Meeting date: Tuesday, February 5, 2019
Meeting of the Parliament 05 February 2019
Agenda: Time for Reflection, Topical Question Time, Forestry Strategy 2019 to 2029, Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill: Stage 1, Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill: Financial Resolution, Business Motion, Point of Order, Decision Time, World Cancer Day 2019
- Time for Reflection
- Topical Question Time
- Forestry Strategy 2019 to 2029
- Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill: Stage 1
- Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill: Financial Resolution
- Business Motion
- Point of Order
- Decision Time
- World Cancer Day 2019
Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill: Stage 1
The next item of business is a stage 1 debate on motion S5M-15699, in the name of Humza Yousaf, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.14:57
I am delighted to open the debate on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.
I thank the Justice Committee and its convener, Margaret Mitchell, for the stage 1 report and I thank the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee for their consideration of the bill.
I extend my thanks to the many stakeholders and individuals who gave evidence. I was encouraged to hear so many speak to the benefits that pre-recording evidence can bring. Some rightly pointed out the challenges and areas where more can still be done to improve our criminal justice system for the most vulnerable witnesses. I am very aware of that, and it is one of the reasons why I set up the victims task force. I look forward to the debate, which I have no doubt will be positive and constructive, on these significant proposed reforms.
I am grateful for the Justice Committee’s support for the general principles of the bill and in particular its endorsement of the proposed new rule requiring the evidence of child witnesses in the most serious criminal cases to be recorded in advance of the trial. The committee made a number of detailed recommendations to which the Government responded yesterday.
I will set out the principles of the bill and the positive changes that it will bring to the criminal justice system if it is passed by the Parliament. I will also address some of the key points that the committee raised. First, however, it is important to acknowledge the work of the Lord President, Lord Justice Clerk and the Scottish Courts and Tribunals Service’s evidence and procedure review. The review made recommendations on how to improve the treatment of vulnerable witnesses. It also involved wider stakeholders and creates a long-term vision for how evidence can be taken. It is also having a more immediate positive impact, in particular due to the new High Court practice note on evidence by a commissioner.
The bill would not have been introduced without the leadership of my predecessor Michael Matheson on improving how evidence is taken from children and it is a vital first step towards the vision that, where possible, child witnesses should not have to give evidence at trial.
I turn to the main provisions of the bill. Evidence by commissioner is a special measure that allows for evidence to be pre-recorded and played at trial without the witness having to be present. The date and time for evidence by commissioner is scheduled in advance, avoiding uncertainty for vulnerable witnesses and minimising the distress that is caused by delays to the trial. The atmosphere is less formal than it is in full court proceedings and evidence can be recorded directly or via remote video link from another location. The early capture of the evidence enables the vulnerable witness to recall events more accurately, ends their involvement in the trial sooner and, when necessary, allows for quicker recovery.
We should not forget that evidence by commissioner can currently happen by application. However, the bill’s main reform is the creation of a new rule that makes a presumption that evidence by commissioner will happen for child complainers and witnesses under 18 in the first instance. The presumption will ensure that, where those individuals are due to give evidence in the most serious of cases, that evidence will be pre-recorded, unless an exception applies.
The bill also introduces a power to extend the proposed new rule in due course to adult “deemed vulnerable witnesses” in solemn cases, which could include complainers in sexual offence, human trafficking, stalking and, potentially, domestic abuse cases. I sympathise with the view that there should be a quicker roll-out to other categories of vulnerable witness, but it is vital that this major reform is undertaken in a phased, considered and effective way, by first targeting the youngest witnesses in the most serious cases. That is why the bill proposes a framework for the phased extension of the requirement to pre-record other vulnerable witnesses. The approach was supported by many stakeholders in the evidence sessions and I am pleased that the committee agrees that a phased approach to implementation is sensible.
The cabinet secretary is right to say that the evidence was overwhelmingly in favour of a phased approach, but he will also be aware that there was compelling evidence for the inclusion of domestic abuse cases alongside the cases that he has listed. Is the cabinet secretary minded to accept that and introduce an amendment to that effect at stage 2?
Mr McArthur has pre-empted what I was going to say later in my speech, but I am very open. I thought that the evidence was compelling and very powerful. Liam McArthur will be aware of the steps that the Government has taken in order to improve the awareness and the tackling of domestic abuse and, of course, of the provisions that will come into force in the spring. I am extremely open and I am looking at the implications for resources and so forth, which are important and cannot be ignored. I am minded to lodge an amendment in the future, but I have to do some more work in that regard. I will listen to what else members have to say on the matter.
Further to Mr McArthur’s point, the cabinet secretary will be aware of the discussions around summary cases in general. Given that the vast bulk of domestic abuse cases are summary, is there a proposal to look at encouraging the use of similar techniques in those cases, given that it is possible for sheriff courts to do so?
That is a good point and I will look at that encouragement where I can. It is correct to say that the vast majority—I think almost 94 or 95 per cent—of domestic abuse cases are dealt with by way of summary proceedings. I think that Mr Johnson will accept that if we were to extend the presumption to summary cases, that would almost be the wrong way round. It is important that we apply the presumption to the more serious cases—solemn cases—first and foremost and that we focus on the most vulnerable, namely the youngest, witnesses in our society. Notwithstanding that, Mr Johnson’s point is valid.
Can I check how much time I have for my opening statement, Presiding Officer?
You have 12 minutes, but I am happy to give you a little more time.
I said that without having my microphone on.
That is okay, I heard you.
I know, but the world has to hear me, cabinet secretary.
In terms of the implementation of the legislation, legislative reform, as Daniel Johnson has just pointed out, is only a part of the work that is needed to ensure that there is much greater use of pre-recording. It is vital to ensure that there are sufficient modern facilities and pre-recording technology to enable this important reform to be implemented in practice. We heard time and again in the Justice Committee’s evidence sessions that there is work to be done in relation to the facilities and the infrastructure when it comes to pre-recorded evidence. In October last year, I announced £950,000 of funding to support the Scottish Courts and Tribunals Service with the creation of a new child and vulnerable witness-friendly hearings suite in Glasgow. The facility, which I have visited, will make significant improvements to the experience of victims and witnesses in the Glasgow area.
We have also made a further £1.1 million available to the Scottish courts service and are working with it to upgrade other venues and technology. The funding is important to get the court infrastructure ready for the increase in the number of witnesses having their evidence pre-recorded. We have shared with the Justice Committee a provisional implementation plan for the staged commencement and extension of the rule requiring pre-recording. Before the plan can be finalised, it is important to see whether any significant changes are made to the bill during the parliamentary process that could affect it. However, once the approach has been agreed, I would be happy to share further details with the committee.
I turn to issues that were raised in the stage 1 report. I was pleased that the committee supported a broad range of provisions in the bill. On the issue of cross-examination, I recognise that some legal stakeholders have concerns that the bill may enable a prior statement to be used as a witness’s only evidence, even when the defence wants to cross-examine. The bill does not in any way limit or alter the right of the defence to cross-examine a vulnerable witness who has their evidence pre-recorded, and nor does it limit in any way the ability of the defence to test the evidence. However, I am keen to allay any concerns on the matter and I will consider in advance of stage 2 whether an amendment is required to clarify that point.
Liam McArthur asked about domestic abuse cases. I note the committee’s recommendation that the bill should be amended to include domestic abuse in the list of offences covered by the rule. I am open to the suggestion that the list should be extended to include domestic abuse offences in solemn cases and I will be interested to hear the views of other members during the debate. A number of stakeholders—including the National Society for the Prevention of Cruelty to Children, in its briefing, and many others, including, I think, Scottish Women’s Aid—suggested such an extension. I am open to that, but I think that we would all accept that it has some implications that I have to work through.
The committee welcomed the provisions in the bill that would require a ground rules hearing before the taking of evidence by commissioner. However, the committee asked that we consider whether there should be greater scrutiny of the questions to be asked at the commission. I can understand that, sometimes, it may be of benefit for questions to be lodged in advance. However, I am not convinced that requiring that in primary legislation is the best approach. I agree with Lady Dorrian, who said in evidence that in order to maintain flexibility, the High Court practice note is the more appropriate place to set out the detail of what should be required at the ground rules hearing. Again, though, I am open-minded.
On prior statements and additional measures to support vulnerable witnesses, the committee made a range of recommendations on broader matters such as joint investigative interviews and the work of the victims task force. I will ensure that those recommendations are discussed at the next meetings of the task force and the joint investigative interviews governance and working groups. My response to the committee highlighted the significant on-going work to improve the quality of JIIs, which should enable them to be used even more frequently as part of a child’s pre-recorded evidence.
The committee made a number of recommendations relating to the implementation of the barnahus principles in Scotland, and I am happy to accept its invitation to discuss those matters. Many committee members travelled to Norway to see for themselves barnahus in practice. The barnahus concept is about much more than evidence and the justice process. It supports a child’s recovery from the point at which they disclose abuse, as well as supporting their right to justice. Accordingly, any move to implement the barnahus model would need to look at all those issues holistically. It is also accepted by most, if not all, members of the committee that every barnahus, whichever jurisdiction it is in, should be relevant to that jurisdiction. Tweaks and appropriate nuances may therefore be needed so that, collectively, we come up with what we think is a Scottish barnahus approach and have a road map to that destination.
I strongly believe that the justice system should be compassionate, trauma-informed and able to respond effectively to the needs of victims and witnesses. There have been significant changes in recent years to the criminal justice system to recognise the interests of those groups. However, more can be done, and I am determined that more should be done, to support child and other vulnerable witnesses, and I am confident that the bill is a major step towards achieving that. I look forward to the rest of the debate and to hearing the views of members across the chamber.
That the Parliament agrees to the general principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.
Before I move on, I ask members who have not yet pressed their request-to-speak buttons to do so now. I call Margaret Mitchell to speak on behalf of the Justice Committee. Convener, you have nine minutes.15:10
It is a pleasure to speak on behalf of the Justice Committee in today’s stage 1 debate on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, and I thank all those who gave evidence to the committee. The committee thanks Lady Dorrian and the Scottish Courts and Tribunals Service staff for arranging visits for members to see the current arrangements for pre-recording evidence. Our grateful thanks also go to all at the barnahus in Oslo, for the time that they spent with us during our visit to the facility in December. That first-hand experience was invaluable for scrutinising the bill and forming a longer-term view of the changes that are required to improve the experience of child witnesses. I thank the Justice Committee clerks and committee members for their hard work in producing the report.
