Giving evidence to be less daunting for children and vulnerable witnesses

The Lord Justice Clerk, Lady Dorrian, yesterday introduced a new High Court guideline (Practice Note) that will reduce the need for children and vulnerable witnesses to give evidence in person in court.

Speaking at an event attended by members of the judiciary, the legal profession and others involved in the justice sector, Lady Dorrian hailed the Practice Note as a “Significant step in improving the way in which vulnerable witnesses are treated in our criminal justice system”.

The Practice Note provides extensive new guidelines for the process of “taking evidence by a commissioner” (where a witness’ examination and cross-examination is recorded in advance of a trial).

At present, commissions are used in some trials involving young and vulnerable witnesses, but there is little by way of guidance on how they should be conducted. The note builds on learning from other jurisdictions and requires that, before a commission can take place, the parties must appear at a court hearing to discuss in detail all the measures that will ensure that a witness can give their evidence at the commission fully and with the minimum risk of further trauma.

These include practical arrangements, such as deciding on the best location and environment for the recordings to take place, the timing of the session, and what aids to communication may be required, all taking into account of the specific needs of the witness.

And beyond the practical arrangements, Lady Dorrian said: “A successful commission depends not only on the practical arrangements, but also on the nature of the questioning. There has been a great deal of work done to show that if questioning is adapted to match a witness’ capacity to understand and respond, the quality of the evidence elicited can be transformed and the witness’ experience improved immeasurably.”

The Practice Note therefore requires the parties to consider and discuss in advance the lines of inquiry to be pursued, the form of questions to be asked, and the extent to which it is necessary to put the defence case to the witness.

Lady Dorrian highlighted the Advocates Gateway, which has a range of toolkits for those preparing to question vulnerable witnesses.

She said: “This is not something that any party should be fearful of, and it is not intended to constrain the parties unduly; the evidence from experience in England suggests that the requirement to think about lines of questioning in advance has benefited everyone.”

Justice Secretary Michael Matheson welcomed the introduction of the practice note, adding: “As I have said previously, we must strengthen our system of support for child and vulnerable witnesses and I consider that in many cases the use of pre-recorded evidence will be the best way to do this.

“We will offer practical and financial support to take forward this important aim as well as considering whether further legislative changes are necessary to enable the even greater use of pre–recorded evidence for child and vulnerable adult witnesses.”