Support from Faculty for cross-examination ban in children’s cases

The Scottish Children’s Reporter Administration (SCRA) is looking at ways of protecting children and other vulnerable witnesses from being questioned by a person who is appearing in the case without a lawyer.

The ban would apply where the subject matter of the proceedings related to conduct by the party towards the witness or to other conduct which concerned the welfare of the witness.

In a response to a discussion paper, the Faculty said it was “entirely right and proper” that rules be introduced. Such questioning might be rare, it added, but it was important to consider methods to avoid it happening.

The Faculty stated: “The issue is, of course, that sufficient safeguards must be built in to ensure that the evidence can be adequately tested in the interests of justice.”

The paper suggested a mandatory prohibition in some circumstances and a discretionary prohibition in other circumstances, and the Faculty agreed that there should be such a distinction.

The Faculty said that a system, similar to that in the criminal law, of a court-appointed representative would provide the necessary counterbalancing safeguards.

There would need to be careful case management to identify the issue at an early stage, to avoid excessive delays, and a solicitor or counsel would have to conduct the whole proof and not just the cross-examination in question.

“Legal aid will require to be made available to the relevant person to ensure his or her representation,” said the Faculty.

“We highlight the possibility of legal aid on this basis being open to abuse, in that relevant persons who do not qualify for legal aid on financial grounds could bring themselves within the legal aid scheme in this manner, but we do not see this as a problem which should arise with any regularity, if at all.”