Legislation already allows for a child or vulnerable witness’s evidence to be recorded in advance of a criminal trial. However, despite an increase in pre-recording, it is still not common practice. The committee therefore supports the bill’s new rule, which would generally require all of a child’s evidence in the most serious cases to be pre-recorded. Removing children and vulnerable witnesses from the court environment and the traditional examination-in-chief and cross-examination has several advantages: it reduces their distress and trauma; it improves the quality of their evidence, because taking evidence earlier in the process aids their ability to recall events; and it allows them to get on with their lives.
Crucially, undue delay is avoided, the potential consequences of which Barnardo’s has set out compelling evidence about. Some young people who were 14 when they had offences committed against them were 16 and a half by the time they presented in court. Barnardo’s stated:
“Because of the trauma that they have experienced, they can be involved in a lot of behaviours ... not seen to be positive. What the court sees is a difficult, belligerent, drug-addicted, alcoholic young person instead of the child they were when the offences happened.”—[Official Report, Justice Committee, 27 November 2018; c 12.]
Nevertheless, the committee fully recognises that the new rule will have major implications for our adversarial criminal justice system. Not only will it require sufficient facilities and technology to pre-record evidence; more significantly, there will need to be a shift in legal practice and culture. The committee therefore agrees with the Scottish Government that a phased approach to implementation is sensible. Given the importance of getting this right, the committee recommends that progression between phases should be based on careful and detailed evaluation.
The committee agrees that the initial phase should focus on child witnesses in the most serious cases. However, following powerful evidence about the pressures that children can experience when giving evidence in domestic abuse cases, it urges the Scottish Government to amend the bill to include those cases in the new rule. The cabinet secretary’s comments and his confirmation in today’s debate that he will listen to views on that subject are very welcome.
The committee also supports the phased extension of the new rule to other serious offences and to adults who are deemed to be vulnerable witnesses, which the bill provides for through affirmative regulations. It is crucial that there be sufficient parliamentary scrutiny of the regulations, preferably before they are introduced. The committee welcomes the cabinet secretary’s willingness to share information that was gathered during the evaluation of earlier phases of implementation and asks to be provided with early notification of the Government’s intention to lay regulations extending the rule. Members must be able to consider whether the necessary technology and facilities are in place to cope with any extension of the rule and whether any lessons can be learned from earlier phases of implementation.
In view of those undertakings, and on balance, the committee considers that the approach outlined in the bill is appropriate to allow vulnerable witnesses to benefit from the provisions without any delay caused by primary legislation being required, although that does not preclude the possibility of the committee recommending that an extension of the rule be provided for in primary legislation if that is deemed necessary.
The committee accepted the Mental Welfare Commission for Scotland’s comment that
“a bad interview done early is no better than a bad interview done in a trial.”—[Official Report, Justice Committee, 27 November 2018; c 33.]
The committee therefore recommended that all those who are involved in questioning child and vulnerable witnesses receive appropriate trauma-informed training, and the committee seeks assurances from the cabinet secretary that sufficient resources will be in place to deliver that training.
In addition, the committee considers that there should be measures in place to protect witnesses against the risks of harassment and further victimisation throughout the process, including after they have given evidence and proceedings have concluded. That is immensely important not only to protect individuals from harm but to ensure that other potential witnesses are not deterred from giving evidence. The committee welcomes the establishment of the new victim task force to look at that issue in detail.
The committee was unanimous in its strong support for implementing the barnahus principles in Scotland. During our visit to the barnahus in Oslo, we saw that the facility, which is located away from the court, is child friendly and provides a range of support services under one roof. Crucially, the visit allowed the committee to understand the one forensic interview approach, whereby the child is interviewed by a highly trained police officer, with no direct questioning by lawyers. However, the rights of the accused are protected by allowing the defence to request a supplementary interview when that is necessary. That interview is carried out by the same police interviewer, who asks the defence’s additional questions to test the child’s evidence. The one forensic interview approach delivers benefits both in the quality of the evidence that is obtained and in supporting children’s recovery from trauma.
The committee realises that that approach would require a significant shift in legal culture and practice, as well as substantial resources, but the committee considers that it could be used in appropriate cases. Furthermore, no less a person than the Lord Justice Clerk, Lady Dorrian, has said that she sees no reason why the barnahus system cannot be adopted in Scotland in the longer term.
In the meantime, priority should be given to developing an enhanced process for joint police and social work interviews with children, to be conducted by highly trained interviewers in child-friendly facilities, with other support services available under one roof. That would deliver significant benefits for child witnesses and would be a meaningful step towards implementing the barnahus principles.
The Justice Committee unanimously supports the general principles of the bill and its aim to increase the use of pre-recorded evidence. Nonetheless, it is evident that a barnahus model is far removed from current practice in Scotland. The committee therefore calls on the Scottish Government to work towards adapting the one forensic interview approach and recommends that urgent action be taken to adopt elements of the barnahus principles and to ensure that progress is made within the current parliamentary session to drive forward efforts to fully implement those principles in the longer term.15:19
I am very pleased to close for the Scottish Conservatives and speak in favour of the principles—[Interruption.]
I think that you are opening for the Conservatives, Mr Kerr.
I am pleased to open, as well as close—[Laughter.]—the debate for the Scottish Conservatives and speak in favour of the principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.
At the outset, I echo the convener’s gratitude to the clerks, not only for the quality of the report, which succinctly and clearly reflects the key points and the committee’s examination of the bill, but because, contrary to initial concerns, they had not shredded the draft that I left with them, which had all today’s speaking notes scribbled on it—although, having begun by saying that I was closing, I might wish that they had shredded it after all.
The fundamental principle of the bill is one that, as the convener said, the committee and the Scottish Conservatives are united behind. At its core, the bill is about improving the experience and evidential reliability of children and vulnerable witnesses in the criminal justice system. It does that by increasing the use of pre-recorded evidence.
When a child witness—the bill notably and rightly excludes a child accused—is to give evidence in solemn criminal proceedings involving one of a set list of offences such as murder, culpable homicide, assault to the danger of life or human trafficking, the court must enable all their evidence to be given in advance of the hearing. In other words, in an extension to the protections that are already in place, in those cases all the child’s evidence will be given in advance.
As the convener set out, that was pretty much universally agreed to be a good thing. The Scottish Courts and Tribunals Service described it as
“a critical step in improving both the experience of witnesses and the quality of justice”.
In that regard, I found compelling the evidence of Children 1st that
“Scotland’s justice system—designed for adults and rooted in the Victorian era—often causes them greater trauma and harm.”
Notable, too, was the SCTS’s “Evidence and Procedure Review Report”, in which it was suggested that
“particularly for young and vulnerable witnesses, traditional examination and cross-examination techniques ... are a poor way of eliciting comprehensive, reliable and accurate accounts”.
Some witnesses and MSPs feel that we should go further, and we may well hear about that in the debate. Certainly, the committee concluded that there would be merit in expanding the rule requiring pre-recording to child witnesses in domestic abuse cases. That makes sense, as the cabinet secretary noted. A number of submissions made that point, too. One would have thought that it stands to reason that the potential, almost special, nature of the trauma to a child in such cases, as highlighted in evidence from Scottish Women’s Aid, would mandate such special measures. That is particularly the case, given that, logically and as suggested by the advocacy, support, safety, information and services together project, the new Domestic Abuse (Scotland) Act 2018 could lead to greater numbers of children being cited to give evidence. I agree with Liam McArthur that there seems to be merit in including child witnesses in such cases. I am encouraged by the cabinet secretary’s response to Liam McArthur’s intervention, in which he stated his willingness to consider the proposal, and I look forward to developments at stage 2.
I have looked at the figures, and although domestic abuse cases that go to solemn proceedings make up only 4 per cent of the total, that equals about 150 High Court cases and 750 sheriff and jury cases.
I am absolutely open-minded to the suggestion, but does Liam Kerr agree that, given the number of cases involved, it is undoubtedly important for the Government and others to examine the resource implications of making that potential change?
I agree with the cabinet secretary that the resource implications are crucial. I will say something specific about that shortly, but I will track back slightly before I do so.
On the same theme, in an intervention, Daniel Johnson brought up what is potentially a key issue. In its submission, the NSPCC suggested that, as only a few cases of domestic violence go to solemn proceedings, there is a danger that, by excluding summary proceedings, we exclude child witnesses in domestic abuse cases. Like Daniel Johnson, I find that concerning.
I note that the Lord Advocate has presented a response in which he specifically addresses the point. If I do not respond to the cabinet secretary’s intervention in two seconds, I ask him to reiterate some of those concerns, which were well expressed by Daniel Johnson.
During our evidence sessions, the suggestion was made—I suspect that it will be repeated in the debate today—that we should go further, particularly in relation to adults who are deemed to be vulnerable witnesses, and that we should expand the categories of people who would be covered by the provisions on pre-recording and automatic special measures. The bill gives ministers the power to do that, but the cabinet secretary indicated that that would involve a long timeline. His approach is supported by the Crown Office and Procurator Fiscal Service, which felt that it would be appropriate to take evidence-based, deliberate decisions over time on expanding the categories.
I accept that that approach will cause understandable frustration, but I agree with the cabinet secretary that it makes sense. The bill makes a seismic change that goes to the heart of the criminal justice system. The cabinet secretary highlighted his concern that quicker expansion may overwhelm the system.
It seems vital that whatever we put in place is introduced in a managed way that takes account of what will be a cultural paradigm shift, as highlighted by the Scottish Courts and Tribunals Service in particular.
A significant cost seems to be involved: the financial memorandum estimates the annual recurring costs of the bill’s provisions to be up to £3.5 million. The maximum estimated cost of extending the new rule to all adults who are deemed vulnerable witnesses is around £14 million.
The committee concluded that a phased approach is sensible—I agree with it on that point. To try to implement everything at once could be counterproductive. We might end up in a worse place than the one in which we started, with an inefficient and ineffective approach and the potential for miscarriages of justice.
On that point, I will pick up on a point that the convener made. The ability to expand the categories of protection by regulation caused me some consternation. My concern was whether, given that this is a managed but significant change to the system, expansion of categories by regulation affords sufficient opportunity for scrutiny. The Faculty of Advocates, in particular, expressed concern about that.
The committee heard a great deal of evidence on that point. The cabinet secretary noted that primary legislation could cause delay. In my view, delaying matters to get them right is never a bad thing. However, it was reassuring to hear the cabinet secretary promise to share the evaluation evidence with the committee prior to scrutiny of any such regulations. We also received an undertaking in that regard in the Government’s response yesterday.
