Evidence of child witnesses must be open to testing, says Faculty

The Scottish government wants much greater use of pre-recorded testimony, but the Faculty said it was essential that the evidence of the child “can be tested sufficiently and on an informed basis.”

The Faculty also called for intermediaries to be used to ensure children fully understood the process. It was also concerned that under the current provisions of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, it could take up to two years after an incident before the witness’s evidence was recorded.

The Scottish Parliament’s Justice Committee asked for comments on the bill, and in its response, the Faculty said it had no opposition to a rule that child witnesses in the most serious cases should give evidence in advance of a trial, away from court.

“It is well established that child witnesses benefit significantly from giving evidence in a different environment…However, the Faculty considers it vital that sufficient safeguards are in place to enable the rule to operate fairly, and to ensure that there is no scope for an increase in miscarriages of justice.

“It is therefore essential that the evidence of the child can be tested sufficiently and on an informed basis.”

A concern for the Faculty was the lack of provision in the Bill regarding intermediaries, those skilled in ensuring that the witness could understand questions.

“It has long been accepted by experts in the field that neither lawyers nor the court are best placed to consider the communication abilities and needs of child and vulnerable witnesses and that trained intermediaries are far better placed to carry out such an assessment,” the response stated.

“…it is legitimate to ask whether, in the absence of the introduction of skilled intermediaries, the aims of the Bill can actually be delivered in practice.

“We understand that the Scottish Government is currently considering the potential benefits and operational requirements of introducing intermediaries. The Faculty considers that the Scottish Government should carry out their considerations as a matter of urgency and that provisions should be made in the Bill for the use of intermediaries.”

The Scottish government has said that applications for evidence to be taken by a commissioner “are likely to be rare” pre-indictment, but the Faculty believed that the presumption should be in favour of an application as soon as possible after the initial complaint.

Currently, there could often be about ten months between a complaint to the police and an accused’s being placed on petition, and another ten months for an indictment to be served.

The Faculty feared that if the policy was that a commission did not take place until after service of an indictment, the purpose of the Bill could be undermined. It was crucial that the evidence was captured as near as possible to the time of the offence.

“The Faculty suggests that if the policy is to be that the commission is to be expected after the indictment is served then a real and sustained effort must be made to bring cases involving child and vulnerable witnesses to court within far shorter timescales than are adhered to currently.”