Plenary, 04 Mar 2004

Meeting date: Thursday, March 4, 2004

Official Report 638KB pdf

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Vulnerable Witnesses (Scotland) Bill: Stage 3

The next item of business is the first part of stage 3 proceedings on the Vulnerable Witnesses (Scotland) Bill, for which members should have the bill—SP bill 5A, as amended at stage 2—the marshalled list, which contains all the amendments that have been selected for debate, and the list of groupings.

Each amendment will be disposed of in turn but, when we reach a series of amendments that have already been debated and that are consecutive in the marshalled list, I shall invite the minister to move them en bloc and, unless any member objects, shall put a single question on them. I will employ that procedure only if members agree; I am quite prepared to put the question on amendments individually, where that is preferred by the Parliament.

Any amendment that has been moved may be withdrawn with the agreement of members who are present. It is, of course, possible for members not to move amendments, if they so wish. The electronic voting system will be used for all divisions. I will allow a voting period of two minutes for the first division and thereafter I will allow a voting period of one minute for the first division after a debate on a group; all other divisions will last for 30 seconds. I hope that that is clear.

Section 1—Evidence of children and other vulnerable witnesses: special measures

Group 1 is on the definition of vulnerable witnesses. Amendment 26, in the name of Jackie Baillie, is grouped with amendments 27, 1, 2, 4, 5, 50, 51, 20, 21 and 22.

In speaking to amendments 26, 27, 50 and 51, I want first to recognise the huge change that will be brought about by the passing of the Vulnerable Witnesses (Scotland) Bill. In future, substantial numbers of children and vulnerable witnesses will for the first time have access to special measures in courts. Those special measures will not only make the process less intimidating, but undoubtedly help children and vulnerable witnesses to give their best evidence. In seeking support for my amendments, I do not dismiss any of that; the desire is simply to extend the principle to a much wider group of people, to ensure that no one slips through the net.

In the Justice 2 Committee, there has been much discussion about adding further categories to the definition of a vulnerable witness. It would be fair to say that I support the Executive's desire to avoid listing a further set of categories because, by taking the route of simply providing lists, we may end up unwittingly excluding people. At the same time, the committee was much taken by the views of Enable and the Law Society of Scotland, which suggested that automatic entitlement to special measures should be available to people with a learning disability or a mental disorder.

In balancing those arguments, the committee was minded to accept the case that there should be automatic entitlement to be considered for a special measure rather than automatic entitlement to a special measure. That would have the effect of ensuring that no one fell through the net, but it would also acknowledge the Executive's concerns. The underlying thinking is that, because non-visible disabilities can sometimes be the most difficult to identify and assess, witnesses with a mental health disorder or a learning disability should have a more robust entitlement than is currently provided for in the bill.

The committee was sympathetic to the concerns expressed by Rape Crisis Scotland and other organisations, which recognised that victims of alleged domestic abuse and alleged sexual offences could benefit in similar ways. I will leave that point to my colleague Maureen Macmillan to develop.

I am grateful to the Executive for the continuing dialogue over the past few months, which has allowed consideration of practical ways of giving effect to the relevant amendments. A range of other measures—which Hugh Henry helpfully set out in a letter to me and Maureen Macmillan on 29 January 2004—will ensure that vulnerable witnesses get the support that they need and deserve. I have discussed with the minister the need to review the legislation to ensure the efficacy of the definition and to establish whether it is being implemented consistently across the country.

There is a need for those who are responsible for implementation to receive training, particularly on learning disability—we know that it can be difficult to identify whether someone has a learning disability, especially if it is mild to moderate. It is also the case that people who appear to have little or no capacity can often communicate their views clearly, so it is evident that the potential exists for capacity to be overestimated and underestimated. Training for the police, the Procurator Fiscal Service, the courts and others will assist and I would be grateful if the minister accepted that the training should be informed by people with learning disabilities and should be user led, as those people are best placed to explain how and why they need to be supported.

I hope that the Executive will involve voluntary sector organisations such as Enable, because it is recognised that, for the legislation to be truly effective, we need a multi-agency approach. The Executive should also consider the provision of accessible information at all stages of the process. That is particularly important in civil cases. The vulnerable witness officer could have a role in providing early support for vulnerable witnesses in civil cases in which it is unlikely that the police or procurators fiscal will have a role. I welcome the Executive's commitment to consider creating a field in a standard police report that would identify the much wider range of vulnerable witnesses. Taken together, those measures will perhaps have the same effect as the amendments under discussion would.

I welcome amendment 2, in the name of Hugh Henry. It responds to concerns that were expressed by the Disability Rights Commission at stage 1, which related to definitions and the lack of an explicit link between the bill and the definition in the Disability Discrimination Act 1995. I am pleased that agreement with the Disability Rights Commission appears to have been reached, because amendment 2—like my amendments—will help to ensure that everyone with a special need is included under the terms of the bill.

I move amendment 26.

I fully understand Jackie Baillie's view that some categories of witnesses should automatically be considered to be vulnerable. That view, which has been restated today, was also expressed by Maureen Macmillan at stage 2. I know that the issue was raised in the stage 1 report and during the stage 1 debate.

As Jackie Baillie has indicated, we have made some progress and have given certain commitments, which in many respects go in the direction in which Jackie Baillie and others wish to move. At stage 2, I gave an undertaking that the Executive would consider the matter again. Along with our colleagues in the Crown Office and Procurator Fiscal Service, we take such matters very seriously. We have thought carefully about whether the bill should be amended or whether the commitments that we have given are the best way to go. Our conclusion is that the bill as it stands probably represents the right way forward.

We have given certain commitments. As Jackie Baillie indicated, I wrote her a letter in which I raised a number of issues. I want to put on record the fact that we fully stand by the commitments that we made in that letter. If the letter would be helpful to members, it will, with Jackie Baillie's permission, be available for public consideration. The Executive considers that the letter probably does as much as is required.

During the discussions, the Executive identified some significant practical measures that we consider will help to ensure that witnesses are given proper consideration for special measures and that vulnerable witnesses do not slip through the net. Jackie Baillie and Maureen Macmillan have been right to say that we need to sensitise the system so that it is better at identifying people who need additional help to give evidence, whether because of a mental disorder or for any other reason. Organisations throughout the justice service are already aware of the Executive's commitment to making the bill work and to ensuring that genuinely vulnerable witnesses do not fall through the net. We want to ensure that agencies and organisations work together to raise awareness so that such people are identified and their needs are recognised. However, we do not believe that it is right to do that by legal definitions in the bill or simply by labelling people as vulnerable.

The Crown Office and Procurator Fiscal Service plays a pivotal role and I wish to put on record two commitments that it has made, which the Executive believes will go a long way towards ensuring that vulnerable witnesses are identified. First, the Lord Advocate has given a commitment to issuing instructions to the police on the identification and reporting of vulnerable witnesses. That will have the effect of building issues of vulnerability into the work of the police and will require the police to consider issues of vulnerability for each witness. Jackie Baillie mentioned the field in the standard police report. That will make a significant contribution, but it will be backed up by training and guidance, so that police officers are aware of what to look out for when considering issues of vulnerability.

Users should be able to influence the shape of training, not only of police but of other staff involved in the delivery of justice. We should consider the skills, experience and expertise in the voluntary sector that can be brought to bear. A number of organisations—Jackie Baillie has mentioned some, including Enable—have a valuable contribution to make in helping to shape and potentially to deliver training where that is appropriate, although that would be a decision for those directly involved. I would welcome their full participation in the training process.

Secondly, and complementary to the commitment on training, there is the Crown Office's guidance to procurators fiscal and other staff. The Crown Office will be updating its guidance to staff as a result of the bill and it has made a firm commitment to involving the interested organisations in the process of developing that guidance. It will consult a range of appropriate interest groups, such as Enable, the Scottish Association for Mental Health, the Scottish Rape Crisis Network, Scottish Women's Aid and others, so that their concerns are fully considered, their knowledge and expertise are utilised and they have the opportunity to influence the shape and the content of the guidance.

The Crown Office is anxious to enlist the invaluable experience of those groups in preparing the instructions and in equipping prosecutors with the skills and information that are required to identify or recognise different types of vulnerability, including latent non-visible disabilities. The Crown Office also intends to make publicly available as much of its internal guidance as it can, consistent with its public interest duties and the exemptions afforded under freedom of information legislation. That is likely to mean that the majority, if not all, of the guidance relating to vulnerable witnesses will come into the public domain in one form or another and will be open to scrutiny. The Executive hopes that that will be an additional way of increasing public confidence about the way in which the prosecution service deals with vulnerable people.

