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APPEAL BY STATED CASE IN THE CAUSE (1) JS AND (3) CS AGAINST THE CHILDREN'S REPORTER


Submitted: 06 July 2016

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 74

XA45/16

XA54/16

Lord Menzies

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD BRODIE

in the appeal

by

stated case in terms of section 163 of the Children’s Hearings (Scotland) Act 2011

in the cause

(1) JS and (2) CS

Appellants:

against

THE CHILDREN’S REPORTER

Respondents:

First appellant:   Scott QC and Aitken;  Drummond Miller LLP

Second appellant:  Moynihan QC and A Macleod;  Balfour + Manson LLP

First respondent:  A Young QC and Parratt;  Anderson Strathern LLP

Second respondent:  Inglis;  Digby Brown LLP

6 July 2016

The appeals
[1]        This opinion relates to two appeals by way of stated case in terms of section 163 of the Children’s Hearings (Scotland) Act 2011.  Each is at the instance of a parent of the children concerned. The stated cases are in identical terms.  They raise broadly two issues:  (1) what is the extent of the powers of a sheriff in his management of a hearing on an application by the Children’s Reporter to find grounds of referral established to restrict the leading of evidence;  and (2) whether what was done by the sheriff in the case under appeal was an appropriate exercise of these powers.

[2]        The appeals are at the instance, respectively, of JS and CS, and are against a determination of the sheriff on 4 December 2015 that grounds of referral in respect of three children, J, L and R were established.  The appeals were originally to the sheriff principal (being lodged on 31 December 2015, the day before the appellate jurisdiction was transferred from the sheriff principal to the Sheriff Appeal Court in terms of section 109 of the Courts Reform (Scotland) Act 2014).  However, on the motion of the appellants, the sheriff principal remitted the appeals to this court on the ground, inter alia, that in the absence of Scottish authority, it might be necessary to consider whether principles require to be established which a sheriff can apply in the exercise of his case management function in relation to hearings under section 101 of the 2011 Act.  Five questions for the opinion of the court are included in the stated cases but parties were agreed that only two required to be addressed: (1) Did I err in law in refusing to allow the parents to call as witnesses the children [A, J2 and R]?; and (5) Did I err in law in finding the grounds of referral established?

[3]        No point is taken as to the competency of the appeals.

[4]        Before this court the appellant JS was represented by Mrs Janys Scott QC and Mr Aitken.  The appellant CS was represented by Mr Moynihan QC and Mr Macleod.  The Children’s Reporter was represented by Mr Andrew Young QC and Mr Parratt.  The safeguarder was represented by Mr Inglis. 

 

The referrals
[5]        JS and CS are, respectively, the father and mother of J, who was born in October 2000;  L, who was born in November 2004;  and R who was born in April 2006.  JS and CS are also the parents of other children who include A, who was born in November 2001 and J2, who was born in June 2003.  J, A and J2 are boys.  L and R are girls. 

[6]        In September and then again in October 2014 A, who had then been in foster care, made allegations of physical assaults by his father on him and on other of the children.  Arrangements were accordingly made to interview A, J2, R, J and L in relation to their parents’ behaviour towards them and their siblings.  A was interviewed on 16 October 2014, J2 on 22 October 2014, and R, J and L on 29 October 2014.  These were what are described as Joint Investigative Interviews (“JIIs”).  They were joint in the sense that a social worker and a police officer together conducted the interview with the child.  No other person was present.  In this case the same social worker and the same police officer conducted all the interviews.  The interviews were video recorded and transcripts of the questions and answers were afterwards prepared.  A JII is a recognised technique for eliciting information from children who may have been the subject of ill-treatment or abuse.  It is mentioned for example in the Scottish Court Service Evidence and Procedure Review published on 13 March 2015.  Its proper conduct is currently subject to the Guidance on Joint Investigative Interviews published by Scottish Government in December 2011. 

[7]        In the course of their JIIs A, J2 and R made allegations that they and their siblings had been hit by their father (albeit, as counsel were to emphasise, the allegations were inspecific and there were discrepancies as between the children’s accounts).  J and L said that they had never seen anyone being hit. 

[8]        In the light of what had been said by the children A, J2 and R in the course of the JIIs the Children’s Reporter arranged a Children’s Hearing for J, L and R.  The statements of the grounds prepared by the Reporter in terms of section 89 of the 2011 Act were essentially the same in respect of each of the three children.  They stated that:  (1) on at least one occasion JS had hit A, J2, R, L and another child on the bare bottom with the buckle of a leather belt, CS being present on these occasions and failing to intervene;  (2) on at least one occasion JS had punched A, J2, R, L and another child to the head causing lumps to form, CS being present and failing to intervene;  (3) on at least one occasion JS had deliberately tripped up J2 resulting in J2 scraping his arm;  and (4) on at least one other occasion JS had punched J2 on the nose causing his nose to bleed.  They stated that these incidents were offences under section 12 of the Children and Young Persons (Scotland) Act 1937 and, as such, specified in schedule 1 paragraph 2 to the Criminal Procedure (Scotland) Act 1995. 

[9]        In the statements of grounds it is narrated by the Reporter that whereas all the children usually reside with JS and CS, as at the date of the statements the children were accommodated outwith the family home.  As at the date of the hearing of this appeal they remained so.  A has been accommodated outwith the family home in foster care since January 2014. 

[10]      JS and CS did not accept the grounds of the referral.  Accordingly, on 6 November 2014 the  Reporter made an application to the sheriff in respect of each of the three children in terms of section 93(2)(a) and 94(2)(a) of the 2011 Act in order that the sheriff might determine whether the grounds of referral were established. 

 

The procedure before the sheriff
[11]      The sheriff court interlocutors provided to this court indicate that the referral first called before the sheriff on 28 November 2014.  As at that date the safeguarder was in place. 

