Justice Committee

Meeting date: Tuesday, December 18, 2018

Official Report 793KB pdf

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Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill: Stage 1

Agenda item 2 is our fourth evidence-taking session on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome to the meeting the Rt Hon Lady Dorrian, who is the Lord Justice Clerk of the Judiciary of Scotland, and Tim Barraclough, who is the executive director of the judicial office in the Scottish Courts and Tribunals Service. Thank you very much for your written evidence, which the committee has found to be tremendously helpful in advance of our taking formal evidence. I must also thank you for arranging not just one but two visits for committee members to see the facilities for taking evidence by commissioner, and for the opportunity to view recordings of commission proceedings. I know that the visits were very much appreciated by all members and have been very helpful in informing our scrutiny of the bill.

I believe that Lady Dorrian wishes to make a short opening statement.

Perhaps I can trespass on the committee’s time for a couple of minutes just to say that I am pleased to be giving evidence on the bill, which represents a significant milestone on a journey in which I have been personally involved since 2014, as a member of the small group that conducted the initial research leading to publication of the first “Evidence and Procedure Review Report” in early 2015. That started a process of consultation and development of ideas for better ways of taking evidence from vulnerable witnesses.

From the start, and throughout the process, we have sought to ensure that measures that we could introduce without legislation had the twin objectives of reducing potential harm and distress to witnesses and increasing the opportunity for reliable, accurate and comprehensive evidence to be given.

The work following the initial report involved all those who have an interest in the criminal justice sector. We knew that the best way of getting genuinely workable proposals that people on all sides could buy into was to get those people working together to develop them, so the working group included representatives of the judiciary, the Faculty of Advocates, the Law Society of Scotland, the Crown Office and Procurator Fiscal Service, justice agencies, third sector organisations that represent the interests of children and victims of crime and, of course, the police. The quality of the group’s collaborative work was very high indeed, and the practice note, which I know many of you have seen, came very much from that collaborative process.

The pre-recorded evidence workstream of the review had two major outcomes. First, it paved the way for the practice note that I have just mentioned, which was designed to use existing legislation and to enhance the use of commissioner hearings. That, in effect, introduced the ground rules hearing that is referred to in the bill, which will regulate the conduct of commissioner hearings, bring greater consistency and put a focus on the witness’s needs. It has also led to a significant increase in the number of commissioner hearings, which has enabled us to evaluate that work.

Secondly, as members will know, the working group set out a long-term vision for taking evidence from all vulnerable witnesses. We recognised that that could not be achieved overnight, that there would need to be graduated steps towards a more modern and consistent approach that would be in the interests of witnesses, and that it would take time.

The bill represents one of the significant staging posts on that journey. For that reason, I and my fellow senators of the College of Justice generally support the bill’s proposals.

Thank you very much. We move to questions, starting with John Finnie.

Good morning, panel, and thank you for the work that you have done with others on the bill.

I wonder whether Lady Dorrian could expand and elaborate on the increased use of pre-recorded evidence and the benefits of the approach—in particular, the impact on vulnerable witnesses and, which is just as important, the quality of evidence that is obtained?

What really sparked things off was a case in which a child aged five—I think—gave evidence at a trial. The joint investigative interview was played as evidence in chief, but the child was cross-examined at the trial—there had been no commission—some two years or so after the interview, and perhaps three years after the complaint had been made.

When children, in particular, are asked to give evidence at a time that is remote from the event, not only has their memory diminished, but they are more likely to be confused by general questioning about the incident, and in cross-examination might come across—often wrongly—as being shifty or unreliable. Indeed, they not only find it difficult to deal with questions at that stage, but are more inclined to agree with the questioner when they cannot remember something. Clearly, having a commission much closer to the incidents of which they were complaining would enhance their ability to recall and give accurate and comprehensive evidence and, of course, would reduce the harm to their lives, because they would be able to get on with their lives without having to attend the trial. In other words, everything else could carry on, as it were, without them.

In the example that you mentioned, what was the impact of cross-examination on the child?

I would have to refer to the details of the case, but I think that the child found it difficult to answer the questions in a meaningful way. Again, I would have to check, but my recollection is that the child was not able to give any meaningful evidence in cross-examination.

