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Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill

Overview


This Bill proposes changes to the Criminal Procedure (Scotland) Act 1995. 

It aims to improve the way the criminal justice system deals with children and vulnerable witnesses by:
improving their rights and experiences
keeping their attendance at court to a minimum
supporting them to give the best evidence they can
This includes making it simpler to use 'special measures' and using them more widely. Special measures are ways of protecting witnesses when they're giving evidence. 

This includes evidence being: 
taken in advance by a sheriff or High Court judge
given via a live TV video link so the witness can give evidence from somewhere outside the court room
given from behind a screen in the court room that stops the witness from having to see the accused 
As well as protecting children and vulnerable witnesses, the bill aims to uphold the rights of people accused of crimes.


You can find out more in the Explanatory Notes document that explains the Bill.

Why the Bill was created

The criminal justice system needs witnesses to come forward and give evidence.

But doing this can be distressing for children and other vulnerable witnesses of serious and traumatic crimes.

Being able to give evidence at an earlier stage, and not in a court room, will mean they: 
can avoid the stress and anxiety of giving evidence in a court room
can give evidence in the fullest way, to help the court establish the facts of the case
 

You can find out more in the Policy Memorandum document that explains the Bill.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Bill stage timeline

The Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill became an Act on 13 June 2019

Becomes an Act

The Vulnerable Witnesses Criminal Evidence (Scotland) Bill was passed by a vote of 112 for, 0 against and 0 abstentions. The Bill became law on 13 June 2019.

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener (Margaret Mitchell)

Good morning, and welcome to the Justice Committee’s 30th meeting in 2018.

The first item on the agenda is an evidence session with the Scottish Government bill team for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome from the Scottish Government Karen Auchincloss, criminal justice division; Lesley Bagha, criminal justice division; and Louise Miller, legal services directorate. I invite Karen Auchincloss to make opening remarks.

Karen Auchincloss (Scottish Government)

Good morning, and thank you for the opportunity to make opening remarks on the bill.

The main purpose of the bill is to improve how children, in the first instance, and vulnerable witnesses participate in our criminal justice system, by enabling the much greater use of pre-recorded evidence in advance of trial.

The bill builds on the work of the Scottish Courts and Tribunals Service’s evidence and procedure review, which made recommendations on how to improve the treatment of vulnerable witnesses in the Scottish criminal justice system. Those recommendations included proposals on how to protect vulnerable witnesses—focusing on children in the most serious cases—from further traumatisation, by introducing a new rule that they will pre-record their evidence.

The main reform in the bill is to create a new rule for children under 18 who are complainers or witnesses, to ensure that, where they are due to give evidence in the most serious cases, they will have it pre-recorded, unless an exception applies. The new rule applies only to solemn cases; committee members will have noted that the bill makes no provision in relation to summary cases. However, in a summary case it is currently possible to pre-record under the current legislative provisions.

The bill does not extend the new rule to a child who is accused. That was considered, but it was decided that it was not appropriate, given the practical issues. Those issues are expanded on in the policy memorandum. Again, it is important to note that, under the current legislative provisions, the evidence of an accused person can be pre-recorded.

The bill includes a power for the proposed new rule to be extended to adults who are deemed vulnerable witnesses in solemn cases. That will potentially include complainers in sexual offence, human trafficking, stalking and domestic abuse cases. The Scottish Government considers that those categories of witness would benefit from the greater use of pre-recording; the power therefore ensures that the bill’s most significant reform can be extended beyond child witnesses in due course.

As committee members will be aware, evidence by commissioner is the special measure that is used to allow for evidence to be pre-recorded in advance of a criminal trial. The benefits of the approach are that the date and time for evidence by commissioner can be scheduled in advance, avoiding uncertainty for vulnerable witnesses, the atmosphere is less formal than that of full court proceedings, and evidence can be recorded directly or via remote videolink from another location. The evidence is then played at the trial without the witness having to be present.

The bill removes legislative barriers that might have a detrimental effect on the greater use of pre-recorded evidence. If appropriate, a commission could happen prior to service of an indictment, although, as committee members will note from the policy memorandum, in the short to medium term it is considered that applications for evidence by commissioner to be taken in advance of the indictment are likely to be rare.

The bill introduces the concept of a “ground rules hearing”, to ensure that all parties are prepared and the issues set out in the practice note are considered. It is important to note, however, that the bill provides the flexibility for the ground rules hearing to be conjoined with another hearing, if appropriate.

The bill also makes provision with regard to the role of the commissioner, to ensure that the commissioner has the same powers as a judge to review the arrangements for a vulnerable witness giving evidence and to encourage that the same judge undertakes the ground rules hearing and the commission, where that is reasonably practicable.

Finally, the bill makes provision for a new, simplified intimation process for standard special measures for child and deemed-vulnerable adult witnesses, which, where it applies, will streamline the current process by making it an administrative rather than a judicial process.

John Finnie (Highlands and Islands) (Green)

Good morning, and thank you for your opening remarks. Will you outline the special measures that are in place at the moment and how the bill will affect them?

Karen Auchincloss

The bill does not change the special measures as they operate at the moment. Standard special measures are those that witnesses are automatically entitled to, such as a screen, a supporter and a television link. Non-standard special measures are those made on application, such as evidence by commissioner, use of a prior statement—something that has been recorded before, whether or not that is written down—or a joint investigative interview by a police officer and social worker.

The bill does not change how special measures operate at the moment; it creates a new rule that, in certain circumstances, a child who is under 18 would have their evidence pre-recorded by using the special measure of evidence by commissioner.

John Finnie

For the avoidance of doubt, are we definitely talking about children under 18?

Karen Auchincloss

Yes.

Shona Robison (Dundee City East) (SNP)

Will you say a bit more about the main benefits of pre-recording evidence? We are aware of the obvious benefits of removing the vulnerable person from a stressful situation, but it would be useful if you could expand on that and on how the bill seeks to encourage the greater use of pre-recorded evidence.

Karen Auchincloss

As I said, the commission would be scheduled, so the witness would know exactly when it would take place, which would take away the uncertainty of timings. The environment is meant to be less formal for a child or a witness who gives evidence.

The bill creates a framework for the greater use of pre-recorded evidence. Behind that is Lady Dorrian’s introduction last year of a revised practice note, to encourage greater use, as members are aware. The practice note is quite comprehensive and sets out in great detail what the court and parties should consider before a witness gives evidence, such as the removal of wigs and gowns and the location where the witness gives evidence. For the witness who pre-records in advance of the trial, which could be some months later, that day is the end of the process.

Lesley Bagha (Scottish Government)

That currently happens under the new guidance in the High Court practice note. The bill provides for a ground rules hearing, which will have to happen before the commission takes place and can be incorporated into a preliminary hearing. It will mean a lot of focus on making sure that the parties are ready before a child or vulnerable witness gives evidence, which will involve consideration of what kind of questions there will be, whether everything is appropriate and whether breaks will be needed. That added scrutiny and preparation would probably not happen at the moment.

Shona Robison

Karen Auchincloss mentioned the power to expand the scope of the new rule. It would be helpful to hear what timeframe you think is realistic in that regard. What was the reasoning behind having an initial focus and providing for a power to extend the rule? Was it about phasing the approach in, in an orderly fashion, or are there capacity issues?

Karen Auchincloss

The bill’s main focus is on children, because we wanted to start somewhere and to target the most vulnerable. That is not to say that other people are not vulnerable. I accept that some stakeholders would like the bill to go a bit further, a bit more quickly. However, a fundamental point is that this is a significant change to how evidence is taken at the moment. It is important to get it right, for the practice note to bed in and for people to get used to the new way of working.

We accept and recognise that other categories of witness would benefit from this special measure on the way in which evidence is taken, but we are keen to get it right from the very beginning. The danger if we expand too quickly is that witnesses will not benefit. We are working with stakeholders on a potential implementation plan in relation to how the bill’s various powers could be used. Should we target certain cases for deemed-vulnerable adult witnesses or specific locations? We are very mindful that a lot of people would like the powers to come in quickly, but it is important that we do not rush.

Shona Robison

When will the implementation plan be ready? I presume that broad timeframes will be attached to the plan.

Karen Auchincloss

We are working with stakeholders on potential implementation. When the cabinet secretary comes to give evidence after the new year, he might be able to update the committee.

Lesley Bagha

The one thing that we have learned from our discussions and, indeed, from what is happening in other jurisdictions, is the importance of ensuring that, if there is an ambition, the work is done properly and there is time for monitoring and evaluation. Because these proposals deal with very vulnerable people, we have to get them right. Even though, as Karen Auchincloss said, evidence by commissioner has been around for a number of years, it has been used relatively infrequently, and we cannot say enough how much of a substantial and significant change these proposals represent. Of course, it depends on the views of the committee and the Parliament, but the proposal is for a legal rule that, in a sense, will be relatively inflexible and could make a massive change.

We therefore have to ensure that we get it right. It is a matter of not just making a legislative change but making sure that all the practical changes that go along with it are made, too. We are in close contact with our counterparts in London, who have been undertaking pilots on the various versions of pre-recording evidence under sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999. One of the big lessons that we have learned from our counterparts is that things probably take even longer than we think and, to get it right, we need to build time into all the stages to monitor, evaluate and learn from the experience before we roll things out to the next stage.

The Government’s current position is that, as has come out in the evidence and procedure review and the work that we have done, the initial focus should be on children, but for any power in future, the issue will have to be carefully evaluated and considered. Ultimately, that is a matter for Parliament and ministers.

Shona Robison

Thank you.

Liam McArthur (Orkney Islands) (LD)

Good morning. On your point about the importance of the ground rules hearing, we have discussed how lines of inquiry can be pursued with questioning agreed in advance and how, depending on the answer that a witness gives, the commissioner might need to pursue a line of questioning that was not predictable at the outset. Is the expectation that the guidance notes will cover how that situation should be handled, or is it likely to fall to the discretion of those conducting the commission?

Karen Auchincloss

It will probably fall to the discretion of the individual in question and whether they think that they need to bring back a witness. That will certainly be a matter for the court. When we developed the ground rules hearing policy, we took quite a lot from how things operate down south, where the system is quite similar. In fact, I think that writing all the questions down is a prerequisite. We asked people down south whether the situation ever arises where someone discloses something else or says something unexpected, but the feedback was that because parties have fully considered all the issues and looked at the evidence and disclosures that they have, the issue has not tended to come up. However, it could happen.

Lesley Bagha

Questions could be supplied for a ground rules hearing—indeed, the High Court might think it appropriate to do so—but an issue to take into account is the broad content involved and ensuring that questions are asked that the child can understand. I would have thought that if something unexpected were to come up in a commission, the commissioner—who would be a judge or sheriff—would still have the flexibility to say, “I want to pursue this line of questioning.”

The one thing that we have been keen to stress with these proposals is that nothing about them stops the legitimate testing of a witness’s evidence, which is absolutely key and important in all of this. This is about getting the best evidence in a more controlled environment, but that does not mean that cross-examination will be limited in any way.

Liam McArthur

Presumably the other end of the spectrum is that where a child does not provide an answer, because they either cannot recollect or are uncertain of something, there will be limitations on how far that can be pursued. Will there, at some relatively early point, be an agreement that the answer is what the child provides?

Lesley Bagha

Yes.

Liam McArthur

You have said that the procedure is used at the moment but nothing like to the extent that is anticipated. Even though there will be a phased process, with evaluation taking place before the next phase is rolled out, has the Scottish Courts and Tribunals Service said anything about the financial implications of this expansion? Does it believe that it has the resources at the moment to manage the process through to its conclusion, or will that depend on the evaluation that takes place, subject to the legislation coming in?

Karen Auchincloss

The financial memorandum sets out a range of estimated costs, because at this stage we just do not know how many people will go on to give evidence by commissioner. For children, the costs start off at half a million pounds. If all children are cited, the costs rise to about £3.5 million. If you extend that to adults who are deemed vulnerable witnesses—again, this is very much an estimate, because we do not how many would go on to do this—the costs go up to about £14 million.

Clearly there are significant resource implications for the court service, the Crown Office and the Scottish Legal Aid Board. Although the costs are set out in the financial memorandum, decisions that are taken in the spending review will also come out in due course.

11:15  



Liam McArthur

I understand that the equipment, technology and so on that are needed will be an expansion of what is currently used, rather than there being a requirement for different equipment.

Lesley Bagha

That is absolutely correct. It is an important point. The equipment is not used much now, and the Scottish Courts and Tribunals Service has recognised that, if the proposals are agreed to, it will need to upgrade its venues and information technology to ensure that it is ready. You will probably have seen the Scottish Government’s recent announcement of funding of £950,000 for facilities in Glasgow to be upgraded to provide vulnerable witness hearing suites and sensory rooms and have state-of-the-art facilities, so that Glasgow can start taking more evidence by commissioner. We are closely involved with the court service in looking at other areas, possibly including mobile equipment. Alongside the legislation, ensuring that the practical infrastructure is in place is an important workstream. The court service is doing a lot on that right now, and I am sure that, when it gives evidence to the committee, it will be able to give you a lot more detail on that work.

The Convener

If members have supplementary questions, I ask them to make those questions absolutely on point to ensure that we do not stray into areas that we want to cover later.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I want to ask about the reasons for not applying the proposed rule on pre-recording evidence to the child accused. I think that that is covered by subsections (7) and (8) of proposed new section 271BZA of the Criminal Procedure (Scotland) Act 1995, which provide that an exemption would apply, for example, if

“the giving of all of the child witness’s evidence in advance of the hearing would give rise to a significant risk of prejudice to the fairness of the hearing”,

or

“it would be in the child witness’s best interests to give evidence at the hearing.”

Who makes that judgment?

Karen Auchincloss

Sorry, was your first point about the child accused?

Jenny Gilruth

Yes. Obviously, exceptions exist in the legislation as it stands.

Karen Auchincloss

The bill does not extend the new rule to the child accused at all; such children are not within the scope of the bill. The exceptions apply for children under 18 who will be caught by the new rule.

Jenny Gilruth

With regard to those children, then.

Karen Auchincloss

The exceptions are extremely tightly drawn. I would not envisage a situation in which they would be applied, but the provisions give a bit of flexibility in the interests of justice or for circumstances in which there is a significant risk to the fairness of a trial. However, the position will be that, in the vast majority of the cases for which the bill provides, children who are under 18 will give pre-recorded evidence.

Jenny Gilruth

Who makes the overall judgment on the risk to the fairness of the trial? Who does that decision rest with?

Karen Auchincloss

It rests with the court and the judge.

Jenny Gilruth

On the current and expected future use of prior statements, Lesley Bagha alluded to there being more evidence, because there will be more evidence gathering by commissioner. That is already happening; do you expect the same level or an increase?

Lesley Bagha

Pre-recording can happen in several ways. If all the child’s evidence were to be given in advance of the trial, that might happen through a prior statement—that is, when just the child or witness’s evidence in chief is recorded, which can be done in writing or by video recording. Karen Auchincloss touched on that. In Scotland, there is less use of video recording by the police, but there is one circumstance in which that happens more often: the joint investigative interview, which is led by the police and social work team, who interview the child and record their evidence. As there are child protection issues, the police and social work team look at things from that point of view.

That interview could be introduced as part of the pre-recording of the child’s evidence, as a prior statement, although it would not cover the cross-examination or re-examination, which might be done by the process of evidence by commissioner. Alternatively, all the witness’s evidence could be gathered by a commissioner. There would be just the one hearing, in which the commissioner could ask various questions and record all the evidence for the trial. There are several different mechanisms for recording evidence in advance.

Jenny Gilruth

Can you update us on the development of the national standards for joint investigative interviews? A recommendation in favour of that approach was made in 2017.

Lesley Bagha

That is right. That was a recommendation by one of the sub-groups from the evidence and procedure review. A lot of work is being done on that at the moment. As you will be aware, there were areas of good practice in joint investigative interviews, but there were also many areas that the review group felt could be improved, particularly in relation to the IT but also in respect of training and guidance.

A lot of work is under way. My understanding is that it is focusing mainly on the training that will take place for people who conduct such interviews. A revised training programme is being developed and there is an intention to design national standards. All that work is going on in sync, and it is very much in tune with the idea that, if we are to have more pre-recording, we have to get the pre-recorded evidence up to the best possible quality. A lot of work is going on in that regard and will carry on.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Karen Auchincloss mentioned in her opening statement that the policy memorandum outlines the reasons why the bill does not extend to child accused persons. Will you briefly set out those reasons, perhaps as bullet points?

