quality of the evidence that is given. We are not attempting to eliminate the need to give evidence or the opportunity to question and challenge evidence. Denial of that opportunity would have significant legal implications.

The inclusion of the "fear or distress" element in the bill addresses the question of the impact of giving evidence.

In your introduction, minister, you mentioned your concern that fairness of trial should be paramount in proceedings. However, the Faculty of Advocates expressed significant concerns about the difficulty of weighing the risk of prejudice to the fairness of a trial against the risk of prejudice to the interests of the witness. It argues that as drafted—in particular with respect to the insertion of proposed new section 271A(11)(b), which deals with child witnesses, into the Criminal Procedure (Scotland) Act 1995—the bill could require the court to proceed with a potentially unfair trial.

It is always the court's responsibility to ensure that a trial is fair. In our view, none of the bill's special measures is prejudicial to the interests of the accused. We believe that they all enable the defence to cross-examine the vulnerable witness adequately. However, we accept that the significant risk test is an additional safeguard.

That said, the court would have to weigh up the risk to fairness of the trial against the risk of any unfairness to a child's interests. On the one hand, people are concerned about potential unfairness to the accused; however, others have said that we are not going far enough in that respect. As I said earlier, we have to strike a balance. It is right that we place an onus on the court and the judge to ensure that there is a fair trial and that nothing is done to prejudice that.

Is there a risk that if the bill as drafted were passed it could interfere with such judicial discretion?

No, we do not believe so.

Is not it paradoxical to ask judges to ensure that the interests of justice are paramount and then say that they can depart from that if they think that certain circumstances apply? That is what the Faculty of Advocates is concerned about.

I do not believe that that is paradoxical at all. It is still—and has always been—the court's responsibility to ensure that there is a fair trial; the bill will not change that. Indeed, some have criticised the bill because of that. A judge who feels that a trial is being prejudiced by the way in which evidence is being given will clearly retain the right to decide how that evidence is given.

Some witnesses have called for provision to be made that makes it possible for a supporter to be a witness in the case. Apparently, the current practice is to take the evidence of a supporter who is a witness in a case before the evidence of the witness who requires support. Is the Executive considering any such change to the bill?

That was the point that Nicola Sturgeon raised. It is clear that there are arguments on both sides, and we will go back and examine the matter. I would certainly not want to indicate our position at this stage. After listening to some of the arguments that both sides have made, I can see problems with such proposals, but I can appreciate some of the reasons why the arguments have been made. However, as I said, we will reconsider the matter.

The problem that I foresee centres on the question of who will support the vulnerable witness if all her friends and family are giving evidence. We have to reach a stage at which someone must be allowed to sit in court with a vulnerable witness.

That is a fair point.

Will you outline the problems in that respect? After all, someone who has already given evidence in a trial can then sit in the public gallery and listen to the rest of it. What is the problem with having that person sit next to a person who is giving evidence, if the bill already seeks to preclude them from prompting or helping the witness in any way?

We want to be absolutely sure that there is no possibility of influence being exercised in any way, shape or form. The last thing that we want is to do something with the best of intentions but to find that we have left ourselves open to challenge from another direction. As I have indicated, opposing arguments have been put and we will re-examine the matter.

I hope that the minister does not get paranoid about constant references to the Faculty of Advocates. If it is any consolation, representatives of the faculty were here longer last week than you have been.

One of the issues that they raised and on which we questioned them was that of witnesses' giving evidence on commission, away from cross-examination in court. From last week's evidence, I know that such experiences are relatively rare; I am sure that you are aware of that. What do you see as the significant differences for witnesses between giving evidence on commission and doing so under cross-examination during a trial?

It can be useful for evidence to be taken from a vulnerable witness on commission. The accused would not be allowed to be present when that evidence was given. However, the lawyers from both sides would be able to listen to, challenge and debate the evidence, without the witness's being confronted by the accused. The role of the commissioner would be to ensure that there was fairness and equity and that evidence was taken in a balanced and objective way. Colin Fox is right to say that evidence is not often taken on commission, but in some cases it may have a contribution to make.

It may not surprise you to learn that the Faculty of Advocates was keen for this matter to be left to the discretion of the judge and the court, rather than for evidence taking on commission to be introduced as a right through legislation. [Interruption.] I was just having a go at the Faculty of Advocates—there was no need for the minister to take advice on the issue. If evidence is taken on commission in a separate part of the trial, is there not a danger that the trial as a whole and justice will be delayed so that the defence may be properly prepared, see statements in advance and develop its line of inquiry?

