Child Witness Reform
I would now like to begin the members' business debate on motion S1M-2698, in the name of Gil Paterson, on child witness reform.
Motion debated,
That the Parliament welcomes the report Justice for Children – The Welfare of Children in the Justice System; commends Children 1st, Childline, NCH Scotland and the other participants for producing this report, and considers that the Scottish Executive should look closely at the findings and recommendations of the report and act accordingly.
It would be fitting for me to state that I was given due notice of the likelihood that this debate would take place a bit earlier than expected. We tried to contact as many interested organisations as possible to inform them of that. Nevertheless, I thank my good friend Lloyd Quinan for raising the matter. He was trying to help me and the people who are concerned about the issue.
I thank some of the organisations who are involved with the report: ChildLine Scotland, Children 1st and NCH Scotland. I welcome some representatives of those organisations to the debate. I know that the gallery is sparsely populated, but I assure members that some of them are there.
If I were to suggest that four-and-a-half-year-old children, rather than going to nursery school, primary school and then secondary school, should go straight to university—an adult institution—everyone would think that I was out of my tiny mind. However, we expect our children to cope with the Scottish justice system, which has been developed by adults for adults. Because of that, the concerns and needs of children are not understood or dealt with adequately.
The criminal justice system is based on the rights of the defendants, which is right, but the needs and rights of victims must be recognised as well. There must be balance. The present system is harmful to children. That has to be accepted by all parties before we can ensure that the rights of all are protected during the criminal justice process.
I have a number of quotes from children who contacted ChildLine. A 13-year-old said:
"My uncle raped me 4 years ago. He went to court but was found not guilty. No one believed me. Something else has happened. I'm not telling anyone this time."
An 11-year-old boy said:
"Dad hurt mum. Dad's going to court. I'm terrified. I don't want to go against my dad."
Another child said:
"The case was dropped and they haven't told us why."
He thinks that it is all his fault and says that he is going to kill himself.
Children who appear as witnesses feel that they are the accused and that the defence is the prosecution. The effects of adversarial cross-examination of children and their inability to withstand heavy pressure to accept a strongly put and adult version of events is one of the main reasons given for the low prosecution rates and high failure rates of such cases.
It is time for the Executive to act. The Lord Advocate's department reported on the subject in 1999. Its recommendations are still waiting to be implemented. We are dealing with children's lives, in a way which will shape their future. It is time to take urgent action to ensure that the criminal justice system is responsive to the needs of children and that going to court does not do long-term damage rather than the good that we expect from it.
The report "Justice for Children: The welfare of children in the justice system" has 10 recommendations that deal with the whole process—not just the children's appearance at court—which is why it is important that the Executive takes notice and acts for the benefit of our children. I will deal with a few of the recommendations. I am sure that my colleagues will deal with a few others.
The second recommendation calls for standards to be set for any investigations that involve child welfare to ensure that prosecutions do not rely solely on child statement. A high importance should be attached to gathering other evidence that can back up a child's claim, such as the child's behaviour. A high importance should also be attached to ensuring that people who take evidence from children are accredited so that interviews are carried out properly, which ensures that the child is able to give evidence.
Support for a child before, during and after any investigation or a court case is extremely important. A service such as the child witness support service that was recommended by the Lord Advocate's report should be the basis of support for children and their carers. Therapy prior to trial should be available at point of need as a right; it should not be withheld because it may weaken a case.
During trial, methods that are presently available should be offered as a right. Evidence by videotape or commission are both currently available but rarely used. Anyone who takes evidence from children or cross-examines them must have an understanding of how to deal with children, as it is clearly not the same as dealing with adults.
In Scotland, our legal system is at times treated like a holy grail. To dare to suggest, as we are, that changes are needed is frowned upon by those with vested interests. The facts speak for themselves. Too often, our criminal justice system lets people down. It is time that changes be made to ensure that the rights of all involved are protected. "Suffer the little children": when it comes to children, just to take wigs and gowns off is not enough. We must give them the right to give the truth. Justice is not only for adults.
