A new approach to protection of children and vulnerable witnesses, and digital case management for the summary criminal justice system, are the main subjects of a report by Scottish Courts & Tribunals Service, published today.
Evidence and Procedure Review – Next Steps builds on an initial report published in 2015, to propose further radical reforming measures.
For children and vulnerable witnesses, studies from other jurisdictions have shown that it can be much more effective to pre-record and test their evidence in a controlled environment, at as close a point in time to the incident as possible. This includes questioning, by both prosecution and defence, designed not to intimidate or confuse the young or vulnerable witness, which is better for the witness, for getting at the truth and therefore for the quality of justice.
The report assures it is not proposing to remove the right to examine witnesses that is part of the fundamental right to a fair trial for the accused, but wants to find new ways of doing it better and more efficiently, in a way that ensures a fair trial for accused persons whilst minimising the ordeal for children and vulnerable witnesses.
It recommends that, initially for solemn cases, the evidence of children or vulnerable witnesses should be captured and presented at trial in pre-recorded form, with any subsequent cross-examination also being recorded in advance of trial. This approach would be supported by appropriate case management, new approaches to the questioning of children and vulnerable witnesses and the possible use of intermediaries.
On summary justice, the report questions the requirement for procedural decisions about a case to be made in open court, the need for accused to attend personally at procedural hearings, and the requirement for all witnesses to attend trials to testify in person when their evidence is available digitally and is not going to be challenged in court.
As technology can now capture evidence and record what a person says in the minutes, hours and days immediately following an event, the report recommends that the law should be brought up to date to allow that evidence to be used to determine whether a trial is required and what further evidence and witnesses are required at a trial.
It calls for immediate work to be undertaken to develop detailed requirements for a digital evidence vault or other means of storing and managing evidence and information relevant to criminal cases; and for the development of proposals to reform criminal procedures to allow for a more streamlined, digitally-enabled justice process, using digitised evidence as far as possible, controlled within a case management system, with the objective to minimise the need for face-to-face hearings in court.
The report concludes that there is potential for substantial improvements. During 2014-15 over 52,000 summary criminal trials were arranged, of which only around 9,000 actually proceeded to a trial. The proposals for a digital case management system could substantially reduce the number of witnesses cited to court, reduce the "churn" of repeated hearings, and reduce the number of cases that drag on for many months only to be resolved without a trial ever taking place.
The Justice Board, which brings together all the main justice agencies and the Scottish Government, has agreed that these proposals should be developed. SCTS says it will work with the Board, the legal profession and the voluntary sector to prepare a detailed programme of change to present to the Scottish Government.
SCTS chief executive Eric McQueen commented: “For too long it has been easy to describe our criminal courts as products of the Victorian age. Our task now is to bring them right into the 21st century, not by tinkering at the edges, but by radical digital reform to improve the quality of justice for all concerned.”
Welcoming the report, James Wolffe QC, Dean of the Faculty of Advocates, commented: “I am glad that it acknowledges the fundamental importance of a fair trial. At the heart of the review’s proposals in relation to children and vulnerable witnesses is a recognition that lawyers who examine such witnesses must have a high level of skill and training if we are to maintain that fundamental right, whilst obtaining the best quality evidence and treating all those who participate in the justice system fairly. The Faculty of Advocates is committed to promoting the highest standards of effective advocacy; and I look forward to working closely with the Courts Service as it develops its thinking.”
Ian Cruickshank, convener of the Law Society of Scotland’s Criminal Law Committee, added: “Ensuring that vulnerable witnesses and child witness get all the support they need is very important. We would support using recorded statements taken within minutes or a few hours from an event taking place, rather than relying on witness accounts many months or even years after the event. However it will be essential to ensure that evidence can be properly tested, and the right for the defence to cross examine a witness to establish the credibility and reliability of evidence will remain necessary even if that is to take place outwith the court itself.
“We look forward to working with our partners in the justice sector in bringing forward improvements.”