Karen Auchincloss

Obviously, a child accused has a completely different status from a witness—for example, the child already has access to legal representation and has a choice about whether to give evidence. As I said, it is technically possible for an accused person to pre-record evidence, but that has never happened, to our knowledge, so it did not seem to be sensible to apply a rule to a category of person when the special measure is already available but has never been used.

Over the summer, we did more work with a lot of stakeholders. Some of that has just been published online. I think that in it there is recognition that pre-recorded evidence would not really work for an accused person. However, a point came out about the wider support that child accused persons need. We will have to take that and consider it.

Lesley Bagha

A lot of work was done on the matter. In responses to the Government’s consultation, many people were in favour of including child accused persons in the bill, but when we spoke to people, we found that that would raise practical issues and could be very prejudicial. Normally, an accused person—including child accused persons—would, on the advice of legal counsel, decide whether to give evidence only once they had heard all the Crown evidence against them. If evidence were to be pre-recorded, that would be done in advance. None of the advantages of pre-recording that we have talked about, such as the person not having to attend the trial, would apply, because an accused person has to be there and listen to the trial in the courtroom, but their case could be prejudiced, which would strike at the heart of the policy, which is about the best interests of the child.

As Karen Auchincloss said, once we actually talked through the issue, a general consensus grew that pre-recording is not the answer.

Rona Mackay

On the point about supporting the child accused, we heard during our visit to the High Court yesterday that there are things that could be done now that are not being done and which would not need to be included in the bill. For example, a child accused does not have to be in court—they can listen to the evidence in a separate room. Obviously, that is a bigger legal question that is not to do with the bill.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Good morning, panel. I first have a supplementary on that supplementary, then I will go back to Jenny Gilruth’s question.

Do the rules on child accused persons take cognisance of the Age of Criminal Responsibility (Scotland) Bill, which is with the Equalities and Human Rights Committee?

Karen Auchincloss

Yes. We work closely with other Scottish Government officials, especially when there are connected policy interests, so we have been engaging with the officials who are involved in that bill. As I said, and as Lesley Bagha touched on, although we recognise that pre-recording is probably not the best special measure, a lot of wider support work could be done that would benefit from further consideration.

Fulton MacGregor

From what I have seen, that work seems to fit the ethos of that other bill.

My next question is on joint investigative interviews. I declare an interest as a registered social worker who has been involved in such interviews. You might not have exact statistics, but roughly how often are they currently used as pre-recorded evidence?

Lesley Bagha

To be honest, I would be guessing if I were to give you a number, so it is probably better if we write to you with specific information. However, I understand that many more joint investigative interviews happen than are admitted in court. That is partly because their quality is not good enough to meet the test for being accepted in court as a prior statement. Obviously, there would ultimately have to be a court case, so we want to change that situation by improving the quality of those interviews.

Would you like us to find out the numbers—if they exist—and write to the committee on that?

The Convener

Yes, please. That would be helpful.

Daniel Johnson (Edinburgh Southern) (Lab)

I want to ask about the nuts and bolts, but before I do that, I have a question about your comment that the bill in some ways formalises existing practice and seeks to extend it. I will ask another numbers question. How many children currently give evidence through the special measures and how many more will benefit following enactment of the bill?

Karen Auchincloss

The numbers were extremely low, but they have steadily increased since the introduction of the practice note. From April 2018 to August 2018, there were 82 applications for evidence by commissioner in the High Court, of which 71 were for children and 11 were for adults. We must recognise that it is important not just that the numbers go up, but that overall quality and consistency improve across the board.

If the bill is passed in its current form, the maximum number of children involved would be about 759, and about 2,000 adults would be deemed to be vulnerable witnesses. The numbers that would result from the bill are quite significant. It is encouraging to see that the numbers have been steadily increasing since the practice note was issued.

Lesley Bagha

To give that a bit of context, those 82 applications were for a period of just five months, whereas in the previous period of almost a year, from April 2017 to March 2018 when the High Court practice note was introduced, there were 62 applications. The committee can see that there was a substantial increase, although it is as nothing compared to the increase that would occur under the proposals in the bill, which is why they are seen as such a big change. However, even the current increase is quite a big change to get used to and be set up for. The High Court practice note seems to be having a positive effect already.

Daniel Johnson

It is useful to have that context.

You have said that the proposal is just for dealing with solemn cases. Can you explain the rationale for not extending it more broadly to summary and sheriff court cases, which would involve much larger numbers?

Karen Auchincloss

As I said, the bill is a framework to encourage and start greater use of pre-recording of evidence. We have focused on the most serious cases because that is an appropriate place to start. However, if to do so were deemed to be appropriate, the special measures could be used in the sheriff court at summary level. However, as Daniel Johnson suggested, the number of people in sheriff courts at summary level is significantly higher than the number for solemn cases.

Daniel Johnson

Would the Government look to review how the practice might be extended in the future using non-legislative means—or legislative means, if they were required?

Karen Auchincloss

Since the introduction of the practice note, there has been a period of monitoring and review by the court service. Clearly, the Scottish Government has an interest in that. If the bill is passed in its current form, there would be a period of continuous monitoring and evaluation as we commenced the various powers.

The ultimate aim is for the approach to become the norm. However, that will take a bit of time because it is a culture-and-practice thing. The current special measures for evidence by commissioner are already in legislation, so we will not need to introduce further legislation—the facility already exists and people can use it.

Lesley Bagha

It is for Parliament to consider whether it would be appropriate to have a rule that is relatively inflexible or to leave things being dealt with on a case-by-case basis. As my colleague said, it is possible to apply for special measures in summary cases, if that is appropriate.

The current proposal in the bill is that the provision will apply to children under 18 in certain solemn cases, but the bill also proposes quite wide powers to remove the list of offences, which would ultimately mean that such measures would apply to all children under 18 in the High Court and in sheriff court solemn cases—which would be massive—and that they would be extended to all adults who were deemed to be vulnerable witnesses. Even the proposal for the first group is a big change: to go down that road would be huge. We need to manage expectations about how far we can go down it and how quickly.

Daniel Johnson

I turn to ground rules hearings. Given the discussion that we had yesterday with people at the High Court and from your evidence, it is clear that those hearings are critical to establishing how evidence will be taken, and to ensuring that the sensitivities that we all hope would be considered are considered. As we heard from Rona Mackay, some people do not know that they can ask that particular provisions be used or approaches be taken in court.

What safeguards are in place to ensure that those questions are asked, and that we do not just rely on the defence counsel and the prosecution to know to ask the right things or to agree to a particular approach? What would prevent, many years down the line, a particularly aggressive defence counsel, who does not agree to particular lines of questioning or approaches being taken, from taking advantage of that system?

11:30  



Karen Auchincloss

The practice note is comprehensive. At its heart is the idea that the vulnerable witness and their needs are put first. The practice note also references what is called the advocate’s gateway, which is used in England and Wales to provide, for advocates, comprehensive training in how to cross-examine children. Whether the practice note is followed is a matter for the judge in each case, but I understand from feedback that I have received that the numbers have started to increase, that people are getting used to taking evidence by commissioner, and that the practice note is being followed and considered.

Daniel Johnson

My final question is about timelines. Even in the speediest of circumstances, it can often take 18 months to two years for a crime to come to trial, and that is for something that is recent, not historical. How much earlier in the process will the proposal enable evidence to be taken, given that we all agree that, by and large, with some caveats, the rough rule of thumb is that the sooner evidence is taken, the better?

Karen Auchincloss

The bill will remove or amend current provisions by allowing a commission to happen prior to the service of the indictment—the current legislation defines commencement of proceedings as being from service of an indictment. The proposal means that a commission could happen after an accused person has appeared on petition—which is, obviously, some time before service of the indictment. That will remove the legislative barrier. It had been highlighted to us that that might be why commissions do not happen earlier.

We set out in the policy memorandum that, in the short-to-medium term, we would not expect a lot of commissions to happen pre-indictment, because it is only at the point at which the indictment is served that the accused knows all the charges that they face. The proposal will remove that requirement and ensure that there is a little bit more flexibility, so that when the provisions start to bed in and people get used to them, there might be cases—it would be done on a case-by-case basis—in which it might be appropriate to have a commission before service of the indictment. That would be a matter for the Crown Office and the defence, because—obviously—the defence still has the right to cross-examine.

Daniel Johnson

In practical terms, what will that mean? Are we talking about a few weeks earlier, a few months earlier or even a year before the trial?

Karen Auchincloss

I can write to the committee with a better indication of the timescales, but my understanding is that somebody could appear on commission and it could be six or eight months later that the indictment is served. We recognise that some cases take far too long between the initial report and their getting to court.

Lesley Bagha

There is a wider context to the matter. Obviously, with the bill, we are looking at pre-recording. However, in the summer, the Cabinet Secretary for Justice announced—I think—£1.1 million of funding to help the court service and the Crown Office to reduce the amount of time that sexual assault cases take to get through the system. In our policy memorandum, we supply a lot of the wider context, too. In a sense, the issue that we are discussing is just one part of what needs to be done; we need also to consider the wider issues.

We are aware of a number of issues. The various parts of the justice directorate and the ministers, with the court service and the Crown Office, are considering how we might address those issues other than through pre-recording.

John Finnie

There have been a number of references to the practice note. Can you say a bit more about it? Is its author Lady Dorrian? What regard does the legislation have to it? Is it a dynamic document—is it evolving?

Lesley Bagha

I sat on the practice note sub-group, which was one of the sub-groups of the evidence and procedure review. I was there as a Government observer, alongside representatives of the legal sector and the third sector. Lady Dorrian chaired the group, which dealt with a number of practical issues that were raised on the back of the initial evidence and procedure review—for example, what might be done to enable greater pre-recording. The court service developed the practice note, but that was done with input on how the process could work from all the sectors.

The practice note is quite lengthy. I believe that the sub-group considered the issue for about a year before Lady Dorrian issued the practice note, which I think was in May 2017.

The High Court can bring in practice notes, which it does regularly. The note could be updated at any time. Right now, the practice note is only for the High Court. It will be for the court service to decide whether it wants to deliver a similar note for sheriff courts. We understand that, at the moment, if there are commissions in the sheriff court, parties take cognisance of the High Court practice note, but the sheriff court does not have its own one.

In respect of the bill, we have picked a few key elements of the ground rules hearing that we think should be in primary legislation. In a sense, it is better to limit what is in primary legislation, compared with what is in the practice note, for the very good reason that the practice note is a fluid document that is easier to amend as lessons are learned.

The court service is currently evaluating the success of the practice note. The committee may be aware that the service very recently issued its first evaluation report, which was about how the guidance for the practice note is working in the High Court, and it received very positive feedback. I think it intends to do a second evaluation report in the next few months, so I am sure that there will be a further update. Lessons that are learned in the evaluation will result in further adaptations—that is for the court service to provide more information on.

John Finnie

Is this something that it is nice to do, or that has to be done, or, because it exists, is followed in any case?

Lesley Bagha

Do you mean the High Court practice note?

John Finnie

Yes.

Lesley Bagha

The High Court practice note is a very important vehicle because it means that all the parties to a case, not just the court and the judiciary, are aware of what is expected of them, and it provides form and guidance. It sounds as if the note is already having a positive influence—the increasing numbers of applications and how prepared they are shows that there is a lot of merit in it. Clearly it is also a “nice” thing to do, but it seems that it is having a very positive influence as well, so it is probably more than that.

John Finnie

Thank you very much.

Liam Kerr (North East Scotland) (Con)

Some submissions expressed concerns about the possibility of miscarriages of justice. In her opening remarks, Karen Auchincloss talked about the setting being less formal, but some people might suggest that the process will be taken less seriously. For example, it will not allow a jury to see a contemporaneous cross-examination. How reassured are you that miscarriages of justice will not happen?

Karen Auchincloss

I am very reassured of that. Some people might think that the process is less serious because it is less formal, but at the heart of the process is protection of the most vulnerable people. By using a less formal setting in which they might feel more relaxed, we are likely to get better evidence. In the interests of justice, obtaining the best evidence can only be a good thing.

Lesley Bagha

The process will still be under judicial scrutiny. We must remember that, often, the witnesses give evidence on very traumatic matters. What we might see as a more informal setting could probably still be very intimidating for such witnesses. As they happen at the moment, commissions are informal in a sense, but there is still legitimate questioning on difficult subjects.

On your point about the jury not seeing the witness give evidence, as part of the Scottish Government’s research into commissioning of juries, in—I think—the last year we published an evidence review that relates to how pre-recorded evidence is seen by jurors. The review was particularly interesting in respect of the evidence of child witnesses, in that it did not show—as one might have expected—that such evidence carried less weight or lost anything due to prejudice. The review was positive in that respect. If the committee does not have a link to that evidence report, I can send it.

Liam Kerr

I thought some of the conclusions from that report were very interesting.

In the bill, there is an exception to the rule about pre-recording evidence, which is if it would

“give rise to a significant risk of prejudice to the fairness of the hearing”

and

“that risk significantly outweighs any risk of prejudice to the interests of the child witness”.

That is interesting phrasing, because it suggests that any risk of prejudice to the child’s interest would outweigh the fairness of the trial.

Lesley Bagha

That is already set out in legislation on other matters relating to special measures, and it is accepted. The right to a fair trial, as set out in article 6 of the European convention on human rights, runs underneath any decision that is taken on the matter.

Liam Kerr

Would the fairness of the trial remain paramount?

Lesley Bagha

Decisions must be compliant with the convention—even the decisions of judges. The wording that we use in the bill is already used in the Criminal Procedure (Scotland) Act 1995. It is not new wording. It can therefore still be seen to provide for a fair trial. The miscarriage of justice point has been raised with us before, so it is an issue to which we are very sensitive.

I cannot speak for other people and what they might personally think about miscarriages of justice, but there might be a fear that we are in some way trying to remove or limit the right to cross-examination, or that we are trying to stop proper testing of evidence. We have tried to make it clear that we are absolutely not doing that. That is not the policy intent—it is about having more focused questioning in more appropriate circumstances. It is not in any way about the defence not being able to put legitimate questions directly to the witness, which is still absolutely the intention.

Liam Kerr

I presume, however, that you accept that the provision will require a cultural shift—or a shift in mentality—in the adversarial process that we have?

Lesley Bagha

That is right. It is a movement towards saying that our having a more trauma-informed way of approaching children and vulnerable witnesses does not mean that we are removing the accused’s right to a fair trial by testing their evidence. Enabling a witness to get their evidence out should not undermine fairness to anybody else. What we are doing is letting them tell their story and then allowing legitimate questions. Whenever such concerns are raised, we always work with the legal sector to try to alleviate them. Our intention is not at all to undermine fairness. It is about providing better circumstances in which vulnerable children and other witnesses can give their evidence, and that it can be properly tested at all times.

Liam Kerr

In its submission, the Faculty of Advocates suggests that it should be a requirement that “sufficient safeguards” are in place to ensure fairness. What do you understand such safeguards to be, and are you comfortable that they are in place?

Lesley Bagha

We would probably have to have someone from the faculty here to say exactly what its concerns are. It has previously said to us—and I am sure that it will say so in its evidence—that it is slightly concerned that the way in which the bill has been drafted might mean that it is possible for just a prior statement to be submitted to the court and for there not to be any form of cross-examination or evidence by commissioner. We are 100 per cent clear that that is not the policy intent. The bill has been drafted in that way just to explain the ways in which pre-recording can happen. If a defence agent ever wanted to cross-examine such a witness, that could happen, but it would have to comply with the European convention on human rights.

What we have tried to allow for in the bill—and where concern has sometimes arisen—is that there is a real possibility that a child’s prior statement might be taken and the defence might not have any questions. If that is the case, we do not want a commission to have to be set up and for everybody to be sitting there, only for the defence to say that it has no questions and for the child to be sent away. We have to allow for some circumstances in which the prior statement might be the only evidence. However, if the party that has not called the witness wants to do any questioning, that will still happen.

Liam Kerr

I understand that, but I might pose the question again. If the Faculty of Advocates—a very powerful voice—has said that sufficient safeguards need to be in place, presumably you will have taken time to understand what such safeguards would be and, if you think them legitimate, to build them into the legislation.