Conversely, are there problems with taking the route in the bill? I am thinking in particular of safeguards to prevent miscarriages of justice. What safeguards should be built into the process?

The safeguards are essentially the same as those that would apply if the child was giving evidence at trial. The commissioner is a High Court judge and is invested with the same powers; they are in control of proceedings and can deal with any difficulties that might arise in questioning. Equally, the commission protects the interests of the accused, just as the judge in a trial would.

Apart from simplifying the questions—which is another issue—all that the provision will do is bring the process forward. I see no real difficulties arising along the lines that you have suggested.

If, subsequent to the commissioner taking the statement, further evidence were to come to light, how would that be dealt with?

We need to bear it in mind that, in such cases, cross-examination of children is very often limited to suggesting that the events did not happen or that someone else, perhaps someone who was visiting the family, was to blame, but if further evidence were to come to light, the question would arise whether it was necessary for the material to be addressed in cross-examination or in examination in chief of the child. If so, another commission could be held.

However, I should point out that since we introduced the practice note and evaluated the results—which show a 50 per cent increase in commissions, although admittedly that has been from a low-level start—we have never encountered a situation in which something has subsequently come to light that required to be addressed in that way.

Should a requirement to pre-record evidence be built into the legislation?

Certainly, a requirement to pre-record the evidence of young children and children generally is absolutely the way forward. In due course, that could usefully be extended to other vulnerable witnesses. However, that will have resource implications, so it is important to make sure that we get it right for children before we move on with other categories.

Thank you.

I will pick up on that last point about phased implementation to cover other witnesses. What is your view of the requirement being restricted to children in the most serious cases? How might it be rolled out generally to children who appear in the sheriff court and so on?

In our review, when we recommended that that particular approach be taken, we recognised that phased implementation of the change would be necessary. We felt that the best way to start was with children who are among the most vulnerable witnesses with whom we have to deal. We also felt that it would be sensible to limit the requirement to the High Court and to solemn cases.

We were developing a new model of practice that did not require legislation. We felt that, in order to make sure that the process was developed in a careful, managed and consistent way, it was important to limit it to the most serious cases in which children were giving evidence—mostly, cases of pretty serious abuse that are dealt with in the High Court. Our view was that it was important to get it right for those children, and that the danger of expanding the requirement across the country too quickly was that operation of it would be less consistent. It would also be harder for us to evaluate what was working and what was not.

I know that you will not be able to tell me exactly, but how long do you think it might take to evaluate that first phase?

We have done our second evaluation report, through which we have identified issues that we need to look at. Some are technical and relate to the nature of filming of evidence and what is displayed on the screen. Some relate to controlling of questions and how that should be done, and so on.

At the moment, the practice note is definitely an evolving document. We will revise it and consider whether we need to change elements after the evaluation. It is difficult to say how long it might take to feel comfortable.

Do you envisage that the issues will be relatively easy to resolve?

Yes.

They are not huge, serious issues.

They are not: they are technical issues to do with use of equipment, the rooms in which a commission takes place and control of questioning, on which we are in negotiation with the Faculty of Advocates and the Law Society of Scotland.

Are you in favour of rolling out the requirement to cover adults and other vulnerable witnesses, in time?

Yes.

That is the eventual aim once everything else is moving smoothly.

Yes.

I will follow Rona Mackay’s line of questioning on adult vulnerable witnesses. Does the panel have a specific view on domestic abuse cases? Lady Dorrian said that the requirement to pre-record evidence will be extended to other vulnerable witnesses “in due course”. Should we consider domestic abuse witnesses as vulnerable adult witnesses?

I use the term “vulnerable witness” in the sense in which it is defined by legislation. Obviously, it is for Parliament to determine whether the definition should be expanded.

Thank you.

You say that it is for Parliament to extend the definition. I think that I am right in saying that such extension would be done by regulations. Is using regulations to extend that jurisdiction appropriate, and would that make it too easy and too straightforward to extend the scope without sufficient scrutiny?