The subject is a serious one. I know that the Crown Office is taking it seriously indeed and is working at ways to try to protect child witnesses and make them feel that court is not such an ordeal. I will speak about two aspects of that. One is the methods that are used and the other is the premises.
I do not have a lot of experience of having come across children who have been involved in serious cases—only what I read in the newspapers—but I have spent a lot of time visiting sheriff courts in rural areas and I have been taken aback at how inadequate the provisions for children are. I know that the courts are doing the best that they can, but a lot of the courts are in old Victorian buildings. We find, for instance, that the courtroom has a screen at the side where the child is put if they are going to be a witness. An awful lot of investment must go into dealing with children properly. That investment must be in the structure of the court buildings and taking the child to some other place where they can be talked to.
As Gil Paterson has said, the adversarial system of Scottish justice is not how we should deal with children. I know that we must test evidence, but we must consider ways of testing it that do not reduce a child to a quivering jelly. It is bad enough for adults to have to go to court. Through Women's Aid, I have known women who, if they had to go to court, were in a high state of nerves. For children, who often do not understand what is going on, it is even worse.
I do not think that I have taken up my three minutes, but I have a train to catch, so I will stop with these two pleas: that we examine the adversarial system and see what we can do to develop a more child-friendly system, and that we consider facilities for children within courts and how children are dealt with there.
Maureen Macmillan managed to say a lot in a few words. I warmly welcome the motion and congratulate Gil Paterson on his success in raising the matter. It is essential that the best interests of children are given paramount importance. It follows that, in cases where children may be witnesses, there must be three aims: to uphold the best interests of the child; to secure the ends of justice; and to ensure fairness to the accused. Those aims should be pursued in harmony with each other.
I strongly welcome the recommendations of Children 1st, ChildLine Scotland and NCH Scotland as an important contribution to the debate, in which the Law Society of Scotland, together with the Crown Office, has been closely involved for a considerable time.
I understand that lawyers from the criminal law committee of the Law Society last year entered into discussions with the Crown Office on the guidance that should be given. Only last month, the Law Society was asked by the Executive to take part in a project relating to the cross-examination of children in court. As long ago as 1995, the then Lord Advocate set up a working group on child witnesses, with the aim of improving arrangements for the support and preparation in court of child witnesses.
That group made a large number of substantial recommendations in 1999, a number of which have been accepted, and an implementation group has been set up within the Scottish Executive justice department. A small working group has also been created to prepare guidance, which it is hoped will be available by the end of the year.
When considering this subject, it is necessary to keep in mind the three aims that I have already mentioned. I will give an example of the difficulty that might be experienced. I vividly recall a small child giving evidence in a murder case. Under cross-examination, he admitted that he had made the wrong identification of the accused under pressure from a relative.
The report "Justice for Children" recognises such problems. Paragraph 42 says:
"Extreme caution should be exercised in relation to prosecuting a case which relies solely or mostly on a child's statement … Children, particularly under 12 years do not respond well to, or understand the purpose of, traditional cross-examination. Children are brought up to do what adults tell them. It is very hard for most children to contradict what an authoritative adult tells them is the case … This observation is not a case for fewer prosecutions, but for a rigorous process of investigation."
However difficult it is to take the matter forward, that should certainly be done. I am particularly interested in the report's recommendations 7 and 8, which ask for evidence in the form of videotapes of interviews to be admissible as evidence and heard by the court. The recommendations also propose much greater use of taking evidence on commission from children outside the court premises. Any mechanism or guidance that ensures consistency in the way in which courts tackle this matter would also be beneficial.
We hope that the minister will take the report very seriously and will return to Parliament shortly with a comprehensive package of proposals.
I, too, commend Gil Paterson for lodging the motion and I congratulate the children's organisations on the production of the excellent report, "Justice for Children", which addresses long-standing concerns about the experiences of children in the welfare system.