Lesley Bagha

Absolutely. We have had a number of meetings with the Faculty of Advocates, and its representatives have been very helpful and supportive in that respect. A key safeguard is that everything that is set up for the ground rules hearing and the commission is always done under judicial scrutiny, so the judge is always there to ensure that a fair trial can take place. That is one of the main safeguards, and we are not removing it in any sense. In the same way, we want to ensure that nothing further goes. We will listen to the faculty’s evidence in due course and, if there are further safeguards that we have not thought of, we will absolutely take them on board. As I have said, it has been very constructive in its dealings with us, and we hope that it will carry on being so.

The Convener

Fulton MacGregor has a supplementary question.

Fulton MacGregor

I hear what the Faculty of Advocates has said, and I think that it has been very constructive, but it sounds as though the bill is, in essence, providing a safeguard for the court process by changing the environment in which vulnerable witnesses give evidence. Do you agree with that?

Karen Auchincloss

As I touched on earlier, the hope is that the approach is about somebody being able not just to give evidence but to give their best evidence, and the bill’s provisions have always had that in mind. They are not just about getting evidence but about securing the best evidence from the child or the vulnerable witness.

Fulton MacGregor

And thereby safeguarding the court process.

Karen Auchincloss

Yes.

Rona Mackay

What is your opinion of the Barnahus model? Will the bill bring us any closer to that?

Lesley Bagha

The first thing to say is that the bill is absolutely not about Barnahus. I have previously had some involvement with that concept, and the main thing that I would say about it is that it is a general concept.

11:45  



It is often talked about as the Barnahus model but, as it has slowly been rolled out in different parts of Europe, each country has adapted it according to its circumstances and what works best there. Before Barnahus was moved to another unit, I had formal dealings with it. I went over to Europe as part of the European Union promise project—I do not know whether you have heard of that—which was an EU-funded programme that brought together representatives from lots of different countries to find out about Barnahus. Some of them were setting up the model and some were just considering it. Initially, representatives of the courts service and Children 1st went to the meetings; I went to the very last meeting. It struck me that I was the only justice representative there, although perhaps there was a police officer there, too. A lot of people who work in health and child protection went, because a lot of what Barnahus is about is the trauma-informed child focus.

When I was over at that meeting, I spent a bit of time talking to one of the main people responsible for bringing the Barnahus model to Europe. He is a gentleman called Bragi Guðbrandsson. He was the director general of the child protection agency in Iceland, but I think that he has left that job, because he is now a committee member of the United Nations Committee on the Rights of the Child.

I spoke to him because I was looking at Barnahus from a justice point of view. He was clear that Barnahus could work in an adversarial system, although most systems that have set it up are inquisitorial. There would be no problem with Barnahus, but adapting it to an adversarial system would mean that you would not tend to have the one-stop-shop of Barnahus with one forensic model interview. You could still have bits of pre-recording, because Barnahus is much more about wraparound services, forensic medical examination, therapy and advocacy, and about all that happening in one place.

Currently, the Scottish Government is just exploring the Barnahus concept and whether it could be adapted for Scotland. That work is at the exploratory stage now.

The Convener

You have not mentioned the streamlined process for arranging the use of standard special measures. The bill provides for an automatic entitlement and makes the process administrative rather than judicial. Will you talk about that?

Karen Auchincloss

At the moment, if somebody is automatically entitled to standard special measures, they are automatically entitled. However, as the legislation is framed, the applications and notes go to the judge, so this provision is just to free up judicial time and to make it more of an administrative process. Another thing with standard special measures is that people are automatically entitled to them and no other parties can object. The provision will make the process more administrative and less of a judicial rubber-stamping exercise, which will free up time.

The Convener

Is there no concern that, by making it an automatic administrative process without the judge casting their eye over who is before them, someone who needs not just the standard measures but others might slip through the net?

Karen Auchincloss

As it is framed at the moment, the legislation has review provisions so that a court or judge could review it if they thought that the most appropriate special measure had not been applied for. The new rule has review provisions built in as well.

Liam Kerr

My question is on something slightly separate. The SCTS evidence and procedure review referred to research that indicated that the current system of examination and cross-examination is not a good way to obtain accurate evidence from a vulnerable witness. That is referred to several times in our papers, which is interesting. Can you give us a bit more detail on what the evidence said? Is the research scalable to not only other vulnerable witnesses but the whole system as it stands?

Lesley Bagha

Yes. The evidence and procedure review looked at the adversarial system; probably, it was looking at a bigger picture than that. In relation to Mr Finnie’s questions about the sub-group on joint investigative interviews and Lady Dorrian, I mentioned that that was, in part, looking at a longer-term vision that could be achieved by potentially moving from that system to having just one forensic interview for a case. I think that it was level 1, so it was only for certain child witnesses. That was very much seen as being a long-term vision.

Obviously, Lady Dorrian and the courts service can speak for themselves, but it is safe to say that that could not be done quickly. In a sense, what is being proposed by the Scottish Government is a first step to getting the whole system used to pre-recording being the norm. That does not happen at the moment.

Whether we currently have the best system is probably beyond what we can comment on, but a lot of interesting things came out of the evidence and procedure review with regard to getting to the truth and how to find out about it. It was about starting a journey towards a more inquisitorial system, whether or not that is the end point. We are at the very start of the journey in Scotland; we are not used to pre-recording and evidence being taken in advance. It is about starting that and it becoming the norm.

I leave it to the courts service, which has been much more involved, to comment on the research in detail, in case I misrepresent it. It was part of a much more extensive possible vision for the future for Scotland, rather than something that could happen immediately.

Liam Kerr

But if that is the start of a journey, how do you respond to the suggestion—criticism is perhaps too strong a word for it—that the ability to extend the category of vulnerable witness by regulation only provides Parliament with insufficient scrutiny over that category?

Lesley Bagha

At present, it is proposed that that will be by affirmative procedure, so there is still sufficient scrutiny. It is hard to see in what other way that could be done. If the committee or Parliament were not happy with what is proposed, further evidence could be given. An extension could not just happen in a vacuum; there would have to be broad discussion about it and how it would be done.

One reason why it is good to have the flexibility and still have the parliamentary scrutiny that comes with it being done by affirmative procedure is that, if something is too flexible, there is a much greater risk that something comes in before the system is ready for it to be handled, which could have a detrimental effect on vulnerable witnesses.

There absolutely will be parliamentary scrutiny. If, in future, regulations are brought forward to extend the category to include deemed vulnerable witnesses, parliamentary scrutiny is built in. It would not just be done by a commencement order as that power would have to be put before the Parliament.

The Convener

That concludes our questioning. I thank the witnesses for attending. We suspend briefly to allow a change of witnesses.

11:51 Meeting suspended.  



11:56 On resuming—  



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Second meeting transcript

The Convener (Margaret Mitchell)

Good morning and welcome to the Justice Committee’s 31st meeting in 2018. There are no apologies, but Liam Kerr has indicated that he will arrive slightly late.

Agenda item 1 is our second evidence session on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper. I welcome our first panel: Daljeet Dagon, national programme manager for child sexual exploitation, Barnardo’s Scotland; Mary Glasgow, chief executive of Children 1st; and Malcolm Schaffer, head of practice and policy at the Scottish Children’s Reporter Administration. I thank all our witnesses for their written evidence. As always, the committee has found it particularly valuable to have that in advance of our formal evidence session.

We will now have questions from members, starting with Rona Mackay.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning, panel. I note from your submissions that you are all largely supportive of special measures, but can you tell us about any concerns that you might have about them? Is there anything about the bill’s proposals that you would like to flag up?

The Convener

Who would like to start?

Malcolm Schaffer (Scottish Children’s Reporter Administration)

I will start by saying that the Scottish Children’s Reporter Administration welcomes the proposals. They are a progressive way forward, and nothing that I will say should contradict that. I understand the need for an incremental approach, so as to test it out as far as resources are concerned.

I will speak briefly about our end of the process, which concerns children’s hearings, and its relationship to the proposal. I always have a slight worry that we make law in silos. The committee is concentrating on criminal justice and prosecution, which is what the bill is about. However, the law intervenes in different ways in such cases. For instance, if it is alleged that a child has been raped by her father, the law will intervene to prosecute the father. The bill’s proposals are very much aimed at securing the best-quality experience for that child if she should have to give evidence. However, quite separately, the law also applies to protect the child, which is where the children’s hearings system comes in.

I have been left slightly confused about where we stand on the bill’s provisions on recording being applied to the hearings system. We often have to go through the same evidence. For example, quite often, if the child is in a place of safety, a proof will have taken place before the prosecution. There is therefore a very complicated interrelationship between prosecution and protection proceedings, and an overlap in the evidence that is heard. Because children’s hearings are civil proceedings, we have the ability to admit hearsay evidence, which can mean that the child’s direct evidence is not always required. However, on occasion it is. More work needs to be done to ensure that the two parts of the process are handled seamlessly.

The hearings system also applies in relation to children who offend, and there will be occasions on which a child who commits rape might be referred to us to be dealt with. The bill’s provisions apply very much to High Court prosecution proceedings and not to children’s hearings proofs, so there are a few gaps there.

We have been involved in discussions on the evidence and procedure review. As I said, we very much support the bill’s moving forward. However, we need to look at the mistake that has sometimes been made in the past of creating laws in one silo that do not apply to the equally important silo of child protection. That, above all, is my main issue in relation to the provisions.

Rona Mackay

With regard to your first point, do you have a solution to or a preferred way forward for that situation?

Malcolm Schaffer

I would prefer it if, instead of creating laws in criminal justice on the one hand and family law on the other, as is happening at the moment, we had a joined-upness that concentrates on the child rather than the system and does not create any confusion.

For instance, as far as special measures are concerned, there is a provision in criminal law to allow prior statement evidence, which is very valuable and useful, to be admitted, but that has not been extended to our proceedings. There are examples of innovation in criminal justice that are not being directly applied to other areas, and that is because we work in different law and justice silos. The separate family law consultations will, I hope, bring about many of those innovations, but we need to marry it all together and ensure that children are not caught in that space in the middle, where, although we have acquired a child’s evidence to be heard in our proceedings, we have to apply separate measures that might not offer the same protection that—ironically—is available in the criminal justice arena. That is our main core issue with the provisions and, as I have said, it applies to law reform in general, not just the provisions in the bill.

Mary Glasgow (Children 1st)

Like Malcolm Schaffer, we welcome the bill, and we concur with his comments in that regard. However, we feel that measures are already in place, and a big challenge with the bill is how we ensure that custom, practice, culture and behaviours are enforced in the way that they should be. Although special measures have already been introduced, we hear lots of stories of their not being applied or of children not being offered them. As I said, we welcome the bill, but it does not go as far as it should in realising children’s rights and enabling children to give evidence in a way that is commensurate with their developmental stage, that takes account of the way in which they communicate and which understands the impact of trauma.

Much more could and should be done for children, and it should happen at a much quicker pace. We often hear of children being told that they will get better justice if they give evidence without special measures; there continues to be a lack of support for whole families—both parents and children—as they go through the process; there continue to be long delays; and children continue to tell us that the experience of going to court is more traumatic than the abuse that they have suffered. We also need to think about the shocking lack of support to prepare families and children for that experience and to allow them to recover in the aftermath. That is where the gaps are.

Although we welcome the bill, we want a faster approach to the child’s house model to ensure that no child goes into court, because it is clear that they are not able to give their best evidence in that process. Our court system is just not set up to allow them to do that, and we strongly believe that if we get the system for children right and ensure that it is much more developmentally appropriate and takes account of the impact of trauma, we will get better justice not only for children but for the accused, given the impact of the process on a child’s ability to explain what has happened to them and to give good evidence.

Rona Mackay

Are you saying that the bill does not go far enough or that it is being phased in too slowly?

Mary Glasgow

The bill is welcome, but we want it to go much further. From the stories that we hear from children who are victims and witnesses, we think that special measures are useful ways of militating against a system that does not allow children to give their best evidence. What would be very welcome would be a move in Scotland towards a much faster system in which children are removed from the court entirely, go to specialised suites where the trauma recovery starts at the moment of disclosure, give their evidence away from the court system and are not expected to engage with a system that they find difficult to navigate and which currently causes them harm.

Rona Mackay

Thank you. Does Daljeet Dagon wish to comment?

Daljeet Dagon (Barnardo’s Scotland)

There might not be much left for me to say. However, like the organisations that Malcolm Schaffer and Mary Glasgow represent, Barnardo’s welcomes the opportunity to give evidence today and to improve the measures in the bill.

I suppose my starting point is that, although we welcome the bill, there are stages before the stage that we are discussing that act as barriers for children. Many of the children whom we work with who have experienced child sexual exploitation will not disclose the abuse because they do not recognise it. We need to have practitioners on the ground who can identify what the issues are so that we can safely support children through the process that Mary and Malcolm have spoken about.

In our experience of child sexual exploitation cases—I have been involved in a number of police operations over the past seven years—we often find that statements are taken and the police investigation concludes years before the actual process takes place. Recently, we found ourselves chapping the doors of young women who are now in their 20s but who had given statements when they were aged 14 and 15. Their situation had moved on, yet we were going back and retraumatising them, saying, “We’ve got new evidence. Are you willing to come forward? We don’t know how long the process is going to take.” That illustrates the lengthy delays in procedures and processes. There is a link between the children’s hearings process and the criminal justice process, because young people become adults and situations change.

I reiterate Mary Glasgow’s point about culture and practice. It is not just about the measures; it is also about making sure that the right people are involved at the right stages and that they are competent and, first and foremost, child centred. It is about making sure that we have that support for children before, during and after the process.

Rona Mackay

Does that come down to training at all levels?

Daljeet Dagon

Training is significant, but it is not just about that. It is about the people who are involved actually wanting to be involved and to work with children, and about their understanding not just child development, attachment and trauma but brain development and the child’s ability to remember. It can be quite difficult for the child to recall memories.

I said to a colleague earlier that we had a young person who gave the police 27 statements and, by the time we came to the court process, she was deemed to be an unreliable witness. She should never have given 27 statements. It is about people thinking, “At what stage should we take the statement? At what stage will this child be ready?” The more she was interviewed, the more she remembered, but the more she contradicted herself. Because there were multiple perpetrators, multiple occasions and multiple episodes, she could not remember the details, so every time she was interviewed, the information changed. When the procurator fiscal looked at it, they said, “There’s absolutely no way I’m putting her on the stand”, yet she was the main complainant.

It is about training at every level, but not just training on the court processes; it must start way before that with the first person who engages with the child and how the child is taken through the process. Often, workers on the ground do not understand what they can and cannot talk to children about and they have a fear of contaminating evidence. They often think, “I’d rather not say anything”, and then the child feels even less supported and so does not go through the process. The culture seems not to be child friendly or to help us to take young people through a process that we hope will give them better outcomes and help them to recover and move on with the rest of their lives.

Rona Mackay

Thank you. That is really helpful.

The Convener

Fulton MacGregor, Liam McArthur and Daniel Johnson have supplementary questions.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Although the conversation has moved on a bit—we have heard some really powerful evidence—my question goes back to a point that Malcolm Schaffer made.

I agree with what you said about the systems marrying up, but do you agree that the children’s hearings system is designed to be child friendly and child focused and that, although improvements are needed in some areas—I know that you have said that before—it is totally different from the court system? The court is not a good place for kids to give evidence, and that is what the bill primarily tries to address.

10:15  



Malcolm Schaffer

Yes, but we could still do better at all stages, and we are working on that through our better hearings project. We must remember that the court comes into the children’s hearings system at various stages. If the grounds are denied, the case will go to court for proof, as you know, and that can be a very challenging and formal process, with the case being heard before the court in a formal setting. If there is an appeal against any decision by the hearing, the court comes in again. Court rules therefore apply, and court facilities and settings come in too. The whole way in which children are supported in that process, if it is needed, applies in our setting. As I said, we have an advantage in that we can use hearsay evidence. On many occasions, if we can avoid having the child give evidence, we will do so. However, that is not always possible; in particular, it will not be possible if the child is the victim of an offence committed by a child.

Fulton MacGregor

So is your concern more about cases in which a child’s evidence might be required proceeding to court, rather than about cases in which you would use hearsay evidence or which stay in the children’s hearings system?

