The Scottish Court Service published the Evidence and Procedure Review Report today (Friday 13 March).
The Review was chaired by Lord Carloway, Lord Justice Clerk, who in 2013 called for “clear-sky thinking” to help bring trial procedures rooted in the Victorian era into the modern, technologically-enhanced society today and in years to come. The Review aimed to kick-start that thinking by exploring the best way, in the modern technological world, to ascertain the truth in the context of the criminal trial. In particular, it researched what contribution might be made by the greater use of pre-recorded evidence.
The Report calls for Scotland to harness the opportunities that new technologies bring to improve the quality and accessibility of justice. It uses the research to suggest ideas that could help transform the conduct of criminal trials, in particular reaching two main conclusions:
- The evidence of children and vulnerable witnesses.
Scotland needs to move to the forefront of law and practice in relation to children and vulnerable witnesses. There’s extensive evidence that giving testimony at court is especially distressing and potentially damaging for young and vulnerable witnesses; and it is a poor way to get good evidence from them. Although Scotland does have a range of protections available, experience elsewhere, such as in England and Wales, Australia and Norway, suggests we can go further to protect such witnesses and ensure their evidence is taken in the most appropriate way in advance of the trial.
- Witness statements in general
We need to rethink what constitutes the best evidence at trial – and this may mean a transformation in the way the evidence of witnesses in general is captured and presented. It is highly likely that a witness account taken at the scene of a crime or shortly after will be more reliable, full and accurate than their attempt to recall what happened many months later in court. The Report explores what legal and other changes need to be made to allow pre-recorded witness statements to be admitted as direct evidence, and what safeguards need to be in place. There are, potentially, great benefits – these include greater accuracy and reliability of the evidence; the ability to manage cases more effectively; and less reliance on witnesses turning up at court on the trial day.
The Report is a starting point for developing ideas and proposals – it aims to be a catalyst for developing reforms that will bring a better experience for those called to give evidence in criminal proceedings, a system of justice that deals with cases speedily, effectively and fairly, and one which remains relevant, trusted and respected by the Scottish people. The Scottish Court Service will now work with the Scottish Government, other justice agencies, the legal professions and victims groups to explore the implications of the report’s propositions and develop proposals for change.
Chief Executive Eric McQueen said:
“This Report aims to stimulate discussion about the very nature of criminal trials - how do we ensure the testimony of witnesses is as reliable, accurate and complete as it could be; how do we eliminate unnecessary delays and preserve a fair, transparent and just system; how do we make sure that young and vulnerable witnesses are safeguarded against further trauma?
"The propositions in this Report could transform our criminal justice system. We now need work through their implications with everyone with an interest, so that the proposals that emerge are ambitious, workable and will help create a modern, fair and efficient criminal justice system for the digital age.”
Notes for editors
Evidence and Procedure Review Report is available on the Scottish Courts Website
- The Evidence and Procedure Review was an internal Scottish Court Service research project led by the Lord Justice Clerk, Lord Carloway, supported by a small reference group and a full-time Project Director.
- The Report consists of five Chapters:
Chapter 1 introduces the Review, its remit and details the considerations that led to the Review taking place.
Chapter 2 considers how children and vulnerable witnesses are treated in Scotland, Australia, England and Wales and Norway, and concludes that Scotland there is more that we could to improve the way in which such witnesses are required to give evidence.
Chapter 3 looks at the legal issues raised if witness statements recorded prior to trial are to be generally admissible. It reviews the law on hearsay, under which such statements are currently generally excluded, and considers the implications of a rule that would provide for their general admissibility.
Chapter 4 considers how criminal procedures would have to change to accommodate and take full advantage of the availability of such evidence; it also covers how the infrastructure of the justice system, both in terms of the technology available and the nature of facilities in the courts, police offices and elsewhere will have to be rendered fit to undertake the tasks of recording, editing, storing and presentation of such testimony.
Chapter 5 provides some concluding remarks.
Link to Report