I will ask Barbara Brown to address that point in a minute. Evidence on commission does not often take place, although there may be good reasons for such evidence to be taken. Although in another context I highlighted worries about delays caused by frivolous appeals, in this context it is useful for evidence to be presented properly and challenged. Evidence taken on commission could expedite the court case, without the accused's necessarily being present. It would enable the testing of evidence, which the court would find useful.

We do not envisage that the procedure will be used very commonly. An application for evidence to be taken on commission is most likely to be made shortly before a trial, at the point where both parties have had an opportunity to prepare their cases. There may need to be a short delay so that arrangements can be made, but the benefit of taking evidence on commission is that a witness's involvement in a case will have been captured. Because proceedings are videotaped, the witness's evidence, cross-examination and re-examination will have been obtained in a oner. That evidence will be available for the trial when it goes ahead.

The advantage of the procedure for the vulnerable witness is that if the trial is delayed later on they should not in ordinary circumstances need to give evidence again, so they can step away from the trial. The procedure will be useful in a limited number of cases, because it will allow witnesses' evidence to be captured and ensure that they do not need to be involved in the trial thereafter.

Okay. That brings me to the other part of the question, which is about the right of the accused to be present at the trial. The accused is obviously there when a cross-examination takes place, including when screens are used. Are there plans to remove the possibility of the accused being present when evidence is being taken on commission? I will put it another way. The bill talks about the possibility of removing the right of the accused to be present.

No. The bill allows the accused to watch and listen by some means—for example, by a live television link—while the witness's evidence is taken. I ask Barbara Brown to clarify.

The general rule would be that the accused would not be present at the commission, but that, as the minister said, he would be allowed to watch by some means or other. The general rule that the bill lays down, which is the current rule for evidence on commission, is that the accused is not present. We have left the possibility in the bill that the accused will be allowed to be present. I can understand the concern about that, but it is the exception to the rule, and there would therefore need to be a good reason for the accused to be allowed in before that would happen.

The judge would probably apply the same strength of evidence as he would when considering whether a witness has to appear for the full court hearing rather than have the special measures applied to them. The same circumstances would influence the judge's decision whether to allow the accused to be present.

Who makes that decision just now? Does the commissioner or the judge make it?

Under the bill as drafted, the commissioner would make that ruling. We drafted it that way because we felt that the commissioner was in the best position to make the judgment, depending on the circumstances on the day, because he would presumably have met the accused and would have a better idea of what would be appropriate. We are aware that some people have said that it would be better for the judge to make that judgment. We can consider that.

I would want to consider that point. I can see that there are good reasons for leaving that decision with the commissioner but, equally, I do not want to do anything that would undermine confidence. I also want to avoid any potential disputes between the commissioner and the judge. Without prejudice to the conclusion, we will consider that matter.

It was felt that there would be a risk of inconsistency if the judge has been determining delicate issues, such as who is a vulnerable witness, which measures are appropriate and whether measures should be revoked or changed, when suddenly those decisions fly out of his control and are made by an anonymous commissioner. That is the concern that was expressed.

It is a valid point.

From what has been said, I think that it is agreed that the taking of evidence on commission is a fairly rare event, and Barbara Brown said that the accused would be allowed to be present only in exceptional circumstances. Therefore, we are talking about an extremely small number of occasions. Why, then, have that provision at all?

Probably for the same reason that the bill allows a judge to decide that such is the risk to a fair trial that he has to change the way in which evidence is being taken. I suppose that the provision exists to prevent situations in which there is an accusation of an unfair trial, leading to a challenge and appeal. The provision allows the possibility of the accused being present, but it still leaves the responsibility with the judicial process. We will consider that when we come back to the point that the convener and Colin Fox have raised about who makes that determination.

I am grateful for that. Time is cracking on. We have about seven other areas to cover, so I ask members to be mindful of that and to keep their questioning to about two and a half to three minutes each. The time will vary depending on the substance of what is being covered.

When evidence-in-chief is given in the form of a prior statement, how will it be ensured that the prior statement, including the questions asked, has been recorded accurately?