Malcolm Schaffer

It is about trying to work out the status of the evidence that has been collected in the criminal process. If the recording has already taken place, how can we use it? Do we have to start again? Do we have to take evidence by commission, which we have done on occasion? Can we rely on that as the hearsay evidence? I am not sure that we can, because it would be regarded as a prior statement. As we progress the criminal side, we should ensure that the child protection side progresses as well. We should remember the informality of the children’s hearing, but we should not forget that the court comes in for certain elements and that that requires the protective and progressive measures that are being introduced in criminal law.

Liam McArthur (Orkney Islands) (LD)

I have a follow-up question on Mary Glasgow’s evidence in relation to the current measures. I think that you suggested that they are not necessarily applied in all circumstances, as one might expect them to be. I suppose that the argument that we got from the bill team last week was that there will be a staged approach to ensure that things bed in before the scheme is extended. Do you think that that is a sensible approach? It involves picking up where the scheme is not currently being applied when it should be, as well as the extensions that are proposed through the bill.

Mary Glasgow

It is a sensible approach, but there are huge practical challenges around it. We have to think about not only the training, experience, knowledge and skills of the people involved, but where children will go to give evidence in a pre-recorded interview. We know that children will still be interviewed in police stations and that they are still being interviewed in school, which is totally inappropriate. The bill is useful and a step in the right direction; it just does not go far enough in delivering rights-based justice for children.

If we really thought about giving children the best possible opportunity to give their evidence, they would go nowhere near court. Instead, they would go to specialist resources where all their needs would be supported and their family would be given advice about what would happen from the moment of disclosure and interview right the way through to the court process. We would also offer much more effective support to help children and their families talk about what had happened under cover. The bill is a step in the right direction, but there are many practical challenges and many ways in which the process will be difficult to implement unless we are really clear about what true child-centred, rights-based justice looks like.

Liam McArthur

But what you have described does not necessarily mean that you would extend the process to a broader range of circumstances. It is more about the setting having to be appropriate, as you rightly said, as well as the fact that the child is being triaged through the process and kept away from a court setting. That tends to suggest that an incremental introduction of the scheme, in the right locations and with the right support, is the best way of securing the bill’s objectives.

Mary Glasgow

There is a challenge, though. You are right that there needs to be a careful approach to the process so that a system is built that gives all children, no matter their circumstances, the same level of support.

We urge the committee to keep an eye on that, not just in relation to the bill but throughout the lifetime of this Parliament. The fear is that we do this and think, “That’s it—job done”, but there is a long way to go to deliver justice for children.

We know that children are continually subject to things that are simply convenient or possible for the agencies to deliver. As all the panel members have said, what we really need to do is to make sure that what children need—and not just what is possible for us to deliver incrementally—is at the centre of the system that we build. We need to hold on to the notion that children will give their best evidence—in a way that is better for them and the justice system—if we build a system around them that understands the impact of trauma and the way that they communicate, and which gives their whole family the support that it needs to understand what is an incredibly complex system to navigate. Most professionals find it intimidating to go to court; for children, even when we put special measures in place, the system is often still not built around their needs, but around what is possible for the professionals or agencies to do well.

Daniel Johnson (Edinburgh Southern) (Lab)

You said that children should not be giving evidence in court but in an appropriate setting, and my understanding is that the courts service is developing facilities to provide exactly that, so that evidence can be given in specially designed suites. That is not in the bill, but it is what is being developed in practice. Are you saying that that is insufficient? Does it need to be in the bill?

You also spoke about interviews taking place in police stations and schools, which is very much at the investigation stage rather than during court proceedings. Are you saying that the bill should address that as well, or should that be part of the next steps? I want to clarify what you think should be in the bill to improve such things and to what extent you think that it is insufficient to simply leave things as matters of practice.

Mary Glasgow

We would have welcomed it if the bill had gone much further and worked towards the full implementation of a child’s house model, whereby children are taken completely out of the court system. We recognise the challenges of our adversarial justice system, and that lots of work needs to happen in relation to it. The concern for us about the child witness suites that are being developed, although there are some positives to them, is that they are far from being the same as the child’s house model that can be seen in other countries. They are places where children will go to give their pre-recorded evidence, but there continues to be a huge gap for children and their families, as Daljeet Dagon said, with regard to navigating their way through the whole process. They need support.

For the court system to work for children and for justice, there needs to be a better recognition of children’s needs. If something happens to a child, it is one thing if they are interviewed, evidence is taken and the evidence goes into court. However, there is also an impact on the child with regard to understanding the timing, what will happen, who will support or feed back to them, and how they will access support to recover from what has happened.

We welcome the bill, which is a step in the right direction, but it does not go far enough for us, as an organisation that works with child victims and witnesses and hears every day the dreadful impact that situations have on them, which the court system can often make worse. We wanted a bill that said that, with all that we know about children’s development and all that we are learning about the way in which they communicate, there is no way that children should enter into an adversarial system that was developed in the Victorian era. We want them out of the court system completely and we should do that sooner rather than later, although we recognise the challenges.

We welcome the bill and think that progress has been made, but we should not rest on our laurels with the development of child witness suites. They are just different places for children to go. They might have a nice room that is painted a different colour and there might be nice people there, but the whole system needs to be right for children, from the point at which they tell their story to the support that they get alongside their family to recover from what will have a lifelong impact on them. There needs to be a much more holistic approach to how children interact with the system. It is not just about giving evidence and it is difficult for us to say that it is about just that. If you got that part right, it would help, but it needs to be much more holistic than that.

Daniel Johnson

My difficulty is that I do not understand how we can do that without completely moving away from our adversarial system. Is that what you are asking for?

Mary Glasgow

We think that we could go further within the system that we have. Of course, we would like to move to a system that is not adversarial because an adversarial system does not work for children: it does not respect their rights and they cannot recall and give evidence in that way. However, we recognise the system that we have to work in and we are supportive of the measures to improve things. Even so, there is a need to continue to go further for children. In our current system, there are ways in which we could have gone further and can go further. However, we recognise that there are some challenges around that.

The Convener

Daljeet, you were nodding vigorously. Would you like to comment?

Daljeet Dagon

At the end of the day, we are trying to get the best-quality evidence that we possibly can from a child. We should not be making them jump through hoops and it should not be a postcode lottery, because that is what it will become if, right from the start, we do not embed what we mean by a place for children to go to give evidence. It is not like going to a sexual health clinic, where the person gets patched up, goes through the next door and gets their medication or contraception. We are getting young people to go through different doors to speak to different professionals, at different stages, who can often give them contradictory information. Frequently, the professionals will not even know what stage the young person is at in the process.

We need a holistic approach, almost like having a team of people around the child who are working closely together, whether that team is based in the court, police stations, social work or voluntary sector services. The members of the team around the child have different roles to play, but the team can keep the child, their family and their wider network informed at each stage on what is happening and it can provide feedback. Often, we take information from a child, it goes into a machine somewhere else and we do not let the young person know what is happening next.

As professionals, we often do not know what will happen next, but even if we were to say, “I will check with Mary, who will find out and come back to me in two days’ time,” it would help. We need to keep young people informed. That also keeps them engaged in the process and makes it less likely that they will retract or withdraw their evidence. Our experience of what often happens is that young people say, “Do you know what? This is too difficult and too much hassle. I just want to move on with the rest of my life and put this to one side.”

John Finnie (Highlands and Islands) (Green)

Good morning, panel. Your evidence has been extremely interesting. I want to comment on something from Mary Glasgow’s submission that we have not yet touched on. Children 1st talked about circumstances in which a young person had been advised that they were “more likely” to secure a conviction if they presented their evidence without special measures. That the advice came from the victim information and advice unit is in itself a cause for concern. The submission continues:

“Our cultural notions of justice can result in some child witnesses expressing a strong preference to give evidence within a Court room setting without a fully informed understanding of what this could be like.”

That is key to everything.

I know that the witnesses have been asked this already, but do you think that the bill goes far enough in addressing that culture, which still has foundations in the idea that people should stand up strong and say their bit?

Mary Glasgow

That is the challenge with any legislation: it helps to lay the groundwork for what we should be doing, but then we need to think about how we embed a practical approach. That approach must recognise that children have an entitlement and a right to engage with a system in order to achieve justice that recognises the ways in which they are able to recall information, the sense that they make of a very complex adult world and the impact that the trauma will have had on their ability to communicate what has happened to them.

We know that there is a huge gap—we hope that that will be addressed through several other processes—in the professional understanding of the impact of trauma on children. There is a gap in relation to the understanding of professionals around child development and how children communicate.

The fact that the system does not take account of the ways in which children develop has a huge impact on their ability to get justice. The legislation will help, but we need to be very clear practically about the resources that will be required to make it and the principles behind it a reality for children.

10:30  



The Convener

Did you have a supplementary, John?

John Finnie

I have just a brief question for Daljeet Dagon. Clearly a lot of resources must have been deployed in order to secure 20-odd statements from someone. From what you have seen in the bill, do you envisage that situation not happening again?

Daljeet Dagon

One of the lessons from that operation was that the important thing was not getting the statement, but building and developing a relationship with the young person and understanding them, their talents, their interests and so on. Young people often say, “That police officer is only interested in getting my statement. They just go away and I never see them again.” We have been involved in a number of police operations, and we know that things can develop and change.

Young people subject to special measures have recounted that they were able to go along to the court and see what the courtroom looked like, who was going to sit where and so on. However, although that can be helpful, for one particular young person the court was changed at the very last minute, and they found themselves in a different one. As a result, there was no benefit whatever from the special measures.

We need to think about the best way of getting evidence from young people and where that should happen, whether it be in a court setting or in a different place. At the end of the day, we need to meet the holistic needs of the child, their family and the networks around them. As professionals, we follow young people on this journey, but at the end of the journey, we often all step aside, and the issue is how that young person can continue to develop and recover when that support steps away. What supports are we putting in place not only before and during the court process but afterwards, when everyone steps aside?

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

Daljeet, you have just spoken at length about getting the best-quality evidence and meeting the child’s holistic needs. Does the current use of the evidence-by-commissioner approach deliver the best-quality evidence?

Daljeet Dagon

I should say that our submission to the committee was quite limited and very much based on young people’s experiences before, during and after the process. We welcome the measures, but we would like to understand why they are being phased in, in terms of age and court setting. At the very least, we are looking for the age limit to be increased to include children under 18, if that is possible. We know of young people who had offences committed against them when they were 14 but were 16 and a half by the time they presented at court, by which point they were very different people from who they were as 14-year-olds. Because of the trauma that they have experienced, they can be involved in a lot of behaviours that are not seen to be positive. What the court sees is a difficult, belligerent, drug-addicted, alcoholic young person instead of the child they were when the offences happened. Given the length of the court process, we need to ensure that we present what happened to the child, instead of having the court focus on how they come across now.

Jenny Gilruth

I know that you have already referred to delays, but do you think that things could be expedited for children? Is that what you are advocating for?

Daljeet Dagon

Yes, at the very least, although I understand that that will be a challenge. I do not have technical knowledge of all the different processes that happen from the minute the young person makes a disclosure right the way through to recovery, but I think that it is about sitting down, looking at all the markers, ensuring that adult processes are not applied and thinking about what is in the child’s best interests and what can be done now to expedite certain processes.

Jenny Gilruth

Do the rest of the panel agree?

Mary Glasgow

I concur with that, and I think that it is a danger in the bill. We hear continually—particularly in the sheriff court, where there are still long delays—that when children talk about what has happened to them they may go to a police station alone to give a statement, even at the age of nine, and nine months later a letter will pop through the door to cite them to go to court. The child has coped in whatever way they can—usually not well—with what has happened to them, and then out of the blue and without any support during the intervening period they are expected to go to court.

You are right to say that we need to be careful about that. We should not think “job done” just because children are able to give pre-recorded evidence that is then presented to the court. The process needs to be shorter, because the experience stays with the child and does not disappear once they have given evidence and it has been recorded so that they do not need to go to court. That is better than having to go to court, but that child is still living with the knowledge that, at some point, that story will be presented in evidence. If we can shorten that process as quickly as possible, we have a much better chance of encouraging and helping children to recover.

The truth is that there is a huge lack of resources, and a huge lack of human resources. Children want a relationship with a person who can walk through the process with them and support them from the moment they talk about what has happened right the way through to the process’s conclusion, particularly to support parents in talking about what has happened. The danger, as Daljeet Dagon has eloquently described, is that children bury this stuff, and it always emerges when they are older. It can emerge in behaviours that are viewed as not helpful, and they are often punished for those behaviours, and no one tracks it back to the moment at which the child was the victim of a serious crime. We really need to understand what trauma does to children, and we should not have a system that, through the protracted nature of its processes, which are set up to suit all the agencies involved, further damages children.

Jenny Gilruth

I noted that Mary Glasgow spoke about the lack of support for families. That ties in with providing emotional resilience to young people. Daljeet Dagon also alludes to that in her written submission and talks about a gap in support for parents and carers, going on to suggest advocacy. Is that what support should look like? Some young people do not have parents or carers at home to look after them, so might there be a role for the school to be involved in that support? Who would you like to see providing better support to young people through that process?

Daljeet Dagon

In some of my answers, I have referred to children, their parents and carers and the wider networks around them. I do not think that we can say that it should be the school or the youth worker. It is about getting alongside the child and working out with them who is best placed to support them and who they want to support them. We often find that the very agencies that have the closest relationships with children and young people are excluded from some processes, because they are not statutory or they are not experienced in that particular area of work, when that would not be the child’s choice.

Mary Glasgow is absolutely right. I used to work in a service where there was an idea that you would undertake street work and meet the young person, and you would then pass them on to a duty service, which would pass them on to the resource resettlement service. The young people I met on the street wanted me to continue that journey with them through the process, but the resources and capacity did not always allow that to happen. We have a notion in our heads that, as professionals, we should hand young people on to others as we go along that journey, but that is often not what young people want. It is not about having expert knowledge; it is about consistency, flexibility and the predictability of support. For young people, that is often the most important thing, rather than having all the knowledge and skills. It is about ensuring that that worker or that person, whoever they are, is supported and has access to all the information continuously, so that they can relay that information not just to the child but to the people who are looking after the child and who are supporting that young person outwith the nine-to-five set-up.

Malcolm Schaffer

There are a couple of issues to highlight. One is about the timing of court cases. Courts are very insensitive in terms of time. The institution does not allow the human impact to come in on that, but we see green shoots, particularly in family law, where we have seen the success of the PACE—permanence and care excellence—project, which includes the court process when looking at all the causes of delay and how to reduce them. We do that by bringing together all the different agencies in a particular area to look at what is causing delay. An initiative that focuses on how to reduce delay in cases in which children are giving evidence and which brings together the court administration, the police and social work, might have an impact.

I do not know a lot about the support that is provided to children, but I know that in England and Wales the role of an intermediary is viewed as being very successful and appropriate. That person knows the court system, the contacts and how to fix things, but they are also good at relating to children and supporting them and their families in the process. Such a person is not mentioned in the bill. I know that that would be an extra person and an extra cost, but I wonder how much we need to learn from the experience in England and Wales, where that person is viewed as an important part of the process.

Jenny Gilruth

I go back to the point on parents and carers that was raised in Daljeet Dagon’s submission. Would you advocate an education programme to support parents and carers in understanding the court process? Is there a lack of knowledge that prevents young people from being helped more generally? Their parents or carers might not be able to explain the system to them, and that takes away some of the support that could be provided.

Daljeet Dagon

It is about education. Sometimes, parents and carers are excluded from the processes, because the services that are set up work mostly with the child. It is not always about the process and the procedures; it is sometimes about understanding the impact on the child and how they will manage some of their behaviours. It is important to get additional support around the parent or carer in order to build their resilience as well as the child’s resilience. It is about education so that people can navigate the system, but it is also about parents and carers being fully informed and properly prepared for the impact.

The Convener

The submission from Victim Support Scotland—from which we will be hearing on the next panel—said that it would be interested in having discussions with the children’s hearings system on the role of the intermediates, to see whether it could get involved. Malcolm Schaffer, given that you said that there is a gap in the bill, would you welcome such discussion?