10:15  

There are two separate things in that question. My previous answer mentioned the statutory definition of “vulnerable witness”. My view is that whether that definition should be altered would have to be a matter for Parliament to decide. At the moment, the definition encompasses some witnesses who are complainers in domestic abuse cases, but it does not cover them automatically. That is about the statutory definition of “vulnerable witness”.

There is also the question whether the process in the bill should be extended beyond children to other vulnerable witnesses—that is, to others who are defined in statute as being vulnerable witnesses. I do not see any difficulty with that being the subject of regulation, as long as extension of the definition of “vulnerable witness” was done in the knowledge that that could be the consequence. However, I understand that some people feel that extension by regulations is not an adequate safeguard, so that is something with which the committee will have to grapple.

I will ask a little more about the definition of “vulnerable” in the context of vulnerable witnesses. In evidence, the Miscarriages of Justice Organisation Scotland suggested that the definition of “vulnerable” is not clear, and that people tend to look at the offence and categorise witnesses as “vulnerable” automatically for certain offences, rather than looking at the person who is in front of them.

There are two separate issues there. There is a category of witnesses who are vulnerable because of the offence for which the trial is to take place, and a witness can also be vulnerable if it can be shown that they require special measures in order to give their evidence more fully because they would be apprehensive, scared or intimidated without that measure. That approach is a model that is designed more to assess the individual vulnerability of a witness, as opposed to the assessment of vulnerability being based on the complaint being about a particular offence having been committed.

Does that need more explanation in the policy memorandum, just to make it absolutely clear?

I do not think that there is any difficulty in identifying people who qualify as vulnerable witnesses. On the face of it, the provision that enables classifying a person as a vulnerable witness because they would find it difficult to give their evidence without special measures through being apprehensive and feeling under threat is probably sufficient. I do not have the statute in front of me, unfortunately, so I cannot be precise about the terminology.

We might return to definitions later.

I have further questions on the extensions that are provided for in the bill. As I understand it, the provisions will apply in the first instance to children and to specific types of cases, and that can be extended by regulation. However, the bill stops short of making that possible for all types of cases in all courts. In your view, should the bill go further and make that a possibility, so that we do not need to return to primary legislation in the course of time as the situation evolves and we seek to extend the provision for other types of witnesses and cases?

Ultimately, extending the bill to other courts, including sheriff courts, solemn proceedings and sheriff court summary business is largely a question of resources, as well as being satisfied that we have a model that is clear and consistent. Once we have a model that is clear and consistent, there is no reason—other than the resource implications—for the practice not to be extended to other courts. As long as the resources are available, there would seem to be no difficulty in extending it by regulation, and there is probably a better and easier argument for doing that than there is for extending the categories.

I add that the facility for taking evidence by commissioner is available across the piece—that already happens at every level. The question is whether the presumption should apply to a wider range of witnesses.

In the evidence and procedure work that was done, it was recognised that it is necessary to take a proportionate approach. The pre-recorded evidence document talked about different approaches for cases of different levels of seriousness in different levels of court.

I will give an example at the other extreme. We said that it would not be a proportionate response to have a complex process for an articulate 16-year-old who had witnessed a bicycle theft. Although, by definition, that witness is vulnerable, a lot of special measures would not necessarily need to be taken to enable them to provide their evidence. We wanted to make sure that a proportionate approach is taken. As the approach is extended, proportionality should still apply.

That is an important point. It is also worth noting that, at the moment, witnesses other than children can give evidence by commission if their communication or their ability to give evidence is such that that is required. The real question is whether giving evidence by commission should be made the main method of giving evidence. As Tim Barraclough said, there are proportionality issues with that in the lower courts—in the summary court, in particular.

I want to draw out what resources would be required to make the extension of the proposed approach feasible. What resources would be necessary to extend the use of evidence by commission? Are we talking about facilities, court equipment or training for individuals? Will you elaborate on the resource requirements?

If we had a system in which all vulnerable witnesses in the High Court had their evidence captured in commission form, that would have significant resource implications for the police and the Crown as regards how they would go about gathering evidence and what they would do in preparation for how that evidence would be captured in due course, especially given that, with children, the standard way of capturing their evidence-in-chief is in a joint investigative interview, and that would continue. The main resource implications are at that front end.

