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A new Vulnerable Witnesses Bill has been proposed to the Scottish Parliament and, if accepted by the Parliament, the new legislation would enable the statements of child witnesses to be pre-recorded in advance of the trial. Most recently, the Faculty of Advocates responded to the bill, claiming they had ‘no opposition’ to the introduction of the rule.
The Bill also includes a power to extend the rule to cover adult vulnerable witnesses. As stated by the Vulnerable Witnesses (Scotland) Act 2004, anybody under the age of 16 - suffering from a mental illness or at risk of becoming too distressed in connection with giving evidence in court (such as victims of sexual offences or domestic abuse) - is considered a vulnerable witness. According to the Scottish Association of Social Workers (SASW), these witnesses can potentially experience a lengthy, distressing and traumatic cross-examination while on trial.
The new bill proposes that there should be a “ground rules hearing” before the trial where every special measure would be discussed that would have to be taken to enable the witness to participate in the proceedings and, if necessary, pre-record the evidence.
An appointed commissioner will also consider whether the trial should be postponed based on whether they think that is in the interest of the vulnerable witness and have the power to decide on the form and wording of the questions that are asked.
Victim Support Scotland welcomed the Bill and expressed that they wanted the new legislation to be a success while recognising that it will cause significant changes in the criminal justice sector. They also highlighted the need for highly trained commissioners who ask questions under instruction from both solicitors (prosecution and defence).
Rape Crisis Scotland stated that the new bill had the potential of helping sexual offence complainers, as many are often deterred from reporting a crime by the prospect of having to give evidence in court. Scottish Women’s Aid also expressed support for the Bill to protect vulnerable child witnesses in domestic abuse cases.
Justice Secretary Michael Matheson said about the Bill:
“Building on our other improvements for victims and witnesses, this bill is an important step forward, which will mean far fewer vulnerable witnesses have to give evidence in court during criminal trials. As young witnesses often need extra support, we have previously made clear that this reform must focus in the first instance on children.”
Mary Glasgow, Children 1st’s Interim CEO said: “This Bill marks another crucial stage on Scotland’s journey towards creating a fairer justice system for all. There is clear evidence that taking a child-friendly approach to pre-recording children’s evidence can reduce the risk that they experience further harm and improve the quality of their evidence. This benefits everybody – including the accused.”
In a recent debate on the limitation of powers to cross-examine vulnerable witnesses, lawyers argued that the Bill was unnecessary because it limited the defence’s ability to examine a witness in front of a jury. Instead, a higher level of training for solicitors would be sufficient so they would be more prepared to handle vulnerable witnesses.
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