Today, the Parliament is asked to indicate whether it supports the principles of the bill. The Justice Committee’s report provides strong evidence—as, no doubt, will today’s debate—that the principles of the bill are the right ones. It is clear that pre-recording evidence of children and adult vulnerable witnesses reduces the distress that such witnesses go through and can help to ensure that the most accurate evidence is obtained.
Throughout our evidence gathering, it was clear that the bill is a start and that there are other areas into which protection of vulnerable witnesses might go. I look forward to hearing representations from colleagues across the Parliament in that regard.
I am pleased to confirm that the Scottish Conservatives will support the principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at decision time.15:27
This is a useful and important debate, in which we can come together in agreement about how we can modernise and improve our justice system, to make it more effective and more humane.
I, too, thank the Justice Committee clerks and my fellow committee members. I also thank the numerous organisations who submitted evidence, orally and in writing, to the committee—without their efforts we simply could not do our work.
In particular, I thank the Scottish Courts and Tribunals Service, because the opportunity to see facilities and hear about how evidence on commission is taken was hugely important. I also thank the Norwegian police for the time that they took to show us the barnahus model that operates in Norway.
Above all, I thank Lady Dorrian, because the bill represents a substantial amount of her work and effort. She first made the proposals in 2015; broader reforms were initiated in 2013. Her practice note, which has meant that evidence is being taken on commission, was produced in 2017. We should not underestimate the time that it has taken to get here.
The bill’s provisions undoubtedly represent a useful step forward for the Scottish judicial and court system and will improve the experience of child witnesses. As a number of members have said, we must not retraumatise young people who give evidence in court. It is vital that they give evidence; it is equally vital that we ensure that they do so in a way that does not retraumatise them.
More important, the bill is about improving the quality of evidence that is given by reducing the time that it takes to take evidence—the committee heard that it takes considerably less time when a witness provides their evidence on commission—and by reducing stress. That will improve the accuracy and quality of the evidence that is given.
For those reasons, Labour supports the bill at stage 1.
It is important that we examine the provisions and consider how the bill might be improved. Moreover, we should consider the next steps that we can take to improve our justice system. Therefore, I want to talk about how we ensure that the interests of the child are best met; the investment that is required; and the possible extension of the provisions to other types of witness and other types of hearing.
The ground rules hearing is absolutely central to the proposals on protecting the interests of the child. The prosecution and the defence will set out how they will cross-examine the witness and draw out the evidence for the court through the ground rules hearing. There will still be cross-examination—we saw that in examples of evidence taken on commission when the committee went to the High Court. The ground rules hearing will ensure that things are conducted in a way that is humane and effective in gathering evidence.
It struck me that the process will be very reliant on the training and practice of the advocates who will conduct the evidence gathering. Although the ground rules hearing is important and it is right that we do not overburden the bill with provisions or requirements, we must understand the dependency on the ground rules hearings being conducted properly and recognise that they rely on agreement. Trust is involved. We will trust the advocates to take their duties seriously and responsibly. We must review how the process is carried out to ensure that it is not abused and does not go in directions that were not foreseen. Although advocates in the main may approach matters in the way that we would hope, the intention at the point of legislating can sometimes result in practice that was not intended. Therefore, we need to keep the process under examination.
We must also ensure that there is adequate support and that a common point of contact is provided to vulnerable witnesses, particularly children. A number of third sector organisations made that point. Should we have a much more proactive and positive duty at the ground rules hearing to look at what sort of support is provided to witnesses who are providing evidence that is taken on commission?
Much has already been made of the requirement to have a phased approach and why that is necessary, given the investment and the undertaking that the bill represents. I agree with what has been said. The Government is right to look at a phased approach. As Liam Kerr pointed out, it is critical that we get this right and that we take our time to do so. However, we must ensure that investment takes place. When I looked at the room that is used in Parliament house, I was struck by the fact that it is still essentially a conference room in a court building and that it falls far short of the child-friendly environment that we might wish for. I welcome the investment in a new evidence suite in Glasgow, but will we make such facilities available to every child who gives evidence in Scotland, wherever they may do so? We need to ensure that there is consistent access for vulnerable witnesses.
We must also focus on training, legal practice and culture. The investment cannot simply be in technology and spaces.
I want to briefly mention domestic abuse. Although I welcome the cabinet secretary’s comments, if the bill is about establishing a principle on the right way to take evidence from vulnerable witnesses, why does it not provide for at least the possibility of extending the provisions to summary cases? I understand the arguments and the restrictions in respect of investment and the requirements that exist, but if the principle is right and the strategy that has already been set out in the bill is for staged implementation, should not provision for that final extension to summary cases be provided for? The Government should certainly look at ways in which the practice is encouraged in sheriff courts, because it is possible for them to take evidence in that way.
I am running out of time. I, too, am opening and closing for my party, so I will get a second chance to get in the bits of my speech that I have not managed to get in, which I am very thankful for.
The bill is a significant step forward. It takes the right approach in its proposals and how they will be implemented. However, we must always challenge, so we must seek to go further in the bill and in future steps that we can take with our court system in Scotland.
I should clarify that Gordon Lindhurst will close for the Conservatives. He was looking a bit peeved.15:34
Like my Justice Committee colleagues, I thank witnesses and parliamentary staff, various organisations for their briefings and our friends in Norway for their helpful advice.
As I hope that the committee report evidences, there has been detailed scrutiny of the Government’s proposals. There are a couple of recurring themes. One theme, which I hope to talk about in a bit more detail later, is the tension between the adversarial system as applied at the moment and the inquisitorial system that is more in keeping with the proposals in the bill. The other is the rights of witnesses and the accused.
The Scottish Green Party will unequivocally support the bill at stage 1.
I take us back to the case for reform as outlined in the committee’s report. We highlighted the Scottish Courts and Tribunals Service’s “Evidence and Procedure Review Report”, which is from 2015. I make no apologies for this long quote, because it is helpful. The Scottish Courts and Tribunals Service report says:
“It is now widely accepted that taking the evidence of young and vulnerable witnesses requires special care, and that subjecting them to the traditional adversarial form of examination and cross-examination is no longer acceptable.”
“recounting traumatic events is especially distressing for children, and can cause long-term damage”.
Importantly, it says that that approach
“is a poor way of eliciting comprehensive, reliable and accurate accounts of their experience”.
We are told that the status quo damages witnesses in the same way that it disadvantages the public interest and the interests of the accused. I do not think that any of us wants to see that situation prevail.
Children 1st’s written evidence, which has been alluded to, says:
“Over and over again child victims and witnesses”
“have told us that Scotland’s justice system”
is, as someone mentioned earlier,
“designed for adults and rooted in the Victorian era”
and that it
“trauma and harm”.
The submission goes on to mention the
“scientific understanding of child development”.
The extent to which child development has been mentioned in our deliberations is heartening. Understanding the needs of individuals—whomever they may be—is important, and there is growing awareness of that, not least in relation to the impact of adverse childhood experiences and trauma awareness. A lot of organisations, including Police Scotland, are very much aware of that.
The Children 1st submission also tells us:
“Developmentally children’s ability to recall memories varies with both age and their experiences of trauma.”
I join others in supporting the extension of the provision to domestic abuse cases and summary cases. Although the cabinet secretary is supportive of that, if I noted him correctly he said that the implications have to be worked through. I resolutely support that approach, and the incremental approach that the committee is in favour of. We are talking about a significant investment in time, training and facilities. It is crucial that we get this right and that, most important, we take practitioners from all sectors with us.
Daniel Johnson is correct to say that it is about getting the facilities right. I sat with Daniel and other members in the room that he spoke about—I mean Daniel Johnson. I beg your pardon, Presiding Officer. I saw the face.
You read my lips.
I know that expression.
I sat with Daniel Johnson and others in the room that he spoke about. Yes, it was not particularly child friendly, but we saw the benefit of having such a facility for the child.
It is important that we get the whole criminal justice system right. The Lord Advocate has just responded to the committee’s report. His letter is pretty much like the Scottish Government’s response, and we are very pleased to have those responses, albeit that they have come at the 11th hour. He mentions the need to disclose obligations in adequate time. The ground rules hearing that has been mentioned is a fundamental part of what we are seeking, and the timing associated with that is crucial. We have had debates about whether it should be pre or post indictment. We do not want a situation in which someone is unnecessarily put through trauma only for the Crown Office and Procurator Fiscal Service to decide against taking forward a case because it is not in the public interest or because there is an insufficiency of evidence to proceed; equally, we do not want trauma to be caused by having to wait to give evidence. That is another tension and balance that needs to be worked through. That will be helped by having an expeditious process, which the Lord Advocate refers to in his response. The Crown Office and Procurator Fiscal Service has created 41 additional posts in the High Court to tackle the most serious cases, in which such an approach is likely to be used.
The committee took evidence on joint investigative interviews, which involve Police Scotland and social work staff. Those interviews are an important part of our process, but they are a long way away from the barnahus system, which started in Iceland and applies across Nordic countries, and which we saw in Norway. That involves three years of training for police officers. We saw charts on the wall about the expectation of children’s understanding at different stages—the developmental issue is important.
The proposals are excellent, but there is a way to go, and we will work on that.15:40
Like colleagues, I thank the clerks, the Scottish Parliament information centre and others for supporting the committee and I thank in particular all who gave oral and written evidence during our stage 1 consideration of the bill.
Like others, Scottish Liberal Democrats strongly support the bill’s principles, although they are hardly controversial. That can present challenges, as cross-party consensus can sometimes blunt robust scrutiny, but I am confident that that is not a risk in this instance, because the committee has already identified a number of areas where we will look to work with the Government to improve and strengthen the bill at stages 2 and 3.
Before I turn to those aspects, I, like others, record my gratitude to those who hosted the committee’s visit to Oslo at the end of last year. It was enormously helpful to see at first hand how the barnahus—child’s house—principles are applied in Norway. Approaches differ between the countries that apply the principles, but the visit demonstrated clearly to the committee what a genuinely child-centred and integrated approach to criminal justice looks like.
For a country such as Scotland that aspires to be the best place to grow up in, barnahus must be at least part of the yardstick against which we measure ourselves. I accept that the one forensic interview approach of barnahus would require a shift in legal culture and practice here, given our adversarial system. Nevertheless, we see the lighthouse model being trialled in London, and there was almost unanimous support from those from whom we took evidence—including, as our convener said, Lady Dorrian, to whom we owe a huge debt of gratitude—for moving more quickly towards adopting the principles.