Those who obtain the evidence and information are responsible for ensuring that it has been recorded accurately. When a statement gets to court, the onus is on the judge to consider the information. The Criminal Procedure (Scotland) Act 1995, which applies to the provision, sets out the types of statement that can be admitted and requires such statements to be authenticated. Any prior statement that is admitted will be subject to the general rules on admissibility of evidence. In that respect, the prior statement is no different from other evidence.

If the evidence is in the form of a statement, how will the accused challenge its admissibility? How can the accused test the veracity and accuracy of the evidence? I am not sure where the accused is left.

The prior statement is the equivalent of the evidence-in-chief and therefore the normal cross-examination process applies.

So the prior statement does not exclude the witness from appearing.

No. That is true of evidence on commission, which covers the whole process—the two procedures often get confused. A prior statement takes the place of the evidence-in-chief. Instead of the witness's being questioned on the witness stand by the person who is leading evidence from them, the evidence is led in the form of a prior statement, which normally involves a video recording of the statement. The questions are on the recording, which forms the evidence-in-chief. However, the witness is still subject to normal cross-examination on what was said in the statement.

That cross-examination might or might not be done using special measures.

Yes—that depends on the circumstances.

Section 5 relates to expert evidence about subsequent behaviour that might affect a complainer's credibility or reliability and is a change from the general rule that juries should determine reliability or credibility. Given that the bill departs from that general rule, why does it limit the departure to cases involving sexual offences and why does the provision relate only to the complainer and not to other witnesses?

The bill attempts to overturn the decision made in the Grimmond case, which was a sexual offences case. We are concerned about widening the provision further, because we do not think that it is necessary to do so. The issue is specific and we feel that it must be addressed.

The provision is limited because the aim is simply to overturn that decision. We do not want courtrooms to become battlefields for the experts; we want to limit the use of expert evidence to where it is needed. In this case, expert evidence is needed because the subsequent behaviour of a complainer in a sexual offences case will not generally be within the knowledge of the judge or the jury. It is important to note that it will be possible to introduce such evidence only if the defence has chosen to lead evidence that creates a negative inference against the complainer's subsequent behaviour. The evidence will not be introduced as a matter of course; it is dependent on the evidence that is led by the defence.

As I have not practised law for a wee while, will you say briefly what the Grimmond case was about?

As I understand it, the case involved two young boys who, it was alleged, had been subjected to child abuse. Their coming forward and telling the appropriate authorities what happened to them took place over a period of time—it was a staged disclosure. I understand that, during the court case, the defence made a negative assertion against the fact that they did not come forward with all the allegations at once, but that they did so over a period of time. The defence tried to undermine their credibility by saying that the fact that they did not make all the allegations at once showed that they probably were not telling the truth. It would not be appropriate to lead expert evidence to show that a particular complainer is a credible witness. The expert evidence would be led to show what would be a normal—or abnormal—way for such victims to act if they had been subject to that type of crime.

So the provision is quite narrow and the complainer would have recourse to it only if the defence led evidence about subsequent behaviour.

I would like clarification on one further point, although I think that I can tell from the way in which the bill is drafted what your answer will be. Would it then be open to the defendant to instruct expert evidence of his or her own to say that the behaviour of the complainant was not normal—in essence, to support the adverse inference as well as to rebut it?

We have to accept that that could be possible.

That would be possible?

Yes.

The bill says that such evidence

"is admissible for the purpose of rebutting any inference adverse to"

credibility, but in those circumstances it would be almost as if the defendant were supporting the adverse inference. Would that really be possible?

It would be for the court to decide whether to admit such evidence.

Section 6 deals with the prohibition of personal conduct of defence. In relation to sexual offences, there is already an automatic prohibition. The prohibition added by the bill in cases involving other vulnerable witnesses is discretionary, not automatic. Why is that prohibition automatic for sexual offences but only discretionary in cases where other vulnerable witnesses are involved?

We did not feel that it was necessary to have a blanket rule for all other types of cases. Sexual offence cases are very distressing, and at the time of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 it was felt appropriate to limit that prohibition to sexual offences. During the consultation process, some people expressed the view that there should be scope for widening that prohibition to some other cases, but we felt that there was no necessity to make it a blanket rule and that discretion was adequate. There has not been a great number of sexual offence cases in which the rule has had to be applied by the court, and we are not aware of it being a significant problem in other types of case. We therefore felt that discretion was sufficient to deal with any problem that might arise.