There would also be resource implications for the court because, for every commission, a ground rules hearing would have to be held. If such a hearing involves assessing the nature of the questions to be asked, it can take some time. There are quite significant resource implications from the point of view of the court’s programme of building in time for the ground rules hearing and for the commission, especially when the commissioner is a High Court judge.

That was helpful—thank you.

I would like to focus a bit more on taking evidence by commissioner. Lady Dorrian, you pointed out that there has been a 50 per cent increase in taking evidence on commission since the practice note was introduced. Are there any issues with practicalities, such as the use of technology, that would affect the ability to increase the taking of evidence on commission any further?

A number of practical issues exist at the moment. It is extremely important to make sure that the equipment that is used up and down the country is consistent and operates the same systems. There needs to be consistency across the country. Some issues arise with the use of particular premises for commissions. We have largely been using court premises, although not courtrooms, because that enables us to keep control over the nature of the equipment that is used.

We are keen to use remote sites when we can, but at the moment there are difficulties with that, because we have less control over the nature of the equipment that is available. There are certain issues with regard to that, as well as issues of security and safety for remote sites.

The committee heard from a children’s charity about an example of a child having to give evidence 24 times. That evidence was then ruled inadmissible because the child had had to go through the process so many times. Lady Dorrian, you talked about children’s memories diminishing the further they get from the event. Is there an opportunity through the bill to expedite the process to get this done more quickly, particularly for children?

I am glad that the bill contains provision for that, because we were concerned that, although, through our practice note, we could encourage the use of commissions for children and encourage people to apply for the commission at as early a stage as possible in the proceedings in the High Court, it could not be done until the service of the indictment at the very earliest. We were keen to see some means by which that could be expedited, so I am pleased that the bill contains the possibility that a commission could take place before the service of an indictment.

Is there an opportunity, with the use of ground rules hearings, for the bill to specify what is required at an earlier stage?

Do you mean that the bill should specify what should take place at a ground rules hearing?

Yes.

I do not think that there is a requirement to have that in the bill. We have detailed recommendations in our practice note as to what should take place at the ground rules hearing. If you are interested, you can find them in paragraph 11 of the practice note, which covers about two pages. As the document will be under review, we will be able to change those recommendations as and when it appears that something else would assist. The flexibility that would be maintained by having those recommendations on the ground rules hearing set out in the practice note would be much more beneficial than trying to put those into primary legislation, which would be much more difficult to change.

Should the bill provide for the use of court intermediaries here, as are used in England?

We are generally in favour of the use of intermediaries, where their assistance would enable a witness to give their evidence in a clearer and more comprehensive way, and where the communication needs of the witness make that necessary. Very often, with children, an intermediary is not necessarily what is required. Asking simple questions, addressing one issue per question and other approaches of that nature are usually sufficient to address children’s communication needs. However, there will be cases where an intermediary would be of great assistance. Although we are in favour of intermediaries in general, I am not entirely sure whether this is the stage to introduce them to the bill.

Another issue is that we do not have a base or cadre of intermediaries who could be called upon to provide that service at the moment. That would be another complication that might hinder progress at this stage.

Lady Dorrian, you spoke about the use of joint investigative interviews. How often is evidence from them used as evidence-in-chief? Is that a regular occurrence and what are the practical difficulties with it?

10:30  

The joint investigative interview is frequently the way in which evidence is gathered from children for their evidence-in-chief. If there are care issues as well as criminal justice issues, there will be a joint investigative interview. Where there is a commission, generally the evidence-in-chief is taken to be the evidence of the joint investigative interview, and that will be played in due course to the jury at the trial. It happens on a regular basis.

One of our working groups looked at the content of joint investigative interviews. I was not involved in that group, but Tim Barraclough might be able to give the committee more information. However, in the working group on recommending a different vision, we recognised that an improvement of the quality of joint investigative interviews would be central and necessary to what we had in mind. There still seems to be an issue, even from the point of view of the commission process, that the quality of joint investigative interviews is not as consistent as one would like.