Those concerns stem from a recognition that children are different from and are worse off than adults when it comes to contact with the courts. Current legal procedures and practices were not designed with children in mind, despite the fact that children are now recognised as vulnerable witnesses and that some effort has been made in recent years to offer them a degree of protection, for example by the use of television links.
The proposals in the report are radical, and recognise that such changes are what it will take to safeguard children adequately. The changes are informed by evidence and information from current domestic, European and international best practice.
Many people fear that changes such as those proposed might interfere with the rights of the accused and that justice might be compromised in some way. I am also aware that there may be resistance to a number of the proposals from members of the legal profession. However, I am confident that there must be a way of achieving justice in both civil and criminal proceedings without damaging the welfare of the child or the legitimate interests of others. Anyone who has had to support a child through the court process will concede that improvements are urgently required, so that children do not have to endure a prolonged wait before their case is called and are not denied access to relevant support or counselling. It should be possible for an assessment to be made of children's ability to give evidence that puts the child's best interests at the heart of that decision.
I particularly welcome the recommendation that we adopt a collective, multi-agency approach. As the report indicates, that is both possible and necessary. It recognises that improvements affect not only the workings of the court and that other decisions are made on the basis of consensus between many departments, including social work, police, health and education.
Children who have experienced our justice system are almost universally negative in their view of it. That is reflected in the foreword to the report and should be our guiding principle. It would be a credit to the Parliament if we could show commitment to reforming the current system, with the aim of securing justice while safeguarding the welfare of children.
I, too, congratulate Gil Paterson on securing this debate. I congratulate in particular the group of children's organisations that has produced the report that we are discussing.
Quite often, reports by enthusiasts go beyond what most people would regard as a reasonable way of dealing with an issue. However, this is a very reasoned report; it makes good suggestions that are in the realm of the possible and the desirable, and that are not extreme. I was particularly taken by the section on studying children's behaviour. The report suggests that children's evidence does not start when they are interviewed, but that by considering their history, body language and so on it is possible to form a view on whether they are telling the truth. People are trained in that art—which would be useful in this chamber. It would be helpful if we could assess better than we can at the moment who is or is not telling the truth in debates. I hope that we can take that on board. It is certainly very important for children.
Recently we passed a bill relating to evidence given by women who allege that they have been raped. We are now protecting them, so it is logical that we should deal sympathetically with children in the same situation.
The report contains good material about planning interviews in advance. As I never plan anything in advance, I found that very sensible. I hope that the proposal will be implemented and will try to take lessons from it.
I was very interested in the idea—which is new to me—of the interviewer acting as an intermediary. The report suggests that other people should be able to participate through whatever technical means are available. They could not all question the child directly, but they could say to the interviewer, "We think you should ask him about X". I see that as a good idea—for an interviewer to deal with the child one to one, but to have access to other people so that both sides can be seen to be fairly treated. We must bear in mind that teachers could be hounded by pupils who respond to being disciplined by making all sorts of allegations against them. We must guard against that, as well as properly safeguarding the rights of children.
There is an issue of funding, to which the report of the working party led by the Lord Advocate's department referred. No figures are contained in the youth organisations' report. However, if we are to provide proper support—which is an important recommendation of the report—the necessary money must be made available for that. All politicians are prone to have good intentions and to produce nice theoretical schemes, but unless the money is put in, those will be no good.
The point about having good statistical information is valuable. All of us, in every sphere of public life in Scotland, find that statistical evidence is ghastly. We have a poor system for organising statistics. We have to learn from that when we start a new system, which I hope we will do. Factual information is very important.
There are a lot of good things to run with in the report and I hope that the ministers will run with them.
I congratulate Gil Paterson on securing the debate. A debate on protecting the interests of vulnerable witnesses, particularly children, and the rights of the accused to a trial in which the onus is on the prosecution to prove its case beyond reasonable doubt is difficult to resolve. There are huge difficulties with the adversarial system, but nevertheless, one must test the evidence. I do not know the answer to that difficulty. I hope that we will come to a view on it in the discussions with the Executive that will follow.