[12]      On 6 February 2015 the sheriff, having heard parties, allowed the Reporter to lodge a list of witnesses and an inventory of productions.  Mr Young explained that these productions included recordings and transcripts of the JIIs.  The Reporter made clear that it was intended to rely on the JIIs as statements by persons otherwise than in the course of the proof and admissible in place of the parole evidence of the children by virtue of section 2 of the Civil Evidence (Scotland) Act 1988.  On 27 March 2015 the sheriff assigned a proof date. 

[13]      At a pre-proof hearing on 6 July 2015 the sheriff allowed an inventory of productions and list of witnesses on behalf of CS to be lodged.  Also lodged, at the direction of the sheriff, was a minute for CS summarising the evidence it was proposed to lead on her behalf.  The minute identified the witnesses as including A, J2, R, L and J.  Against each witnesses’ name there was a brief summary of the evidence it was proposed to lead from that witness.  The summaries relating to A, J2 and R refer to the allegations that they respectively made in the JIIs.  In relation to each of A and J2 it is stated in the minute that: 

“it will be put to this witness that these allegations are false and that he has previously made up other false allegations in relation to being assaulted.”

 

What are said to have been the previous false allegations are then specified.  In relation to L it is stated:  “it will be put to this witness that these allegations are false”.  The pre-proof hearing was continued until 21 July 2015.  According to Mr Young, on 21 July 2015 there was discussion about the possible use of special measures as provided for by the Vulnerable Witnesses (Scotland) Act 2004, with no suggestion being made on behalf of the appellants that they were not in a position to propose appropriate measures.  However, as is indicated by the sheriff in a note appended to the stated case, the representative of the Reporter made a detailed submission to the effect that any evidence of A or J2 having made allegations of assaults upon them by other people was collateral to the issues raised in the referral and ought to be excluded for that reason.  The Reporter moved the sheriff to refuse to allow CS to lead the evidence of A, J2 and R. 

[14]      The sheriff explains in his note that having heard parties’ submissions he wished an investigation to be made into the question of whether the children were willing to give evidence.  He accordingly proposed that the Children’s Rights Officer speak to the children and see if she could ascertain their views.  Although it proved more difficult than had been anticipated to agree the wording of the instructions to the Children’s Rights Officer, once this was done she was able to speak to J2 and R.  She was unable to speak to A for reasons to do with concerns about his welfare.  On 10 August 2015 a letter from the Children’s Rights Officer was put before the sheriff.  She reported that J2 had said that he did not know whether he wished to give evidence and that he was very unhappy living in a residential school.  R had said that she did not wish to talk to anybody else about what had happened.  Having heard further submissions and in the light of the information provided by the Children’s Rights Officer, the sheriff excluded the evidence of A, J2 and R in exercise of power confirmed by rule 3.46A of the Act of Sederunt (Child Care and Maintenance Rules) 1997 in respect that the evidence was of doubtful relevance and that in the whole circumstances of the case the interest of justice did not require their evidence to be led.  He appointed the Children’s Rights Officer to seek to obtain the views of the other children, L and J, as to whether they were willing to give evidence and, if so, what special measures, if any, they would wish to have in place. 

[15]      The sheriff announced his decision to exclude the evidence of A, J2 and R at the end of the hearing on 10 August 2015.  In his note he expands upon his reasoning for concluding that evidence of complaints of being assaulted by other people was collateral to the question of whether the children had been assaulted by JS.  He also gives his other reasons for excluding the evidence.  In doing so he made reference to the decision of the United Kingdom Supreme Court in Re W [2010] 1 WLR 701.  The sheriff noted that the JIIs were quite detailed.  It had been represented by counsel for CS that any questioning of the children would be limited and for that reason less stressful, but in the sheriff’s opinion if that was so the assistance to be given by the children’s parole evidence would also be limited.  Further, generalised questions to the effect that the children were not telling the truth were unlikely to be helpful.  Two further factors were, in the opinion of the sheriff, of great importance.  The first was that he had real concerns for the welfare of the children if they were required to come to court to give evidence.  Even although special measures would be available, it seemed to him that it was very undesirable for children to have to come to court to give evidence at all.  The second important factor was that one of the children did not wish to give evidence, one was unsure, and it was not possible to ascertain the views of the third. 

[16]      On 17 August 2015 the sheriff considered and refused the Reporter’s motion to exclude J and L from giving evidence.  The sheriff explains in his note that he came to his decision with considerable hesitation.  He received a letter from the Children’s Rights Officer dated 14 August 2015 which reported that neither J nor L wished to give evidence.  However, against that, their evidence was not collateral, J was nearly 15 years of age, the questioning proposed would be more than just suggesting to the children that they were lying, and while they did not wish to give evidence, in terms of the 2011 Act they were required to be present at the referral proceedings as children in respect of whom the proceedings had been brought (unlike J2 and A). 

[17]      JS and CS thereafter sought to appeal the decision of the sheriff to exclude the evidence of the children to the sheriff principal.  The sheriff principal refused their appeal as incompetent on 10 September 2015 (it not being an appeal against a determination or decision specified in section 163 of the 2011 Act) and on 11 September 2015 refused leave to appeal that decision to this court.  The referral having been remitted back to the sheriff by the sheriff principal, the sheriff heard evidence at a hearing over seven days on 11 September, 2 October, 23 October, 27 October, 28 October, 30 October and 4 December 2015 when he gave his decision holding the grounds of referral to have been established.  Neither J nor L was led as a witness at the hearing. 