In previous sessions, the committee heard that joint investigative interviews are used as the primary means of gathering evidence from children. I should declare that I was previously a social worker and was involved in joint investigative interviews. I am interested in the evidence that we heard that there is often inconsistency in the quality of evidence taken to court. Are there statistics on the number of joint investigative interviews that take place and how many of them result in evidence that is taken to court? I apologise if you do not have the answer to that here and now.

When the working group looked at that, it was hard to get clear statistics. The feeling was that around 5,000—certainly in the thousands—of joint investigative interviews take place per year but the vast majority do not end up in criminal proceedings. They have more than one purpose—they can be about finding out whether there are protection issues—and they may reveal nothing that needs to be taken further. Very often, even if criminal proceedings start, they do not necessarily go to trial. There is a big fall-off in cases because the accused pleads guilty, or for other reasons.

I doubt very much whether the statistic would be meaningful. The percentage of JIIs that end up in court is not a measure of the quality or success of the information-gathering process.

Would a more meaningful statistic be the number of cases where the JII identified that there should be a prosecution but the quality of the JII did not allow for the prosecution to take place?

If there were cases in which, for example, the Crown decided that it could not proceed on the basis of a JII, that would be a more meaningful statistic. Bear in mind that the decision would not be made simply on the quality of one piece of evidence. There would be issues of corroboration. The Crown might have a JII in a case and not proceed on the basis of an inadequate sufficiency of evidence, as opposed to anything else.

That is one of the measures to look at, but more than one measure would have to be considered. One could try to ascertain the extent to which JIIs have been the subject of objection on the basis of their quality or the use of leading questions. I am not aware of that being a significant issue, but it is another element that could be considered.

That is helpful.

Moving on from that point, representatives of both social work and the police have been in front of the committee and have talked about looking at new training techniques for JIIs. Is there anything that you think should be included in training on prior statements?

As I said, we produced a report on the use of JIIs that set out clearly what we recommended should be the way forward for the training of both social workers and police officers in the taking of that evidence. I was not on that workstream, but Tim Barraclough might be able to supply more information on it.

As Mr MacGregor said, the group recognised that there was a lot of inconsistency and variation in the quality of JIIs across the piece and that two main things were required to improve consistency and quality. The first of those things was equipment: the technology had to be improved because it was very out of date. Secondly, it was recognised that there had to be a common approach—Mr MacGregor raised that point—because different approaches were being taken in different parts of the country. A common approach to the training of forensic interviewing is required. There is a lot of academic research out there on different ways of interviewing children forensically. Some of the information from the barnahus experience was very useful in that regard. We had experts in both Scotland and the wider United Kingdom who could give advice.

It would be for Police Scotland to give the details, but I understand that it is in the process of changing the approach to training. When we looked at the training, it consisted of a one-week course, with training for four days and interview practice on the final day. However, the training has to be over a much longer period. Alongside that, one of the other things that was picked up was the importance for quality of interviewers being properly trained in forensic interviewing according to the recognised models and practising it regularly in real life. The quality issues came through when a large number of police officers and social workers who were trained in interviewing practised it only once or twice a year, which meant that they could not keep up or develop their skills and that their skills were not evaluated. Therefore, there has to be evaluation and regular practice as well as initial training that is of high enough quality.

I have a supplementary question that is a bit off topic. In earlier answers to colleagues, you talked about the extension of the rule to other vulnerable witnesses. I was interested in the Scottish Government’s decision not to extend the rule to a child accused. Do you have a view on that?

First, the current legislation provides that a number of specialist measures would be available to an accused child for the giving of evidence. Probably the most appropriate of those measures would be giving evidence by closed-circuit television from a remote location outside the courtroom. It is one thing to sit in a courtroom and listen to a trial in the presence of a jury, but it is another thing to go into the witness box and give evidence to that jury. It might be that CCTV evidence is currently underused in the context of children, young people and other vulnerable witnesses.