Malcolm Schaffer

Indeed. We have created much closer relationships with Victim Support Scotland, which used to support only victim witnesses in criminal proceedings but which now supports children in our proceedings. We have found the organisation extremely helpful in all sorts of ways. For example, in one sexual abuse case in which a girl was giving evidence and the court officer was male, the Victim Support Scotland worker asked whether the officer could be female. That was nothing to do with the particular individual; the worker just asked if that could happen in order to make the girl feel more comfortable. That is just one tiny example of the work that Victim Support Scotland can do because it knows its way around. The organisation has a lot to offer, and it will be interesting to hear its thoughts.

The Convener

That is helpful.

Fulton MacGregor

I will stick with the pre-recording of evidence, and specifically the joint investigative interviews, which are carried out by police and social work. At this point, I should refer members to my entry in the register of members’ interests, given that I am a registered social worker and have previously been involved in joint investigative interviews. There is a general acceptance that such interviews are not perfect, by any means. How could they be improved? The answer will probably relate to the period prior to the interview taking place and to the period afterwards. Some of that has already been touched on, but the witnesses could perhaps elaborate.

10:45  



Mary Glasgow

We are involved with the strategic group and the implementation group that are doing work on JIIs. The work is currently focusing on improving the training for social workers and police officers, which is welcome.

There is a need to ensure that joint investigative interviews take account of the broader needs of the child. The danger is always that the child is made to fit into the police and social work process. Social workers are interested in care and protection and in making sure that there is a safety plan for children. Police officers obviously have to be focused on the same thing—making sure that our children are safe—but they also have to secure enough evidence with regard to the accused.

The danger in all of that is that the child’s needs get lost. Therefore, the training needs to start with the ways in which children respond and the ways in which they experience abuse and neglect, whether they are victims or witnesses. That is what we want, and we are involved in supporting that process. We need to build a system in which professionals start with an understanding of child development and communication. They need a broad training programme that focuses on children’s holistic needs.

Real progress is being made but, practically, we need to make sure that we have police officers and social workers who can build enough confidence, skill and knowledge to do those interviews, which are incredibly tricky. Years ago, I was seconded to a multidisciplinary team, where I delivered child protection training to groups of professionals. The challenge was always when they went back into practice. There might be six or eight months between interviews, and the evidence shows that it takes around 100 or 150 interviews before professionals get really confident and feel that they can engage with children in a way that elicits their best evidence.

We need to think about the resource issue and support for practitioners. We expect police officers and social workers to work in a challenging environment that requires a high level of skills. If in the morning you are at a children’s hearing and in the afternoon you are rushing somewhere to interview a child, that is very difficult. We cannot operate like that as humans. We must make sure that the system is not just about the JII training, and that we do not focus only on the interview. We need to get the whole system right and we need to have professionals who are specialist, skilled and able to give the child the best possible shot to give their best evidence.

Fulton MacGregor

At the moment, that would mainly be done through social workers and police officers—albeit specialised—up and down the country. Are you suggesting that it should be a specialised resource and that the workers should be involved only in that particular line of work rather than anything else?

Mary Glasgow

Along with partners, we strongly advocate the barnahus model—the child’s house model—and we welcome the Government’s commitment to work towards it. That model takes children right out of the court system and develops a resource and a community that looks like an ordinary space for children, which has the child’s rights and needs, not only for justice but for care and support, built right into it. Therefore, the child and their family engage with one place. They go to one place, and the professionals come to them. At the moment, the system involves children going to one place to get interviewed, and sometimes two or three, depending on how many times that happens; another place to get medical treatment or a medical examination if that is required; and then possibly, and most often, they go nowhere to receive any long-term support to recover. We strongly advocate moving at speed to deliver a child’s house model, which will elicit best justice for children and accused, but which will also save us all in the long term, because it builds in support for the child to recover from the impact of trauma. The child goes to one place and the professionals come to them.

Fulton MacGregor

That links to the earlier part of my question. I am interested to hear thoughts on how we can develop relationships before the interview. When I was involved in such interviews, it struck me many times that it would perhaps have been better if there had been a non-interview setting prior to the actual meeting. I know that that is more difficult for the police than for social work, and I understand the reasons for that, but what are your thoughts on that? Would the model that you have talked about be more open to that?

Mary Glasgow

It is such a complex area. The first thing that I should say is that we also advocate that we need to talk to children and young people, because they have really strong views about the process. Often, some of the most practical answers lie with children and young people, because they can clearly articulate what would have helped them.

We need to create a space and resource that allows all of those complexities to be taken into account and a place where exploratory interviews and discussions with children can happen and where much better planning can be undertaken. Because resources are so stretched and the system is so pressed, we cannot cope with the numbers of children who need the support and, as a result, we do not give children the best opportunities possible. We are always having to work at pace when we need to slow the process down for children to ensure that it matches the stage that they are at and give them these opportunities, and we need a space where people can have conversations, planning meetings and discussions about how to get the best evidence from children.

The bill represents progress, but we are still tinkering incrementally with a system that is not and never will be built around children’s needs. That is why we are urging the committee to think about the bill as a start rather than a finish and to understand that, although it is better than what we currently have, it is nowhere near good enough for children. We are still squeezing and squashing children into a system that is not built with their needs in mind.

A justice system that is right for children and vulnerable witnesses delivers better justice for everybody. We will all do better if we build a justice system that is much more human and recognises the impacts on humans who become involved in processes in which they are required to be victims or witnesses.

Fulton MacGregor

Daljeet, you said that it is not always the social worker or police officer who has the best relationship with the child. Would the model highlighted by Mary Glasgow allow for a third person to be involved in interviews, if that was necessary or required?

Daljeet Dagon

Over the past seven years, we have been involved in four police operations in Glasgow, and each has been different, because we have used what we have learned from the previous operations to try to improve our practice. A long time ago, the police service established what are called SOLOs—or sexual offences liaison officers—who, as part of the operation, are allocated to the victim. That is their sole job and, as a result, police officers are used to undertaking the whole process of taking statements. If social workers get involved, it is something of an add-on; as Mary Glasgow has described, they can be at a children’s hearing in the morning and at a core group meeting at lunchtime and then they have to go off and interview a young person. How well prepared can they be for that?

In the police operations in which we have been involved, we have focused on planning meetings, and we can often have two or three such meetings before we go anywhere near a child. We get those who know the child best round the table and discuss the best environment or the best time for an interview, the supports that need to be put in place before and after the interview and so on. Some of our staff have been the third person that you referred to; sometimes they have sat outside the room, and sometimes they have been allowed to sit in as an observer and to act as a comfort to the child, because they know the triggers for the child becoming stressed, animated, angry or whatever.

We have tried lots of different systems, but ultimately we need people who know the child and how to get the best out of them to be involved. We also need the person who carries out the interview to have that as their sole task. If it is just an add-on, the person who does it is not particularly skilled at or confident about it. I suppose that my question for you, Fulton, is: how many JIIs did you do in your social work career and how confident did you feel going from one to the next, given the gap involved?

Fulton MacGregor

I did nowhere near 160, I have to say.

Daljeet Dagon

But you know what I mean. If we are not in the best place and feeling confident about what we are doing or if we are not completely clear about what we are doing and how we are doing it, how are we supposed to bring out the best in the child?

Daniel Johnson

I am interested in how the rules will apply. The panel has been very good at identifying where we need to be and stating the limits of the provisions, and I want to look at the offences that the bill will apply to and the courts that will be involved.

Given that much of the bill will come in through regulations and that not all the provisions will come in at once, would it be a sensible improvement to the bill at least to provide for the possibility of the measures being extended to other crimes or, indeed, to the sheriff court or other tribunal settings? Would you like to see that at stage 2?

Malcolm Schaffer

Very much so. I would single out offences involving domestic abuse when a child is at the centre of the case. It strikes me that those are the cases that put the most pressure on the child and that they are an obvious example of where we need to consider extending the measures. I understand the incremental approach, but the sooner that the measures can be applied to cases that cause the most trauma to children—at least, to some of them—the better.

Daniel Johnson

Are there any particular situations that you want to be looked at prior to the extension beyond the current scope, or is it purely about practical considerations once the practice is already established?

Malcolm Schaffer

I have already flagged up the core issue for me, which is about the links with the child protection proceedings. The other practical issue that has an enormous impact is about the ground rules hearing, which we have not touched on.

Daniel Johnson

I am about to come to that.

Malcolm Schaffer

Good, because we have experience of that in the hearings system. Certainly, when that approach is applied properly, it helps to make the setting that helps to create certainty and control in terms of the direction.

Daniel Johnson

Would Mary Glasgow or Daljeet Dagon like to add anything?

Mary Glasgow

I agree with the point about children who are witnesses in domestic abuse situations. As you would imagine, it is incredibly difficult for children to be involved as witnesses in those situations. There is also the issue of children who are accused of crimes, because we need to remember that, first and foremost, they are children, too. If it is about seeking better justice for all children, we need to think about how the measures can apply to those young people as well so that the best evidence is heard in their case and that there is equal provision between High Court and sheriff court, because there is a gap.

Daljeet Dagon

I agree with what Malcolm Schaffer and Mary Glasgow have said. All that I would add is about the issue that we refer to as harmful sexual behaviours. Certainly, we are seeing more and more young people being involved in peer-on-peer abuse. That can be about harmful sexual behaviours, domestic abuse or child sexual exploitation—it comes in various guises. We will often get a referral for the victim but will not get one for the accused when they are also a child; and they can be as young as nine, 10 or 11. We need to consider also what that child has been exposed to prior to their being involved in that activity. If we open out the measures, we need to look at how we can realistically support those children who might have been involved in offences that are extremely harmful to other children, while taking cognisance of what they might have been exposed to themselves either as witnesses or as victims.

Just now, we often focus only on the victim, particularly in relation to online offences around the sharing of images and acting out some of those activities. However, we have had recent examples where offences that have been meted out by other young people have not been seen as child protection issues, never mind criminal offences. That is because the gender of the child has been considered rather than the actual offence and the harm that the victim has experienced. We need to think about peer-on-peer abuse as well.

Daniel Johnson

Malcolm Schaffer hit on one of the central points. It strikes me that the bill’s proposals are highly dependent on the ground rules hearings working. In essence, the practice will flow from those establishing the right principles and the different parties agreeing to a particular approach. Do you think that that is the right way to proceed? The argument is that that allows the practice to be flexible and to develop. Does the bill need to go further by stipulating certain things that need to be considered? For example, should the bill set out how the ground rules hearings will work or the elements that should be considered in deciding on how the commissioned evidence is taken?

11:00  



Malcolm Schaffer

I am not sure. There is a limit to how much you can legislate for, isn’t there?

Daniel Johnson

Indeed.

Malcolm Schaffer

The provision has been set up. As I said, when we have seen that approach working, it works—it can really set the scene. If the sheriff or the commissioner is in control of asking the right questions, I am not sure whether legislation can help to develop that further. It might be more a case of using the experience and understanding of the commissioner or whoever is in control of the process.

Daniel Johnson

I wondered whether there should simply be a requirement to consider particular elements rather than a provision that is explicit about precisely what must happen. It could simply be stated that the ground rules hearing should reflect on the support that might be required for the child and that there should be familiarity with the context. We do not need to legislate for the particulars; we could simply ask that certain things be considered. Would that be a way of addressing some of the concerns that have been raised by the panel?

Malcolm Schaffer

A requirement to consider the support, in particular, would be welcome. I hope that that question would be asked anyway, but having that check set down in black and white would be helpful.

Daniel Johnson

Would anyone else like to comment?

Mary Glasgow

As I have said, there are measures in the current system that are not always applied. We need to firm up the legislation to make sure that it is the default position that we anticipate that children will always require special measures, that those special measures are available and easily accessible and that children and young people can choose which of the measures they want to use.

Daniel Johnson

I have found it slightly surprising that it is possible for the judge in the case to be a different individual from the person who will preside over the ground rules hearing, who in turn could be a different individual from the commissioner who takes the evidence. I wonder whether that is right. Would it be better to have the same individual in all three contexts, or would that have knock-on effects?

Malcolm Schaffer

I agree that continuity of the individual has a lot of advantages, but the danger is that it could build in huge delay. The relevant individual might already be tied up in a lengthy trial for, say, two months. We have found from experience that, although there are huge benefits in having that continuity, there is a huge danger of it building in further delay.

Shona Robison (Dundee City East) (SNP)

Good morning. Thank you for your interesting evidence.

I will come back to the issues of the child accused and resources, but first I want to ask about the tension that exists with the bill. Throughout your evidence, you have said that we need to work towards the child’s house model, that we need a whole-system approach and that, to get that right, we must move at speed. However, you have also said that what is in the bill will be difficult to implement. There is a tension between what should be contained in policy, strategy and direction and what should be in the bill. I do not think that those two things are the same. We need to be cautious and ensure that we get the basics right. Given what you have said about resources, we must ensure that there is not an unintended consequence of more delay in the system.

As well as seeking acknowledgement that that tension exists, I would like to hear how we can get the right balance between what is in the bill and what the policy intention is, which should be very clear. That is not an easy question; I guess that I am asking you to reflect on some of the tensions in your evidence, which show how complicated the situation that we are dealing with is. In its evidence, the Scottish Government has talked about proceeding carefully because this is such a major change. Where does the balance lie?

Mary Glasgow

That is a really difficult question.

Shona Robison

It is one that we need to resolve.

Mary Glasgow

Yes, and that is the difficulty for us. I am here to represent the voices of the children we support and their families, to share their stories and to do justice to them in the best way that I can. That is incredibly difficult, because we believe that we do not have a justice system that is fit for purpose for children; we want to see the implementation of an entirely different system.

However, we are also practical and we know that we are where we are. As you say, we do not want to rush into something that has unintended consequences because we have worked at speed and have not taken into account all the other complexities in the system.

There are still things that we can do. As we have agreed, we could take a more holistic approach and children could go to one place—we could do that within the current system—where children’s evidence could be pre-recorded and they could access support. The answer is less about educating parents and more about supporting them to understand and navigate their way through what is currently a very complex system.

Therefore, we can make improvements to the current system at the same time as we continue to focus on the bigger prize, which is a much more child-centred, child rights-based justice system.

There are measures in the bill that are welcome, but there is still a challenge—as there always has been. Previous measures have not been implemented because the system is built not around children but around what the system needs and what the system thinks it requires from victims and witnesses.

You are right to point out that tension—it is there. However, we are obligated to the children we support, who continually tell us really painful, difficult stories about their experience of the justice system. They are very clear about some of the things that they want to change: they want to tell fewer people about the awful things that have happened to them; they want to get support much quicker so that they can understand what has happened to them and recover from it; they want to deal with a system that understands that they are children and so any delays impact on their ability to recall; and they want to be prepared and to understand the process in which they are engaged.

There is a tension because we want to see progress, but we know that the bill does not go far enough. We are starting in a really difficult place for children. We need to implement the bill but not forget that we have a much longer-term goal for children and that we really need to work towards a different system.

There are things that could be done immediately. The child witness suites are welcome, but they are a long way from the child’s house and barnahus models. We could have resources that mean that all the professionals are based in one place and that children go there to get all their needs met—evidence is pre-recorded and goes to court. There is nothing to prevent us from doing that.

There is a challenge around resources, but there is a cost to us all anyway, because these kids and young people pop up in other parts of the system.

I am not sure that I am answering your question, because you are right that there is a tension and we do not have the solution to that. We welcome elements of the bill, but we would like it to go further and we know that we are engaged in a process that is not designed around children.

Shona Robison

It sounds to me that you are asking for a clear statement of intent about the end point.

Mary Glasgow

Yes—a commitment.

Shona Robison

The bill is part of the jigsaw, but it is a part that needs to be got right.

We have touched on resources. Resources are not infinite, so what are the key priorities? Mary Glasgow has touched on getting the facilities right and ensuring that there are staff to support the children. Given all the resource implications and demands, would that be your number 1 priority?

Mary Glasgow

Yes.

Malcolm Schaffer

I agree. There is a lot that is not legislation dependent. A lot can be achieved by skilling ourselves better and improving procedures in the law. The bill can act as a further boost and incentive to get it right. Mary Glasgow has talked about the improvements that have already been planned, such as joint interviewing, which can make a significant difference.

A lot can be achieved, always remembering that we have an ultimate goal and, hopefully, a timetable with which to get to it. It is not a matter of having the bill, ticking that off and seeing it as done. This is just a stage.