The Executive expects that, if support groups are aware of the contents of the guidance, having contributed to its drafting, they will be able to advise and refer the witnesses whom they support and will be in a position to draw the attention of the authorities to relevant information. I echo Jackie Baillie's point about the role of vulnerable witness officers in supporting those who need support, in helping with identification and in providing counselling support and advice.

The Executive wants to work at raising awareness on the civil side, so that parties and solicitors acting in those cases are aware of the need to make applications for special measures for vulnerable witnesses. In the sheriff court, any necessary changes to the rules of court will be a matter to be considered by the Sheriff Court Rules Council. The Executive expects that the council will be keen to consult relevant interest groups when it is preparing the information and guidance necessary to raise awareness and to ensure that the new procedures and rules operate effectively.

I hope that members can agree that those commitments demonstrate the Executive's determination to make a real difference. On the basis of the reassurance given, both today and in the letter that Jackie Baillie referred to, I hope that Jackie Baillie will consider not pressing her amendments.

Amendments 1, 2, 4, 5, 20, 21 and 22 deal with definitions of disability. Proposed section 271(2), which the bill will insert into the Criminal Procedure (Scotland) Act 1995, lists the factors that the court can take into account in determining vulnerability in criminal proceedings and section 7(2) of the bill does the same for civil proceedings.

One of those factors is any physical disability that the person giving evidence has. The Disability Rights Commission requested that the reference to physical disability in the bill be amended to refer to disabilities and impairments. Executive and non-Executive amendments on the issue were lodged at stage 2, but were all withdrawn or not moved on the basis that the Executive would continue its dialogue with the DRC and lodge an amendment at stage 3. We have done that and propose to change the reference so that, rather than referring only to a physical disability, the bill also refers to any other physical impairment that a witness may have.

It should be noted that the Executive lodged an amendment at stage 2 that will ensure that any other factors that could be relevant to an individual witness's vulnerability can be taken into account. Although we have ensured that any such factors can be considered, we agree that it is useful for the bill to refer to both disability and impairment. I am grateful to the DRC for its help on that issue and to Jackie Baillie for raising the matter at stage 2.

I wish to speak to those parts of amendments 26 and 50 that deal with the victims of sexual offences and the victims of alleged offences involving abuse as defined in section 7 of the Protection from Abuse (Scotland) Act 2001.

I appreciate what the minister has said and I thank him for it. It is important that the criminal justice system does all in its power to ensure that victims of sexual assault or abuse feel confident to report what has happened to them to the police, feel supported through the process of precognition taking and are recognised as vulnerable when they come to court. At the moment, the significant majority of rapes and sexual assaults are not reported to the police because of the perceived horror that awaits victims at the hands of the criminal justice system. Amendment 26 would mean that such victims would be automatically considered as vulnerable witnesses and be provided with appropriate support, although I recognise that such support can be given in other ways—for example, by the police and by the fiscals—if there is proper training. I thank the minister for what he has said on that.

It is important not only for the witness to have that support, but for the courts to ensure that the evidence from witnesses is not affected by fear engendered by the fact that the witness is face to face with the alleged abuser or rapist. The conviction rate for rape is low—about 10 to 15 per cent—and I hope that the measures proposed by the minister will give witnesses the courage to come forward and the support to tell their story without fear or harassment.

I emphasise the necessity of providing support for vulnerable witnesses in civil courts, too, which are the subject of amendment 50. Victims of abuse may find themselves in the civil court seeking interdicts against their abuser. If the interdict is contested, the abused person might, without support, prefer to drop the case rather than face the abuser, so that the protection of the interdict falls. I thank the minister for his letter to me on those points, but I would like further reassurance about how solicitors will be trained to recognise that witnesses have that vulnerability. I understand why the minister does not wish to include victims of sexual offences or abuse into automatic entitlement. I thank him for the commitments that he has made on training, which is important, and particularly on involving in the training of the police and fiscals the organisations that support victims of rape and sexual offences or people who have been subjected to domestic abuse.

I am happy to give Maureen Macmillan the assurances that she seeks. She has raised a valid point. We would be concerned about any unintended consequences and we recognise that a failure to adopt and embrace what we are proposing could leave some people vulnerable. I am willing to place on record the fact that we are prepared to see through what I said in my letter to Maureen Macmillan. If anyone wishes to see a copy of that letter, we are happy, with her permission, to share it.

I am significantly reassured by the package of measures that the minister, alongside the Crown Office, will be putting in place. That demonstrates that, although the Executive does not accept my amendments, its purpose remains identical to mine in relation to the support that it seeks to provide. In light of the minister's comments, I am sufficiently reassured, so I do not intend to press my amendments.

Amendment 26, by agreement, withdrawn.

Amendment 27 not moved.

Amendments 1 and 2 moved—[Hugh Henry]—and agreed to.

Group 2 is on child witnesses and the expeditious taking of evidence. Amendment 28, in the name of Jackie Baillie, is grouped with amendment 52.

I am grateful for this opportunity to speak to amendments 28 and 52, which are both in my name and which are supported by Maureen Macmillan. The purpose of the two amendments is to remove delays in the court process where child witnesses are involved. Although I appreciate the often Herculean efforts of the courts in bringing cases to trial as expeditiously as possible, the Justice 2 Committee nevertheless received substantial evidence highlighting problems with delays. Delays in cases coming to trial clearly have an impact on vulnerable witnesses.

We heard about the experiences of a number of people. It was apparent from the questionnaires that had been submitted and from the interviews that we conducted with young vulnerable witnesses that it was common for cases to be postponed or delayed at the last minute. I will give a couple of examples. As a reporter to the committee, I interviewed a number of young vulnerable witnesses, with support from Children 1st—the committee will wish to acknowledge the assistance of Children 1st in arranging the interviews.

One case involved a 12-year-old girl with learning disabilities, who had been sexually abused by her family. The trial had already been delayed three times. I do not think that we can even begin to imagine the impact that such abuse would have on any child. So frustrating was the experience that the girl even opted to dispense with special measures, because to have been assessed by a psychologist as required would have delayed the trial even further. That is hardly conducive to a child giving their best evidence and it is something that the bill seeks to change.

Another case involved a 16-year-old girl. The case had been postponed three times, once on the day before the trial was due to start. Undoubtedly, that is mentally and emotionally very draining. The case began when she was 15 and so entitled to special measures and she opted to have screens in court. Because of all the delays, she turned 16 and lost her entitlement to those special measures, which she felt that she needed. Again, that was hardly conducive to a child giving their best evidence.

I understand that the problem with delays may be dealt with in part by the Criminal Procedure (Amendment) (Scotland) Bill. I will have to rely on ministers and members of the Justice 1 Committee to clarify the matter, but it has been suggested that, rather than significantly reducing delays, the proposals will simply mean that witnesses are better informed that there will be delays. My colleague Karen Whitefield lodged a set of amendments at stage 2 to establish a simplified child witness notice procedure, which will significantly help with any prospect of delays.

I hope that I have, albeit briefly, illustrated the emotional and psychological impact of delays in the court process on vulnerable child witnesses. If we want to ensure that vulnerable witnesses give their best evidence, we must not only provide special measures, but reduce delays where possible.

I move amendment 28.

I support the two amendments in Jackie Baillie's name. Many aspects of giving evidence in court are intimidating for a child. The nature of the case is often a factor. A child witness will frequently be giving evidence against an individual who has abused him or her. The adversarial nature of proceedings is alien to children and to all their experience of life. Even the strange practices, dress and language of the main actors of the process can make giving evidence a frightening experience for a child witness.

Sometimes the most distressing factor is none of those things, but the length of time for which a child might wait to give evidence in a trial. They might have been built up on several occasions to expect to give evidence and they might have been prepared for that experience only for the trial to be adjourned or postponed at the last minute. I heard a mother talking on the radio this morning about her child, who had been waiting for 18 months to give evidence in an abuse trial. The mother described how, every week of that 18 months, she had had to prepare the child for the prospect of giving evidence. Every week, the child was told that the trial would perhaps be that week, only to have that expectation dashed.