The worst thing that can happen is that a trial collapses because somewhere further down the chain there is not a proper way of addressing the evidence of the child. That is particularly true if the evidence of the child is the only evidence, corroborated by the evidence of other children or if there is minimal corroboration by other circumstantial evidence.
I welcome the report and the holistic—I hate that word, but I will use it, because no one else has done so yet—approach of all the agencies involved that it proposes right from the beginning of the chain when a crime is investigated. Evidence has to be taken in a sustained and sensitive matter, making it secure. That has to be maintained when the evidence goes to the Procurator Fiscal Service—or Crown Office for more serious crime. We have to consider the assessment of the evidence and how the child will stand up in whatever system we operate so that no child or accused is put in the position in which everything is unsatisfactory.
The trial itself should be conducted in a forum in which the best evidence is taken from a child. We must also always bear in mind the interests of the accused. We should consider simple things such as separate witness rooms, which Maureen Macmillan mentioned before she ran for her train.
Does the member agree that there are occasions on which it takes a child some time to develop giving their evidence? Does she agree that it would be enormously helpful for us to take cognisance of the time spans that can be involved, because children cannot give evidence quickly?
I quite agree. That is where we must develop skills and a multi-agency approach. We must take into account the delays in bringing cases to court. How many adults here can remember what they had for dinner this time last week? That might not be a dramatic period of time, but it is hard to think back and a week is a lifetime for a child.
There are other complexities to consider surrounding the evidence of children. A child might be the victim and prime witness or they might be witness to something else. They might be witness to something involving a member of their family, a trusted friend, priest or teacher. That can make it much more difficult for a child to give evidence when facing the alleged accused in court.
There is also the matter of what happens post trial. What happens post trial if the accused, who is a member of the child's family, is convicted. What happens if the accused is acquitted? What happens if the case is not proven? So much support has to be given to children in such circumstances. When a child is a witness, we do not want there to be a collapsed trial. It is not in the interests of justice for the child, accused and system to be blighted.
The question of protecting child witnesses is not an easy one to crack. I am interested to hear what the minister has to say. We must ensure that we have sensitively taken, but robust evidence from children, and just solutions. We must ensure that accused people who have genuinely done the deed are convicted and that the innocent are freed. That is what we have to consider.
I congratulate Gil Paterson and all the speakers on the non-partisan and constructive way in which the debate has proceeded thus far. I do not intend to break the consensus. I also congratulate the organisations that produced the "Justice for Children" report, which is the basis of much that has been said tonight.
Like Donald Gorrie, I was pleased that the Parliament has been able to deal with one category of vulnerable witness—complainers in sexual offence cases. I look forward to what we may be able to do for children, who are in another category of vulnerable witnesses.
Personal experience always reinforces a general point. Let me give what is, to be honest, a trivial example from my own life. When I was about seven or eight, I was sitting on the front wall when a bus gently reversed into a car at about 5mph. A policewoman interviewed me because there was a dispute between the drivers over who was responsible for the incident. It is a tribute to how impressionable I was that, when someone in authority and in a uniform came to see me, I was quite confused and disturbed by the questioning process. I still remember that, despite the fact that it was a trivial incident in which I was not involved—I was merely a spectator. How much more traumatic is such questioning for a child, of whatever age, who has been involved in an incident that eventually leads to a court case?
Members will know of my constituency interest in HMP Peterhead, which contains around 200 paedophiles and 300 sexual offenders in total. A prison officer told me a story that illustrates the subtle ways in which children can be affected and influenced by what goes on in their lives. The story concerns a child who had been through the justice system and whose father had been convicted, quite properly. Toward the end of the sentence, a reconciliation interview took place and both child—by this time, a late teenager—and father were brought together. The father sat and talked in a friendly way with his daughter, but throughout the interview he clicked a pen. At the end of the interview, when the father was taken away, the daughter broke down in tears because the father had used a pen to abuse her. Sometimes the signals between adult and youth are subtle and not understood by us.
