SCTS recommends radical changes to justice system

The Scottish Courts and Tribunals Service (SCTS) has published a report recommending changes to ensure children and vulnerable witnesses are protected from further trauma while giving evidence as well as a “transformation” of the summary criminal justice system.

Eric McQueen, chief executive of the Scottish Courts and Tribunals Service said: “For too long it has been easy to describe our criminal courts as products of the Victorian age. Our task now is to bring them right into the 21st century, not by tinkering at the edges, but by radical digital reform to improve the quality of justice for all concerned.”

The Evidence and Procedure Review – Next Steps report recommends allowing certain witnesses to give evidence outwith the court environment as well as the introduction of a digital case management system for summary criminal cases.

Currently criminal trials rely on the oral evidence and cross examination of the accused and witnesses recounting events which took place many months and sometimes many years earlier.

For children and vulnerable witnesses, studies from other jurisdictions have shown that it can be much more effective to pre-record and test their evidence in a controlled environment, at a point in time as close to the incident as possible. This includes questioning, by both prosecution and defence, which is designed not to intimidate or confuse the young or vulnerable witness and is better for the witness, for getting at the truth and therefore for the quality of justice.

The SCTS said the examination of witnesses will always be part of the fundamental right to a fair trial for the accused, adding: “We make no proposal to remove that right, instead we want to find new ways of doing it, so it is done better and more efficiently, in a way which ensures a fair trial for accused persons whilst minimising the ordeal for children and vulnerable witnesses.”

As part of a reformed summary justice system, the report questions the requirement for procedural decisions about a case to be made in open court, the need for accused to attend personally at procedural hearings, and the requirement for all witnesses to attend trials to testify in person when their evidence is available digitally and is not going to be challenged in court.

As there is now technology which can capture evidence and record what a person says in the minutes, hours and days immediately following an event, as previously noted by Lord Carloway, the report recommends that the law should be brought up to date to allow that evidence to be used to determine whether a trial is required and what further evidence and witnesses are required at a trial.

It confirms the potential for substantial improvements to be made. During 2014-15 over 52,000 summary criminal trials were arranged, of which only around 9,000 actually proceeded to a trial. The SCTS’ proposes a digital case management system it claims could substantially reduce the number of witnesses cited to court, reduce repeated hearings (known as “churn”), and reduce cases that “drag on for months only to be resolved without a trial ever taking place”.

The Justice Board, which brings together all the main justice agencies and the Scottish government, has agreed that these proposals should be developed. The SCTS will work with the Justice Board, the legal profession and voluntary sector, to prepare a programme of change to present to the government for its consideration.

James Wolffe QC, Dean of the Faculty of Advocates, said: “I welcome the publication by SCTS of Evidence and Procedure Review – Next Steps. I am glad that it acknowledges the fundamental importance of a fair trial.

“At the heart of the review’s proposals in relation to children and vulnerable witnesses is a recognition that lawyers who examine such witnesses must have a high level of skill and training if we are to maintain that fundamental right, whilst obtaining the best quality evidence and treating all those who participate in the justice system fairly.

“The Faculty of Advocates is committed to promoting the highest standards of effective advocacy; and I look forward to working closely with the Courts Service as it develops its thinking.”

Sandy Brindley, Rape Crisis Scotland’s national coordinator, said: “Many women tell us that they found the experience of giving evidence in their rape trial, particularly the cross examination, as traumatic as the rape itself. While we accept that evidence needs to be tested, we think much more can be done to protect complainers and to secure best evidence.

“The proposals in the review are extremely welcome and have the potential to transform the experience of children and vulnerable witnesses within our justice system. We urge all political parties in Scotland to consider supporting these proposals.”