The Lord Justice Clerk, Lady Dorrian, yesterday introduced a new High Court guideline (Practice Note) that is the first step towards transforming the way we take the evidence of children and vulnerable witnesses.
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) which will help reduce further the need for vulnerable witnesses to give evidence in person in court. It was developed with the assistance of a working group with membership from all parts of the Justice Sector including the judiciary, the legal profession, justice and children’s agencies, the third sector and academia.
This is part of a programme of work under the SCTS-led Evidence and Procedure Review. The Review has recommended short, medium and long-term ambitions for making the way in which children and vulnerable witnesses give their evidence less stressful and more likely to produce comprehensive, reliable and accurate testimony. While some of the Review’s more ambitious ideas would require major legislative change, its Next Steps Report said that;
“There needs to be a clear, structured process for the pre-recording of cross-examination in advance of trial. This means that, as a matter of priority, consideration should be given to how best to improve on the current practice in relation to taking evidence by a Commissioner.”
The new Practice Note sets out how to make the improvements called for. 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.”
A further group, convened to develop themes emerging from the Evidence and Procedure Report has been looking at how to improve the quality and consistency of interviews conducted initially by police and social workers which can then be used as a witness’ evidence in chief. This will report in due course.
Lady Dorrian concluded: “In all aspects of the work being undertaken we should never lose sight of the underlying aim. That is to secure a justice system which allows the guilt or innocence of an accused to be determined on the basis of the best possible quality of evidence available, in a manner that does not cause undue distress or harm to any participant in the process, and which is transparently fair, efficient and effective.”
Notes for editors
High Court of Justiciary Practice Note No. 1 of 2017: Taking of Evidence of a Vulnerable Witness by a Commissioner is available here
The Evidence and Procedure Review - New Model for Summary Criminal Court Procedure is available here
The Advocates Gateway website is available here
“Evidence taken by a Commissioner” is evidence that has been pre-recorded in advance, to avoid the need for a witness to appear in Court. For High Court trials, these sessions are presided over by a High Court Judge (the Commissioner), and the witness can be questioned by both the prosecution and the defence.
Practice Notes are documents issued by the Lord Justice General in respect of the High Court of Justiciary and the Sheriff Court (criminal) sometimes simply referred to as the "Criminal Courts". They inform practitioners of a practice the court is minded to take or inform practitioners of a practice the court expects them to take.
The Lord Justice Clerk, Lady Dorrian's speech