Shona Robison

Would you like to see a timetable set out, which would not necessarily be on the face of the bill?

Malcolm Schaffer

Yes, I absolutely would.

Daljeet Dagon

It is about giving a sense of control back to children. The children that we work with feel extremely disempowered and disengaged from the processes, because they do not have an understanding of what is going on and why. I continually hear children and young people saying, “I just want this to stop. It’s not that I want justice or that I want this person charged and convicted. I just want this to stop.” We need to ensure that we listen to the voice of the child and that we do not disempower them even more by going down a path that is not in their best interests, or is not what they want.

Shona Robison

You have all touched on the issue of the accused child. At the moment, the bill does not extend the measures to the accused child, and you have touched on some of the grey areas in which an accused child could also be a victim. Do you think that they should be included at this stage, or would you like that to be part of a timetable going forward?

Daljeet Dagon

We said in our original submission that we understood why you were taking pragmatic steps by phasing the process. It would also be very helpful if we could consider accused children, because they are children first and foremost, and we do not know what has happened to them. Therefore, it is very important that we work with them first as victims and then as the accused.

Shona Robison

One of the arguments that is put against that is that it could do a disservice to the child accused and their ability to come back on evidence that is heard in court; that might be difficult if the evidence has already been given. Do you recognise that as a tension?

Malcolm Schaffer

Yes, it can be, but provision could and would be allowed for that child to give further evidence, should there be any supplementary issues. That is already built in for the child witness.

Mary Glasgow

On the whole, I would agree, but these children are already disadvantaged by the current system and, like Daljeet Dagon, we would strongly advocate that the children who are accused are also those who have most often experienced trauma and who have been victims of crime and of abuse or neglect. In most cases, we have to consider that these children are involved in the justice system because of things that have happened to them, which we may not know about. They are already disadvantaged by the system that they are in, and measures could be put in place to make sure that they get an opportunity to access that supplementary questions process.

Liam McArthur

A number of you have referred to the child’s house model as being the aspiration. Is there a risk that, without a pathway to that ultimate objective, as Shona Robison said, we end up using scarce resources to put a model in place around the legislation that we will then have to rip out and replace with something else?

Malcolm Schaffer

It is potentially a risk. We need to get to the child’s house model but there are some challenges in that, because it challenges the adversarial nature of our process. It is not just a resource issue; it challenges some fairly basic aspects of the legal system. I would love to get there tomorrow but, realistically, I can understand the need for a staged approach.

Liam McArthur

Do you have any concerns about the adoption of that approach, given the resources required across the board and across the country, not simply in areas of highest demand?

11:15  



Daljeet Dagon

It is not just a resources issue; it is a cultural one. If we really believed in getting the best for children we would not be having this debate and discussion. Just now, we are fitting children around a system that is meant for adults but which probably does not work for them either.

We need to think about what children need and how we can get there. Having a timetabled approach would be very helpful. I agree with Malcolm Schaffer: I would like this to happen tomorrow, but I know that it will not. My worry is that—as Mary Glasgow said at the beginning of the session—we simply do this, tick the box and think that it has been done. However, if we knew that there was a vision for us to get to a better place and how we would get there incrementally, all the organisations around the table would be much more supportive of the bill because we would know what the end game was.

The Convener

The panel may be interested to know that the committee is going to see the barnahus model. We are very interested in that, given the panel’s comments.

John Finnie

I was going to ask the panel about their positions on the procedures for standard measures, but the generality of that has been covered. I also know that the simplified notification procedure has been welcomed. I ask Malcolm Schaffer—and, indeed, other panel members—whether they wish to expand on the comment in the Scottish Children’s Reporter Administration’s submission that, at the moment

“Anecdotally, witnesses’ views are not always being sought and screen and supporter are used as a ‘default’ special measure.”

The submission very helpfully goes on to suggest an amendment that would ensure that reasonable steps were taken to ascertain the views of witnesses.

Would the panel like to comment or make any further suggestions on that?

Mary Glasgow

Earlier, a point was made about having a support person who would travel through the process with a child or a young person, elicit their views, give them information and act as a flow between the system and the child and their family. By using such a process, we could consult children on their views and ensure that any choices that they make about measures are based on understanding what those will look and feel like. In certain situations, it would be very helpful for children to be able physically to see what giving evidence will look like. There is a huge gap there just now.

Malcolm Schaffer

In the hearings process, where we consider special measures, we are under an obligation to consult the child and their parents, so that approach is built in. However, the effectiveness of that depends partially on those people’s understanding of what such measures are, which can take a bit of explanation. The intervention of a special person who has a link with the child would certainly add to that process.

Daljeet Dagon

In a previous answer, Malcolm Schaffer made reference to the intermediaries that we have in England. For instance, we have services there with ISVA—independent sexual violence advocate—workers. Their role is to talk the child or young person right the way through the process—who they need to talk to, what about, and the processes for doing so. They also continually share information and feed back—both to the child or young person and to their parent, carer or wider network, as appropriate—on what will happen next, so that the young person is kept informed all the way through and is not excluded from any decision making. That seems to be a system that works for children and young people. However, it does introduce yet another person into the process, so if we could do that as early as possible in the journey, that would be helpful.

John Finnie

That is very helpful. Thank you.

The Convener

I have noticed that communication came up in all the submissions. Very briefly, would panel members like to add anything on communication and taking the child’s view into account in relation to giving evidence at trial?

Mary Glasgow

We have experience of supporting children who have communication issues, developmental delay or learning disabilities. There is a requirement to have specialist support for professionals who are involved in speaking to or interviewing such children and ensuring that their specific needs are taken into account. There is careful planning about who might be the best person and which particular measures might be most useful for such young people. There is a real need to build an understanding that children’s stages and developmental needs will vary across the piece. We know that there is a huge gap in relation to children with specific communication difficulties and learning disabilities.

The Convener

Yes. Does Daljeet Dagon want to say anything about communication more generally? You have emphasised the issue.

Daljeet Dagon

The only thing that I would add is that we have had recent experience of working with a particular community and, in this country, we simply do not have interpreters who speak that community’s language. The language of the interpreters that we use is one that the people of that community would describe as the language of their oppressors, back home in their own countries. We have to be mindful not just of communication and cultural difficulties but of the power dynamic among people who do not speak the same language.

Another interesting point is that the community about which I am talking does not have vocabulary to describe certain things. For example, they do not have words for “domestic abuse”, “sexual exploitation”, “mental health” and “substance misuse”. I have been in sessions where an interpreter has used the phrase “sexual exploitation”, but I knew that the parent had absolutely no understanding of what it was that everyone was concerned about. If we know right from the beginning that we do not have the words or the language to enable us properly to communicate with children and young people, we need to find a different way of communicating, to ensure that people fully understand what is being communicated and that nothing is misrepresented in any way.

The Convener

Does Malcolm Schaffer have anything to add?

Malcolm Schaffer

Delays in the system will still occur and, more than anything, we need to be aware of the need to keep in touch with people, to explain what the delays are, why they are happening and what the timetable is. It is a small issue, but it can cause the most anxiety, especially if something goes away and suddenly returns—we heard the example about someone hearing about a prosecution after nine months had passed. That must cause huge dilemmas for child witnesses, in particular. We need to concentrate on that—the SCRA included.

The Convener

Thank you all very much. That was an excellent evidence session.

11:22 Meeting suspended.  



11:26 On resuming—  



The Convener

I welcome our second panel: Ronnie Barnes is a trustee of Action on Elder Abuse Scotland; Mhairi McGowan is group manager of the ASSIST—advocacy, support, safety, information and services together—service at Community Safety Glasgow; Colin McKay is chief executive of the Mental Welfare Commission for Scotland; and last, but not least, Kevin Kane is parliamentary, policy and research officer at Victim Support Scotland.

I thank you for your written submissions. It makes a big difference to the committee to have those in advance of taking evidence from you in person.

Rona Mackay

Will you expand a wee bit on concerns that you expressed in your submissions? You all appear to be largely supportive of the bill, so perhaps you could talk about what might be added to it.

The Convener

Who would like to start?

Mhairi McGowan (Community Safety Glasgow)

I very much welcome the bill, but I have a real worry that the new approach will be brought in for the most serious cases and then progress will stop. That was our experience with the introduction of multi-agency public protection arrangements. We were assured that MAPPA would be introduced for very serious crimes first, and that eventually domestic abuse would be picked up by the process, but that has never happened. My concern is that if there is no set timetable that Parliament can properly consider, we will lose the benefits of extending the approach. I am aware that previous witnesses have raised the issue of a timetable for extension. It is a huge issue for me.

My big concern is about how the approach affects adults’ and children’s experiences of the justice system in the context of domestic abuse. I have brought some examples that I will be happy to talk the committee through at some point.

Kevin Kane (Victim Support Scotland)

I echo that. Victim Support thinks that it is important that fewer witnesses be required to give evidence in criminal trials, and we base our view on our work with our witness service, whose staff and volunteers were very helpful to me as I put together my submission.

Victim Support Scotland has supported more than 10,000 children in court, and we provided a witness supporter in court more than 4,000 times last year. We have received more than 22,000 victim information and advice referrals, many of which were for children. The most serious cases involved violent and sexual crimes.

We have been told about the depth of trauma that our volunteers have experienced during those discussions. One volunteer described feeling “harrowed”. That is how the volunteer felt, not the witness, so we can imagine the impact that it had on the witness.

We support the bill and the timeline for broadening it out to a range of victims as soon as is practicable.

11:30  



Rona Mackay

At what point do you get involved with the victim? You heard Mary Glasgow talking about the idea of having the same person all the way through the process, step by step.

Kevin Kane

VSS is involved at every stage of the process, and our victim service can become involved very early. There is communication between the witness and victim services—our witness service, which is based in courts all round the country, is involved and must react to the case load on the day. We also provide support afterwards, which is important. VSS is trauma informed and seeks to make a lasting difference.

Rona Mackay

Is the same person involved throughout a case?

Kevin Kane

The same person is involved, if we can manage it: a single point of contact is what we try to achieve. We are supportive of the wider Scottish Government mission, which is to have a single point of contact to provide continuity, to minimise trauma, and to reduce contacts with multiple agencies and people. We know that the sooner a child’s or vulnerable witness’s evidence is heard, the better their recall. Their situation is exacerbated by the challenges that they have faced. Being able to support someone from start to finish is what we set out to do.

Colin McKay (Mental Welfare Commission for Scotland)

The commission did not respond to the call for views on the bill, so if the committee will allow me to, I will try to outline where the Mental Welfare Commission for Scotland fits into the process.

The commission is a statutory body whose role is to protect and promote the human rights of people with mental illnesses, learning disabilities or dementia. We did not respond because we felt that because the bill is primarily directed at child witnesses, other people are better able to speak about it, although we are very grateful for the opportunity to comment in relation to people with mental illnesses, learning disabilities or dementia.

There are two problems. There is reasonably good evidence that people with learning disabilities or mental illnesses are more likely than other members of the general public to be victims of crime. There are particular types of crime to which they are especially vulnerable and which can be difficult to prosecute. That can raise problems in relation to the criminal justice system. There is certainly a problem with victimisation.

There is also a problem with equal access to the justice system, which we see as a human rights issue. The United Nations Convention on the Rights of Persons with Disabilities, which the Scottish Government has committed to implementing, puts a duty on states to take all appropriate measures to protect people with disabilities from exploitation, violence and abuse, and to put in place effective legislation and policies to ensure that exploitation, violence and abuse are identified, investigated and prosecuted. There is a need to do something both in terms of the experience of people with mental illnesses and learning disabilities, and in the broader equality context.

In that context, there is nothing that we object to in the bill. We agree with others that if it is felt to be pragmatic to start with children and look at extending the provisions later, that is absolutely okay, provided that there is a proper process and a commitment to doing it within a reasonable timeframe. A lot of the work has been talked about for a number of years, and the Scottish Courts and Tribunals Service’s evidence and procedure review was undertaken back in 2015. This will take a while.

In relation to people with mental disorders, there are probably more specific things that need to be looked at and which I am happy to talk about later—in particular, around how the bill links to the appropriate adult system, and the opportunity to develop the registered intermediary scheme of which the committee has already heard mention.

Ronnie Barnes (Action on Elder Abuse Scotland)

Thank you for the opportunity to address the committee on behalf of the Action on Elder Abuse Scotland campaigning charity, and to consider in particular the needs of older people.

Our submission highlighted our experience that many older victims of crime are

“extremely reluctant to speak up due to fear of the consequences and fear of going through the court process ... Why put yourself through such a stressful process if you believe it’s unlikely there will be a prosecution?”

We are aware that there is a very low level of reporting of crime against older people. Our experience of the cases that end up in court is that the court system does not take them seriously and that perpetrators of abuse are treated at the lighter end of the sentencing scale. That sends the signal that the abuse is not taken seriously.

Having heard some of the submissions from the previous panel today, particularly those relating to children and the measures that might be introduced for children as vulnerable witnesses, the committee might want to consider the possibility of introducing the same processes for older people who require special treatment and measures in order that they can give their evidence successfully. Such measures would enable them to be nurtured through the court process in a way that is not available at the moment.

Colin McKay mentioned the appropriate adult scheme, which could be expanded to included something similar for vulnerable older people, particularly those with dementia.

Jenny Gilruth

I have a general question for the panel on the benefit of pre-recording evidence. What is the impact on vulnerable witnesses of pre-recording evidence, and on the quality of evidence?

Mhairi McGowan

I did not mention earlier due to my nervousness, but I will clarify what ASSIST does. It is an advocacy project that works across the west of Scotland—apart from Dumfries and Galloway—to support victims of domestic abuse, from the day after the incident through to the end of the court process. We support adults, children and young people. We are co-located with the police in several police stations, therefore we are very aware of the issues that present themselves in respect of taking evidence.

We talk to victims—adults and children—the day after the incident takes place, which is when you get good, fresh recall. To expect traumatised people to remember what happened after a long period is not appropriate. For a witness to give evidence against a family member—a dad or a partner—is incredibly difficult in cases that involve courses of conduct that have been sustained over a number of years. If the incident that is going through court involves threatening or abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, the witness might wonder which particular instance it relates to, so it is hard to get best evidence.

Although advances have been made—some witnesses can see their statement beforehand—it is crucial for the administration of justice that statements from vulnerable witnesses be taken as quickly and as near in time to the incident as possible.

Kevin Kane

The committee is probably aware of the piloting of section 28 of the Youth Justice and Criminal Evidence Act 1999 in England. I will quickly run through the report on the pilot, which included pre-recording of evidence in chief, cross-examination and a robust ground-rules hearing. In the pilot, it was easier for vulnerable witnesses to recall events and they produced more reliable evidence. That is fairer for everybody, including the accused. Using that section 28 process, questions were more focused and streamlined, scrutiny was better, cross-examinations were shorter, the trial duration was shorter and there were fewer cracked trials using the process. We should adopt best practice where we can, so I urge the committee to consider that report.

Barnardo’s 2017 report “Journey to Justice: Prioritising the wellbeing of children involved in criminal justice processes relating to sexual exploitation and abuse” concluded that

“the better supported and informed a witness is, and the more their wellbeing is promoted and protected, the better their evidence will be.”

That is in the interests of everyone.

Colin McKay

The point about taking evidence as early as possible also applies to people with mental illnesses, learning disabilities or dementia. It is more likely that details will be forgotten by a person who has dementia. Dementia is a progressive illness, so the person might be more ill by the time the trial takes place.

The other big advantage is in relation to the levels of stress, anxiety and trauma that are experienced. If giving evidence is done in a managed way, that reduces harm to the person and improves their ability to give evidence: it is easier to give evidence if you are not being traumatised by the process.

My only caveat is that a bad interview done early is no better than a bad interview done in a trial. That is why support is important, as is assessing how a person should be interviewed if they have difficulties with communication, for example. The interview has to be tailored and individualised to meet the needs of the person. It is not just about pre-recording the interview; preparation for the interview is important if you want to get the best evidence.

Ronnie Barnes

I would echo those comments. Anything that assists older people to give their stories and to provide the quality of evidence that is necessary to bring about prosecutions is to be welcomed.