 

The submissions to this court
On behalf of JS
[18]      On behalf of JS, Mrs Scott’s motion was to answer questions 1 and 5 in the stated case in the affirmative, to find it unnecessary to answer questions 2, 3 and 4 and to remit the case to a different sheriff to proceed as accords.  She adopted her written note of argument.  She advanced four propositions as underpinning her submissions:  (1) a sheriff cannot prevent a party calling a witness whose evidence is relevant to a proof relating to grounds of referral to the children’s hearing, including a child witness who is capable of giving evidence;  (2) child witnesses in referral proceedings are protected by the special measures specified in part 2 of the Vulnerable Witnesses (Scotland) Act 2004, consideration of which are mandatory;  (3) the case management powers and rule 3.47A of the Act of Sederunt (Child Care and Maintenance Rules) 1997, as amended (“the CCM Rules”) allow a sheriff to enquire into the question of relevancy but do not authorise a sheriff to prevent a party calling relevant evidence;  and (4) Scots law in relation to child witnesses in referral proceedings, as stated in the foregoing propositions, is compatible with the European Convention on Human Rights and in particular with articles 6 and 8.  Mrs Scott explained that the protection, guidance, treatment and control of children who are referred to the children’s hearing are matters for the hearing.  The sheriff’s function, in contrast, was to determine whether the threshold test for referral had been met.  What was in issue was intervention in family life.  This was a serious matter.  As a general proposition, children are harmed if left in families where they are ill-treated or abused.  Equally, children are harmed if removed from families without good reason:  cf. Re W at para 23.  This was a case that essentially stood or fell on the allegations made by A, J2 and R in the JIIs.  The evidence of these children was clearly relevant and, as a matter of Scots law, a party cannot be prevented from leading the evidence of a witness, even a child witness, where that evidence is relevant.  A child is of course entitled to the protection of special measures as provided for by the 2004 Act.  Although the sheriff did not appear to appreciate this, these include measures which avoid the witness being present in the court building.  Evidence can be given by video link from a remote site.  Evidence can be taken on commission, possibly with the sheriff acting as commissioner and possibly by way of interrogatories.  Rule 3.46A of the CCM Rules empowers the sheriff to order parties to take such steps as the sheriff deems necessary to secure the expeditious determination of the application.  It includes the power of “restricting witnesses”.  However, the rule, made in terms of power conferred by the now repealed Sheriff Courts (Scotland) Act 1971 section 32, cannot innovate upon the law of evidence.  Accordingly, while it would have been appropriate for the sheriff, in exercise of his case management function, to explore whether the proposed evidence was relevant and whether the proposed witness had the necessary capacity, having ascertained that the evidence was relevant and the witness had capacity, matters should have been continued for consideration of special measures in terms of the 2004 Act.  This did not happen.  What would have been the proper course of action was effectively shut down at an early stage by the sheriff granting the Reporter’s motion to exclude the evidence of the children.  As far as the sheriff’s finding that the proposed evidence was collateral is concerned, the sheriff had erred and in particular had erred in relying upon the decision in M v HMA 2013 SLT 380. 

 

Submission on behalf of CS
[19]      Mr Moynihan, on behalf of CS, began his submissions by reference to the recent and as yet unreported decision of the Grand Chamber of the European Court of Human Rights in Schatschaschwili v Germany on 15 December 2015 (now reported (2016) 63 EHRR 14).  The issue in that case was whether the absence of prosecution witnesses from the trial and the reliance on their previous statements had let to a contravention of the guarantee of a fair trial in terms of article 6.  The conclusion of the Grand Chamber was that in the circumstances of the case the absence of an opportunity for the applicant to examine or to have the relevant witnesses examined at any stage in the proceedings had rendered the trial as a whole unfair but, as Mr Moynihan entirely accepted, that was not to say that where there was reliance on hearsay there cannot be a fair trial.  Rather, the decision suggested that it was necessary to employ a three-stage methodology.  First, it was necessary to consider why hearsay was being used.  Then one must consider how determinative of the outcome is the hearsay evidence.  Finally it was necessary to consider what compensating factors may have been present.  All three steps of the case were interrelated and required to be taken together in order to establish whether the criminal proceedings at issue have, as a whole, been fair.  Turning to the present case, it was Mr Moynihan’s submission that it was a question of balance:  a fair trial is always a balance.  There were no hard rules.  Regard had to be had to all the interests involved, including the interests and rights of witnesses.  Differing from Mrs Scott, Mr Moynihan accepted that the court could always exclude a witness with good reason.  He was happy to adopt what had been said by Lord Mackay of Drumadoon in Scottish Ministers v Stirton & Anderson [2009] CSOH 61.  The court had an inherent power to prevent any abuse of process.  The CCM Rules, and in particular rule 3.46A, had enhanced the sheriff’s powers to ensure expeditious determination of an application.  However, any exercise of these powers had to be such as to maintain the balance necessary to secure a fair trial.  The fact that a child is vulnerable was not sufficient reason to exclude its evidence, given the availability of special measures.  The potential for harm to a child who is required to give evidence was a factor but the court should not assume that giving evidence is necessarily harmful to every child witness.  Mr Moynihan accepted that he was not in a position responsibly to insist on the attendance of A but his evidence together with that of J2 and R was crucial.  Where the Reporter proposed to lead that evidence by way of hearsay statements, the proper starting point was to begin by considering what arrangements could be put in place to protect the interests of the parents while at the same time protecting the child witness.  Here there was a need to test the children’s evidence, which, in the form of the JIIs, disclosed a number of discrepancies.  The sheriff’s decision had deprived the parents of the opportunity of cross‑examination.  They were doubly disadvantaged because they had also been denied (by the social work department) the opportunity to precognosce the children.  The situation here was that the state had taken the opportunity to question the children and the state, in the person of the Reporter, had elected to use the result of this questioning to support a significant intervention in family life.  The Reporter might be entitled to do this but, following Schatschaschwili, the Reporter should have been required to explain why.  In refusing the parents the opportunity to lead any evidence from the children with a view to testing it, the sheriff had failed appropriately to exercise his powers.  He had been wrong to read the reference to cross‑examination in the minute for CS as indicating no more than the intention to assert that the children had been lying.  Particularly given the discrepancies in their evidence as appeared from the JIIs, there was scope for a limited but legitimate exploration of what exactly each of them was saying. 