The reality is that, while a child is waiting to give evidence in what in most cases will be an extremely distressing trial, their entire life is put on hold. They cannot get on with the normal, day-to-day activities of being a child because they have an enormous black cloud hanging over them. Anything that we can do through the bill, and even outwith it, to expedite the whole process of giving evidence and to make it more certain—it is the uncertainty as well as the sheer length of time involved that can be so distressing—would be welcome. The two amendments would go some way towards that, which is why I am happy to support them.

I share the concerns that Jackie Baillie has raised. She is absolutely right to highlight some of the horrific consequences that can be caused by delays. She refers to the trauma and distress that undue delay can cause and the Executive is entirely sympathetic to what she intends to achieve. However, I do not think that the amendments would necessarily achieve the desired effect.

I do not wish to run ahead to amendments that we will be considering in groups still to come. However, although I sympathise with Nicola Sturgeon's desire to eliminate delays, I should point out that a set of amendments that we will come to later—some of which Nicola Sturgeon lodged—would, I believe, lead to further delays in the system. I hope that she will be able to reflect on the sincere point that she is making about the avoidance of delay.

The minister's point is rather disingenuous. Does he agree that delays in trials are caused not by the due process of law, which is what my later amendments refer to, but by the repeated adjournments of trials due to a lack of preparation, usually on the part of the Crown? Trying to confuse the two is rather disingenuous and is perhaps an attempt to politicise the argument somewhat.

No, I am certainly not trying to politicise the argument. The repeated adjournments to which Nicola Sturgeon refers are also to some extent the consequence of the due process of law and we are considering that matter through a range of legislative measures. The question is how to minimise the unnecessary delays that are caused by the due process of law. Just because something is happening because of the due process of law does not necessarily make it right, nor does it mitigate the worst consequences for those who are affected.

We accept that there is a great deal of anxiety and uncertainty—Jackie Baillie is right to highlight the impact of delays on vulnerable witnesses. We have tried throughout the bill to minimise potential delays that could arise through the application for, or use of, special measures. For example, the bill as it is currently drafted has a streamlined procedure for child witness notices, which should help to reduce the possibility of delays, and it allows for hearings on child witness notices to take place only when the court is not satisfied with the notice. In addition, as Jackie Baillie indicated, we were happy to support Karen Whitefield's comprehensive amendments at stage 2, which will further streamline the procedure for many child witness notices where standard special measures are requested.

In passing, I remind members that the Executive is engaged in a range of work to tackle the issue of delays and constant adjournments. For example, the Criminal Procedure (Amendment) (Scotland) Bill contains proposals to improve the efficiency with which justice is delivered through the High Court. That bill should ensure that High Court cases proceed to trial only when they are ready. It is also intended to remove the culture of adjournment in those proceedings. The McInnes summary justice review is due to report soon with recommendations for more efficient and effective delivery of summary justice.

In principle, we agree that, wherever possible, parties that call child witnesses should have proper regard to the need to progress matters expeditiously. I am aware that the Crown Office already seeks to do so, as far as is consistent with ensuring the fair and effective conduct of proceedings.

It is also worth noting existing policy in the sheriff courts, as documented in the Cox Nicholson report on court programming, which states:

"There are certain categories of business in which evidence is led which … should be given priority in assigning a diet. These include criminal and civil cases involving children as witnesses or where children are the subject matter of the case in question … Similarly … such cases should be afforded priority on the day of the assigned diet, in the event that a number of cases are proceeding."

Again, that must be subject to certain caveats, but it demonstrates that the courts are alive to such issues.

However, we cannot support the amendments. We are grateful to Jackie Baillie for raising such an important issue and we understand and are sympathetic to her intentions, but we do not believe that the amendments would be workable in practice or that they would achieve the desired effects.

The amendments would place a duty on the court to ensure that child witnesses are dealt with quickly. Of course, we are keen to ensure that cases that involve children proceed with minimum delays—in the reforms that we are proposing for the High Court, the intention is that cases will be more effectively managed to ensure that time limits are met. However, the parties to a case and not the court decide which witnesses to call and when, depending on how they wish to present their cases. Therefore, although the amendments are well intentioned, their focus is misplaced.

Thankfully, the Crown and others are becoming increasingly aware of the need to manage cases with a sensitivity to the needs of child witnesses and I encourage all parties that call child witnesses to bear in mind the potential effects that long waits could have on them. That is one of the issues that is specifically covered in the guidance on questioning children in court that we published last year. That guidance, which we developed in partnership with the Crown Office, the Faculty of Advocates, the Law Society of Scotland and the Scottish Children's Reporter Administration, sets out best practice for all practitioners who are involved in calling child witnesses and should act as a benchmark against which practices are judged. Such quality standard setting, rather than changes to the law of evidence, is the best way forward to achieve improvements in practice.

It is also worth bearing in mind the fact that the amendments contain no sanctions for failing. Indeed, it is unclear what could be considered an appropriate sanction if the court fails in its duty to take a child witness's evidence expeditiously. The only effective sanction might be that the party would not be able to call the witness at all, but that would not be in the interests of anyone if it meant that the case had to be brought to an end and the child's evidence was never heard.

I hope that Jackie Baillie can be persuaded that changes that we are introducing and the change in culture and procedures that we are pursuing will have the same desired effect and that she will agree not to press the amendments.

I applaud the spirit of Jackie Baillie's amendment 28, but am confronted by a technical difficulty. I am not sure what the sanction would be if there were a default in compliance with the proposal. Mr Henry made a fair point. Everybody desires to see criminal cases proceed as expeditiously as possible, but control of witnesses rests with the parties to the criminal case, whether prosecution or defence. My concern is that the only sanction might be that the case could fall, which would clearly be regrettable and certainly not in the best interests of the parties concerned or justice as a whole. Therefore, although I applaud the spirit of the amendment, I cannot support it. I endorse the sentiments that Mr Henry expressed.

I say to Annabel Goldie and the minister that a possible sanction could be spending an afternoon with the Justice 2 Committee, convened by Annabel Goldie.

That might be regarded as a penal imposition by certain parties.

I could never agree with that, although others might.

The minister detailed the much wider range of work that is going on to modernise the justice system and I accept that that will ultimately address the issue of delays. Given his assurances and the quality standards that are being introduced as a mechanism to reduce delays in the system, I will not press amendment 28.

Amendment 28, by agreement, withdrawn.

Group 3 is on special measures and use of intermediaries. Amendment 34, in the name of Patrick Harvie, is grouped with amendments 45, 46, 48, 59, 64 and 65.

I am grateful for the opportunity to speak to this group of amendments, which I lodged after discussion with Justice for Children. I am sure that many members are familiar with that organisation.

Unfortunately, I must mention up front that there are drafting errors in amendments 48 and 65, the effect of which would be to place a duty on intermediaries to relate a child's evidence back to the court and not merely to ask the child witness questions. The error is rather unfortunate and perhaps demonstrates the lack of understanding that exists about the issue. I am therefore grateful for the opportunity to raise the issue and I hope to explain clearly what the use of intermediaries is designed to achieve.

Intermediaries are not intended as a conduit for a witness's evidence; rather they are intended to protect from aggressive cross-examination child witnesses who may be traumatised or frightened in giving their evidence. Protection from such hostile cross-examination could prevent some of the most stressful and upsetting experiences that child witnesses have in court. Intermediaries would ensure that the substance of a question was preserved, but that inappropriate or aggressive language was removed. Questions would be put to a child witness in language that the child could understand and respond to so that they could give their best evidence.

I would like to read for the Official Report the experience of one young person, who said that a lawyer

"kept interrupting so I couldn't say what happened … I could never finish my sentence … I'd been big and brave enough to go to court, but I never got the opportunity to tell them what had happened. Child witnesses need to have the opportunity to tell their story to lawyers who can communicate with children. Children should be the priority."

Experience of the operation of an intermediary system comes from South Africa, where such a process has been in use for 10 years in an adversarial system of justice. Like Justice for Children, I believe that we should put such experience to use and make it available to the Scottish justice system. The Executive and all parties have accepted the principle of protection for child witnesses and other vulnerable witnesses and there are already examples in our system of people being questioned through, for example, an interpreter or a signer. The use of intermediaries for child witnesses would not contaminate evidence. Indeed, it would do quite the reverse; it would enable child witnesses to give their best evidence, which is one of the main reasons for the existence of the bill. The comparison that Justice for Children has made is that we would not send into an adult court a vulnerable child witness with a broken arm without getting medical treatment for the child. Emotional and mental trauma and fear should not be regarded as being any less significant.