What if the accused simply refuses to instruct a solicitor?

The situation would be exactly the same as with the 2002 act; the court would take a view as to whether such behaviour was appropriate.

The risk of defamation action has been raised as a possible barrier to vulnerable witnesses coming forward. What protection is currently available, and do you think that there is a need to extend absolute privilege to individuals who are particularly vulnerable, such as children?

Cathy Jamieson recently answered a parliamentary question from you on that very matter. We have no plans to change the law on defamation. There is currently a distinction between the absolute privilege that is available to MPs, judges, advocates and witnesses and the qualified privilege that somebody making a complaint would be entitled to. This bill would not be the vehicle for changing the law on defamation and we have no other bills in the pipeline that would be suitable vehicles for such change. As things stand, it is not our intention to alter the law on defamation; doing that would have significant implications. We understand that it is a matter of balance, but as things stand at the moment the Executive has no intention of introducing any changes.

One of the main concerns is whether good practice will be consistent across Scotland. The extent to which that is the case will prove whether the legislation is successful. What are the Executive's plans for training and guidance to support the implementation of the bill? Who will be required to undertake training? Will it be mandatory?

Clearly, guidance and training will be critical. We will expect all the key parties to ensure that they avail themselves of training. We have already had a positive response from the Crown Office and the Faculty of Advocates. I know that Sheriff Morrison, who is the director of the Judicial Studies Committee, has announced that that committee is developing training on dealing with child witnesses and vulnerable witnesses. That guidance will be used for the questioning of children in court.

At the moment, all the relevant organisations and agencies build training into their activities as a matter of course, so we do not believe that a statutory requirement is necessary. We want to build on, develop and share good practice. We believe that the best way forward is probably to use co-operation rather than to make training a statutory requirement.

Will that be sufficient to get the kind of culture change that we positively need in order to deliver?

In and of itself, no. However, a change in the legislation in and of itself would not necessarily change the culture either. There is a much bigger job to be done. Training, changing legislation, providing more resources and examining current practice are all part of trying to shift the practice.

The legislation that we are introducing is about encouraging a change in culture, but culture change is also about considering who we employ in the various agencies and organisations and ensuring that there is equality of opportunity for everyone who wants to engage in those professions. We need to ensure that no one is disadvantaged from working in those settings and, equally, that no one is disadvantaged when they come to give evidence in court. The issue of culture change goes much wider than simply introducing legislation and training, although those are often needed to shift the culture.

Perhaps there is a core problem that has to be addressed. I presume that the minister will monitor that as the bill is implemented.

I want to move on to consider resources and implementation. The bill will be effective only if courts provide the facilities to allow the implementation of special measures. The Executive has indicated that it intends phasing in the implementation of the bill's provisions. What is the time scale for that phased implementation? How will you ensure an even and fair spread of facilities across courts in Scotland to minimise the need for people to travel to courts? How will you ensure that everybody has an opportunity to take advantage of the facilities?

For the first phase of the implementation, we are aiming for April 2005. We have structured the implementation in such a way as to ensure that resources will be available for an even and sustainable introduction of the measures. After the first year or two of implementation, bids will need to be built into the next spending round to ensure that there are adequate resources in future. We are confident that that will be the case.

On evenness and fairness, perhaps the biggest concern is with some of the remoter and smaller courts. I accept that those will have issues about the suitability of premises and the availability of equipment. We will need to consider what can be justified in courts that deal with only a relatively small number of cases.

We will have to consider other ways of supporting those facilities—for example, with mobile closed-circuit television units. We will have to consider how we can use new technology and whatever other resources are available. The issue is sensitive. We do not want to create a situation where a vulnerable witness in Edinburgh or Glasgow would have support, but a vulnerable witness in Dingwall or Fort William would have a problem. We are aware that that could happen and the Scottish Court Service is already considering the issue.

How will the Executive monitor the phased implementation of the proposals to ensure that problems do not arise in specific areas?

We will consider the evidence that comes back to us on the number of cases that have been dealt with in this way. We will pay close attention to any areas of contention. We will not simply ask about the numbers; we will continually ask whether challenges have been made or concerns raised. It would not be in anyone's interests to leave problems to build up, so we will regularly monitor implementation.