As the NSPCC pointed out, integrating justice, healthcare and on-going therapeutic social care services under one roof—often in purpose-built, child-friendly accommodation—is the best, if not only, means of effectively reducing trauma for child victims and witnesses while maximising the chances of capturing their accounts of what happened. It is fair to say that we are still some way off that.
The Scottish Courts and Tribunals Service admitted in its 2015 review that
“Scotland is still significantly lagging behind those at the forefront in this field.”
However, the SCTS has argued—rightly—that the bill is a
“critical step in improving both the experience of witnesses and the quality of justice.”
Enabling greater use of pre-recorded evidence from children and vulnerable witnesses is the right way to go and builds on the special measures that are in place. As Lady Dorrian made clear, ways must be found to take evidence from children and other vulnerable witnesses
“in an environment and in a manner that does not harm them further, but allows their evidence to be given and tested fully and appropriately.”
I have been listening carefully to Liam McArthur and reflecting on what he has said. Does he agree that the relative consensus in the Parliament could be an advantage in helping to shift the legal culture that has applied in Scotland not just for decades but for centuries? If we put collective effort into dealing with obstacles that we might come across, that might have value in helping to shift mindsets.
That is a valid point and I do not diminish the value of consensus. Sometimes, the perception has been that the demand for reform that has emanated from the Parliament has been met with resistance in the legal community, but the evidence that we took suggested that that community has an appetite to collaborate with us. I hope that that will bear fruit.
The balance is crucial, and the rights of the accused cannot be lost in the process. The Law Society of Scotland made valuable points about the need for early identification of cases and effective communication by the COPFS, including timely disclosure of information. Without that, the defence is unlikely to be able to test the evidence fully. That said, the Lord Advocate is right to identify ground rules hearings, which would be overseen by a judge or sheriff, as an opportunity to strike the right balance between defence and prosecution interests, as well as to ensure that the questioning of a child or vulnerable witness is carried out in an appropriate and sympathetic fashion.
The committee felt strongly that when evidence is then taken by commissioner, every effort should be made to minimise any delay that could affect a child’s recollection of events and to avoid, if at all possible, the need for such recorded interviews to be carried out more than once. While none of that is entirely new, the committee quickly recognised that what the bill proposes will have serious resource implications for aspects from training through to equipment and facilities, as was mentioned by John Finnie and Daniel Johnson. Some of those have already been recognised by the Scottish Government, and I welcome the additional investment that has gone into the Scottish Courts and Tribunals Service and the Crown Office and Procurator Fiscal Service. However, if such measures are to be applied routinely and to a consistently high standard, we should not underestimate what will be involved or the pressure that they will place on the criminal justice system.
For example, we already know that support for victims and witnesses in our courts and wider communities is stretched. That message came through during our earlier inquiry into the Crown Office and Procurator Fiscal Service. Welcome though the bill’s provisions undoubtedly are, they will inevitably compound the challenge that is faced by many of those services. That is why it makes sense for the Government to adopt a phased approach to implementation, starting with the most serious solemn cases in the High Court that involve child victims and witnesses. I can entirely understand the impatience in some quarters to see the measures rolled out for all victims and witnesses in the High Court and sheriff courts. However, the committee heard overwhelming evidence that there is a significant risk that the system would be unable to cope with that, which is an outcome that would serve no one’s interests. Therefore, I accept the case for working through each phase systematically, reviewing and learning lessons before seeking to extend the provisions.
However, I agree that the categories of cases in section 1 that are covered by the rule need to be expanded to include domestic abuse. Again, the evidence that we heard in that regard was both overwhelming and compelling. The Cabinet Secretary for Justice suggested that he had an open mind on that, which I welcome, and I encourage him to accept that case and to lodge an amendment at stage 2. As for future changes to the circumstances in which the protections and provisions would apply, again, there is sense in enabling those through regulations.
In conclusion, let me—as most other members have done already—quote Children 1st, which stated:
“a joined up approach to the care and justice needs of child victims and witnesses through a Barnahus or ‘Child’s House’ is the best way to get it right for children from the moment they tell their story, ensuring that the child and their family get the support they need to recover. This will ensure that we have a justice system that is able to do both what is best for children and best for securing evidence.”
I hope that we can go some way towards ensuring that ahead of stage 3.
We move to the open debate and speeches of six minutes.15:48
Let me start by saying that this is a good bill and I am happy to commend its general principles to the chamber.
As the deputy convener of the Justice Committee, I thank the clerks for all their work in producing a fair, well-balanced report. As we have heard from my colleagues, the bill achieved consensus among the committee. We heard a lot of evidence from stakeholders in the legal profession, children’s organisations and the court service, whom I thank for giving evidence.
In essence, the bill will ensure that children in the most serious criminal cases—those who have been victims of or witnesses to sexual offences, murder, assault or danger to life—are spared the trauma of giving evidence in court. It will enable them to give pre-recorded evidence much closer to the time of the offence. The Lord Justice Clerk, Lady Dorrian, told the committee:
“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”.—[Official Report, Justice Committee, 18 December 2018; c 3.]
That is crucial. Being asked to recall an event that may have taken place some time ago can be extremely distressing and traumatising for a child.
In its written submission, Children 1st told us:
“Over and over again child victims and witnesses have told us that Scotland’s justice system—designed for adults and rooted in the Victorian era—often causes them greater trauma and harm. At the same time, as scientific understanding of child development—and recently our understanding and awareness of the impact of Adverse Childhood Experiences—has grown, it has become overwhelmingly evident that Scotland’s traditional approach to justice is the least effective for eliciting consistent, reliable accounts from child victims and witnesses.”
As we know, the bill applies only to witnesses in solemn cases that are heard in the High Court, but a phased extension is proposed to cases that are heard in the sheriff court, under which child witnesses of domestic abuse would be covered. Along with other members, I am extremely keen for that to happen as soon as possible, as the majority of domestic abuse cases are heard in the sheriff court. I am pleased that the justice secretary has said that he will keep an open mind on including such a provision in the bill.
I understand the need for a phased approach that involves monitoring and evaluation of the effect of the bill on court procedure and resources. I hope that a successful evaluation can be carried out quickly and that arrangements will be put in place for the extension of what is proposed from the High Court to the lower courts. I hope, too, that the proposal will be extended to cover adult vulnerable witnesses in solemn cases, who could benefit in the same way by giving recent unpressured evidence in a less-intimidating environment.
Rape Crisis Scotland said that cases often take two years or longer to move from the police report stage to trial, only for complainers
“to get a call the night before to say the trial isn’t going ahead ... This causes considerable distress, and does not assist in complainers being able to give their best evidence.”
I understand that special measures are put in place for witnesses who have been assessed by Crown Office staff, and I urge that that practice be continued until the new rule applies.
The bill also focuses on the quality of joint investigative interviews by police and social work, which are vital, particularly when use is made of pre-recorded evidence. As with all aspects of the bill, it is vital that thorough trauma-informed training is given to all parties who are involved in taking evidence, and I am encouraged to note that a new JII training programme is expected to be finalised by March. Interviewing vulnerable witnesses takes a very special skill, and such skills are certainly necessary when JIIs are carried out or evidence is pre-recorded.
The bill does not cover the taking of pre-recorded evidence from a child accused although, from our knowledge of adverse childhood experiences, we know that such children have many issues and are often extremely vulnerable. They are children, too. However, I understand that the right of the child accused to remain silent must be respected and that the issues surrounding the recording of evidence before the trial has begun are complex. As the decision about whether a child witness should give evidence at the trial must be made in the context of the trial, it can be made only at the end of the trial. Taking evidence beforehand could prejudice their case or risk the evidence not being entirely accurate.
Nevertheless, the Lord Justice Clerk pointed out that there are special measures that can be put in place, such as enabling evidence to be given by live television link, but they are currently underused. That is not acceptable. I urge defence counsel to consider all measures that could be used and to apply them to the child accused in all cases to minimise the trauma that is involved.
I am pleased that the justice secretary, the former justice secretary, the Lord Justice Clerk and the legal profession generally are fully supportive of the barnahus model for the giving of evidence by children. As the convener and others have said, the Justice Committee had the opportunity to visit the state barnahus in Oslo before Christmas, and we were extremely impressed with the one forensic interview system, which is operated in a child-friendly environment. Shortly after I was elected, I met Mary Glasgow and Harriet Hall of Children 1st, who explained the benefits of the barnahus to me. I was totally and utterly convinced that having such a system should be Scotland’s aim. I am delighted that we are making some progress towards that and that it will become a reality in the not-too-distant future. In evidence to the committee, the justice secretary said that scoping arrangements would be put in place early in 2019, and I would welcome an update on that.
The bill represents a huge step forward in reducing the trauma that is faced by children in our justice system, and I commend its general principles to the chamber.15:53
I welcome this stage 1 debate on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill and thank the members of the Justice Committee and its clerks for their helpful insight and scrutiny of the bill.
It is crucial that witnesses come forward to participate in court cases. Their evidence is what makes for robust and fair verdicts, but the quality of their participation is at risk, especially if they are deemed to be vulnerable witnesses. We can all see that Scotland’s court process is far from perfect. For vulnerable witnesses and children, in particular, the system can be almost overwhelming. Unless special care is taken when they are questioned, young witnesses can feel as though they are reliving their experience all over again. Pursuing a just and fair outcome without prejudice while ensuring that the witness is not placed in a distressing situation can be a sensitive balance to get right.
We have seen the benefit of adopting in courtrooms more special measures that are designed to help vulnerable witnesses. Television live links or supporters who sit with witnesses as they give evidence have been helpful methods of improving the process for young witnesses, especially if they are prone to feelings of anxiety and stress.
The proposal in the bill to allow, for some child witnesses, the pre-recording of evidence outwith the courtroom is rightly the next step to take. It will mean that, apart from in exceptional circumstances, those vulnerable witnesses will avoid the unnecessary trauma of being questioned in court, which will remove the mental burden that that places on child witnesses in the most serious cases. There is no doubt that the change in the law will help us to safeguard more readily the interests of children who have been the victims of human trafficking, sexual offences or abuse. At the same time, it will uphold the rights of those who are accused.
As well as the benefit for vulnerable witnesses, there will be a benefit for the quality of the proceedings and justice as a whole. By giving all the evidence in advance of the trial, witnesses will be able to recall their experiences far more readily and with greater accuracy and clarity, which will surely make for a more informed verdict. It will mean that witnesses have the best chance to participate in the process as helpfully as possible. Moreover, they will be free from what is often a lengthy wait until the trial.