I move amendment 34.

The bill's aim is to ensure that evidence of the best quality is led in court and that extra resources are allocated for the introduction of special measures that will ensure that witnesses have the opportunity to give that evidence. The entire Justice 2 Committee supported that principle. However, although I support all the special measures that are set out in the bill, it goes without saying that they must not negate the right of a defendant to a fair trial, nor should they inhibit the likelihood of a sound verdict being reached in the due process of law.

I note the answer that the Deputy Minister for Justice gave to the Justice 2 Committee in December on the issue of intermediaries, although I was in Australia studying the law on transportation. He said that the Executive would await the outcome of a pilot study in England and Wales before reaching a conclusion on the matter. However, I am mindful of the bill's provisions about supporters. It states that supporters

"must not prompt or otherwise seek to influence the vulnerable witness in the course of giving evidence."

My concern is that the bill should focus on assessing how evidence appears to jurors. There is clear evidence to show that an intermediary is nowhere near as effective as a witness in giving evidence, in terms of the impact on the jury, convictions and sentences.

Will Colin Fox give way?

I will finish in a second.

The challenge is to find a way to increase the likelihood that witnesses will give the best possible evidence without our undermining the right of defendants to a fair trial.

Although Patrick Harvie's amendments have some merit in allowing us to discuss the use of intermediaries, it is not appropriate for us to consider introducing intermediaries through the bill. The bill's fundamental principle is to ensure that witnesses are able to give evidence of the best quality, but some people in the legal profession would argue that the use of intermediaries could lead to a failure in the cross-examination of evidence, which is not what the bill seeks. Automatic entitlement to special measures will not prevent witnesses from giving evidence; rather, it will ensure that they are able to give good evidence.

Additionally, it is worth noting that a number of pilot schemes are running in England and Wales, so it would be premature for us to allow the use of intermediaries before we are able to judge how effective they have been there. I note that in Merseyside last month a pilot scheme began, which is specifically examining the difficulties that people with learning disabilities and communication problems have in expressing themselves in court. We could learn much from that. Therefore, it would be inappropriate for us to accept Patrick Harvie's amendments.

I have a great deal of sympathy with the rationale that underlies Mr Harvie's amendments, but I am confronted by a technical concern. It is a cornerstone that the evidence in our criminal courts is given as directly as can be managed. That is critical to a fair trial and to a court's and jury's understanding of the evidence. I have a real concern that, if we depart from the purity of that structure—which is an important component of our criminal justice system—it may be possible for evidence to be diluted, albeit unintentionally and inadvertently. In that, I am confronted with a real problem and a significant concern, so for that reason I am unable to support Mr Harvie's amendments.

I understand fully the sentiment behind what Patrick Harvie says and a range of organisations in Scotland favour the use of intermediaries. However, if he had continued to read from the report that he quoted, he would have seen a page or two further on comments from the Minister for Justice, Cathy Jamieson, that suggest that she is sympathetic to the principle of what he proposes.

I gave an assurance to the committee at stage 2 that the Executive is not opposed in principle to the use of intermediaries. However, given the diversity of opinion on the use of intermediaries and the different ways in which they are used throughout the world, we believe that more work needs to be done before we can come up with a proposal that is suitable to the needs of witnesses in the Scottish context. Colin Fox highlighted some of the concerns that we need to address before we proceed with use of intermediaries. There is a great deal of sympathy for the idea, but we need to ensure that we get it right for the reasons that Annabel Goldie and Karen Whitefield outlined.

I said at stage 2 that we would consider the pilot schemes in England and Wales. My officials are in regular contact with the Home Office, and the Executive's new victims and witnesses unit will be informed of the progress of those pilot schemes. If Cathy Jamieson or I have the opportunity to do so, we will visit at least one of those—possibly the one on Merseyside—to see how well they are working and whether they could work here.

It is right that we should await the outcome of those pilot schemes before we decide whether to introduce intermediaries in Scotland. As Annabel Goldie said, it would be a major step to introduce a procedure that prevents the legal representative for a party from directly questioning a witness. Because of that, the subject requires detailed consideration. I can, however, give an explicit assurance to Patrick Harvie and Parliament that the issue will not be forgotten by the Executive.

We are not ruling out the possibility of introducing intermediaries as a special measure in the future; however, we want to wait and see how they work. We also need to be clear about the best way in which they could be used within the Scottish justice system, which is very different not just to the English system, but to other legal systems elsewhere in the world in which intermediaries are deployed. The exact role of an intermediary in Scotland would need to be clearly determined before legislation could be drafted. There is a power in the bill to add special measures by way of statutory instrument, so intermediaries or other measures could be added once further work on the matter has been undertaken. That would be done by an instrument that was subject to the affirmative procedure, which would require full parliamentary scrutiny and an opportunity for debate.

We think that it would be better to wait and learn from others' experience before rushing into the introduction of intermediaries. We should try to get it right at the start. I hope that Patrick Harvie can take some reassurance from my comments, and I ask him to consider seeking to withdraw amendment 34.

I am grateful for the opportunity to have this debate, and I thank members for participating in it. I hope that this short discussion will help to raise awareness of the concept of intermediaries and that it will perhaps reassure some of the people to whom Karen Whitefield referred, who are not yet convinced about the idea. I hope that they will engage with the concept and try to resolve their concerns.

Some of the direct criticism that members have made of the concept of intermediaries relates to the drafting error that I described earlier, regarding witnesses giving their evidence via an intermediary. That is not the intention of the amendments that I lodged, and it highlights the misunderstanding that surrounds the issue.

I look forward to the Executive taking a position in the future, once it has evaluated the experiences in the English system. I thank the minister for the assurance that he has given, and I seek permission to withdraw amendment 34.

Amendment 34, by agreement, withdrawn.

The amendments in group 4 relate to special provisions for child witnesses who are under 12. Amendment 3, in the name of the minister, is grouped with amendments 10, 17 and 25.

The bill will give to all child witnesses an automatic right to special measures. Furthermore, in cases of sexual or violent crime, it will give extra protection to child witnesses under the age of 12. For those most vulnerable child witnesses, the bill creates a presumption that they should not have to attend court to give evidence. Moreover, as a result of amendments that were lodged by Karen Whitefield at stage 2 and supported by the Executive, there will now be a prohibition on an accused from conducting his or her own defence in cases of violence that would involve child witnesses under 12.

Amendments 3 and 10 seek to add to the list of cases where child witnesses under 12 receive extra protection the offences of plagium, which involves the theft of a child, and abduction. The amendments are based on helpful suggestions that were made by the Law Society of Scotland at stage 2 and I am grateful to the society for its input. If agreed to, the amendments will ensure that in such cases a child witness under 12 will not have to undergo face-to-face cross-examination by the accused, or have to attend the court to give his or her evidence.

On amendments 17 and 25, I have already said that Karen Whitefield lodged amendments at stage 2 that sought to create an automatic prohibition on the accused's conducting his own defence in cases of violent crime that involve child witnesses under 12. We supported that and said that we would lodge any necessary amendments to ensure that it would work in practice. One area that we have identified is that of precognition by the accused. Our view is that the new automatic ban could be undermined if the accused was allowed in person to precognosce a young child witness in such a case. As a result, amendment 17 seeks to ensure that the court may not grant a warrant for the citation for precognition by the accused in person of any child under 12 in the same cases as apply to the new automatic prohibition.

Amendment 25 is a consequential amendment to the bill's long title.

I move amendment 3.

Amendment 3 agreed to.

Group 5 concerns the procedure for vulnerable witnesses other than child witnesses. I call Nicola Sturgeon to speak to and move amendment 37, which is grouped with amendments 38 to 42.

This group of amendments relates specifically to criminal proceedings and vulnerable witnesses who are not child witnesses. All members agree that protection of vulnerable witnesses is important; however, we must also ensure that under our adversarial criminal justice system the rights of the accused are not undermined.

As the bill stands, when someone applies for the use of special measures, the court will order a hearing only when it is not satisfied that an order authorising the use of special measures should be made. However, when the court makes that initial decision, it will have only the views of the applicant and will not be aware of the views of the other party, who in most cases will be the accused. If it is decided initially that an order should be granted, the other party—the accused—will never have the opportunity to be heard. A hearing at which both parties will have the right to be heard will be ordered only if the court is not satisfied at that initial stage.

