Faculty backs aim to keep vulnerable witnesses out of court

The Faculty said that a scheme to pre-record the evidence of such witnesses, if carried out effectively and to required standards, would serve both the public interest and justice.

However, it stressed that improvements would need to be made to current practice before changes could be introduced.

In a consultation, Pre-Recording Evidence of Child and Other Vulnerable Witnesses, the Scottish Government asked whether the ultimate longer-term aim should be a presumption that all the evidence of these witnesses was taken in advance of a criminal trial.

The Faculty answered Yes in its response, and said: “It is recognised that the memories of young children and vulnerable adults in relation to traumatic and distressing events can become confused and fade with the passage of time. Accordingly, any delay in the recording of their evidence may have a detrimental effect on the quality of the evidence they are able to give in the trial process. It must therefore be in the interests of justice that the evidence of these witnesses is captured at the earliest available opportunity.

“As such, the Faculty considers that a statutory presumption that child and vulnerable witnesses should have their evidence taken in advance of a criminal trial is a logical and sensible approach and one that will, if carried out effectively and to the necessary standards, well serve both the public interest and the administration of justice.”

The Faculty agreed that there should be a phasing in of pre-recorded evidence, initially involving witnesses under 16 in High Court cases of sexual and violent offences. And it supported “crucial developments and changes” which had been identified in the Scottish Courts and Tribunals Service’s “Next Steps” report.

“Interviews of witnesses should take place in the most secure environment and according to most effective techniques. There should be a presumption that evidence in chief will be provided by a pre-recorded interview as close as possible to the report of the alleged incident itself,” stated the Faculty.

“Further work is required to develop the appropriate procedures in order to minimise the gap between the child giving initial evidence and the cross examination…There requires to be a clear, structured process for the pre-recording of cross examination in advance of trial.”

The Faculty added: “It is the collective experience of members of Faculty who appear regularly in criminal trials that, currently, the quality of both written and recorded prior statements of child or vulnerable witnesses is often very poor and cannot properly be used at trial in the way envisaged.”