We see pre-recorded evidence for such witnesses as the way forward, but it would be a mistake to stop there. The Scottish Government hopes to adopt a phased approach in implementing the new rule and expanding it to cover other vulnerable witnesses. Surely, that should start with the inclusion of child witnesses in domestic abuse cases. As we have heard, the Justice Committee has suggested that approach, and I believe that it was right to do so. The implications of domestic abuse are far reaching but, often, those who are most harmed are the children at the centre. Young people who experience such abuse are in desperate need of the same readiness to support them through the criminal process.
As the committee suggested, wider support mechanisms for vulnerable witnesses are well worth exploring. Providing the time and resources to allow special training would reduce the chances of harmful questioning of child witnesses and ensure that they are treated sensitively and fairly. Offering specialised and appropriate training would surely work well in tandem with implementing pre-recording of evidence.
It is equally important that we understand better the proposed timetable for the changes. We should not neglect the capacity that the bill has—we must ensure that it is as effective and impactful as it can be. To achieve that, it needs to be clear and structured in setting out the proposed phased implementation. Only with clarity can we ensure that change will actually happen.
Scotland’s court system desperately needs to improve. We cannot expect reliable and rock-solid evidence from children if it is taken in a traditional setting that neglects to recognise their needs. The bill offers progress in breaking down those courtroom barriers and a way to allow more accurate evidence giving in a safer environment.
The bill will provide a welcome change. It gives some assurance that vulnerable child witnesses will be involved in our court processes in the most sensitive and appropriate way. It safeguards their mental health and ensures more stable and certain evidence. I hope that, for the sake of other vulnerable witnesses and Scotland’s future criminal procedure, the support for wider reform will not go unnoticed.15:58
It is a great pleasure to speak in the debate. I will not be met with much objection from colleagues across the chamber when I say that it is legislation such as that proposed in the bill that we all came into politics for. The proposed legislation will have a positive effect on people’s lives and will go some way to rectifying discrepancies in our current system. For those reasons, I was privileged to be one of the members of the Justice Committee who scrutinised the bill. I join the convener, the deputy convener and others in putting on record my thanks to the clerking team for their work on the bill under immense pressure and in preparing the stage 1 report, which I encourage anyone who is watching the debate to check out.
As others have said, the bill’s main policy objective is to improve how children and vulnerable witnesses participate in the criminal justice system by enabling greater use of pre-recorded evidence. Many have fought for such a change in the law for a long time, including the Moira Anderson Foundation, which is based near my constituency. The vast majority of evidence that the committee heard from stakeholders, including among many others Barnardo’s and Children 1st, was supportive of the need to reform and of the introduction of a rule ensuring that, in the most serious of cases, evidence from a child is taken pre trial.
There are many areas of the bill that I could focus on in the limited time that I have, but it will probably come as no surprise to my committee colleagues that I will spend a little time looking at the use of joint investigative interviews by the police and social work. At the moment, they are used in connection with child protection measures, and at this point, I must declare an interest as a registered social worker with the Scottish Social Services Council.
The committee heard how joint investigative interviews could be an integral part of the process and that there was more scope to use them as evidence in chief, thereby limiting damage to child victims and witnesses and preventing the need for them to give evidence at trial. However, we also heard that it was not always possible to use such interviews, and the committee found it difficult to ascertain exactly how often they were used.
I was involved in joint investigative interviews for around eight years and although there was a lot of good and innovative practice, I do not think that any of my previous colleagues will mind my saying that there is scope for change and improvement—in fact, they would expect me to say it. For example, specific JII training is very intense, but it is only a week long; after that, a worker’s involvement in such interviews can be very sporadic, with perhaps only a handful or even fewer than that a year. The committee’s scrutiny of the bill got me thinking about how many interviews I had been involved in and although it is obviously not possible to say exactly, I am reasonably confident in stating that the figure was no more than 30 over an eight-year period. That falls well short of the 100 to 150 hours that Mary Glasgow felt was required to gain an appropriate level of expertise.
I therefore welcomed the evidence that was given by Kate Rocks of Social Work Scotland, who told the committee about the joined-up discussions that were going on with the police to expand the training to a year and the possibility of having a smaller group of workers who would be highly skilled in carrying out the interviews. I also welcomed the cabinet secretary’s response to the committee about the governance and working groups that have been set up and the fact that, as Rona Mackay pointed out, the training programme is expected to be finalised in March.
Perhaps such a move would also fit in with the principles of the barnahus model. As everyone who has spoken has said, the committee visited Oslo, and I think that it is fair to say that we were very impressed by what we saw there. That said, I think that we have already put in place many of the barnahus principles through our child-centred approach, but something relatively simple that we could do would be to have a one-stop shop for all the services that are involved to save a child from having to go to one place for an interview, another for a medical assessment and perhaps another for therapeutic support.
I think that the conclusion in the committee report, as relayed by the committee convener Margaret Mitchell, sums it up best, and bringing all of that together might require having a specific venue in, say, each health board area, in four areas across Scotland or whatever. Such a setting would also allow the crucial issue of support to be addressed. In our evidence gathering, we heard lots of testimonies, and the suggestion was that, although it was very important to gather evidence for criminal proceedings, a perhaps more significant and important issue was the need for continued support during and after the process and to deal with any trauma that the child witness might experience.
I conclude where I started by making it clear that the bill has been introduced as a result of real people’s real-life experiences. In that respect, I want to share an example that involves a constituent of mine. What I am about to say has been agreed with the child’s mother to protect anonymity.
Last week, I had a parent in my office asking for help. Her child had been a key witness in a case that had resulted in the accused serving a prison sentence, but she told me that no one had sat down with the then nine-year-old or the parents to explain what was going on or how their statement would be used in the case. Because the accused pled guilty, the young person was spared the ordeal of having to testify before him in court, but they are fully aware that their evidence was a major part of securing the guilty plea. At one point, the child said, “It was scary that my mum had to leave the room and I had to speak to strangers”.
The experience has led to a severe deterioration in the child’s mental health, because every day they live in fear about what might happen when the individual is released from prison. The mother described having to deal with nightmares and self-harm, and she also told me about the day that she found her child attempting suicide. Thankfully, she made the shocking discovery in time. No victim should ever have to go through that, and that is why it is so important that the bill’s provisions are put in place as quickly as possible.
Not all of the bill is relevant to the case that I have just highlighted, but its principles are. I know that the mother is watching today’s proceedings, and I hope that this is the start of changes being made to the law that will mean so much to her and her family. It is such real-life situations that make the bill so important. Moreover, given what I have said, it would be fitting if the bill were to pass at stage 1 during children’s mental health week.
This is an important bill, and I thank the Government, the current cabinet secretary, his predecessor and others for bringing it forward. I commend the general principles to the chamber and hope that members will vote for them.16:04
I was not involved in the bill’s development, but I have found it very interesting to read the report and the briefings that we have secured. Like other members in the chamber, I have direct experience of constituents telling me how they have felt let down by the justice system. From the start of the Scottish Parliament, we have been trying to understand how people experience the justice system and trying to find ways to ensure that witnesses and victims feel that they get justice. I can remember very early in the Parliament a woman who had been the victim of a serious sexual assault talking about feeling that the court system had compounded her terrible experience rather than giving her a sense of justice. I think that the bill is part of understanding that experience, because those voices are still there. Fulton MacGregor’s very powerful description of a young person’s direct experience of the justice system gives us all pause and should act as a spur to ensure that the journey of making the justice system fair continues.
The bill is another step in wrestling with the challenge of how we ensure that the accused has a fair trial and that those who give evidence are able to do so in a way that allows that evidence to be thorough and testable. I would argue that we have made progress in creating a fairer system, because things that we were told were simply impossible as they would challenge the justice system and the protections in it are now part of the accepted court process. I expect that the bill’s provisions will also be seen in that way in the future.
We need to think about how we treat victims, witnesses and complainants in the context of understanding criminal behaviour in all its many forms and the particular impact of particular crimes on victims. For example, I know from my conversations with adult survivors of child sexual abuse that their vulnerability still lives with them every day. We need a court system that understands that, too. We also need to think about the decisions at the prosecution stage on taking cases forward and whether they reflect the vulnerability of witnesses and victims; for example, if the victim is a person with a learning disability the case might not be taken forward as it might be deemed that their evidence will not be seen as credible. We need to reflect on those issues.
There is, of course, a danger and a challenge for us all in doing the relatively easy bit—obviously, I have done less work on the bill than committee members, who have done a lot of work on it—of passing legislation and feeling pleased that we have got that right. However, legislation must be placed in the context of the need for it to be effective and to ensure that it is enforced and that the changes are resourced properly. We do not want to end up just taking resource from one place and putting it in another in order to match the legislation’s demands, only to see one piece of legislation having unintended consequences for another part of the system.
We need to understand how we can prevent people from becoming vulnerable to crime in the first place and how supported they are personally. For example, for children who are victims of domestic abuse, with all that that means for them, we need to look at the availability of safe places and the responses of the school system, the housing system and the agencies round about the young person. Those supports will, in their own way, give help to a child who might find himself or herself in a courtroom, which can be the end point of what might have been a traumatic journey of conflict and violence. We cannot separate the court process from the budget and resources that must support victims under the new system.
As an example of the challenge involved in that, I raise in particular the important role of the children’s hearings system in the broader justice system. The children’s hearings system is symbolic of our understanding of the need to put the child at the centre of the justice system, but it is also the practical expression of how we make that support real. Despite the sterling work of the volunteers and staff who manage the hearings system, the system is under pressure from, for example, lack of social work support, the inability to have social background reports produced and the inability of panels to make certain disposals because the resource is simply not there to make them happen. The danger is that young people are being ill-served by a system that is overstretched and pressured.
The Scottish Government needs to reflect on its choices in budgeting terms as well as in policy terms. In my view, it is simply short-sighted to target local government for budget cuts, given that many of the key supports for the justice system lie with schools, community safety, support groups and social work departments, most of which sit within local government.
I support the bill, given the way in which it continues the journey towards ensuring that victims are treated fairly in the justice system and that, as a consequence, our justice system serves society better. However, I simply reflect that we should all take seriously not just the legislation; we should not see it in isolation but look at what must underpin it—not only resources to deliver the process but resources to provide broader support and protection for those who live with the trauma of abuse and crime day by day.
The points that Fulton MacGregor made in his conclusion are absolutely right—it is not just in the moment of giving evidence that a child or vulnerable witness has to be supported, but before they give evidence and afterwards as well. That is what will make the legislation real in the lives of young people and vulnerable witnesses.16:10
I thank the Justice Committee’s clerks for all their work in pulling together a report ahead of today’s stage 1 debate.