Such an approach departs from current procedure. For example, under the Act of Adjournal (Criminal Procedure Rules) 1996, the court will not determine an application for the use of a television link without first hearing from the parties to the case. That principle should also apply to this bill.

If the court is to possess all the relevant information in deciding whether to make an order for special measures, the parties to the case must have an opportunity to make either written or oral representations to the court to ensure that a balanced approach is taken. The amendments in this group offer two alternative methods of achieving that aim. Amendment 38 seeks to provide that when a vulnerable witness application is made, the court shall appoint a hearing at which it will determine whether special measures should be used. That hearing would provide an opportunity for all parties to address the court.

Amendment 41 seeks to ensure that hearings would proceed only where it is required that an issue be resolved. I understand and share members' reluctance to build delays into the system—indeed, I shall return to that point later. However, under amendment 41, if the other party has no objection to the vulnerable witness application, the court would have the power to dispense with the hearing. That said, if any objections were raised, the due process of law would demand that they be heard.

Amendments 37 and 39 set out the second method. They seek to allow the other party to lodge objections in writing to a vulnerable witness application, which would provide the court with both sides of the argument. If the court decided to grant the application and make an order, the other party could request a hearing, which would ensure that both parties had the right to be heard. Amendments 40 and 42 are consequential.

In concluding, I want briefly to address the minister's earlier point that the amendments would necessitate and inevitably result in delays in the system. I absolutely refute that contention. Neither approach that I have proposed would inevitably result in such delays; in fact, that was the view of witnesses from the Law Society of Scotland, Victim Support Scotland, the Faculty of Advocates and many others who gave evidence to the Justice 2 Committee at stage 1.

The hearing that is proposed in both approaches could be easily combined with other existing diets. For example, the new preliminary diet that is envisaged for the High Court presents an ideal opportunity for matters such as applications for special measures to be considered. I therefore believe that the hearings can be accommodated within existing court procedure without additional delay and would result in a more balanced approach between protecting the rights of vulnerable witnesses, to which we are all absolutely committed, and ensuring that in an adversarial system of justice in which the accused is innocent until proven guilty, the rights of the accused are not unwittingly compromised in the process of protecting vulnerable witnesses.

With those remarks, I move amendment 37 and ask the minister to consider all the amendments in the group.

I am sympathetic towards Nicola Sturgeon's argument. Indeed, I am minded to support amendment 37, because if it is not accepted the legislation will contain a potential Achilles' heel. This bill must not interfere with the fundamental requirement that a trial be fair, which is essential to the whole framework. However, it is technically possible that the concept of a fair trial could be prejudiced by measures that the court might adopt in relation to the provision of procedures for a vulnerable witness. It would be regrettable if the only facility for addressing that issue were to be either at trial or on appeal on conviction.

Amendment 37 sets out a sensible technical provision that seeks to allow any such concerns to be addressed before the case gets anywhere near trial. As a result, those concerns can be identified early and the court can make a proper determination about how to deal with them. Under the concept of natural justice, it is desirable that if one party seeks to do something in any court proceedings the other party should have the opportunity to comment.

I agree with Nicola Sturgeon that her amendments are not an attempt either to delay or to obstruct the expeditious process of proceedings—they represent a sensible safeguard that will avoid trouble further down the line. As a result, I support amendment 37.

I do not support amendment 37 because I am afraid that, despite its best intentions, it would cause delays. If the defence had the automatic right to object to a vulnerable witness application, they would exercise it every time. Indeed, we would not have a single case in which an objection was not raised, because the defence lawyer would feel that he had to do so on behalf of his client.

We must also realise that this bill seeks not to do down the accused but to allow people to give their best evidence.

Will the member give way?

I have said more or less all that I have to say. The member will probably return to my two points when she sums up.

In summary, if amendment 37 were agreed to objections would be raised automatically in every case. Moreover, we are seeking to secure best evidence, which would best be done through the structure that is set out in the bill.

The amendments would mean that hearings would have to be fixed in all applications for special measures unless they had been dispensed with by the court on the application of parties. Similar amendments were lodged by Nicola Sturgeon at stage 2, when I said that I would give the matter further consideration.

We have considered and reconsidered whether the bill strikes the right balance and whether the concerns that Nicola Sturgeon and Annabel Goldie have expressed are sufficient to warrant our changing direction and considering whether the party not calling the witness should be able to object to a vulnerable witness application. However, we still have concerns that the creation of such a right would strike at the very heart of the bill—it is not an incidental issue. The vulnerable witness application provision is about enabling our most vulnerable witnesses to get the help that they need in court, which is what is driving us. Therefore, I wonder whether we should send out the signal that that provision is something to which people can object.

I agree with Maureen Macmillan that a right to object could also lead to further delays in cases if more hearings were required and to greater uncertainty for vulnerable witnesses. Maureen Macmillan is right because what we might reasonably expect to be the exception in relation to an appeal would, I suggest, very quickly become the norm because lawyers would believe that by appealing in cases involving vulnerable witnesses, they would be doing the best for their clients. We have heard during the debate about the need for cases involving vulnerable witnesses to be heard as quickly as possible. Jackie Baillie and other members spoke about the terrible pressures and stresses that are associated with giving evidence.

I suggest that amendment 37 could, unfortunately, be a backward step in the drive to achieve our aim, although I accept that that is not Nicola Sturgeon's intention. A right to object would also add another layer of bureaucracy and could have an adverse impact on court programming because assigned hearings would have to be dispensed with at the last minute.

Amendment 39 appears to be a stand-alone amendment that would enable the party not calling the vulnerable witness to seek a review against the decision that had been taken by a court to allow the use of special measures. The bill already allows a hearing to be fixed—at which the parties would be heard—when a court is not satisfied about a witness's vulnerability.

As I said earlier, the bill's provisions are trying to ensure as far as possible that witnesses who are identified as being vulnerable receive the help that they need to give their evidence. If a culture change is to be brought about, parties should begin to view special measures as simply extra support that certain witnesses need in order to be able to speak up, which will not affect a trial's conduct or fairness. Even when the use of special measures is allowed, it will not affect a party's ability to question adequately or test the evidence of a vulnerable witness.

Therefore, all Nicola Sturgeon's amendments are unnecessary. They could unwittingly undermine the support that vulnerable witnesses should receive as a result of the bill. I recognise that Nicola Sturgeon has the best of intentions, but I ask her to consider seeking to withdraw amendment 37. If she does not do so, I hope that members will oppose amendment 37.

I listened carefully to the minister's comments, as I did at stage 2. I respect the fact that there is an honest difference of opinion on the matter and I am not sure that we will resolve that in the context of the debate. I will make three points to conclude my discussion on the amendments.

First, we should reflect, as members always should, on the fact that the Justice 2 Committee recommended in its stage 1 report that the bill be amended as amendment 37 seeks to amend it. The committee recommended that after hearing evidence from a range of witnesses, who were not just those whom we might expect, such as the Faculty of Advocates and the Law Society of Scotland. We also heard evidence from Victim Support Scotland, who thought that what amendment 37 seeks would be an important protection to add to the bill.

Secondly, I accept that if a procedure is available lawyers will tend to use it on behalf of their clients—they would probably take the view that it would be remiss of them not to do so. However, it is not a logical conclusion to draw from that that delays will be inevitable. After the Criminal Procedure (Amendment) (Scotland) Bill is passed, all criminal courts in Scotland will have intermediate diets that will be designed to deal with a range of procedural matters. I am not sure why such diets could not be used—they will be held anyway—to accommodate the kind of hearings to which amendment 37 refers.

Thirdly, in debating the bill we are, rightly and understandably, focusing almost exclusively on genuinely vulnerable witnesses. We all want to give them protection and to help them. However, just as it is human nature that lawyers will try to exploit court procedure, so is it human nature that there will be cases—I hope that they will be rare—in which witnesses will try to exploit the bill's provisions. Witnesses will apply to be treated as vulnerable witnesses when, in fact, that position will not be justified. My concern is that, as the bill stands, the accused in a criminal trial will have no right at all to question an application for special measures, even in cases in which it may be manifestly clear that the application is not justified. We could say that it will be for the judge and the court to decide on that, but if the court hears only one side of the story, can we be sure that a balanced judgment will be arrived at?

