A Report, with recommendations aimed to improve the way evidence is taken from child and vulnerable witnesses, so that they are protected from potential trauma in court, is published today by the Scottish Courts and Tribunals Service.
The Child and Vulnerable Witnesses Project Report on Joint Investigative Interviews forms the next stage of the Evidence and Procedure Review. It follows on from two previous documents, the 2015 Evidence and Procedure Review Report and last year’s Evidence and Procedure Review – Next Steps.
The Report makes a total of 33 wide-ranging recommendations that open the way to wider use of audio-visual recording of evidence from children and vulnerable witnesses.
SCTS Chief Executive Eric McQueen said: “The Evidence and Procedure Review is intended to take us towards a criminal justice system at the forefront of best practice in relation to children and vulnerable witnesses. This Report is part of that journey, identifying how best to capture complete, reliable and accurate evidence as soon as possible after an incident is reported.
“If we get that initial process right, the chances are increased of a child or vulnerable witness not having to give their evidence again if there are legal proceedings. It also increases the chance of a trial process that is fair to all concerned, and minimises the risk of further trauma to any alleged victim or witness.”
This is at the heart of finding ways to improve the experience of vulnerable witnesses, and the quality of justice. Experience in Scotland and elsewhere suggests that the better the quality of the initial interview, the less likely it is that a witness will need to be brought back for further examination or cross-examination, meaning a lesser risk of further trauma. The recommendations in the Report published today are designed to promote and support achieving that consistently high quality of initial interview.
Visual recording of investigative interviews
The proposals build on the existing use of Joint Investigative Interviews (JIIs) – interviews presently carried out by police and social workers with under-16s who are victims of, or witnesses to, conduct that might be criminal and might indicate an ongoing risk to the wellbeing of the child. These interviews already can be and are sometimes used as a witness’s evidence in chief in a criminal trial. They are also used in Children’s Hearings.
The report explores why JIIs are not used as evidence as much as they could be, what improvements can be made to ensure their quality and consistency and how the system could change to make it easier to use them as evidence in chief. The report’s recommendations include:
- Better training of police and social workers to improve skills in interviewing children;
- A standardised approach to training so smaller numbers of interviewers are trained to a higher standard;
- Funding to provide urgent replacement of existing recording equipment and the provision of encryption capacity;
- Funding for professional transcribers to transcribe JIIs;
- Legislative changes to allow earlier vulnerable witness applications and the taking of evidence by commissioner;
- Review and updating of the 2011 Scottish Government guidance on JIIs.
The second part of the report looks at how to extend the visual recording of investigative interviews and witness statements to a) child witnesses not covered by a JII and b) vulnerable witnesses. Its recommendations include:
- Visual recording of investigative interviews and witness statements should first be extended to child and adult vulnerable witnesses;
- Recording should take place when an investigating officer decides it is appropriate to allow a vulnerable witness not to attend court;
- Work should begin on detailed plans to introduce visually recorded evidence in summary courts.
Further issues
The report also looked at a number of other issues including the type of accommodation used to carry out recorded interviews and recommended improvements, and such things as examining the possibility of setting up vulnerable interview centres along the lines of the child’s house (Barnehus) model developed in Scandinavia and adopted by a number of European countries.
The Working Group recognised that such wide-ranging and radical reform of evidence-giving has considerable resourcing, investment and legislative implications. The Group suggests a phased introduction of the recommendations with initial emphasis focused on improved training to create a pool of expert interviewers to improve the quality of JIIs.
Once this has been achieved, it proposes extending visual recording to child witnesses in cases tried under solemn procedure and then introducing it to adult vulnerable witnesses in solemn cases.
Background
The original Evidence and Procedure Review Report highlighted how Scotland could learn from other jurisdictions on how best to take the evidence of children and vulnerable witnesses, making the best use of pre-trial audio-visual recording. The Next Steps Report followed this with a recommendation that “there should be a systematic approach to the evidence of children or vulnerable witnesses in which it should be presumed that the evidence in chief of such a witness will be captured and presented at trial in pre-recorded form; and that the subsequent cross-examination of that witness will also, on application, be recorded in advance of trial”.
The Scottish Courts and Tribunals Service was commissioned by the Justice Board to lead work on developing a system to achieve this. Two working groups were established, comprising experienced practitioners from the justice system, child welfare and third sector professionals.
One group looked at how to make it easier to use the initial police/social work interviews of children as their evidence in chief in criminal trials, and it is that group’s report that is being published today for consideration by Scottish Ministers and other justice agencies. The other group’s report, on pre-recording further or cross-examination for trial purposes, will be published in due course.
Notes for Editors:
- The full report is available here
- The Evidence and Procedure Review Report was published on 13 March 2015 followed by the Evidence and Procedure Review – Next Steps paper on 26 February 2016.
- An estimated 4,900 JIIs a year are carried out in Scotland, the vast majority of which are not used in criminal proceedings. Some, however, are used as a witness’s evidence in chief if an application for this is made by the prosecution or the defence. Where the witness subsequently requires to be cross-examined for the trial, either party can apply for this also to be pre-recorded by means of “taking of evidence by a commissioner”. (See High Court Practice Note). Even if not directly used for prosecution, a pre-recorded JII may, however, lead to a criminal case being pursued with the witness giving evidence in court or may form evidence in a Children’s Hearing case.
- Use of such recorded evidence is uncommon at the moment, though there is some evidence that it is increasing.
- Around 50,000 investigative interviews and/or witness statements with individuals under 18 are carried out every year.