Of course, the bill should not be considered in isolation. For the Government, this is clearly part of a wider agenda that is focused on the rights of victims and witnesses. However, if we consider that the Government designated 2018 the year of young people, it is timely that we now reflect, as a Parliament, on how the justice system listens to the views of our young people when it really counts. Indeed, as John Finnie said, it is vital that we get this right.
As has already been mentioned, it is now nearly two years since the Lord Justice Clerk, Lady Dorrian, introduced the High Court practice note that was the first step towards improving how our courts take evidence from children and vulnerable witnesses. Today, the provision to take evidence by commissioner remains the main policy objective, with greater use being made of pre-recorded evidence from child witnesses in the most serious cases. That original practice note from 2017 looked to build greater consistency into application of taking evidence on commission by minimising the risk of trauma through taking practical decisions about location, for example, more sensitively.
Section 5(4) of the bill seeks to make changes to the Criminal Procedure (Scotland) Act 1995 that will allow for the possibility of pre-indictment commissions. I want to revisit why that provision is so important.
The ASSIST—advocacy, support, safety, information and services together—service is a domestic abuse advocacy and support service that is based in Glasgow. ASSIST advised the committee that children’s evidence
“should be taken in advance and as near to the ‘incident’ as possible.”
Furthermore, we were told by Daljeet Dagon from Barnardo’s Scotland:
“we often find that statements are taken and the police investigation concludes years before the actual process takes place. Recently, we found ourselves chapping the doors of young women who are now in their 20s but who had given statements when they were aged 14 and 15. Their situation had moved on, yet we were going back and retraumatising them, saying, “We’ve got new evidence. Are you willing to come forward? We don’t know how long the process is going to take.”—[Official Report, Justice Committee, 27 November 2018; c 4.]
Perhaps this was most powerfully illustrated when Daljeet Dagon went on to give the example of a young person who gave the police 27 statements in total. By the time the trial went to court, she was deemed to be an unreliable witness.
The original 2017 practice note encouraged the use of commissions for children, and application for a commission at the earliest possible stage in High Court proceedings. The Lord Justice Clerk has therefore welcomed the new provision in the bill for the possibility for a commission to take place before serving of an indictment, as the committee heard.
One of the committee’s key recommendations is that
“section 1 of the Bill should be amended to include domestic abuse in the list of offences covered by the rule requiring pre-recording,”
in particular, because of
“the trauma that children can experience in such cases.”
As Scottish Women’s Aid has argued,
“This is a crucial issue, given the trauma that can be caused to children and young people experiencing domestic abuse”.
“given the numbers of children likely to come under the auspices of the new offence,”
it is imperative that the offence be included. I appreciate that the cabinet secretary has previously indicated to the committee that he is willing to consider such an extension. In my view, there is an opportunity to join up legislation that has already been passed in Parliament on domestic abuse, so I am glad to have heard the cabinet secretary reiterate that point today.
The committee’s visit to Norway to see the barnahus model in action was, as has been said today, a formative experience in respect of how we might seek to improve children’s experiences of the justice system. The model is a one-stop shop where services come to the child. It struck me that the barnahus model has much in common with our own getting it right for every child approach, which is also child centred.
The bill has the potential to be truly groundbreaking if we get it right. Although I note the investment in Glasgow in a dedicated child and vulnerable witness suite, perhaps there is an opportunity for the Government to pilot the barnahus model on a small scale in the first instance, during this parliamentary session, because our experience, as Daniel Johnson alluded to in his comments, is that it was a siphoned-off room within the court buildings, which is not what the barnahus model is about, according to our experience on our visit to Norway.
Although much can be learned from the Norwegian approach, a Scottish equivalent will have to be tailored to reflect our differing public services. I note that Healthcare Improvement Scotland and the Care Inspectorate are already involved in the development of Scotland-specific standards for barnahus. The Government’s response to the committee advises:
“This will enable us to set out a roadmap for improvements.
These Scotland-specific standards will be based on the European PROMISE Quality standards for Barnahus. It is anticipated that the scoping stage will begin in early 2019.”
I note the cabinet secretary’s commitment to meet the committee to discuss the barnahus model in more detail, but I make a request to the cabinet secretary that both Healthcare Improvement Scotland and the Care Inspectorate collaborate with education colleagues in that work, in order to avoid duplication and to acknowledge the sound grounding of education policy that already exists in the area, particularly in relation to trauma-informed schools and the wider adverse childhood experiences agenda, which Rona Mackay mentioned.
The strength of the barnahus model is, of course, that children are able to give evidence in the most comfortable environment possible, thereby avoiding retraumatisation. The taking of evidence on commission is part of the answer for Scotland, but a look again at the practicalities of location and environment, as Lady Dorrian specified in the original practice note, should be the next step in ensuring consistency of provision in that respect across the country. That should be the focus of the bill, if we are really to improve children’s and vulnerable witnesses’ experiences of the Scottish justice system.
Lady Dorrian said in 2017:
“In all aspects of the work being undertaken we should never lose sight of the underlying aim. That is to secure a justice system which allows the guilt or innocence of an accused to be determined on the basis of the best possible quality of evidence available, in a manner that does not cause undue distress or harm to any participant in the process, and which is transparently fair, efficient and effective.”
Transparency, fairness and dignity in order to protect our vulnerable witnesses and to ensure that Scotland’s children are spared the trauma of giving evidence in court are all aims that I am glad every MSP can support.16:17
I am very pleased to speak in this stage 1 debate. Although I am not a member of the Justice Committee, I am aware of how important the bill is to victims and witnesses of crime. Too many people find themselves being retraumatised by the court process. We all agree that that is not right. In supporting the reform, we are taking a positive step in the right direction.
However, there is still more to do; I stress that Scotland must become the gold standard for victim support. The bill aims to improve how children and vulnerable witnesses experience criminal trials by enabling greater use of pre-recorded evidence. Significantly, the bill’s focus is on child witnesses in the most serious cases, unless there is a significant
“prejudice to the fairness of the hearing”,
or if the child witness is “aged 12 or over” and
“expresses a wish to give evidence”
in a way that would serve their “best interests”.
Although the current methods of pre-recording will continue to be used, the bill also aims to improve the process of taking evidence by commissioner in all cases, not only when the new rule applies. That is a welcome move. Children’s groups have been clear that the justice system in its current form causes distress and trauma. The charity Children 1st likened it to what was in place during the “Victorian era”.
Not only should the introduction of pre-recording reduce the trauma that is caused to child witnesses—it should also improve the quality of justice. A review of criminal procedure by the court service concluded that, for children in particular, traditional examination and cross-examination techniques in court are more likely to produce inaccurate and unreliable accounts of their experiences. That view was supported by the Lord Justice Clerk, who stated the importance of getting evidence from children as close to the event as possible. Confusion can arise from memory loss, which increases the likelihood that the witness will agree with the questioner when they cannot remember something.
Importantly, and of reassurance to people who are concerned about potential miscarriages of justice, research has shown that pre-recording evidence does not make jurors more sympathetic, and that use of pre-recorded evidence from child witnesses has no significant effect on the outcome of the trial.
There is always a need to put checks and balances in place. We support that, too. The Faculty of Advocates made that point and stressed the requirement for sufficient safeguards to be put in place
“to enable the rule to operate fairly”
and so that evidence can be tested on an informed basis.
The bill gives ministers the power to expand the rule to adult vulnerable witnesses in cases of rape, sexual assault and domestic abuse. It is obvious why, in such cases, a victim would not want to give evidence in the presence of the alleged perpetrator, whether in the courtroom or via a live television link. I ask members to think about whether they or a loved one would really wish to go through the heartache and pain of having to relive what happened over and over again. Sometimes, the process can take years to come to an end, so it is no surprise that victims say that the process leaves them traumatised.
I appreciate the fact that the process for applying for special measures will be simplified. I also understand that the courts system is under huge strain and that reforms need to be implemented in an effective and manageable way. Undeniably, however, it will be disappointing to women who are affected by those heinous crimes that they will have to wait until the mid-2020s to be offered the same reforms. Rape Crisis Scotland stated that the current approach to taking evidence from adult vulnerable witnesses causes significant distress and trauma, with frequent significant delays in cases coming to trial. Trials can be cancelled at the last minute, which puts more strain and pressure on the witnesses.
On potential changes to put victims at the heart of the justice system, I strongly support the introduction of the one-sheriff system for victims of rape and sexual assault, which the Scottish Conservatives have previously called for in cases of domestic abuse. As things stand, victims of those crimes can have their cases and related proceedings heard by various judges and so have to relive their stories over and over again. It is vital that we look at the one-sheriff approach, which has been trialled successfully elsewhere, and assess the impact that it would have on reducing retraumatisation. I therefore ask the cabinet secretary for his thoughts on how a one-sheriff system could be implemented for such cases.
I reiterate my support for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at stage 1. To give evidence as a victim or witness is difficult enough; to do so as a child or as the victim of domestic violence, rape or sexual assault is even more difficult. It is fundamentally important that we support victims of crime. The bill will play an important role in that.
That said, there is still much more to do, so we must strive to reach a point when Scotland is the gold standard for victim support.16:22
As a member of the Justice Committee, I support the general principles of the bill and welcome the consensus that has been demonstrated in the debate.
The bill forms part of a much wider and more ambitious programme of work being undertaken to improve and modernise the experience of victims and witnesses in the justice system. The bill’s objective is to improve how children and vulnerable witnesses participate in the criminal justice system, with greater use of pre-recorded evidence. It would apply in solemn cases, such as those that other members have mentioned.
As has also been said, few can imagine being an already traumatised young child, who is interviewed, sometimes multiple times, or who has to relive harrowing events at a later date through the traditional judicial processes for giving evidence. The bill will help to remove any legislative obstacles that would have a detrimental effect on the greater use of pre-recorded evidence and that includes the power to make the pre-recording of evidence available to adults who are deemed to be vulnerable witnesses in solemn cases.
The bill is supported widely, including by the judiciary and many third sector organisations. I am pleased that the Scottish Government is committed to looking at how the Scandinavian barnahus principles could work in the context of Scotland’s child protection, health and justice system. Unfortunately, due to a prior engagement, I was the only member of the committee not to see the barnahus model in real life in Norway, but I spoke to other committee members and they were very impressed with the model’s potential.