My final question is about evidence that was given by the Scottish Legal Aid Board to the Finance Committee, during that committee's deliberations on this bill. SLAB raised concerns about the possible financial implications of the use of the bill's provisions by defence witnesses. SLAB felt that the financial memorandum to the bill was unclear about whether such costs had been considered. SLAB also expressed concerns that the financial memorandum contained no estimated costings on the legal aid fund. Was that an oversight on the part of the Executive, or have the estimates actually been included in consideration of the financial implications of the bill?

We believe that we have calculated properly and that there is no significant cause for concern. We note the Finance Committee's useful recommendation about continued dialogue between the Scottish Executive and the Scottish Legal Aid Board. The recommendation is about ensuring a balance between modernising practice and maintaining appropriate remuneration. We will continue that dialogue because significant differences of opinion arise—over how legal aid should be paid out; over who qualifies for it and in what circumstances; over what the level should be, and so on. In recent years, considerable changes have been made to much of the legal aid system. That refinement and improvement will, I think, continue. The Finance Committee's recommendation is useful and we will also bear in mind the points that Karen Whitefield has raised. We will ensure that there is dialogue.

I call Mike Pringle for a verbal four-minute mile.

We have already dealt with one of my points on subordinate legislation. The Subordinate Legislation Committee was concerned that the powers that allow phased implementation should be subject to parliamentary scrutiny rather than relying on a commencement order. Will you comment briefly on that?

We do not believe that there is any great problem. We believe that adequate powers of scrutiny are available and that confirmation will take place through the proper procedures in this Parliament. I do not expect any problems.

My other question relates to the district courts. Various points have been made about the district courts and there was considerable debate in the Subordinate Legislation Committee.

At the moment, it is rare that a vulnerable witness comes to the district court. The Faculty of Advocates—I am sorry for referring to it again—suggested in its evidence last week that if there were any suggestion that a vulnerable witness would be called in a case, that case should go automatically to the sheriff court or a higher court as a summary case, and should not be tried in the district court. In light of that, is proposed new section 271N needed? What is your view?

There are a couple of issues. As you indicated, it is unusual for children to appear in district courts, and it would be unusual for the type of serious case where there is vulnerability to appear in district courts. At the moment, it is Crown Office policy not to call child witnesses in district courts, although it is possible for the defence to call a vulnerable witness. This afternoon, we have been discussing serious cases that normally would be dealt with in higher courts.

On the wider question of proposed new section 271N, the McInnes review on summary justice is on-going. We prefer to wait until that review is complete before deciding whether any provisions in the bill will apply to district courts. The best way forward is to have a power in the bill to allow the bill's provisions to be extended if appropriate and if required, rather than make something mandatory. Let us wait and see what the McInnes review comes up with.

Finally, minister, on terminology, proposed new section 271(2) contains a whole list of factors that the court should take into account, some of which may not have a legal definition. Do you wish to comment on the use of such factors? Would you be open to suggestions for more appropriate terminology?

To which section did you refer?

Proposed new section 271(2), which contains a list of circumstances that the court should take into account in determining whether a person is a vulnerable witness. If terms do not have a legal definition, it may leave the courts in doubt as to where they should focus their attention when assessing the vulnerability of witnesses.

That is a cracker to keep for the end, Annabel. I do not see where the problem would be. With proposed new section 271(2) we are saying that the court shall take into account a number of things. It is sufficiently descriptive and prescriptive to ensure that the widest possible range of issues is considered. Your argument is about whether some of those descriptions have legal definitions. Is that correct?

A number of the phrases do not have legal definitions. Are you just leaving it to the court to make its own assessment?

Absolutely. It would be a matter for the court to interpret them in those circumstances.

On behalf of the committee, I thank you and your advisers, minister. I apologise to your advisers, whom I did not introduce to the committee, but I will do so belatedly. They are Barbara Brown and Lesley Napier. I thank you for being here this afternoon. We all agree that your presence has been extremely helpful in enabling us to address some of the issues that have arisen in the course of taking evidence. We are grateful to you for your extensive presence with us this afternoon.

I will declare a break of 10 minutes, because we have some outstanding work beyond this item, and it is best for committee members to have a degree of comfort before we proceed to it. We will break for 10 minutes and reconvene at quarter past 4.

Meeting suspended.

On resuming—