I welcome the opportunity to debate the subject of justice in the criminal justice system, particularly when the Crown Office and Procurator Fiscal Service is under close attention. We will debate the detail of that on another occasion, but in the review of resources in the COPFS, there is a recognition at paragraph 1.4.4 that special skills are required when one is dealing with child witnesses. However, I note in passing that the vision and objectives of the COPFS make no reference to children as a group that the service should be paying particular attention to.
When I was a child, I had a Barnardos box into which I put the occasional coin, but I thought no more about children who had problems. This debate ensures that we have brought to our attention the needs and concerns of young people—it is not just about putting tuppence in a Barnardos box.
In my previous life as a practitioner in the criminal courts, I once cross-examined a child witness on a matter that was vital to the innocence of my client. I happened to believe my client, although that is irrelevant. In the middle of the cross-examination, the child fainted and crashed to the floor, hurting her head. The accused begged me to stop the cross-examination, which I did. Thereafter, when I had the choice—if one was doing one's service on the poor roll, one could not choose to turn cases away—I never again took on a case in which I would have to cross-examine a child, because I found it a traumatic experience. I still live through that moment.
I will mention the famous Orkney case, which is another case in which witnesses were wrongly interpreted and in which children were removed from their parents. I was deeply involved in that case and tried to gather all the evidence that I could. The sheriff who finally dealt with the case was very critical of the way in which the children's evidence had been gathered by the Royal Scottish Society for Prevention of Cruelty to Children. Whatever system we adopt, I point out that that was not a system that worked. It turned out that the plot of a fairly lewd and horrible video that had been doing the rounds—probably illegally, given that the children were under age—was transposed into a story that was then shared by a number of the children.
That situation ended up in utter misery for a poor minister—who was absolutely got at by the press—for the parents and for the children. Eventually, the children were returned. Their evidence was roundly criticised. I met all the children and parents afterwards and have met them since from time to time. There was no doubt that they would be affected for the rest of their lives. Therefore, the gathering of evidence is crucial.
I agree with Lord James Douglas-Hamilton on the idea of taking evidence on video or by a separate commission. We must opt for that. Knowledge of the Orkney case—a travesty from beginning to end, which caused a great deal of human misery—is enough to make me support Gil Paterson's intentions all the way.
I welcome the publication of the "Justice for Children" report and I congratulate Gil Paterson on drawing the report to the Parliament's attention. I participated considerably in members' business debates when I was a back bencher and I still believe that they represent one of the most important parts of the Parliament's function. They allow serious discussion of serious issues in a less partisan way.
The report's central theme is that the best interests of children should be at the heart of our justice system—criminal and civil. The Executive and, in particular, the First Minister have said that the welfare of children—especially children under pressure—must be at the centre of what we do. The report picks up some of the key themes that the Executive is attempting to address.
The points that Christine Grahame and Lord James Douglas-Hamilton made, which were referred to in passing by Winnie Ewing, are important. We are dealing with a matter of balance. As the right balance is incredibly difficult to achieve, there have been delays, which have sometimes been regarded as rather lengthy, in achieving what we all seek—justice for the accused and sensitive handling of the children in all respects. We agree that balance is key.
The report stresses the importance of effective inter-agency working within a properly structured framework. That is crucial.
As a doctor, I was involved in interviewing children about quite significant issues. There are problems in interviewing children—as Winnie Ewing suggested, it is not an easy task to undertake. However, if children are given the right set of circumstances, they can be very reliable witnesses. Although we should not suggest that children are less reliable, they can be made to be unreliable if the questioning is inappropriate. The report stresses the importance of having the right range of options available to those who deal with children. It should be possible for child witnesses to give evidence in a way that allows them to be questioned fairly by the defence, without the experience being frightening or confusing.