Some people have raised the issue of somehow capturing the evidence of an accused child before a trial, but I am afraid that I cannot see how that could ever be done. The accused, whether they are a child or otherwise, is not required to give evidence; the decision about whether they give evidence has to be made in the context of what the evidence at the trial has been, which we will not know until the end of the trial. We might anticipate that the evidence will be A, B and C, but frequently that turns out not to be entirely accurate, and the accused has to respond to what the evidence has been at the trial. I cannot see a way in which the evidence of a child accused could be taken in advance of the trial, nor can I see how requiring an accused child somehow to do that would not be in breach of their rights.

Thank you for that helpful answer. As the Age of Criminal Responsibility (Scotland) Bill goes through the Parliament, my personal opinion is that we should be moving away from seeing children as perpetrators.

That is a matter for a different bill, as you said.

How frequently do technical issues impinge on the quality of JIIs—and also on the quality of evidence taken by a commissioner, given what has happened recently? Have technical issues rendered evidence unusable in court?

I am not aware of technical issues having rendered evidence unusable in court, but we have had technical issues such that the evidence could have been captured on film in a way that was easier to follow, for example. If the evidence is taken on a remote site—for example, if a child is giving evidence at a commission by closed-circuit television—there are issues to do with who is seen on the screen and when, and sometimes the end result is that the child is not given as much prominence on the screen as one might wish them to have. We are very much addressing that at the moment, to ensure that such technical issues do not get in the way of the evidence.

Does that imply that there is a requirement for detailed technical standards for evidence taken by a commissioner and for JIIs, to ensure consistency and quality? Would it be sensible to develop such standards?

We are trying to get some kind of overall, consistent standard of what a commission film looks like. Again, the specification of something in the bill would bring difficulties. Technology advances at a much faster rate than the legislation might be able to follow, so such an approach might not be helpful.

I was not implying that we should include technical standards in the bill. It was more a practical policy point.

The development of standards is certainly sensible.

Across the court estate, there has recently been substantial investment in the technology, such that I do not think that we have particular concerns about the quality of recording, playback and video and audio, given the technology that is now available to us.

I think that the issue that Daniel Johnson raised arises with JIIs, in relation to which there will be greater variability, because different people will provide the equipment. Members should remember that the joint investigative interview is a pre-court procedure, so we do not have a huge amount of influence on how JIIs are conducted; that is more a matter for local authorities and the police. We would like improved quality and consistency, because that makes everything that follows easier.

Thank you; that is helpful.

I endorse what Tim Barraclough said. We would very much like to see an improved and consistent quality of recording in relation to JIIs.

May I go back to Fulton MacGregor’s point about the child accused? I totally understand the point that Lady Dorrian made about the logistical and justice reasons for not extending the approach to the child accused—full stop. I get that. However, a conclusion of the evidence and procedure review was that the ability to secure the most comprehensive, reliable and accurate evidence is maximised by a process such as we are talking about. If, as you said earlier, a child is more likely to agree with a questioner, there is an inherent tension in that regard. Is not the answer to Fulton MacGregor’s question that there is more to be said about how we improve the evidence of and our ability to get justice for a child accused?

10:45  

You have to bear in mind the process for a child accused, who has no need to answer anything or give any evidence. Trying to create a situation in which a child accused is somehow required to answer the allegations prior to any trial would have significant constitutional issues. I am not sure that I can say any more about that, as it is not really part of what I anticipated to be the remit of this morning’s discussion.

I return briefly to the technology. Are you satisfied or confident that the Scottish Courts and Tribunals Service budget for 2019-20 will be sufficient to have the necessary resources for the technology that would be required?

In order to deal with the use of commissions for children, we are satisfied that we have the equipment. At the moment, we are restricted in places to use; most committee members have seen the room in Parliament house, which is not ideal, and we are looking at other options, which are likely to be resource dependent. Members will know about a very good facility that will be coming on stream in Glasgow, and in due course we will have a good facility in the Highlands when the Inverness justice centre comes on board. However, if the vision is that the commissions should take place more widely across the country and be less focused on court buildings, that would be another issue. Tim Barraclough might have something to add.