Mhairi McGowan

I mentioned earlier that I had some examples. Time really has an impact on people. ASSIST worked with a 17-year-old victim who had submitted a soul and conscience letter excusing her from court two months before the date of the trial, but she did not know until the day before the trial whether she was to give evidence. By that time, she was physically ill with worry. She had visited a general practitioner, had become withdrawn, and was having problems sleeping and eating.

We supported a 13-year-old boy who gave evidence via closed circuit television on the day of the trial, but he was, due to extreme anxiety, physically sick in court prior to being called to give evidence. If he had been permitted to give his evidence in advance, there would not have been that build-up of trauma.

It is helpful to be able to give evidence early, but it is also important to keep witnesses informed about what is happening throughout the process.

We are supporting a seven-year-old boy at the moment. We are concerned about the level of stress and the quality of the evidence that will be given. However, we also know—as does everybody else—that if his evidence is not heard, the case will fall.

Our children and young people’s advocacy workers put in a lot of effort to try to prepare witnesses for court, and into the debrief afterwards because—as Kevin Kane said—support afterwards is also important. The process is hugely resource intensive.

Jenny Gilruth

I have a brief supplementary on that point. In your submission, you state:

“With the advent of the new Domestic Abuse Bill, we expect more children will be cited to give evidence.”

In your expert opinion, is the level of stress increased because of the length of time it takes to get to court, particularly for children?

Mhairi McGowan

Absolutely—that is the case without a doubt. Put yourself in the mind of a child who knows that a parent—usually their dad—is being prosecuted and they will have to speak up. It would be far better if the evidence was taken at the time of the offence. All the way through the process, the perpetrator and the perpetrator’s family put pressure on the child by asking, “Why are you giving evidence?” and saying, “Just withdraw your statement” and so on. A lot of subtle pressure goes on outside the court process. After all, this is about people’s lives.

A lot of the context around individual section 38 or assault cases will be picked up under the new Domestic Abuse (Scotland) Act 2018. That is fantastic and we welcome that. However, we also need to look at the consequences of bringing in such legislation. We need to make sure that we move to a far better process for children as quickly as possible.

11:45  



Jenny Gilruth

Does the panel have any views on whether taking evidence by commissioner currently delivers evidence of the best quality?

Kevin Kane

We have had an increase in the taking of evidence on commission. We looked specifically at the High Court in Edinburgh, and there are issues with the facilities. Going to court, whether to give evidence on the day or on commission, is traumatic in itself, and there are issues of timing, consistency and predictability as to what room will be used. We support all those things being mapped out in advance in the joint investigative interview. Evidence on commission has been on the books since 2004-05 or thereabouts, and there have been only marginal increases in it, which takes us back to the point that other panellists have made about there needing to be a timetable.

We need to be pragmatic, but we cannot adopt a bill for the bill’s sake. There needs to be ambition around the facilities where children give evidence. In the Scottish Government’s evidence to the committee last week, the officials were candid about not knowing exactly how much resourcing that would entail. That is fair enough, as we do not know what the take-up will be when the bill becomes law. In principle, however, we should support evidence on commission with the best possible facilities, and if that evidence can be given away from the court, so much the better. We supported the recent allocation of money to the Scottish Courts and Tribunals Service to install a hearings suite with mirrors, special facilities and access to intermediaries. All those things need to be considered as part of the wider package.

Colin McKay

I probably sound like a stuck record but, as with pre-recorded evidence, it is not just about giving evidence on commission; it is about who the commissioner is, what knowledge they have and what advice and support they have been given in relation to the particular communication needs that a person may have or any issues around how questions should be asked. Those are quite detailed and specific considerations, and they will be different for a person with autistic spectrum disorder or a person with dementia. If evidence is to be given on commission, that needs to be done on the basis of a clear assessment of the needs of the person who is giving evidence, so that it can be done in the best possible way.

Ronnie Barnes

Would the commission model work for older people?

The Convener

I do not know. Do you have a view on that?

Ronnie Barnes

A lot of what I hear from my colleagues in relation to children and young people could, as I said in my opening statement, read across to certain vulnerable older people, who would have the same issues with being able to tell their story.

Liam Kerr (North East Scotland) (Con)

I have one quick point and one substantive question. Mr Barnes, how do you define older people? I know that you try to narrow it down in your submission, but although we can define children quite precisely it is less clear who an older person is.

Ronnie Barnes

You could extend the definition to all adults at risk, who would be covered by the three-point test in the Adult Support and Protection (Scotland) Act 2007, but we are thinking particularly about older people in their 80s or 90s. People are now living longer and in more cared-for situations but are nevertheless vulnerable to some forms of exploitation and abuse simply because of their living circumstances. The lifespan of people who are challenged by having some degree of dementia is increasing but the risks are also increasing exponentially. We want to find a means by which people who feel that they are living in circumstances in which they can be exploited are not without the opportunity to report that or the comfort of a system that supports and understands them.

Liam Kerr

On that point—which brings me to my substantive question—all the evidence that we have seen starts from the position that an appearance in court and the current processes do not elicit best evidence and can re-traumatise people. Mr Kane talked about getting better evidence and better recall. Ms McGowan talked about not building up trauma and getting the evidence in early. All of those principles could be applied much more widely than just vulnerable witnesses. Everyone could say the same thing—with merit, I think.

If there are only positives in the proposed process changes and no negatives as far as the accused is concerned, why is none of you—particularly Mr Kane from Victim Support—calling for those changes to be introduced across the entire spectrum instead of being limited to vulnerable people? Are there any negatives for the accused with regard to the fairness of the trial?

Kevin Kane

We are working within the confines of an adversarial system, and the bill potentially opens up the possibility of looking at the whole justice system and taking it in a more inquisitorial direction. There are many such systems around the world. We are talking about a child-based, rights-based approach that has safeguards for anyone who is involved in the process, including the accused, and we are open to discussing what a renewed system that is compatible with the bill might look like.

Colin McKay

The definition of mental disorder in the Mental Health (Scotland) Act 2015 could, according to some, apply to one in four people at any point in their lives. One can certainly argue that a lot in the current courts system is there because of historical circumstances and that it does not necessarily allow the best evidence to be given. However, it is also fair to say that there are those who are further away from fairness than others. It is therefore reasonable to start with the people who have the worst time in the current system and think about how we might alleviate things for them.

Let me give you an example. Some of the work on cross-examining people and on the questions that should be asked in a cross-examination started by looking at the experience of child witnesses or an adult witness with a learning disability. It emerged that people should not ask questions with double negatives, leading questions and so on. There are particular styles of questioning that are more likely to elicit unhelpful or untrue answers from a child or vulnerable adult, and people get better at not asking such questions.

Those at the bar are now saying that that is how everybody should be interviewed. It should not be some kind of mind game in which you try to trip someone up; instead, you should be asking questions that people can understand and respond to. Therefore, although it is right to start with those who are experiencing the worst defects of the current system and think about how you fix it for them, it is also right for that practice to be extended over time to a much wider group of people.

Ronnie Barnes

We support a fairer system for all—nobody would disagree with that—but, under the current system, which, as has been said, is of an adversarial nature, some suffer more than others. I would contend that vulnerable older people are among those who are almost victims rather than recipients of the system.

Mhairi McGowan

We need to be realistic. If we are looking to fix the whole justice system and move from the current adversarial process to a more inquisitorial system, that will take an awfully long time. In the meantime, vulnerable children, young people and adults are suffering. I do not think that we can leave such a situation, which is why I am in favour of a staged approach.

I do not think that we will ever have a system that is perfect and that does not have to be looked at again, so we must be pragmatic and make what moves we can when we get consensus across society. I think that there is such a consensus with regard to children, young people and other vulnerable witnesses—which, for me, includes all victims of domestic abuse, who are deemed vulnerable under the Victims and Witnesses (Scotland) Act 2014. The point is that we need to pick up all those whom we have already identified as vulnerable.

Jenny Gilruth

I return to my earlier question about taking evidence by commissioner. What are the panel’s views on the importance of the ground rules hearing in cases in which such evidence is taken?

Kevin Kane

It is important that the child’s developmental and safety needs are met, and it is easier to do that if you can get agreement very early on. There is a big-picture vision for doing that; indeed, Children 1st has highlighted what it calls its bairn’s house model. In Norway—as the committee will see—there are graphs on the wall that show the tone and type of questioning that a particular child can accept and what the duration of such questioning should be, based on their cognitive ability and any other complex needs that they might have.

We have examples of good practice in evidence on commission. The best examples are when good relationships exist between Victim Support Scotland, the Scottish courts and the Crown Office and Procurator Fiscal Service, which is when we can make direct contact. However, we are navigating the system with good people in our ranks rather than responding to a structural reality, which is where we would like to be.

Mhairi McGowan

I, too, support a move to the barnahus model for that reason. We do not have experience of people fighting to give evidence on commission. The folk whom we support go mostly through the sheriff courts, so I will not respond to the question in detail.

Colin McKay

The ground rules hearing model is fundamental to preparation, whether that relates to evidence on commission or evidence at the trial. The English system of registering intermediaries is very much tied into the idea of the ground rules hearing process. There is expert assessment of the needs of the person who is giving evidence, what their deficits are and how those can be overcome. The ground rules hearing is then used to establish how things will play out and, if a person has an intermediary, when they can intervene and the basis on which they might support them. In that way, everyone is clear about the process and, when the evidence is being taken, no one is suddenly saying, “You can’t do that. That’s unfair.” Preparation and the ground rules hearing are fundamental.

Daniel Johnson

I will take up from where we have just left off. I want to ask about the extension and how some of the rules will be enacted, particularly in relation to the ground rules hearings.

I begin by looking at the scope, and my question relates to what Mhairi McGowan said about her support being primarily concerned with the sheriff court. The proposal pertains only to the solemn procedure in the High Court and specific offences. Given that section 3 enables the provision to be extended, by simple ministerial regulation, to other vulnerable witnesses, do you support having similar provisions on extending it to other court hearings? Obviously, that would be based on how the provisions embed in practice with, for example, child witnesses.

Mhairi McGowan

Absolutely. We support victims through petition. A lot of domestic abuse incidents do not go through the sheriff court, but the vast majority do. If we are looking at the experience of the witness, we need to consider how to create a process—whether a case is being dealt with in the High Court, by sheriff and jury or in a sheriff court—that ensures that best evidence is given. The only way that we will do that is by extending the process as laid out in the bill.

I support whole-heartedly the approach of starting with the High Court, which of course makes absolute sense. However, we need to make sure that it does not stay there, because our evidence from service users and children and young people is that the trauma that they are experiencing is as great for them in the sheriff court as it is in a case being dealt with by a sheriff and jury or in the High Court.

Daniel Johnson

I think that the entire panel has supported the extension of the principle and practice to other areas. Given the volume of cases involved, there would obviously be practical considerations related to doing that. What other things need to be considered or reviewed prior to extending the measures to other categories of witness, cases and courts?

Mhairi McGowan

You would need to look at the support for children. Daljeet Dagon mentioned the ISVA model. Our children and young persons advocacy worker and, in fact, the whole of ASSIST were based on the independent domestic violence adviser—IDVA—model from down south. That is exactly what we do here. We have taken a lot of that model and used it for more than 15 years. Out of court, we have been passing information back and forth between the Crown and the witness and acting as an intermediary.

We have such systems that we could build on. It would be helpful if there was a skilled and experienced support worker and a set of standards that everyone adhered to. We need to look at the wider process.

12:00  



Daniel Johnson

Kevin Kane was nodding his head.

Kevin Kane

Yes. We are still to explore the role of the commissioners and who those people will be. We support the commissioners being the ultimate arbiter on what questions to give.

The issue ties into Mhairi McGowan’s point about training. Training does not end when someone becomes a solicitor. By the way, I think that the Law Society of Scotland gave an excellent response to the bill, so I am not having a go. It seems very supportive, providing that there is remuneration and resourcing. We need to upskill the commissioners and they need to be trauma aware. There is already the national trauma training network, and there are other useful tacks that we could take to ensure that commissioners understand the ramifications of certain tones of questioning. We know from 30 years of empirical evidence from all over the United Kingdom that solicitors routinely do not adjust their questioning. If we are to achieve what we are trying to do in the bill, the training of everyone who is involved is of paramount importance.

Daniel Johnson

To interpret what you are saying, is it that the bill should explicitly mention training and a review of practice for commissioners?

Kevin Kane

There should be a judicially robust function. If that means explicitly outlining that in the bill, so be it. However, work needs to be done with our partners to ensure that that is deliverable before we put ink to paper.

Daniel Johnson

Following on from the question that I asked the previous panel, the considerations that the ground rules hearings will be required to carry out are relatively narrow. They are about the form of questioning, with there being the possibility of extending support when necessary. Should other considerations be made explicit? This morning, I have been reflecting on whether that possibility of further support should be a much more positive duty to examine what support can be extended to individuals. What are your thoughts on those suggestions?

Kevin Kane

I will not say too much, because my colleague is an expert in that field. There should be consistency with other progress in the justice sphere. The autism justice strategy is just one item that is bobbing along. We need to get consistency across the board so that we can tackle complex needs in a drilled-down and focused way.

Colin McKay

The comments that the committee heard during its earlier session on the need for consistent support for children throughout the system apply equally to adults with vulnerability due to mental illness or learning disabilities. The need for consistent support has also been the conclusion of work that has been done on people with learning difficulties who have been accused of crimes. The key demand from the work that has been done by the SOLD—supporting offenders with learning disabilities—network is that there needs to be somebody who helps a person who has been accused understand what is going on at different stages in the system. The difficulty up until now has been that we tend to take one bit of the system and say, “What can we do to get this person out of this bit of the system and on to the next bit?”

The appropriate adult scheme is a good example of that situation. As the committee knows, Parliament has legislated to put the appropriate adult scheme on a statutory footing, and the Government is about to implement that. However, the appropriate adult scheme is there to help the police get an interview. Once the police have got an interview, the person goes away and does not normally participate in the court process. A witness, a victim or, indeed, an accused person needs someone who can take them through the system, and nobody really has that role at the moment. Even if a ground rules hearing or a judge were to ask for someone to do that, there would be nobody to step forward to do it. That needs to be addressed urgently.

Daniel Johnson

Should an explicit assessment of the deficits or requirements of an individual who is giving evidence be made at the ground rules hearing? I do not think that that is specifically stated—a much broader assessment is required.

Colin McKay

If someone’s communication or ability to engage with the process is impaired by mental disorder of whatever kind, that needs to be explicitly addressed, because there are huge differences in people’s vulnerabilities or deficits.

Of course, some people with a mental illness, for example, will be well able to give evidence, but others might have quite complex or hard-to-notice deficits. One of the issues for people with dementia—Ronnie Barnes can probably talk about this—is that they might often present as being more competent and capable than they are. It might be assumed that the person can give evidence when in fact they might have difficulties with some aspects of that. At the other extreme, people might appear to be unable to give a coherent account of themselves but could do so if properly supported.

The important point is that it is not just about the trauma for people in giving evidence in court; it is about the fact that, unless people are supported, some cases will never get to court. For example, the historical evidence around the sexual abuse of people with learning disabilities shows that cases often did not come to court because, in essence, the system decided that a conviction would never be secured because of the person’s inability to give evidence and that the person should not be put through that trauma. Unless we do a thorough and more detailed assessment, it is unlikely that such cases will go through the system properly.

Ronnie Barnes

Just to confirm what Colin McKay said in relation to older people, with certain categories of vulnerability in terms of physical frailty and mental impairment, and particularly dementia, it would be recognised at an early stage in the complaint-making process that a person was not able to give evidence appropriately without some degree of support. Anything in the model that is being discussed in relation to children and vulnerable adults should also be applied to certain categories of older people. I would like that to be included in the consideration of the bill.

The Convener

Does Mhairi McGowan have anything to add?

Mhairi McGowan

There is a lot that we could do in providing support for court. The work that we do is not available across Scotland, so children do not have the support that our small group in the west can provide. It is important that the Scottish Government ensures that there is equality in that regard, because someone in Stornoway, for example, needs as much support as someone in the centre of Govan.

Shona Robison

As I did with the previous panel, I want to explore the tension between what is in the bill and the setting out of policy and strategic intent, which I think is important. One witness on the previous panel said that they would be concerned about unintended consequences such as further delay because of a mismatch of pace between what becomes law and what can be done on the ground. Where does the panel think that the balance should lie between what should be in the bill in order to make progress incrementally—I think that everybody has accepted that that needs to be done—and what would be better dealt with elsewhere, such as through a timetable or clarity on policy intention and strategy?