What I am trying to get at with amendment 37 would not be a diminution of the rights that we are trying to afford vulnerable witnesses; rather, it would ensure that, in trying to do the right thing by vulnerable witnesses, we do not unwittingly dilute the accused's rights in a criminal trial. Even after the bill goes through, we will still have an adversarial system of justice in this country in which the accused is innocent until proven guilty. I believe that with that right goes the right to challenge all aspects of what happens in a trial. I agree with Annabel Goldie that the danger is that there will be an Achilles' heel in an otherwise excellent bill that may, indeed, end up undergoing human rights challenges. It would be a shame to mar the bill by including such a flaw in it, which is why I will press amendment 37.

The question is, that amendment 37 be agreed to. Are we agreed?

No.

There will be a division.

For

Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Frances (West of Scotland) (SSP)
Davidson, Mr David (North East Scotland) (Con)
Ewing, Mrs Margaret (Moray) (SNP)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Martin, Campbell (West of Scotland) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Mundell, David (South of Scotland) (Con)
Robison, Shona (Dundee East) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Welsh, Mr Andrew (Angus) (SNP)

Against

Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

The result of the division is: For 33, Against 64, Abstentions 0.

Amendment 37 disagreed to.

Amendments 38 to 42 not moved.

Amendments 4 and 5 moved—[Hugh Henry]—and agreed to.

Amendments 45 and 46 not moved.

Group 6 is on the taking of evidence by a commissioner and the presence of the accused. Amendment 47, in the name of Mike Pringle, is in a group on its own.

There was considerable debate during—[Interruption.]

Order, let us allow the member to speak without interruption.

Perhaps my voice is not loud enough. When we took evidence, there was considerable debate about whether one should allow the defendant to be in the room when a witness is giving evidence on commission, which is when a witness gives evidence away from the court under special circumstances. I and other committee members felt strongly that that should not be allowed and that the accused should not be allowed to be present at any time during the commission process.

The amendment was moved at stage 2 and then withdrawn with assurances from the minister that he would consider it. The minister had concerns that, in exceptional circumstances, it might be appropriate for the accused to be present, for example, when evidence was taken in a hospital or in some other situation. However, I still have concerns that courts might not view the matter as seriously as the committee did, which is why my amendment seeks to add the words "on special cause shown". The use of that legal term means that circumstances would have to be exceptional for the accused to be present when evidence was taken on commission.

I move amendment 47.

I support Mike Pringle's amendment. We are in a rather strange situation because we have just debated an area of the bill that did not provide for the proper protection of the rights of the accused. In the area currently under discussion, the balance goes too far in favour of the accused. We should try to pull the balance back.

The committee discussed the matter at some length. I support amendment 47 because it would make it more taxing for the accused to be given the right to be present when a vulnerable witness gives evidence on commission. Many witnesses give evidence on commission, not because they are vulnerable, but because they are incapacitated in some way—they might be in hospital or have a broken leg. But for that incapacity, giving evidence in open court would not be a problem. In those circumstances, there is no problem with the accused being present while the evidence is given because in other circumstances they would be present in open court anyway.

However, that logic does not apply to vulnerable witnesses, when the reason for giving evidence on commission is the vulnerability of the witness, because going into court in the presence of the accused would prevent the witness from giving his or her best evidence. The same must apply to giving evidence on commission: if the accused were present, the vulnerable witness might be just as unable to give their best evidence.

I cannot envisage any circumstances in which the accused would be allowed to be present when a vulnerable witness gave evidence on commission. I appreciate that that would not be the effect of amendment 47, but the amendment would build in an added safeguard that would, at the very least, make the accused show good cause for being present. It is worth injecting that safeguard into the bill.

I am uneasy about amendment 47 because it seems that section 1 contains the necessary safeguard as drafted, in that there is a presumption that the accused will not be present. If the defence agent thought that there could be prejudice to the accused, the accused could apply to the court for permission to be present. No doubt the defence agent would then present the necessary arguments in support of that proposition. It is wrong to seek to interfere further in the discretion of the court by placing an additional directive. At the end of the day, we must respect the discretion of the court to make a decision on presentation of the arguments.

It is not for the bill to try to sway the discretion of the court one way or another, particularly when the bill expressly creates a presumption. I cannot support amendment 47.

I support the special measure of taking evidence on commission, but it is necessary to protect all parties and to ensure that they have the right to see and hear that evidence being led. That does not mean that they have to be present in the room, but they should be able to see it on live television or observe remotely.

I agree with Annabel Goldie about the discretion of the court in the application of the measure. I am sympathetic to the measure being made widely available to witnesses who need it, but I am acutely aware that no two cases are the same and that a certain amount of discretion is necessary.

My point concerns parliamentary procedure. I listened to Colin Fox and Annabel Goldie opposing amendment 47 and I wonder why both of them agreed a Justice 2 Committee report that said that under no circumstances should an accused person be present when a vulnerable witness gives evidence on commission. There seems to be an inability to tie up what is said and signed up to in committee with what is said in the chamber.

I am happy to take advice from Nicola Sturgeon on parliamentary procedures; she has been here a lot longer than I have. I have a great deal of sympathy with Mike Pringle's argument and I am trying to make clear my position, which I hope will be clearer still when I have finished speaking.

As Nicola Sturgeon knows, the only evidence that was critical of the bill in its entirety was the submission from the Faculty of Advocates. As far as I recall, it questioned the need for the bill on the basis that many of the provisions for the courts are already in existence and the courts can use them at their discretion. The Law Society of Scotland made a similar case. I make it clear to Nicola Sturgeon that I rise not to oppose the amendment, but to make clear my position, and I will be happy to support amendment 47.

As good as the bill is, I fear that it is in danger of making little difference in the real world unless the Crown Office and Procurator Fiscal Service is properly resourced. As Nicola Sturgeon, Mike Pringle and other committee members know, the point was made that, above all, there is a great need for a culture change.

I do not know how to follow that contribution. I can understand members' concerns about an accused being present when evidence is taken on commission. In particular, I thank Mike Pringle for his involvement in highlighting the matter.

We share those concerns, which is why we lodged an amendment at stage 2 to ensure that the court rather than the commissioner decides whether the accused should be present. The bill as drafted sets out the general rule that the accused should not be at a commission. It is our view that it would be only in exceptional cases that an accused would be allowed to be present for evidence on commission. There must be a very good reason for the accused to be allowed in before that would happen. For example, the witness could be a defence witness whose vulnerability has nothing to do with any relationship to the accused, and who might even prefer the accused to be there. Amendment 47 would be a useful addition to the bill because it would allow flexibility to have an exception, when needed, to allow the accused to be present during evidence on commission.

Mike Pringle's amendment would further strengthen the aim that there needs to be a very good reason for the accused to be present and I am happy to support it.

I am grateful to the minister. There was considerable concern about the issue, but it has been resolved well and I am delighted that, in future, when vulnerable witnesses give their evidence, the defence will allow the accused to be present only in the most exceptional circumstances.

The question is, that amendment 47 be agreed to. Are we agreed?

No.

There will be a division.

For

Adam, Brian (Aberdeen North) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Mrs Margaret (Moray) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Campbell (West of Scotland) (SNP)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)

Against

Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North East Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Mundell, David (South of Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)

The result of the division is: For 81, Against 10, Abstentions 0.

Amendment 47 agreed to.

Amendment 48 not moved.

Group 7 is on the application of vulnerable witness provisions to proceedings in the district court. Amendment 6, in the name of the minister, is grouped with amendments 7, 9, 12 and 19.

During the bill's progress, Mike Pringle and others asked whether its provisions should apply in the district court. There are good reasons why we think that that would not be appropriate at this time, not least of which is the fact that Sheriff Principal McInnes is undertaking a review of summary justice.

However, the bill gives ministers the power to extend special provisions to the district court, subject to the approval of the Scottish Parliament. It also contains provisions that allow for the prohibition of the accused from conducting his or her own defence, and we believe that we should provide for the possibility that those provisions could be included in the power to extend special provisions to the district court, in case it was appropriate to do so at some point in the future.

Amendment 6 will therefore delete the provision to extend special measures to the district court and amendment 19 will replace that power with a more comprehensive power, which will cover both special measures and the prohibition of an accused from conducting his or her own defence.