 

Submission on behalf the Children’s Reporter
[20]      On behalf of the Reporter Mr Young moved the court to answer questions 1 and 5 in the negative.  He then drew attention to some of the events leading up to the pre-proof hearing at which the sheriff had decided to exclude the evidence of the three children.  It was not the case that CS has been denied all contact with the children prior to August 2015 and it was not fair to say that by opposing the application on behalf of CS to lead the evidence of the children, the Reporter had closed off other options.  There had been discussion with the sheriff about special measures and the sheriff had taken steps to ascertain the views of the children in that respect.  Mr Young then turned to make some general observations about children giving evidence.  Any justice system should be sensitive to the needs of children.  As was implicit in the 2004 Act, children find the experience of being in court distressing.  For some it may be damaging.  Getting the best evidence from children is not always done by leading parole evidence, hence the use of the JIIs:  cf Ferguson v S 1993 SC 564.  Mrs Scott’s submission that the court could not prevent a party calling an apparently competent witness whose evidence might be relevant, subject only to the qualification that the court can control abuse of process, was too wide.  It did not accommodate the necessary balancing of rights and interests.  These rights and interests were of all the people involved:  cf Re W para 23.  The sheriff could not be criticised for understanding that what was proposed by cross-examination was simply a general assertion of lying.  That was how it had been explained to him by the representative for CS.  The Reporter’s principal position before the sheriff was to exclude A, J2 and R but, as a secondary position, in the event of the sheriff allowing them to be led, the Reporter proposed that a note of questions be provided.  Agreeing with Mr Moynihan and disagreeing with Mrs Scott, Mr Young submitted that CMM Rule 3.46A gave the sheriff the necessary power to restrict what evidence a party might call.  The sheriff had exercised his powers appropriately.  He had correctly identified evidence as to previous complaints of assaults on other people as collateral.  Moreover, it was the submission on behalf of the Reporter that if a party wishes to call a child witness in referral proceedings, not only should that party lodge a child witness notice in terms of the 2004 Act but it was incumbent on the party fully to address the court in relation to the precise manner in which any questioning will be carried out in accordance with best practice.  The sheriff is then best placed to carry out the balancing exercise with a clear picture of what measures could be put in place to minimise the risk of harm to child witnesses.  If a party fails to address the court on special measures and the best practice for taking evidence of the particular child, that party runs the risk that their application to call the witness will be refused. 

 

Submissions on behalf of the safeguarder
[21]      Mr Inglis for the safeguarder addressed the court under three headings:  (1) matters of fact, (2) the applicable law and (3) the consequences of the history of the case to date.  He adopted his written note of argument.  As to matters of fact, Mr Inglis confirmed that the social work department had taken the view that precognoscing the children might be harmful to them.  Contact had been available to CS but not taken up by her.  Both parents had given evidence before the sheriff that A had behavioural problems and accordingly was very vulnerable.  R had been described as “a particularly young and vulnerable child” by the counsel appearing for CS at the hearing before the sheriff.  As for the law, Mr Inglis commended what had been said in Re W.  The legal issue before this court could be distilled into the question: do article 6 and 8 of the European Convention have a different meaning in Scotland than they do in England and Wales?  Mr Inglis also drew attention to the decision of the Court of Appeal in Re E (A child) [2016] EWCA Civ 473 where, at paragraphs 56 to 68, McFarlane LJ emphasises the need to carry out the exercise described in Re W where it is proposed to lead the evidence of a child.  Among the factors is the availability of what in England is described as an ABE interview (“Achieving Best Evidence”, the equivalent of a JII).  The advantages of a JII or ABE interview were that it was carried out promptly once an allegation had been made and it responds to the vulnerability of a child witness, a vulnerability which is enhanced where allegations are made against a parent.  Here the sheriff was correct to proceed on the basis of the JIIs.  As far as the consequences of the history of the case were concerned, the children had been interviewed nearly two years ago.  The evidence was stale.  A remit to the sheriff to hear evidence anew was accordingly inappropriate. 

 

Decision
[22]      Mrs Scott QC argued that the sheriff did not have the power to exclude the evidence of the children.  We disagree.  To be admissible evidence must be relevant and the witness giving that evidence must be a competent witness.  That the court can exclude evidence or a line of evidence that is irrelevant to the question in issue is uncontroversial;  Mrs Scott accepted as much. She accepted that the court could intervene to prevent repetitious or otherwise unnecessary questioning.  Similarly, she accepted that a party can be prevented from attempting to lead the evidence of a witness who does not have the capacity to give evidence by reason of their age, or their state of physical or mental health.  Even a witness who might otherwise be regarded as having capacity may be excused citation if the court takes the view that the experience of giving evidence will be damaging to the witness’s health.  Moreover, in our opinion, Lord Mackay of Drumadoon was correct when he said, in Scottish Ministers v Stirton and Anderson [2009] CSOH 61 at para 23: “...any court has the inherent power to prevent any abuse of process in the course of proceedings before it ...that power extends to controlling the citation of individuals as witnesses and the excusal of those who have been cited from complying with their citations.”

[23]      Where, as here, the sheriff is conducting a hearing under section 93 (2) (a) or 94 (2) (a) of the 2011 Act he has the additional powers conferred by the CCM Rules. As appears from rule 3.46A these include the following:

3.46A. — Expeditious determination of application

Prior to or at a hearing on evidence under rule 3.47  (or any adjournment or continuation thereof under rule 3.49 ), the sheriff may order parties to take such steps as the sheriff deems necessary to secure the expeditious determination of the application, including but not limited to—

(a) instructing a single expert;

(b) using affidavits;

(c) restricting the issues for proof;

(d) restricting witnesses;

(e) applying for evidence to be taken by live link in accordance with rule 3.22 ”.

