Lord Carloway recommends pre-recorded witness testimony
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The Scottish Court Service has today published the report of Evidence and Procedure Review which was was chaired by Lord Carloway, Lord Justice Clerk, who in 2013 called for “clear-sky thinking” to help bring trial procedures rooted in the Victorian era into the modern, technologically-enhanced society today and in years to come.
The Review aimed to kick-start that thinking by exploring the best way, in the modern technological world, to ascertain the truth in the context of the criminal trial. In particular, it researched what contribution might be made by the greater use of pre-recorded evidence.
The Report calls for Scotland to harness the opportunities that new technologies bring to improve the quality and accessibility of justice. It uses the research to suggest ideas that could help transform the conduct of criminal trials, in particular reaching two main conclusions:
1. The evidence of children and vulnerable witnesses.
The report finds that Scotland needs to move to the forefront of law and practice in relation to children and vulnerable witnesses and concludes: “There’s extensive evidence that giving testimony at court is especially distressing and potentially damaging for young and vulnerable witnesses; and it is a poor way to get good evidence from them. Although Scotland does have a range of protections available, experience elsewhere, such as in England and Wales, Australia and Norway, suggests we can go further to protect such witnesses and ensure their evidence is taken in the most appropriate way in advance of the trial.”
The report concludes: “We need to rethink what constitutes the best evidence at trial – and this may mean a transformation in the way the evidence of witnesses in general is captured and presented. It is highly likely that a witness account taken at the scene of a crime or shortly after will be more reliable, full and accurate than their attempt to recall what happened many months later in court. The Report explores what legal and other changes need to be made to allow pre-recorded witness statements to be admitted as direct evidence, and what safeguards need to be in place. There are, potentially, great benefits – these include greater accuracy and reliability of the evidence; the ability to manage cases more effectively; and less reliance on witnesses turning up at court on the trial day.”
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