Amendments 7, 9 and 12 are minor, technical amendments which complement the extended power that is created by amendment 19 and are simply designed to clarify that the bill's provisions do not apply to the district court. Amendment 7 will ensure that the provisions in section 2 that relate to consideration before the trial of matters relating to vulnerable witnesses apply only to intermediate diets and to summary proceedings in the sheriff court and not to intermediate diets in the district court. Amendment 9 will ensure that new section 288ZE of the Criminal Procedure (Scotland) Act 1995, which prohibits an accused from conducting his or her own defence in certain cases involving child witnesses under 12, does not apply to proceedings in the district court. Similarly, amendment 12 will ensure that new section 288E, which gives the court the discretion to prohibit an accused from conducting their own defence in a case involving vulnerable witnesses, does not apply to proceedings in the district court.

I move amendment 6.

I call Annabel Goldie.

I might be speaking out of turn, Presiding Officer. I wanted to speak about amendment 19, which I thought was in the group to which the minister just spoke. If the amendment is not in that group, I will deal with it later.

Amendment 19 is in the group.

As members will appreciate, amendment 19 is very technical. Indeed, it has all the lucidity of the ancient dialects of Chinese dynasties. I want the minister to reassure me that it is entirely technical in import and adjusted purely for other statutory provisions.

I am happy to give that assurance.

I raised the question of district courts very early in the discussions on the bill. I was concerned about the matter, as I had sat in the district court for a number of years—as I have probably said before—and I thought that it was quite important that the district court be brought into the bill, if not now, then in the future, should that become necessary. I am delighted that the minister has lodged the amendments on the matter.

Amendment 6 agreed to.

Section 2—Consideration before the trial of matters relating to vulnerable witnesses

Amendment 7 moved—[Hugh Henry]—and agreed to.

After section 5

Group 8 is on restrictions on evidence relating to the provision of therapy to children. Amendment 49, in the name of Patrick Harvie, is grouped with amendment 68.

Attentive members will remember that I used the example of a witness with a broken leg when I spoke to an earlier group of amendments. Truly observant members will have noticed that that image should have been included in my speaking notes for amendments 49 and 68, so I ask members to recall it now. The example relates, of course, to the comparison between the provision of medical treatment, which we would never deny to someone who had a broken leg or other physical injury and who had to go to court as a witness, and the provision of therapy, such as counselling, to address emotional or mental stress or trauma. Amendment 49 would ensure that such therapy could be made available.

I refer briefly to a statement that Cathy Jamieson made at a conference in November, just a few months ago. The minister said that the provision of therapy to child witnesses is

"a very complex area. Counselling may be beneficial and it is the responsibility of the child's carers to decide upon."

We are all aware of the need for therapists to avoid the risk of contaminating evidence and that brings us to the central issue. I believe, as does Justice for Children, to which I have referred, that the fear, distress and emotional trauma that child witnesses suffer risk contaminating evidence and endangering justice. Therapy such as counselling is intended to ensure that a child witness is treated compassionately, to enable them to participate fully in the legal process.

I am aware that ministers have been considering the issue further since November and have met interested organisations with a view to issuing further guidance. I hope that ministers will regard amendments 49 and 68 as a helpful prompt and will agree that they offer a constructive way forward. The amendments would ensure that children genuinely had a right to access the therapy that ministers have acknowledged as being important and that such therapy would not taint their evidence.

Further delays on the issue would have a negative impact on the many children who are currently in our courts system. If ministers cannot agree to the amendments, I hope that they will give us a concrete commitment to progress the issue at an early opportunity.

I move amendment 49.

I ask the minister to endorse what he said in a letter to me about adults who receive therapy or are supported by organisations such as Rape Crisis Scotland or Scottish Women's Aid before they go to court. There is concern that the very fact that witnesses have been supported and helped by such organisations somehow contaminates their evidence. I would like the minister to put on the record what he said in his letter, which reassured me that the matter is being considered and that the victims and witnesses unit will give guidance on the matter in due course.

Like everything else in the bill, the matter is a question of balance. Although I have some sympathy with some of the views that Mr Harvie expressed, I am unhappy about the portent of amendment 49. As I understand it, he is attempting to ensure that when a child has undergone therapy after a fairly traumatic experience, evidence that the child underwent that therapy can be introduced during the trial. There is a real danger that such evidence could be contaminated. In many instances, for example in cases of sexual assault, the issue for the court to determine is whether or not the accused person—the person in the dock on that charge—carried out the assault. The question of whether the child has undergone therapy would certainly not be relevant to the identification of the accused. There are real dangers in that respect.

On a general point, when the minister addresses the matter, will he confirm that the expert evidence of psychologists or psychoanalysts in relation to an offence would attempt to inform the court about the normal or abnormal reactions of witnesses who experience such crimes? Would there be an indication of whether the complainer's reaction is the normal reaction expected when a person of that age and vulnerability has undergone such an experience, or is an exaggerated reaction?

I understand the sentiments behind Patrick Harvie's amendments and I know that a number of organisations have raised concerns that therapy is often discouraged before a child witness gives evidence. I realise that it is sometimes felt that inconsistent advice is given on whether therapy should be put on hold until after the child has given evidence. One of the main aims of the bill is to ensure that child witnesses get the help and support that they need to give their best evidence. It is equally important that they should get any help that they need before the trial. I assure Patrick Harvie that the Executive takes the matter very seriously.

As part of producing the child witness consultation document in 2002, we have already consulted on a draft code of practice on the provision of therapy to child witnesses in criminal trials and children's hearings court proceedings. As a result of that consultation, we have established a multi-agency steering group on the provision of therapy to child witnesses. The purpose of the group is to revise and finalise guidance on pre-trial therapy for all those involved with children and the law. It is intended that the guidance will clarify that therapy should not be discouraged and will establish guidelines on how therapy can be provided while avoiding the risk of contaminating evidence. I hope that that addresses some of Bill Aitken's points.

Yes.

The group has had its first meeting, so progress is already being made on this important matter. The valuable work of the group should meet the concerns that lie behind amendment 49. It is far preferable that this issue be addressed in that way rather than in legislation.

In response to Maureen Macmillan's concerns, I am happy to put on record the commitment that was given to her in my letter of 7 January 2004. With Maureen Macmillan's permission, I am happy for the letter to be made a public document and to be made available to anyone who wishes to scrutinise it. I hope that she will accept that doing that will confirm our commitment on the points that she raised.

Based on my assurances, I hope that Patrick Harvie will feel able to withdraw amendment 49.

I am grateful to the minister for some of the detail that he has given of the on-going work. However, we currently allow witnesses to give evidence in a state of fear, distress and trauma. That in itself contaminates evidence, and that issue has not been addressed. Therefore, I press amendment 49.

The question is, that amendment 49 be agreed to. Are we agreed?

No.

There will be a division.

For

Adam, Brian (Aberdeen North) (SNP)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Canavan, Dennis (Falkirk West) (Ind)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Frances (West of Scotland) (SSP)
Ewing, Mrs Margaret (Moray) (SNP)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Ingram, Mr Adam (South of Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Martin, Campbell (West of Scotland) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Sheridan, Tommy (Glasgow) (SSP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Welsh, Mr Andrew (Angus) (SNP)

Against

Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Mundell, David (South of Scotland) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

The result of the division is: For 26, Against 69, Abstentions 0.

Amendment 49 disagreed to.

Section 6—Power to prohibit personal conduct of defence in cases involving vulnerable witnesses

The ninth group of amendments is on proceedings in which personal conduct of the defence by the accused is prohibited. Amendment 8, in the name of the minister, is grouped with amendments 11, 13, 14, 23 and 24.

The Vulnerable Witnesses (Scotland) Bill gives the court a discretionary power to prohibit the accused from conducting his or her own defence in cases involving vulnerable witnesses. Karen Whitefield lodged an amendment at stage 2 to prevent automatically an accused from conducting his or her own defence in violence cases involving child witnesses under 12 years of age. The Executive was happy to support that amendment.

However, we have identified that the bill as drafted does not extend either the automatic or the new discretionary ban to any proofs that are required as a result of victim statements. That could mean that, although an alleged victim has been given the extra protection of not being cross-examined by the accused in person at the trial, he or she could still have to face questioning by the accused at a proof relating to his or her making of a victim statement. Amendments 8, 11, 13 and 14 close off that possibility by ensuring that, when an accused is prohibited from conducting his or her own case as a result of the Vulnerable Witnesses (Scotland) Bill, he or she may not conduct his or her own case at any proof relating to victim statements either. That is the approach already adopted in sexual offences cases as regards victim statements.

Amendments 23 and 24 are consequential amendments to reflect those changes in the long title.