 

There is no reason why rule 3.46A should not be given its plain meaning.  It was introduced in 2013 by way of amendment to the CCM Rules following criticisms directed at the inordinate length and inutility of certain sheriff court hearings in respect of disputed referrals, and its clear purpose was to assist sheriffs in controlling such proceedings and bringing them to an early conclusion. In the course of his submissions, Mr Young drew attention to the requirement in section 101 (2) of the 2011 Act that a section 93 (2) (a) or 94 (2) (a) application must be heard not later than 28 days after the day on which the application is lodged. “Of course”, he went on to say, “that never happens”. We take what Mr Young told us to be true. We can readily imagine the practical obstacles in the way of the sheriff achieving what the statute prescribes but the fact remains that the statute, which has only been recently enacted, does prescribe a very brief timescale for the establishment of grounds of referral. Rules 3.46A must be construed accordingly. That means giving full weight to the power conferred on the sheriff to “order parties to take such steps as the sheriff deems necessary to secure the expeditious determination of the application.”

[24]      In what was not a developed submission, Mrs Scott suggested that the relevant amendment of the CCM Rules (in terms of the Act of Sederunt (Children’s Hearings (Scotland) Act 2011 (Miscellaneous Amendments) 2013, SSI 2013/172) was ultra vires in that its enactment depended on the power conferred by section 32 of the Sheriff Courts (Scotland) Act 1971 to regulate and prescribe by act of sederunt “the procedure and practice to be followed in any civil proceedings in the sheriff court (including any matters incidental or relating to any such procedure or practice)”.  It was Mrs Scott’s submission that what rule 3.46A did was to innovate upon the law of evidence and therefore went beyond matters of “procedure or practice”.  It therefore, as we understood Mrs Scott’s submission, fell to be ignored.  We do not accept Mrs Scott’s submission on this matter.  Rule 3.46A does not innovate on the law of evidence.  Rather (and we accept that in construing the rule regard must be had to its purpose as securing the expeditious determination of the application) it is concerned with the control of the extent of the evidence to be led.  We see that as an aspect of procedure and practice.  The rule is not ultra vires.

[25]      In our opinion, at least in relation to proceedings under section 93(2)(a) or section 94(2)(a) of the 2011 Act, admissibility is a necessary but not sufficient threshold requirement for the admission of evidence.  The sheriff has power to exclude even admissible evidence if he has good reason to do so.  The question therefore comes to be, as Mr Moynihan submitted;  whether the sheriff exercised powers that he did have in an appropriate manner.

[26]      One of the sheriff’s reasons for excluding further evidence from A and J2 was that insofar as specified the lines of evidence which CS intended to explore were collateral.  The passage in the minute which identified these lines of evidence was as follows:

“1.       It will be put to [A] ...that he has previously made other false allegations in relation to being assaulted. Specifically he assaulted a teacher on 28 November 2011 and then falsely alleged that the teacher had assaulted him. On 15 February 2013 he assaulted [a nursery nurse] and when police were contacted he then falsely alleged that [the nursery nurse] had assaulted him. On 25 February 2013 he made a further false allegation against a teacher ...before he was permanently excluded from the school register for persistent violent and aggressive behaviour.

 

2.         It will be put to [J2] ... that he has previously made other false allegations in relation to being assaulted. Specifically he made a false allegation on 1 June 2009 that his father had struck [A] with a belt. At joint interview both [A] and [J2] denied that they had witnessed or been the victim of any such assault. Also J2 made a false allegation of assault by his father on 5 February 2010 when he said that he been repeatedly struck on the head with an open hand and struck on the bottom with a belt by his father.”

A matter is collateral if it is something that stands apart from the main issue. As such it will not be immediately relevant to the main issue and therefore evidence of the collateral matter will not generally be admissible in an inquiry into the main issue.  The law is discussed in M v Her Majesty’s Advocate, by the Lord Justice Clerk (Carloway) at paras [27] to [41], by Lord Clarke at paras [48] to [53], by Lord Menzies at paras [55] and [56] and by Lady Cosgrove at paras {59] and [60].  In M the collateral evidence which had been sought to be admitted was of a supposedly false allegation made to the police by the complainer some years previously.  At para [29] the Lord Justice Clerk said this:

“[29] What is sought to be admitted here is evidence that, at least on one view, has no direct or indirect connection with the facts in issue, but may conceivably affect the weight to be attached to testimony which does have direct relevance to the facts... There is no doubt that this type of evidence can be admissible in certain situations; but these situations are strictly regulated. The Scots law is reasonably clear. It differs from that under certain common law systems, which permit impeachment of the general character of a witness by the use, for example, of persons speaking to general credibility ... In Scots law, evidence of either good or bad character is, in general, inadmissible ...because it is collateral to the issues for decision as defined in the libel.”

In the present case we would also see what CS sought to adduce to have “no direct or indirect connection with the facts in issue”. At best it might “conceivably affect the weight to be attached to testimony which does have direct relevance to the facts”. However, as with any evidence of this sort, any weight that it might have would depend on what exactly can be established (and how confidently) about the terms of the allegations and their falsity. It is because of that and the essentially pragmatic considerations which follow from it, that evidence of this sort is generally inadmissible.  As Lord Carloway explained at para [31] in M, quoting Lord President Robertson in A v B (1895) 22R 402 at 404:

“… it is better to sacrifice the aid which might be got from the more or less uncertain solution of collateral issues, than to spend a great amount of time, and confuse the jury with what, in the end, even supposing it to be certain, has only an indirect bearing on the matter in hand” 

While this is generally so, Lady Cosgrove at para [59] pointed to an exception “where the collateral fact can be demonstrated more or less instantly and cannot be challenged”.  That exception does not, however, have any application in the present case. In our opinion the sheriff was correct in regarding the proposed evidence of supposedly false allegations on different occasions to be collateral and inadmissible for that reason. 