The model was adopted because it was recognised that multiple agencies’ information sharing and co-ordination were poor and it was introduced to overcome those challenges. Children were previously required to give multiple interviews to professionals from each agency, thereby damaging the reliability of the evidence that they were able to provide, and they were being traumatised by having to give testimony in court. Consequently, few suspected perpetrators were charged and convicted and victims were not adequately supported to recover from the trauma of sexual abuse.
The barnahus model offers all the services under one roof in a non-threatening and child-friendly environment. A trauma-trained interviewer is with the victim, and on a video link are a range of professionals, including the police, child protection and the prosecutor and defence solicitors. They communicate via an earpiece with the interviewer who relays questions in a child-friendly manner that is consistent with the principles of forensic interviewing. It is vital that the interview is carried out as quickly as possible after the alleged offence; the children’s charity Children 1st agrees that it is in the best interests of the child to give their complete testimony as soon as possible. It minimises the anxiety that is felt by children and allows directed support networks to work with children to improve their welfare.
Although I fully understand that some stakeholders that are involved in the consultation want quicker progress towards the barnahus model, it is crucial to get it right and to take a phased approach. The Scottish Government’s proposed phased approach could initially be in the form of a pilot scheme, and it would allow the system to absorb change while minimising risk both to the system and, importantly, to individual cases. Our justice system is not identical to those in Scandinavia and we have to recognise that.
I therefore welcome the Scottish Government’s commissioning of Healthcare Improvement Scotland with the Care Inspectorate to develop Scotland-specific standards for the barnahus approach—that is the right way to proceed. The specific standards would balance a child’s right to recovery with their right to access justice in a child-centred way, in line with the United Nations Convention on the Rights of the Child and, of course, the getting it right for every child approach. I am sure that progress can be made towards adopting the best elements of that system here in Scotland, and I look forward to progress in the foreseeable future.16:27
I, like other speakers, welcome the bill. Anything that makes giving evidence easier for children and vulnerable witnesses has to be welcomed. The bill is geared towards children, but it must be wider, to recognise the nature of the crime and how that can make witnesses vulnerable.
I will speak about domestic abuse, as many people have done this afternoon. I welcome the cabinet secretary’s comments on considering amending the bill to make sure that the process is available in cases of domestic abuse where children are giving evidence. That is the right thing to do, rather than introducing that at a later date. The trauma that is attached to domestic abuse is well understood for adults, but not for children. It has a long-lasting effect on their development, so it is really important that, where possible, we limit the trauma as much as possible.
We can imagine a case in which a child is in court giving evidence against a parent—having that person in the same room makes the evidence giving very difficult. It is serious, but quite often the justice system does not treat domestic abuse as serious. That point was made by Daniel Johnson; most cases are summary cases. The NSPCC noted that a tiny minority of domestic abuse cases are heard in solemn court proceedings; therefore, if the first phase of reform is limited solely to solemn cases, a large number of vulnerable children who will potentially give evidence in domestic abuse cases will not benefit or be protected under this system.
It is important that the ability to pre-record evidence is extended to all domestic abuse cases, regardless of which court they are heard in. It should also be extended to all child witnesses. A court case can take one or two years to come to court and young children will forget the evidence that they have to give, whereas if their evidence were recorded at the time, when the incident was fresh in their minds, they would be much better witnesses. Children in all court cases should be protected, but particularly those involved in domestic abuse cases.
That goes for adults as well, and particularly those who are victims of domestic abuse. Domestic abuse relies on coercion and control and therefore coming face to face with their abuser in court can have a devastating effect on the victim giving evidence in the case. It is right that the bill focuses on children, who need our protection. However, it should be extended to adults in not only domestic abuse cases, but cases where witnesses are vulnerable adults, people with learning difficulties or people with poor physical or mental health. Those people should be afforded the same protections as children, because the way in which they give evidence at a later date could be compromised if they are not.
Although we are moving towards a presumption of evidence by commission, which we will implement in phases in cases involving adults who are deemed to be vulnerable, it is important to say that as things stand, if there is an application, evidence from adults can already be taken by commission.
I hope that the bill makes that the norm and that that is applied to adult vulnerable witnesses.
Other members talked about rape and sexual abuse cases. That is another area to which the approach should be extended. Those crimes leave victims extremely vulnerable. We have heard during parliamentary debates stories in which victims have said that the process of going through court was worse than the damage done by the original crime. That is unacceptable. We need to protect people.
I have constituents in the Highlands who have had to go to Glasgow because rape and sexual abuse crime is tried in the High Court. That is not local and those cases can be cancelled at very short notice. In some cases, women have had to arrange childminding, cover for their jobs and somewhere to stay in Glasgow—as well as somewhere to stay for those who are giving them support, the cost of which is not always covered—and they have had to cancel it all at the last minute. If their evidence was recorded, that would not happen.
I know that I am short of time, Presiding Officer, and forgive me if I abuse my position in the debate, but I want to flag up to the Cabinet Secretary for Justice the issue of custody of children who have suffered domestic abuse. Custody is given to abusive partners. I know that it is an issue that the Scottish Government is considering and that the bill is perhaps not the right place to address it. However, I do not believe that a domestic abuser should automatically get custody of their child. Indeed, the opposite is the case: the abuser should not get custody until they can prove to the courts and to the victims of their abuse that they will not harm the child or use the custody to further promote their abuse.
The bill is welcome and overdue. It is striking that Children 1st talked about the court process being an adverse childhood experience, rather than the crime that the child had suffered. Justice should be cathartic, rather than abusive. I hope that the bill will be a step in that direction.
That brings us to the debate’s concluding remarks.16:34
It has been a useful and very consensual debate. The touchstone is the trauma and length of time that the bill seeks to eliminate. The convener and deputy convener of the Justice Committee, as well as other members such as John Finnie, have brought to life the importance of reducing trauma and the amount of time between the event that is witnessed and the gathering of evidence, because reliability is key.
Many members have made the point that our courts reflect a Victorian way of doing things. The bill is an important step towards modernising our courts and our justice system.
It is important to look at the reliability of what is being proposed, and I thank Annie Wells for reminding us that the bill proposes a sound way of taking evidence. In such consensual debates, it is easy for us to leap to conclusions, but it is important to bear witness that the evidence shows that pre-recording evidence is reliable and does not unduly sway juries one way or another.
It is also important to reflect on context, and for doing so I thank my colleague Johann Lamont. We should view the measures not in isolation but in the context of our wider services and the wider circumstances that people find themselves in.
I particularly thank my colleague Fulton MacGregor for his remarks. He provided some of the context. The example that he gave of the child and the clear trauma that providing evidence gave that individual brought to life the importance of delivering the proposals as quickly and efficiently as we can. He also provided some of the technical detail about the JIIs that I was not able to cover in my introductory remarks.
When we examine what takes place in the initial contact that a child or vulnerable person has with the authorities—the integrated approach of social work and the police, the training and the focus that is happening—we begin to see some of the next steps that we can take. Most important among the proposed measures is the proposal about how we can promote such evidence as evidence in chief in the courts, meaning that direct evidence is not required from individual witnesses.
I thank my colleagues Jenny Gilruth, Rona Mackay and Shona Robison for describing the barnahus model that we saw, which means that I do not have to. When we compare and contrast the JII with the barnahus model both generally and specifically in Norway—its single interview in an integrated facility where other forensic procedures can take place and the three-year training that the police officers in the barnahus in Norway have to undertake, which involves taking a bachelor’s degree, as opposed to the one year that we are just proposing and not even delivering for the people who undertake JIIs—we can see how a JII could conform to the barnahus model. We could deliver much of what we seek from that model through a JII, and I urge the Government to look at how that can be done.
Much is made of the ability to test evidence and the need for cross-examination. In Norway, the fact that a second interview can be requested shows how we could deliver the testing of the evidence that is so important to our legal system. I urge the Government to look at that.
I am grateful to the member for taking an intervention. Does the member recall—as I do—that, although there is the facility in the barnahus model to request a second interview, such is the efficiency of the initial interview that a second one is very rarely called for by the defence?
I thank my colleague for that intervention. I was struck by that point, too. It points to the place that we could arrive at if we are so minded.
The key point—it is one that many members have made—is that we must not see the bill as an end point but must push to go further. The comments that have been made about domestic abuse cases, which have been acknowledged by the cabinet secretary, point to the fact that we must strive to go as far as we possibly can.
Although it is a good bill, its logic leads to a danger of defining vulnerability by reference to the charge or the court in which an individual gives evidence, which is clearly not right. An individual who gives evidence is not traumatised because of a particular charge or court; they are traumatised because they are having to recount the experience that they had. We must therefore expand the measures as widely as possible and make them the norm. It is self-evident that expansion to other courts and charges is the next step.
It is a good bill, but it has to be the first step on the journey, not the last.16:40
There has been interesting discussion in the chamber today, and much agreement has been evident in the speeches that we have heard. In particular, there is agreement that the bill could improve not only the experience of the justice system but the quality of the evidence—something that is in the interests of not just witnesses and victims but justice itself.
To put it simply, it is better to take evidence closer to the time of events, while memories are still fresh. I say that from direct experience as an advocate in many, many criminal trials before our courts. Video evidence that is taken at the time can, therefore, be of more value than evidence that is taken directly from a witness many months—if not years—later, as members have said. The obvious answer to that, on one level, is that court proceedings should take place more quickly. Indeed, the Faculty of Advocates made that point during evidence taking.
Our court system has been referred to as “Victorian”. I am not sure that I recognise that as an accurate description of where we are—and I say that as someone who has dealt with child witnesses in a courtroom setting. Indeed, I have dealt with victims of sexual offences who were as young as three at the time of the commission of the offences. Changes have been made in Scotland over the past 40 years or more, such as the introduction of the standard special measures that are available, which are described in the committee’s report. For example, live television video links allow evidence to be taken from outside the courtroom.
However, there is always room for improvement—there is no doubt about that. As Liam Kerr pointed out, the bill, in effect, extends the protections that are already in place. It can be viewed as a bill that takes sensible next steps. Ensuring the participation of witnesses, especially vulnerable people, is vital to the effective pursuit of justice. Maurice Corry rightly referred to the need to bear in mind the difficult balancing act that must take place if the outcome is to be just and fair and no witness is unnecessarily to suffer distress in the process.
In trying to strike that balance, it is critical that we get it right for all the parties who are involved in criminal proceedings, because, as well as efforts to reduce the stress that vulnerable witnesses often feel and thereby improve the evidence that is available from such witnesses, there must be safeguards to prevent miscarriages of justice, as Annie Wells said. There is, of course, no single, one and only consideration when it comes to dealing with justice and crime, but an honest desire to find out the truth of what happened needs to be one of the overriding considerations. The committee received evidence of that.