I move amendment 8.

I wish to support amendment 8 but to highlight a couple of things and put the amendment in context. On the withdrawal of the right of defendants to represent themselves in cases involving children under the age of 12 and in other cases involving vulnerable witnesses, will the minister confirm that it is exceedingly rare for somebody to represent themselves in a Scottish court? It happens in perhaps one in 1,000 cases. When it happens, it generally reduces the chances of an acquittal, given the complexities of the law and the way in which proceedings are conducted and the law is applied.

The withdrawal of this right for defendants comes against the background of the withdrawal of defendants' rights in sexual assault cases, which the minister mentioned, and the withdrawal of rights in preliminary hearings, which the minister mentioned last week during the debate on the Criminal Procedure (Amendment) (Scotland) Bill.

I support amendment 8 but wish to highlight the fact that the reduction in defendants' right to represent themselves should be seen in the context of three or four other recent withdrawals of rights. I ask the minister to keep the complete picture, and the direction in which we are moving, in mind.

Colin Fox is right to highlight the fact that the measures in the amendments are not being taken in isolation. We want to ensure consistency in all matters relating to court proceedings. Too often, we have seen the tragic consequences of inconsistency.

It is right to give protection. In a number of cases, as has been highlighted, there have been very traumatic and distressing occurrences in court, which have led to distressing and tragic consequences. I am happy to put on record the fact that Colin Fox is right to highlight some of the other work that we are doing. The amendments are part of a package.

Amendment 8 agreed to.

Amendments 9 to 14 moved—[Hugh Henry]—and agreed to.

Group 10 is on pre-trial procedures for vulnerable witnesses and other issues. Amendment 15, in the name of the minister, is grouped with amendments 16 and 18.

Amendment 16 amends sections 71, 71A and 72A of the Criminal Procedure (Scotland) Act 1995, as a consequence of new sections 288ZE and 288E of the 1995 act as inserted by the bill.

Section 288ZE makes it mandatory that an accused must not conduct his own defence in certain types of offences that involve a child witness under the age of 12 who is to give evidence in the trial. Section 288E gives the court a discretionary power to prohibit an accused from conducting his own defence in a case involving a vulnerable witness, where the court is satisfied that it is in the interests of the witness to do so.

Currently, section 71 of the 1995 act provides for the court at a first diet in the sheriff court to establish whether an accused who is prohibited from conducting his own defence has legal representation for the trial. That applies in all sexual offence cases.

Section 71A of the 1995 act provides in sexual offence cases for a further pre-trial diet to follow a first diet in the sheriff court where it is established at the first diet that the accused is legally represented, but his or her solicitor is subsequently dismissed or withdraws. Such a solicitor will be under a duty to notify the court of what has happened. The court will then fix a further pre-trial diet that the accused will be required to attend.

The effect of the amendments to sections 71 and 71A of the 1995 act is to extend the existing provisions so that they relate not only to sexual offence cases, but to cases involving vulnerable witnesses under new sections 288ZE and 288E of the 1995 act as inserted by the bill.

Currently, section 72A of the 1995 act makes it mandatory for the holding of a pre-trial diet in all sexual offences cases to be tried in the High Court, unless dispensed with by the court following an application by the accused's solicitor. The amendment to section 72A of the 1995 act will extend the existing provision so that pre-trial diets will also be mandatory in other High Court cases in which an accused is prohibited from conducting his own defence.

Section 2(4) of the bill, as it is currently drafted, provides that in summary proceedings the court must check at an intermediate diet whether there are any vulnerable witnesses in the case. It does that by inserting the relevant provisions into section 148 of the Criminal Procedure (Scotland) Act 1995. Intermediate diets are mandatory in summary proceedings in the sheriff court in most parts of the country, but not in some of the smaller outlying courts. We intend to plug that gap by providing that, if an intermediate diet is not held in summary proceedings, the court must consider those matters at the trial diet before the first witness is sworn. The bill already does something similar with regard to the High Court when there has been no preliminary diet. Amendment 18 creates an equivalent provision for summary proceedings in the sheriff court in which there has been no intermediate diet.

Amendment 15 is consequential to amendments 16 and 18.

I move amendment 15.

Amendment 15 agreed to.

After section 6

Amendments 16 to 19 moved—[Hugh Henry]—and agreed to.

Section 7—Interpretation of this Part

Amendments 50 and 51 not moved.

Amendments 20 and 21 moved—[Hugh Henry]—and agreed to.

Section 8—Orders authorising the use of special measures for vulnerable witnesses

Amendments 52 and 59 not moved.

Amendment 22 moved—[Hugh Henry]—and agreed to.

Section 13—The special measures

Amendment 64 not moved.

After section 17

Amendment 65 not moved.

After section 19

Group 11 concerns child witnesses and the training of court personnel. Amendment 66, in the name of Mike Pringle, is grouped with amendment 67.

Training is a hugely important factor in the bill. Clearly, children are different from adults and they have to be treated differently. My view is that, up to now, children have not been treated differently in court from adults. Advocates and others view children as witnesses just like adult witnesses, which is not right.

If a young child is asked a question, they will give an honest and straightforward answer. If the question is repeated several times thereafter, however, one finds that the child begins to think that they should not have given that answer. They begin to question whether it was the right answer and to wonder whether they should give a different one. The child starts to doubt the answer that they gave, which can bring their evidence into question.

It is important that we train all the people who are involved in dealing with young people in our courts. It is fundamental that young people are treated in a different way. Advocates and others need to realise that it is important that they too can learn; none of us is too old to learn new ways of doing things. That applies in particular to advocates and others. It is important that good training is put in place and that it is put in place as soon as possible.

I move amendment 66.

I understand the thrust behind what Mike Pringle said. I accept that an important point is involved, but I am concerned that the effect of amendment 66 would be to freeze implementation and, quite frankly, I would be very unhappy about that. The sooner that the act comes into force, the better it will be for all classes of vulnerable witnesses. I am unable to support amendment 66 for that reason.

I understand Mike Pringle's concerns on the issue. I am sure that all of us want to see that everyone who is involved in dealing with the provisions in the bill does so properly and is properly trained. As Annabel Goldie rightly pointed out, amendment 66 could lead to serious delays. Its effect would be to cause the bill not to be implemented as an act. The benefit and importance of the bill far outweigh the need for appropriate training, which it would be difficult to prescribe. I do not support amendments 66 and 67.

The issue of training has been raised a number of times during stages 1 and 2. The Executive is in no doubt that training and awareness raising are of vital importance to the successful implementation of the bill. That is why training and awareness raising will be a key priority for the victims and witnesses unit.

I am keen to ensure that all the professionals and volunteers who are involved in supporting vulnerable witnesses are given opportunities to improve and enhance their skills at identifying the needs of witnesses. That has to be done by ensuring that they give proper consideration to witnesses and that they provide witnesses with the right help to enable them to give their best evidence.

There is a great deal of expertise, knowledge and good will across Scotland and the unit will look to bringing that together so that people can share best practice. The unit will also want to ensure that every organisation is involved in training its staff. We will aim to ensure that there are clear training guidelines and that the relevant organisations are engaged in developing them.

I am aware of examples of good practice that are taking place already. For instance, Sheriff Principal Morrison, director of judicial studies, has said that the Judicial Studies Committee is developing training on child and vulnerable witnesses. The committee will use the guidance on questioning children in court, which we published last year, to help with that.

The Executive has been in discussion with the Faculty of Advocates, the Crown Office and others to ensure that significant attention is given to the provision of training for people who are engaged in the process. We believe that the collaborative approach is the best one and that it is not necessary to impose duties by statute.

In practice, it is not clear that amendment 66 would achieve the desired effect of ensuring that training takes place. I agree entirely with Annabel Goldie that, in the worst-case scenario, the amendment could even hold up the bill's implementation. From discussions with Mike Pringle, I know that that is not his intention. I hope that I have given him sufficient reassurance on the record to enable him to withdraw amendment 66.

I am grateful for the minister's comments. My intention was not to delay the bill, but to raise the important issue of training, which is vital for us all. I beg leave to withdraw amendment 66.

Amendment 66, by agreement, withdrawn.

Section 20—Commencement and short title

Amendment 67 not moved.

Long Title

Amendment 23 moved—[Hugh Henry]—and agreed to.

Amendment 68 not moved.

Amendments 24 and 25 moved—[Hugh Henry]—and agreed to.