The direct answer to the question is that we are confident that the facilities are being brought on stream in places that will cope with the likely increase in commissions, certainly in the short to medium term. The Glasgow facility is expected to have three commission rooms that are dedicated: they are in a separate building and do not have the difficulties that are associated with being in court buildings. That facility operating at a reasonably high capacity—not full—could cope with about 1,000 commissions a year; it would be the centre and we aim to upgrade facilities elsewhere across the country, as Lady Dorrian said. In the short to medium term, we are confident that we will have the facilities and people in place to manage them, as well as the judiciary.

If we look a bit further, as availability of commission hearings is expanded to other categories of witness, we would keep in constant dialogue with the Scottish Government, which has so far been very supportive, for example, in providing the resource for the Glasgow centre. It has indicated that it is keen to be as supportive as it can be. In the short to medium term, we see no problems.

The committee will welcome updates about the resource issue as you progress; that is key to ensuring that the proposal will work well and be successful.

On the subject of facilities, the committee recently had a trip to Norway during which members visited a barnahus. It is fair to say that we were all very impressed by it. Do you see Scotland moving to that approach in the future? If so, what would be the benefits, practicalities and downside?

As members know, all the countries that operate the barnahus system do so slightly differently, because they have adapted it to their own requirements. We have set out our vision of how a forensic interview of a child might take place, which was designed to meet our system’s particular circumstances.

We suggested a forensic interview of the child, which would require much greater training for the JII and a very different approach. The idea was that lawyers would have minimal involvement in that. That was our view of how we could use some of the best aspects of the barnahus model. We envisaged that such an interview would take place in centres that also had medical or social work facilities available to assist the child.

That vision is very different from what is in the bill. As we recognised in our report, achieving the vision that we set out would involve a long-term strategy, because it requires so much of a cultural change and so much of a change in the form of the forensic interview that takes place.

In Norway, we saw how the barnahus model could work in an adversarial system. As you said, the system is different in other countries. In the long term, could such an approach happen in Scotland?

The vision that we suggested could work in that way.

We have visited a number of barnahuses in different countries, which are all slightly different, as Lady Dorrian said. The core idea of a barnahus as a centre that has a number of facilities to receive a child or other vulnerable witness who is reporting a serious offence could be used today in Scotland, in the context of having a really good place for a joint investigative interview. However, the legal system would still have an evidence-by-commission hearing later. The idea of a barnahus as a very good space for interviewing children could be developed now.

The long-term vision that was set out in the report was that in the right cases—given that the procedure is resource intensive—a move could be made to such an approach, but that would mean changing the legal system as well as the facilities that are available, as Lady Dorrian said. The approach would involve much more than just building facilities and having certain people there; it would mean changing the culture, because taking lawyers out of direct questioning of the witness would be alien to how things have been done here.

We were impressed to see that the professionals went to the child rather than the child going to them; the approach was holistic. We will wait and see.

There are lots of good ideas that we could introduce as best we can.

Yes.

Communication has been a theme in our evidence sessions so far. What are your views on communication with vulnerable witnesses? How much support are they given before, during and after prosecution? The period after they have given evidence and the accused has been convicted is crucial and is not addressed in the bill.

From the court’s point of view, our involvement—

Stops.

It also does not start until someone becomes a witness in the court system. The support that might be available to witnesses in advance needs to be discussed with the police and the Crown. Our objective is to ensure that, when a witness gives their evidence, they are given the best circumstances in which they can do so. If that requires them to have screens, to give evidence through CCTV, to have a supporter present or to have a commission to take their evidence, that will be done.

Our focus is on ensuring that the representatives who seek to lead a vulnerable witness—that means not just the Crown but the defence—think about the witness’s requirements, their communication needs and everything else and advise the court of that in the vulnerable witness notice. The court will then specify anything else that requires to be done to assist that process.

However, after that, they move out of the court system. The question of what support may then be available for them seems to be more of a therapeutic issue with which the court has no involvement; nor does it have the skills or expertise to be able to address those issues. There would also be constitutional issues were it to be suggested that the courts should be involved in that.

I fully understand that. You are obviously very passionate about this, Lady Dorrian, and you want it to succeed, as we all do. A recent case that has come to my notice suggests that if there is not that support later—this is looking at the legislation as a whole, not from the point of view of the judiciary—we could almost reach a situation in which the vulnerable witness says, “If only I hadn’t given evidence, I would still be able to follow my career and not be rejected because I have been traumatised; I wouldn’t be reviled by my close community; and my family wouldn’t be facing horrendous problems with where they’re living and what they’re doing.”