[27]      The sheriff had other reasons for excluding the evidence of A, J2 and L.  He was concerned about the effect upon the welfare of the children of being “brought to court” in circumstances where their evidence was available in the form of extensive JIIs.  Given what was disclosed in CS’s minute about the proposed questioning, that being to “put to [the respective children] that [their] allegations are false”, any benefit from the children’s evidence would be limited.

[28]      We recognise the force of the considerations, over and above the collateral nature of the proposed evidence, which led the sheriff to come to his decision that he did. The Scottish Court Service Evidence and Procedure Review has this at the beginning of chapter 2:

“2.1 It is now widely accepted that taking the evidence of young and vulnerable witnesses requires special care, and that subjecting them to the traditional adversarial form of examination and cross-examination is no longer acceptable. This is for two main reasons. The first is that, as has been known for some time, the experience of going to court and recounting traumatic events is especially distressing for children, and can cause long-term damage...

2.3 The second reason is that, particularly for young and vulnerable witnesses, traditional examination and cross-examination techniques in court are a poor way of eliciting comprehensive, reliable and accurate accounts of their experience...”

Moreover, at paragraph 2.66 of the Review the opinion is expressed: 

“There is a compelling case that the evidence of a child or vulnerable witness should be captured in advance of any trial, in the form of a forensic interview preferably as soon as possible after the initial complaint. Properly conducted, and often taking place within hours or days of the reported incident, such interviews are the best way to elicit a reliable and comprehensive account of the reported incident. With this measure alone, a considerable burden is lifted off the witness, as their substantive account is made only once, very early on in the process. It also benefits the trial process, as the principal evidence is available for all the parties at the start of process, without the risk that the account may change.”

Thus, the sheriff’s concern about the welfare of the children, if compelled to give evidence, is consistent with the “widely accepted view” that requiring children to give evidence in the way that evidence usually is given in court is likely to be distressing and may be damaging (see also Re W at paras 7, 10, 17, 18, 27 and 30).  We have nevertheless been persuaded that his decision-making process was flawed, that the appeal must be allowed and the case remitted to another sheriff in order that he might proceed in the light of what appears in this opinion.  Our reasons are as follows.

[29]      Mr Moynihan suggested that there was something “back to front” about the way in which the sheriff came to make his decision.  By this he meant that the parents had been put in the position of justifying why the hearing should proceed as they proposed, rather than the Reporter having to justify why the hearing should proceed as he proposed. The purpose of proceedings under the 2011 Act is to protect the welfare of the children involved and any decision in the course of such proceedings must be informed by that consideration. The children primarily involved are those in respect of whom the Reporter has made a referral (here, J, L and R) but regard must also be had to the rights and interests of any other children whose involvement is being the subject of alleged parental ill-treatment or their being led as witnesses. The sheriff understood that, as is apparent from the terms of the stated cases and his note. However, there were other rights and interests in play. These included the rights and interests of the parents and they had also to be placed in the balance if there was to be a fair trial of the disputed issues, it being kept in mind that these proceedings were concerned with a serious interference with the right to family life as guaranteed by article 8 of the European Convention.

[30]      In order fully to understand Mr Moynihan’s criticism that the sheriff’s approach was “back to front”, it is necessary to have regard to the context.  A hearing under section 101 of the 2011 Act requires the finding of facts which bear on the question of whether the ground of referral is established.  The CMM Rules encourage the sheriff to consider available alternatives to direct testimony (the sheriff in the present case explains that he was anxious to explore what could be agreed by way of joint minute of admissions and we consider that he was right to do that) but in our system the traditional way of determining disputed matters of fact is by the leading of parole evidence which can be tested for its veracity and reliability by being made subject to cross-examination in open court.  Where that is available it is often described as “the best evidence”.  Implicit in that expression is the assumption that that is the best way of getting at the truth.  Where the potential informant is a child we would understand that that is no longer generally thought to be so.  Nevertheless, given the benefits to the fact-finder and any party wishing to challenge the evidence that are seen as arising from the immediacy of direct parole evidence and its testing by cross-examination, it is generally for the party who proposes to depart from reliance on “the best evidence” to justify the position that he is adopting.  In the present case that party was the Reporter but rather than focusing on whether the Reporter should be permitted to rely on the JIIs and, if so, what provision might be made in the light of that to accommodate the parents’ rights, the sheriff “looking down the wrong end of the telescope”, to use another of Mr Moynihan’s metaphors, had, without questioning the Reporter’s entitlement to proceed as he proposed, concentrated on what the parents should and should not be allowed to do.  This was what Mr Moynihan said was “back to front”.  We agree.  

[31]      There can be no question but that the JIIs were admissible but nevertheless they were of the nature of secondary hearsay, being “assertion[s] other than one made by a person while giving oral evidence in the proceedings …as evidence of any fact or opinion asserted”: R v Sharp [1988] 1 All ER 65 at 68, adopted in Morrison v HMA 1990 JC 299 at 312, quoted in Walker and Walker The Law of Evidence in Scotland (4th edit) at 8.1.1.  Not every objection commonly directed at secondary hearing applies to the JIIs.  The questioning of the children was video recorded.  Anyone watching the recordings and reading the transcripts will therefore know the exact terms of the questions and the exact terms of the answers.  Moreover, it is possible to observe images of the children as they give their answers thereby allowing an assessment of what can be learned from their demeanour or body language (cf Schatschaschwili v Germany at para 127).  Although criticisms of the way in which the JIIs were conducted was made to the sheriff, for present purposes we shall assume that they were well conducted in the sense of conforming with the Guidance on Joint Investigative Interviews.  However, the JIIs are not forensic interviews of the sort described in the  Evidence and Procedure Review and mentioned in its paragraph 2.66 supra.  Critically, the JIIs did not allow for any participation on behalf of JS and CS as contradictors, or for any other provision for testing the allegations which the children made against their parents.  Given this weakness of the hearsay evidence upon which the Reporter proposed to rely, Mr Moynihan submitted that it had been incumbent upon the sheriff to give consideration to what best could be done to allow the parents to put forward what Mr Moynihan described as their “defence”.  We agree.