The issue is particularly pertinent because the success of the bill will depend on the child’s evidence being tested sufficiently and on an informed basis. That will involve full disclosure of evidence at an early stage. As the bill progresses, it is important that concerns about current trends on late disclosure be addressed. Late disclosure can result in a need to revisit evidence with a witness, which defeats the purpose of the bill.
If we are to get things right, the answers might not be entirely simple and straightforward. Changes might need to be informed by the experience that follows the bill. That is why I welcome the Cabinet Secretary for Justice’s commitment to take a careful approach to the changes and to the timetable for implementation, which will include reaching out further to all children who give evidence and to adult vulnerable witnesses.
As Annie Wells pointed out, we need a more detailed timetable, with thought given to which groups of people could benefit through these measures. As the committee’s report highlights, it is partly a matter of resources. In any country, starving the justice system and the courts of the resources that they need is a false economy. That applies as much to Scotland as to anywhere else. As has already been mentioned, the risk is that we overwhelm the system, meaning that procedures such as commissions do not operate as they should and the aims of the bill—the interests of vulnerable witnesses and justice—are not met as a result. That would be counterproductive and could defeat the good intentions behind the desire to immediately include all vulnerable groups.
Like Liam Kerr, I hope that the evaluation evidence will be shared with the committee, as was promised, so that sufficient parliamentary scrutiny can be applied to any consideration of further extending the bill’s provisions. That could facilitate the speedy extension of the provisions, as and when appropriate, to other witnesses.
With my colleagues, I look forward to developments and to the cabinet secretary’s further careful consideration of these matters.16:46
The debate has been excellent: it has been very constructive, insightful and, at times, extraordinarily powerful. It is sometimes worth taking a step back. I think that, despite our various differences in a number of policy areas, every single one of us is in politics to make a difference to the most vulnerable people across Scotland, and that is what the bill very much aims to do.
I want to pick up on a point that Liam McArthur made at the beginning of the debate about the consensus on the bill, which is a good thing. Having been in front of the committee, I can say that there is no lack of scrutiny of the bill. That is also good, and I have every faith in my Opposition colleagues robustly scrutinising the bill. That consensus has not come about by accident; it has resulted from a lot of reflection and from taking people on the journey with us. It is great that we have progressively minded people in the legal institutions that we put our faith in, from the Lord Advocate to the Lord President to the Lord Justice Clerk and many others. It is great that we have consensus, but that certainly has not come about by magic by any stretch of the imagination.
I will try to pick up on many of the points that have been raised in the debate. Members from almost every political party suggested that the Government consider extending the list in the bill to include domestic abuse cases. I reiterate that I am seriously considering that as the direction of travel in which the Government will move, but I have to consider the implications. I highlight again some of the numbers. Four per cent of cases that were marked for trial on indictment in the sheriff court were domestic abuse cases; 0.9 per cent were marked for trial in the High Court. The percentages are small, of course, but we are talking about 150 High Court cases and, I think, 710 sheriff and jury cases. Not all such cases will necessarily involve a child witness but, nonetheless, I have to take those considerations into account if there is phased implementation. Notwithstanding all of that, I am quite confident that we can get to a position at which we will, I hope, extend the list.
Is it worth inquiring into the numbers of cases that involve children? We could therefore get an idea of the resources that might be required for implementation.
I am doing that as part of my consideration of the issue. Despite that, that is the direction that the Government should absolutely go in and in which I will take the Government if I can.
Another issue that I think has been raised by members from every political party is the barnahus model and Scotland fully adopting the barnahus concept. It is the Scottish Government’s intention to implement barnahus. It is really important for it to be recognised that we are making improvements and that we are making our way towards that approach. Clearly, in order to get there, we will have to take others, including our legal institutions, with us along the way.
When John Finnie intervened during Daniel Johnson’s closing speech, he made a very good point about secondary interviews not often being taken up. However, I know that John Finnie recognises that our system is very different from an inquisitorial system. Our adversarial system is not decades but centuries old. That legal tradition is not to be scoffed at by any stretch of the imagination and it has served us well. Although it presents inherent difficulties, they are not insurmountable, and I take Lady Dorrian’s point that, in the long term, we should have one forensic interview.
On joint investigative interviews, I am not being critical of the practitioners, but if we can enhance the quality of the system, we are likely to reduce the trauma or the requirement for a revisiting interview.
John Finnie makes that point very well. I will come to joint investigative interviews shortly.
I will finish off my point about the barnahus model. On Rona Mackay’s point, significant work is under way to explore the barnahus concept, and I am happy to update the Justice Committee on our work to develop—I hope by April—Scotland-specific standards for barnahus. I will therefore go back to the Justice Committee to give further detail on how we are getting on with that.
I am very encouraged by what the cabinet secretary is saying. Does he accept that, by making it explicit that not only the direction of travel but the ultimate objective is to put in place the barnahus concept, those who have concerns about how that is achieved will have certainty about where we are going? We can then work on the solutions to the problems, rather than get overly vexed about the problems themselves.
Yes. I am more than happy to say on the record that that is our destination. We want to have barnahus—or a bairn’s hoose or whatever members want to call it. I again make the point that the barnahus model is different in each of the jurisdictions in which it has been adopted, depending on the legal framework. That point should not be lost.
Members have made very valid points about joint investigative interviews. I have heard from the Lord Advocate, the Solicitor General for Scotland and many in the legal professional about the quality—and, sometimes, the lack of quality—of joint investigative interviews.
Members will probably know that the “Evidence and Procedure Review Child and Vulnerable Witnesses Project Joint Investigative Interviews Work-stream Project Report” made 33 recommendations on how the current JII model could be strengthened. The recommendations are being progressed by the relevant organisations and multi-agency working groups have been established. The Scottish Government has also committed more than £300,000 to a joint project, led by Police Scotland and Social Work Scotland, which will create a revised JII model and develop an approach to investigative interviewing of children that is trauma informed and achieves best evidence through more robust planning and interview techniques.
All that said, I was struck by Jenny Gilruth’s comment about our partners being wider than just those in the legal system and our need to look at education and health improvement. I will reflect on her point and see how we can include those wider sectors in some of our work.
I thank the committee and all the members who spoke in the debate for their important recognition of the fact that we must have a phased implementation approach. We all want to get to a place where everybody who is vulnerable—child or adult—has the opportunity to give evidence by commission, which they can do on application as things stand, and where the presumption is in favour of their giving evidence in a trauma-informed way, including through pre-recorded evidence by commissioner. Equally, we cannot afford to overwhelm the system—as, I think, John Finnie said. We must get it right, not rush it.
Members across the chamber are, of course, right to press the Government for further detail on the implementation plan. Once we have that, I will, of course, share it with members.
Daniel Johnson and other members spoke about the ground rules hearing. I reiterate what I said in my opening speech. There may be benefit in lodging questions in advance, but I warn against any suggestion that such a requirement should be in primary legislation. I was struck by Lady Dorrian’s stage 1 evidence that
“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.”—[Official Report, Justice Committee, 18 December 2018; c 10.]
I am pleased that the committee is so minded, too.
I turn to other issues that were raised. Many members, including Daniel Johnson in his closing speech, made the valid point that, although we are—for right, good and understandable reasons—focusing on solemn cases because they are the most serious cases, there is no doubt that witnesses and complainers in summary cases can be vulnerable. As Rhoda Grant said, the majority of domestic abuse cases go through summary proceedings. The Government will reflect on that valid point.
Extending the approach to summary cases would have serious implications for resources and other matters, which is why we are dealing with solemn cases first, after which we will perhaps look at summary cases. However, the point about vulnerability is not lost and is well made by members across the chamber. Daniel Johnson’s point about measurements of vulnerability is also something for us to reflect on.
I will reflect on a number of other points that were made. Annie Wells made a powerful speech, as did others, about taking a holistic approach to victim support. From the moment that I was appointed as the Cabinet Secretary for Justice, I have ensured that we look to strengthen the support that we give victims. Victim Support Scotland is a key player in that, as are Rape Crisis Scotland, Scottish Women’s Aid and many other organisations.
The victims task force will be a key group, and the Justice Committee has already asked me to go to future meetings to update the Parliament on the task force’s work, which I have agreed to do. I extend to Annie Wells and any other member who is not on that committee the opportunity to have a briefing and an update on the task force and the difference that we are making and to suggest issues that we should consider.
Annie Wells asked for my opinion on the one-sheriff system for certain cases. I noted and will reflect on what she said. I know that she is aware that court programming, including the scheduling of judges, is very much a matter for the Lord President, whose territory I am always wary of stepping on. If she has not done so, Annie Wells might want to raise the issue directly with him.
Substantial points were made about the need for trauma-informed training. Jenny Gilruth and Shona Robison made their points about that well, as did other members across the chamber. It is important to approach that in a joined-up way. The Deputy First Minister, who is on my right, and I are often in meetings together to talk about the trauma-informed approach, the ACEs agenda and overlapping governmental responsibilities.
Developing an ACE and trauma-informed workforce, including implementing national trauma training, is a programme for government commitment. In June last year, the Deputy First Minister announced £1.35 million of investment to launch a national trauma training programme, which involves training that is consistent with the transforming psychological trauma framework. Specific lead projects have been identified to raise awareness among medical professionals and those in the criminal justice system of how to handle trauma and adverse childhood experiences. On 30 January, the Judicial Institute for Scotland announced plans to provide new refresher training for all sheriffs and judges ahead of the provisions on the new domestic abuse offence coming into force.
The Scottish Government plans to host a round table early this year that will allow NHS Education for Scotland and the Law Society of Scotland, together with many other stakeholders from the legal profession, to discuss opportunities to develop a bespoke trauma-informed training resource for solicitors that will count towards continuing professional development. We take seriously the points about the trauma-informed approach and trauma-informed training.
I end by thanking Fulton MacGregor for his very powerful account, which he received from his constituent, of the impact that going through a court process can have on a vulnerable individual, especially a child. That is the reason why we—not just the Scottish Government, but all of us in the Parliament who support the bill—are doing what we are doing.
I thank members for their detailed scrutiny of the bill, which has yielded many suggestions on which the Government will reflect. I am pleased to say that we will do so with an absolutely open mind. I have greatly enjoyed the stage 1 debate and look forward to stage 2, when we will look at the amendments, and to working with members from across the chamber to ensure that we get our criminal justice system right for the most vulnerable people in our society.
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