There is an issue here. If the word goes out that people can give evidence and get the conviction and that is fine, but then there are repercussions, there is a danger that we will not be giving people the support, encouragement and confidence they need to come forward.

One of our objectives in looking at the ways in which the witnesses give evidence is to minimise the harm involved in the process of giving evidence. If there is the risk of harm to the witness from having given evidence, clearly that should be addressed, but it requires to be addressed outwith the court service.

I totally understand that.

Tim Barraclough has just reminded me that the recently constituted victims task force may well address such issues and the Lord Advocate is the co-chair of that task force. That might be a more suitable forum to address the issue.

When the cabinet secretary comes to the committee, that might be a question for him.

In your submission, you state that it would be helpful to have a definition of solemn proceedings in the bill. Is that right?

Could you just remind me where that is in the submission?

The point about the definition was mentioned on page 5 of the committee issues paper. In your submission, you state:

“We wonder, therefore, whether provision of a definition of ‘solemn proceedings’ would be beneficial in”

the context where a child witness is giving evidence in the

“relevant criminal proceedings which are solemn proceedings”.

Later on, you add that there is also no definition of “solemn cases” in the bill, so it is not clear.

The issue is slightly technical, as you will appreciate, because the proceedings are taken to have commenced when the indictment or the complaint is served on the accused. Therefore there is the question of when there are solemn proceedings as opposed to proceedings. Currently, you would only be sure that you had solemn proceedings when the indictment was served.

A petition is how you commence initially solemn proceedings, but proceedings on petition can be reduced to summary complaint so you would not be able to say that a petition meant that there were solemn proceedings. Simply from the point of view of being able to utilise the suggestion in the bill that we could have a commission at a much earlier stage, it would probably be of assistance to have that definition.

In previous evidence, the Miscarriages of Justice Organisation Scotland highlighted two other definitions that it thought could be looked at—a definition of the term “ground rules” and a definition of “permissible” in the context of “permissible lines of questioning”, which it thought was vague. Do you think that that needs further clarification?

11:00  

Actually, I do not, because the organisation of the commission is discussed at the ground rules hearing. What is involved in a ground rules hearing is well understood, and I do not see what would be gained from defining it. As I said earlier—I am sorry, but I cannot remember who asked about it—the kind of issues that are raised at a ground rules hearing are listed in detail in the practice note. If as we evaluate the practice note we find that there are other issues that it would be useful to discuss, we can very quickly add them in. If they were listed in the primary legislation, that would not be possible.

What is permissible is a matter for the court to determine. Indeed, it would be very difficult to come up with a comprehensive definition, given how much depends on the actual circumstances of the case. The first rule of permissibility is that the question must be relevant to the circumstances of the case, and as far as the form of questioning is concerned, the questions must be sufficiently geared towards the witness’s level of comprehension. The kind of questioning that would be permissible for a five-year-old child would be quite different from what would be permissible for a 17-year-old or an adult vulnerable witness. My strong feeling, therefore, is that these things can be developed within the overall concept without requiring them to be put in a straitjacket of a definition.

It has been helpful to tease that out in discussion.

If the focus of this process is to address a witness’s individual needs, you will want to have the flexibility to do so, and if legislation says that certain things must be covered—which might mean that other things get left out—one’s ability to take that kind of victim or witness-focused approach might well be limited.

That, too, was helpful.

A final issue that arises from the policy memorandum relates to the use of the generic term “victim”. It has been suggested that the term “complainer” would be better.

That is certainly the term and formulation that we would use from the court’s point of view. There are a number of cases about the use—and appropriateness—of a particular term by a judge, and the term “complainer” would certainly be of more assistance.

That concludes our questioning. I thank Lady Dorrian and Tim Barraclough for their evidence, which has been exceedingly helpful in our scrutiny of the bill.

I suspend the meeting for a five-minute comfort break.

11:03 Meeting suspended.  

11:08 On resuming—