[32]      Mr Moynihan put forward the recapitulation of relevant principles at paragraphs 100 to 131 in Schatschaschwili v Germany as providing a model for analysis.  Schatschaschwili follows and consolidates the position taken by the Court in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1.  Parenthetically, we would observe that its approach is consistent with that taken in Nulty v HMA 2003 SCCR 378 and Harkins v HMA [2008] HCJAC 69.

[33]      What Mr Moynihan described as a three-stage methodology is described in Schatschaschwili as the “three steps of the Al-Khawaja test”.  Schatschaschwili and Al-Khawaja were concerned with complaints about denial of a fair hearing in criminal proceedings by reason of the prosecution’s reliance on a hearsay statement of a witness who did not attend the trial and therefore was not available for cross-examination.  They therefore put in issue not only the article 6.1 right to a fair hearing but also the article 6.3 (d) right of a person charged with a criminal offence “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.  Children’s referrals, on the other hand, are civil proceedings which have the benefit of the guarantee of a fair hearing provided by article 6.1, but not the specific rights provided by article 6.3.  Mr Moynihan submitted that for the purposes of his argument that did not matter.  Again, we agree.  

[34]      In determining whether a party has had a fair hearing “the Court will look at the proceedings as a whole, including the way in which the evidence was obtained, having regard to the rights of the defence but also to the interest of the public and the victims ...and, where necessary the rights of witnesses” (Schatschaschwili para 101).  That means not only that one particular defect in procedure will not necessarily render the trial unfair, but also that it is necessary to have regard to every aspect of the proceedings before concluding that the trial was in fact fair.  This applies to civil proceedings as well as criminal proceedings.   As Mr Moynihan stressed, what is in issue here is the conduct of proceedings at the instance of a public authority with a view to a significant interference in the family life of the children and their parents.  The Children’s Reporter and the court are public authorities with the consequent obligation not to act in a way which is incompatible with a Convention right: Human Rights Act 1998 section 6.  Article 8 of the Convention is engaged as well as article 6.  Mr Moynihan did not argue that article 6 prevented the use of hearsay in proceedings under part 10 of the 2011 Act.  Indeed, as Schatschaschwili confirms at para 105, article 6 does not prevent the use in criminal proceedings, of statements obtained at the investigative stage as hearsay evidence at trial.  However, that is subject to the proviso that “the defendant be given an adequate and proper opportunity to challenge and question a witness against him – either when that witness is making his statements or at a later stage of the proceedings”.  Mr Moynihan submitted that similar considerations apply to proceedings under section 93 (2) (a) or 94 (2) (a) of the 2011 Act and commended as a model for the sheriff’s decision-making when the Reporter proposed to rely on a hearsay statement, the three-step approach described at para 107 of Schatschaschwili.  That approach requires the court to examine:

(i) whether there is a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statements as evidence; 

(ii) whether the evidence of the absent witness is likely to be the sole or decisive basis for the determination of the facts in issue;  and

(iii) whether there are sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to a party as a result of the admission of the untested evidence and to ensure that the hearing, judged as a whole, is fair. 

[35]      We accept Mr Moynihan’s submission and with it the applicability of the three-steps of the Al-Khawaja test.  Al-Khawaja was cited in argument in Re W.  While it is not referred to in the judgment of the court given by Lady Hale, there is nothing in Re W which is inconsistent with Al-Khawaja or Schatschaschwili;  all these cases are about the need to balance potentially conflicting rights and interests.  The value of the latter cases is that they keep in sharp focus the rights of the parties who may wish to challenge a hearsay statement which, by its nature, has not been tested by a contradictor.  They also encourage a move away from a binary approach to decision-making, in other words a framing of the issue simply as whether or not the child should be required to give evidence, towards something more nuanced.

[36]      What the Al-Khawaja test consists of is an evaluation of fairness from three interacting perspectives in circumstances where the state relies on a hearsay statement in the absence of the witness, the object of which is to consider the  proceedings as a whole (Schatschaschwili para 112).  It will not necessarily be unfair to admit an untested statement in the absence of the witness but reliance on a statement which cannot be tested raises a question about fairness which the court requires to determine by reference to the answers to three questions:  Was there good reason for the absence of the witness?  Was the hearsay statement led in his place the sole or decisive reason for the decision in question?  Were there counterbalancing factors which compensated for such handicaps as the admission of untested evidence gave rise to?  The answer to any one of these questions will not be in itself determinative.  For example, an answer in the negative to the first question will not be conclusive of unfairness but it will weigh in the unfairness side of the balance (Schatschaschwili para 112).  Of course, these are not questions which are necessarily capable of a yes or no answer;  a reason may be more or less good, a statement may not be decisive but it may be important, counterbalancing factors may compensate handicaps to a greater or lesser extent. Just where the answers lie in the spectrum of possible answers will have to be taken into account.  This is explained by the Court at para 116 in Schatschaschwili in particular relation to the question as to whether it is necessary to consider the third question when the answer to the second question is to the effect that the untested evidence was neither sole nor decisive:

“116. Given that the Court’s concern is to ascertain whether the proceedings as a whole were fair, it must review the existence of sufficient counterbalancing factors not only in cases in which the evidence given by an absent witness was the sole or the decisive basis for the applicant’s conviction. It must also do so in those cases where, following its assessment of the domestic courts’ evaluation of the weight of the evidence ... it finds it unclear whether the evidence in question was the sole or decisive basis but is nevertheless satisfied that it carried significant weight and that its admission may have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair will depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair.”

When it comes to counterbalancing factors, they must be such as to permit a fair and proper assessment of the reliability of the hearsay evidence.