The report also underlines that cases that involve children should be given priority throughout the process of case preparation and presentation. Irene McGugan referred to the fact that it is not just the event that is important—everything that goes before it matters. Teachers and psychologists are involved in establishing the capacity of children to deal with the way in which cases are presented. There is a great deal of common ground on priorities for action.
The issue is not new. I think that the Scottish Law Commission reported on it as long as 10 years ago. Plotnikoff carried out research in 1995 and Gil Paterson quoted some horrifying examples of practice that needed to be addressed. The Lord Advocate's working party, which reported in 1999, made some 32 recommendations. We have implemented four of those. More important, we are progressing the work, although there was a delay in starting the process because of the pressure that the department has been under on such matters as the Sexual Offences (Procedure and Evidence) (Scotland) Bill. I am not sure that that represents a correct set of priorities. However, we are making progress.
The implementation group, which is a multi-agency group, got under way in September 2001. Children 1st and NCH Scotland are involved in the process and their contribution is greatly appreciated. The group is working through three sub-groups. One sub-group is examining improved operational support for child witnesses and is preparing a paper for ministers' consideration on the options for organising that support. We intend to consult more widely before reaching final decisions. That group is looking at recommendations 1, 4 and 5 of "Justice for Children" and at recommendations 1 and 3 of the Lord Advocate's working group report.
The second group is preparing national guidance to improve the quality of investigative interviews with children. Before that guidance is finalised, there will be consultation with key organisations. Any guidance that is issued will be made widely available on the web. The second group is dealing with recommendations 3 and 8. The planning interviews that Donald Gorrie mentioned are also part of the working group's efforts.
We are also about to publish a report on vulnerable witnesses which, although not dealing specifically with children, will deal with issues that overlap and can be read across.
The third group is working on guidance on the questioning of children in court. That work is closely linked to the separate work on vulnerable witnesses that I referred to. A consultation looking at the definition of vulnerable persons will be published towards the end of April. The consultation will also consider what current and future special measures could be taken to make it easier for all who need extra support in giving evidence.
In addition to the three sub-groups and the central group, which are examining all the recommendations, other groups are considering the matter. For example, Gil Paterson referred to recommendation 2, which concerns the standards that should be set for the investigation of cases. That is a matter for the Lord Advocate, but detailed guidance is given in chapter 16 of the Crown Office and Procurator Fiscal Service's book of regulations. The Lord Advocate is looking at the matter.
Recommendation 10 is that specialist training should be undertaken, but there are specialist training courses already. Indeed, Crown counsel attended one such course last weekend, as they do each year. The Law Society of Scotland has also been involved in training. The provision of such training for judges and sheriffs is a matter for the judicial studies committee, but it is clearly important that people who question and manage children have the appropriate training to deal with those difficult issues.
A great number of areas of work are being taken forward. I can give my colleagues an undertaking that I will press the issue with the greatest possible urgency. However, we need to be careful that we strike the balance that I referred to. My colleagues Jim Wallace and Cathy Jamieson have agreed to meet representatives of the three organisations that sponsored the report so that we can explore their ideas in more depth. However, members will understand that we also need to take into account the views of others.
There is no doubt that the First Minister, the Executive and the Parliament have all made dealing with our children a priority. If one child is traumatised and damaged by an insensitive justice system, that is one child too many. Some of the examples that were given by Stewart Stevenson, Winnie Ewing and others indicate how difficult this area is and how sensitively it must be handled.
I will end as I began, by thanking Gil Paterson for initiating the debate. I also thank the organisations for their helpful report. Their report has a read-across to the Lord Advocate's report and to the work that we are doing. Their report has helped me to focus on the way in which we are taking matters forward. The debate has been up to the usual high standard of members' business debates. We will attempt to get the right answers for the children of Scotland in the near future.
That concludes the debate on child witness reform. I wish all of you a happy Easter break.
Meeting closed at 17:23.