[37]      We turn then to apply the three-stage methodology to the present case.  Section 2 of the Civil Evidence (Scotland) Act 1988 imposes no threshold requirement for the admission of hearsay.  In that respect it is to be contrasted with section 259 of the Criminal Procedure (Scotland) Act 1995 which provides that evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible but only if the court is satisfied of, among other things, the reasons set out in subsection (2) of section 259 which relate to the witness not being available or refusing to give evidence.  Because he did not have to resolve any question of the admissibility of the JIIs, the sheriff did not address himself directly to whether there was good reason for the non-attendance of the children as witnesses at the hearing with the consequence that their statements would be untested, as an application of the Al-Khawaja test would require him to do, but had he done so, we would suppose that he would have answered the first-step question in the affirmative.  The sheriff was very concerned as to the possible effect of “bringing these clearly vulnerable children to court to give evidence”.  In doing so he would have been reflecting what is said in relation to the generality of cases in Re W and the Review.  He had done what he could to elicit the views of the children and had had no reason to believe that they wished to give evidence.  He had had regard to the apparently detailed nature of the JIIs.  He had considered the guidance given by the  UK Supreme Court in paragraphs 24 to 30 of Re W which includes, at para 30, these sentences:

“The essential test is whether justice can be done to all the parties without further questioning of the child. Our prediction is that, if the court is called upon to do it, the consequences of the balancing exercise will usually be that the additional benefits to the court’s task in calling the child do not outweigh the additional harm that it will do to the child.”

 

Had the sheriff concluded, in addressing himself to the first of the Schatschaschwili steps that there was good reason for the non-attendance of the children as witnesses and therefore for the admission of their untested JIIs into evidence, we do not consider that he could have been faulted, but the requirement to take the step of asking this and the subsequent questions would have served to emphasise that reliance on untested evidence calls for justification.  No doubt because of the way in which the matter was presented to him, it is not clear that that was in the forefront of the sheriff’s mind.

[38]      The second Schatschaschwili step is to ask whether the evidence of the absent witness or witnesses was the sole or decisive basis for the relevant decision.  As Lady Hale indicated in Re W at paragraph 25 there will be cases which are built up from a number of evidential sources rather than the concrete allegations voiced by the child.  On the other hand there may be cases which effectively turn on the child’s or children’s complaints.  In the present case it would appear that the children’s JIIs were decisive in the sheriff coming to the decision that he did.  The sheriff does not refer to other evidence supportive of the conclusion that the children had been the subject of violence.  Accordingly, for the proceedings to have been fair, there had to have been sufficiently weighty counterbalancing factors which permitted a proper assessment of the children’s evidence.  It is at this point that the flaw in the sheriff’s decision-making becomes evident.  There were no such counterbalancing factors because he had done nothing to put them in place.  Now it may be that parties should have done more to provide the sheriff with assistance.  Mr Young was critical of those acting for the appellants for their failure to comply with the terms of section 12(2) of the Vulnerable Witnesses (Scotland) Act 2004, which require a party intending to cite a child witness to lodge with the court a child witness notice.  Equally, Mrs Scott pointed to section 12 (1) of the 2004 Act which makes it mandatory “where a child is to give evidence” for the court either to authorise the use of special measures or order that the child should give evidence without the benefit of any special measure.  It might be said that, strictly speaking, the mandatory requirement under section 12 (1) never arose in relation to A, J2 and R because it was never decided that they were “to give evidence”.  Be that as it may, it was the sheriff’s responsibility to do what he could in order to ensure a fair hearing.  That required him to consider how the handicap that the appellants had been placed under by the admission of the JIIs might be counterbalanced.  The obvious and perhaps the only means of doing so lay in allowing the appellants to lead the evidence but if that was to happen there had to be consideration of what special measure or measures would be the most appropriate for that purpose.  

[39]      Mr Young informed the court that there had been discussion about special measures and the sheriff does mention, at paragraph [34] of his note, that in the event of “bringing these clearly very vulnerable children to court to give evidence ...measures under the vulnerable witnesses legislation would no doubt have been put in place.”  We have been rather slower than Mrs Scott to assume that when the sheriff spoke of bringing children to court he meant that literally.  Even giving evidence from a remote site by television link will have its stresses. However, it may be that the sheriff allowed his entirely proper concern over the harm that might be done to the children if they were required to give evidence to divert him from a detailed consideration of how any such harm might be prevented by the thoughtful and sensitive application of special measures.  

[40]      Among the special measures available to the sheriff was the taking of evidence by a commissioner (who might have been the sheriff himself) in terms of section 19 of the 2004 Act.  Where the Reporter was in any event intending to rely on the JIIs, the commission would only consist of such cross-examination and re-examination as parties considered necessary.  Such a procedure is followed in criminal trials where a JII of acceptable quality is available.  There the recorded JII can be admitted as evidence in chief in terms of section 271M of the Criminal Procedure (Scotland) Act 1995, with cross-examination conducted at a commission in terms of section 271I, which will again be recorded and which can thereafter be played before the jury, together with the recording of the JII.  The process of cross-examination can be further controlled with a view to reducing stress on the witness and avoiding inappropriate questioning by not dispensing with interrogatories.  Mrs Scott commended a recent decision by Sheriff Turnbull, as he then was, in GM v MB [2016] SC DUMB 38, where that course had been adopted.

[41]      Whether the measures adopted in GM v MB would have been the most appropriate for use in this case would have been a matter for consideration but where, as here, the state has taken the opportunity to question children and then proposes to use the results of that questioning at a hearing for the purpose of deciding whether there should be a significant interference with family life then that hearing can only be fair if the parties wishing to prevent that interference are given some opportunity to test that evidence.  The only means of testing the JIIs which was suggested in the present case was further, albeit limited, questioning of the children.  Imperfect as that course of action may have been (cf Review paragraph 2.105), the sheriff’s failure to explore how it might be achieved, utilising the most appropriate means, meant that the appellants were denied a fair hearing with the result that the first and fifth questions appended to the stated case must be answered in the affirmative.