Mhairi McGowan

We should start with the High Court cases that have been talked about, and then a timetable should be set down so that everyone else is aware of when they will be brought in. That would go a long way towards alleviating the issues. I do not think that we will ever be in the position to say that timetables will not slip, but we need to be aware of the impact of delays.

We are supporting a 19-year-old victim at the moment, where the substantive issue happened three years ago and the trial has been adjourned seven times. Nobody is doing that deliberately and the system is not trying to upset that young person, but the reality is that that young person has been waiting for three years.

All domestic abuse trials should have a first trial date within 10 weeks, so there needs to be some kind of backstop—that is the only word that comes to mind, although it is not the right word to use on a day like today. There needs to be something at the back that will allow issues to be picked up so that we look at not just what is in front of us but where the unintended consequences might be and where the system could pick up people who fall through the gaps. We tend to focus on what is in front of us rather than what has fallen over the edge.

Shona Robison

The other witnesses might want to come in but, while we are on the subject of resources—the fact that the resources are not infinite is one of the considerations—what would be your key priority for investment, given what you have said about the day-to-day experience? Where should we focus the resources? Over and above the timetable for what needs to happen when as regards the specific measures in the bill, where could the biggest difference be made when it comes to resources? What is the key priority?

Mhairi McGowan

Barnahus is the focus.

Shona Robison

Should a timetable be set out for that?

Mhairi McGowan

Yes.

Kevin Kane

Checks and balances need to be written in. The Government and our statutory body partners have an obligation to review progress quickly after the bill is enacted. In its submission, Children 1st referred to the European promise exchange, which is a starting point for the development of a framework for monitoring progress. That might be worth looking at. Money should be spent there to ensure that we get it right. If we do not get it right, that will give us a chance to revisit matters quickly, which will mean that fewer vulnerable witnesses will be put in any sort of predicament.

Colin McKay

This might just be me speaking as a former civil servant, but I am a bit thoughtful about the need not to put too much detail in primary legislation because, as Kevin Kane said, things sometimes do not work out how we wanted and it can be difficult to make a change. It is important that the bill sets out the broad parameters and a framework within which progress can be made. It is equally important that there is a political commitment and a process of monitoring progress.

I commend the justice system for the work that has been done as part of the evidence and procedure review. The general progress on joint working on many reforms in the justice system over the past five years has been significant. That is not the way in which the justice system used to work, when it was thought to be almost constitutionally inappropriate that the police should talk to judges or that judges should talk to the Government. The fact that something such as the evidence and procedure review has got as far as it has done is to be commended.

However, Shona Robison is right that there is a danger that, once we get into the difficulties of implementation, some of the energy and commitment will get lost. People get into the mentality of thinking, “Let’s just get this one thing done and then we’ll see where we are.” It is important that the committee and the Parliament continue to hold the Government to account on a clear framework for action.

There are monitoring mechanisms for some of the international obligations, such as the United Nations Convention on the Rights of the Child and the United Nations Convention on the Rights of Persons with Disabilities, and sometimes the Government needs to be held to account through those monitoring mechanisms, particularly in relation to how the justice system has served the needs of children and people with disabilities.

There are different ways of proceeding, but it is important that, collectively, the things that we do add up to a framework for action.

Ronnie Barnes

I can only echo what has been said. I am not so familiar with what is in the bill, but anything that ensures that progressive action is taken as swiftly as possible is to be welcomed.

Shona Robison

We have touched on this already, but I want to make sure that we get your full views on the record. Should adult witnesses who might be vulnerable on other grounds but who are not deemed to be vulnerable witnesses be covered by the new rule? If not, what should be done to ensure that evidence is taken on commission, where that is appropriate? You have already touched on that, but is there anything else that you would like to put on the record on that issue?

12:15  



Kevin Kane

The UNCRC explicitly states that, when possible, Governments should seek the views of children and not put them in a traumatic position. The bill would give effect to the UNCRC. It is worth getting that broad point on the record.

Colin McKay

Earlier, Ronnie Barnes made a point about the other definitions of vulnerability in adult support and protection legislation, which might be slightly broader than the definition of vulnerable witnesses. I have not done a detailed check on that, but those definitions might be slightly broader. There might need to be a process whereby people who do not fit one of the categories but can identify why they would need additional support or additional measures can ask for them.

Shona Robison

Do you mean outwith the legislation?

Colin McKay

I suppose that the legislation could allow an additional process by which people could demonstrate why they need extra support if they are not in one of the existing categories.

Ronnie Barnes

Other support and protection legislation provides a useful three-point test in relation to an adult who is at risk. Using that definition is a starting point.

Mhairi McGowan

However, very few people satisfy that three-point test. That is why I talked about vulnerable witnesses in relation to the Victims and Witnesses (Scotland) Act 2014, in which the definition in this particular category is far wider. My worry about the three-point test is that few people are picked up by it because it is so difficult to meet.

Shona Robison

So, it is important to identify what the definition would be and why.

Mhairi McGowan

Definitely.

The Convener

There seems to be consensus around support for the barnahus approach for child witnesses. Could some form of barnahus approach be adapted for vulnerable adults?

Mhairi McGowan

It could be—it would be on my wish list. My pragmatic approach means that I would like it for all adult victims of domestic abuse. I can see how such a model could fit for other adults but, being pragmatic, I know that it will be some time before we get it in place for children, as Malcolm Schaffer said earlier. A lot of ground work needs to be done.

There is absolutely nothing to prevent that model from being used as a way to ensure that the best evidence is obtained from children and adults.

Colin McKay

I do not know enough about the barnahus model to say whether it could readily be adapted for vulnerable adults. I am not against it in principle, but I sound a note of caution about taking something that works for one group of people—children—and saying that we should use it for adults because they have a learning disability. We need to be mindful of the different needs that people might have.

There is another thing that you might do quickly. It feels as though the registered intermediary scheme is on the shelf. The English have had that scheme since 2004 and it has been copied in Northern Ireland, South Africa and parts of Australia. There are schemes that would make a significant difference to vulnerable adults that could possibly be adapted more quickly than the barnahus model. I am not saying that you should not use the barnahus model, but there might be other things to use.

Kevin Kane

It might be useful to have a mapping exercise to show where in Scotland the facilities are to elicit the best evidence at the moment. There are some good signs out there. A justice centre has spades in the ground in Inverness; there is the new facility in Glasgow; and there is the money that was given to Scottish courts recently. However, I am not sure that there is an accurate picture of where the best evidence on commission sessions are happening, where the best facilities are and whether those facilities were born out of what child and other vulnerable witnesses said. That exercise could run alongside the bill.

As a large victim and witness organisation, we accept our role in that and, if we can, we will map our experiences to see whether they tie in with what the Government bill team, our statutory body partners and our third sector agency partners have found. At that point, we might be able to identify the gaps in the system and drill down into them. That would be helpful.

The Convener

You mentioned potentially talking to the SCRA about the children’s intermediary work. Its representative on the previous panel was quite positive about that.

Kevin Kane

Yes, that work is on-going.

Ronnie Barnes

I am not familiar with the model that we are talking about. However, accepting Colin McKay’s caution that it might not read across to all vulnerable adults, what I have heard about it suggests that it has merits and could be applicable to more vulnerable older people, too.

John Finnie

You touched on this point in general terms, but what are your views on the procedures for standard measures and the simplified notification procedure specifically? Is there a need for further reform? You might not have all heard the evidence from the previous panel, but the SCRA suggested a specific amendment to guarantee that witnesses would be consulted. The suggestion was made that measures are sometimes put in place, in the form of a companion or screening, without consulting the individuals.

Mhairi McGowan

It is really important to consult witnesses beforehand. However, I add the caveat that I put in my submission, which is that many victims of domestic abuse start by saying, “I am going to face him in court”, but as the court date gets closer that becomes just too much. That is where the trauma-informed approach would be really helpful. Sometimes, at the last minute, we ask the victim information and advice service or the court to ensure that there are screens, but that is always seen as a bit of an issue. If there were some standard measures, it would make things much easier for that category of witness.

However, it is also important to consult victims beforehand. Screens can be great, but not everyone who applies to have screens understands that the accused can see them and that it is only the witness who cannot see the accused. When they find that out, some people say that they would rather just have an ordinary courtroom. We need to be flexible as well as bearing in mind the argument about resources and the number of cases that are going through the system.

It would be helpful if we could combine making standard special measures available and consulting the witness beforehand about whether to use them.

Colin McKay

The worst thing that you can do is say to someone, “You’ve got that particular label, so you’re getting one of these”, regardless of whether that is what they want or need. The second worst thing that you can do is expect the person to understand immediately what might help them. It makes me think about the way in which doctors get consent for operations now. They have all been told that they must get the patient’s views, so they explain a very complicated procedure and say, “What do you want to do?”, and the patient thinks, “Well, I don’t know. You’re the doctor, you tell me.”

There is something about giving the person the time, space and support to understand what might help them and why they might want it, to make choices and, as Mhairi McGowan said, to change their mind if, nearer the time, they feel that they can no longer face it. We must not just impose things on people. We need to support witnesses so that the choices that they make are genuine and informed.

The Convener

We have touched on communication, which can be so important in the whole process. Is there anything that you would like to say about special needs and communication more generally, over and above what has already been said?

Kevin Kane

I gave the example of joint investigative interviews, which have huge potential to drive up collaboration between victim agencies and the statutory bodies. I base that on what our witness service has told us about the best application of current special measures and evidence on commission. Time and again, that happens where there are good relationships. If we can get to a situation where all the various interests get around the table early on, the positive domino effect will be that we communicate quicker and more effectively and that we see one another as allies in the system.

The Convener

It would be a holistic approach.

Kevin Kane

Yes.

Colin McKay

I have a brief comment on data. I get the point that has been made a few times about prioritisation and limited resources and the question of how big the problem is. One of the difficulties, particularly for adults, is that we do not have good evidence on the prevalence of crimes—for example, on how many crimes are committed against people with learning disabilities. We made a recommendation on that about 10 years ago, in our report, “Justice Denied”. There have been tremendous improvements since then. However, we still lack evidence on the nature and type of crimes and the extent of vulnerability and victimisation of vulnerable groups. The Crown Office might be able to help with that.

Ronnie Barnes

I hope that, during the passage of the bill, there will be more mention of older people and the particular issues that they face in being victims of crime, in how they are treated and in their ability to give their evidence and tell their story in a way that is appropriate to them.

The Convener

That concludes our questions. I thank the witnesses for participating in that very worthwhile evidence session.

That concludes the 31st meeting of the Justice Committee in 2018—it is so unusual for us to hear evidence from two panels of witnesses and then finish the meeting without going into private session.

Our next meeting will be on Tuesday 4 December, when we will continue to take evidence on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

Meeting closed at 12:26.  



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Third meeting transcript

4 December 2018

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Fourth meeting transcript

The Convener

Agenda item 2 is our fourth evidence-taking session on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome to the meeting the Rt Hon Lady Dorrian, who is the Lord Justice Clerk of the Judiciary of Scotland, and Tim Barraclough, who is the executive director of the judicial office in the Scottish Courts and Tribunals Service. Thank you very much for your written evidence, which the committee has found to be tremendously helpful in advance of our taking formal evidence. I must also thank you for arranging not just one but two visits for committee members to see the facilities for taking evidence by commissioner, and for the opportunity to view recordings of commission proceedings. I know that the visits were very much appreciated by all members and have been very helpful in informing our scrutiny of the bill.

I believe that Lady Dorrian wishes to make a short opening statement.

Rt Hon Lady Dorrian (Lord Justice Clerk)

Perhaps I can trespass on the committee’s time for a couple of minutes just to say that I am pleased to be giving evidence on the bill, which represents a significant milestone on a journey in which I have been personally involved since 2014, as a member of the small group that conducted the initial research leading to publication of the first “Evidence and Procedure Review Report” in early 2015. That started a process of consultation and development of ideas for better ways of taking evidence from vulnerable witnesses.

From the start, and throughout the process, we have sought to ensure that measures that we could introduce without legislation had the twin objectives of reducing potential harm and distress to witnesses and increasing the opportunity for reliable, accurate and comprehensive evidence to be given.

The work following the initial report involved all those who have an interest in the criminal justice sector. We knew that the best way of getting genuinely workable proposals that people on all sides could buy into was to get those people working together to develop them, so the working group included representatives of the judiciary, the Faculty of Advocates, the Law Society of Scotland, the Crown Office and Procurator Fiscal Service, justice agencies, third sector organisations that represent the interests of children and victims of crime and, of course, the police. The quality of the group’s collaborative work was very high indeed, and the practice note, which I know many of you have seen, came very much from that collaborative process.

The pre-recorded evidence workstream of the review had two major outcomes. First, it paved the way for the practice note that I have just mentioned, which was designed to use existing legislation and to enhance the use of commissioner hearings. That, in effect, introduced the ground rules hearing that is referred to in the bill, which will regulate the conduct of commissioner hearings, bring greater consistency and put a focus on the witness’s needs. It has also led to a significant increase in the number of commissioner hearings, which has enabled us to evaluate that work.

Secondly, as members will know, the working group set out a long-term vision for taking evidence from all vulnerable witnesses. We recognised that that could not be achieved overnight, that there would need to be graduated steps towards a more modern and consistent approach that would be in the interests of witnesses, and that it would take time.

The bill represents one of the significant staging posts on that journey. For that reason, I and my fellow senators of the College of Justice generally support the bill’s proposals.

The Convener

Thank you very much. We move to questions, starting with John Finnie.

John Finnie (Highlands and Islands) (Green)

Good morning, panel, and thank you for the work that you have done with others on the bill.

I wonder whether Lady Dorrian could expand and elaborate on the increased use of pre-recorded evidence and the benefits of the approach—in particular, the impact on vulnerable witnesses and, which is just as important, the quality of evidence that is obtained?

Lady Dorrian

What really sparked things off was a case in which a child aged five—I think—gave evidence at a trial. The joint investigative interview was played as evidence in chief, but the child was cross-examined at the trial—there had been no commission—some two years or so after the interview, and perhaps three years after the complaint had been made.

When children, in particular, are asked to give evidence at a time that is remote from the event, not only has their memory diminished, but they are more likely to be confused by general questioning about the incident, and in cross-examination might come across—often wrongly—as being shifty or unreliable. Indeed, they not only find it difficult to deal with questions at that stage, but are more inclined to agree with the questioner when they cannot remember something. Clearly, having a commission much closer to the incidents of which they were complaining would enhance their ability to recall and give accurate and comprehensive evidence and, of course, would reduce the harm to their lives, because they would be able to get on with their lives without having to attend the trial. In other words, everything else could carry on, as it were, without them.

John Finnie

In the example that you mentioned, what was the impact of cross-examination on the child?

Lady Dorrian

I would have to refer to the details of the case, but I think that the child found it difficult to answer the questions in a meaningful way. Again, I would have to check, but my recollection is that the child was not able to give any meaningful evidence in cross-examination.

John Finnie

Conversely, are there problems with taking the route in the bill? I am thinking in particular of safeguards to prevent miscarriages of justice. What safeguards should be built into the process?

Lady Dorrian

The safeguards are essentially the same as those that would apply if the child was giving evidence at trial. The commissioner is a High Court judge and is invested with the same powers; they are in control of proceedings and can deal with any difficulties that might arise in questioning. Equally, the commission protects the interests of the accused, just as the judge in a trial would.

Apart from simplifying the questions—which is another issue—all that the provision will do is bring the process forward. I see no real difficulties arising along the lines that you have suggested.

John Finnie

If, subsequent to the commissioner taking the statement, further evidence were to come to light, how would that be dealt with?

Lady Dorrian

We need to bear it in mind that, in such cases, cross-examination of children is very often limited to suggesting that the events did not happen or that someone else, perhaps someone who was visiting the family, was to blame, but if further evidence were to come to light, the question would arise whether it was necessary for the material to be addressed in cross-examination or in examination in chief of the child. If so, another commission could be held.

However, I should point out that since we introduced the practice note and evaluated the results—which show a 50 per cent increase in commissions, although admittedly that has been from a low-level start—we have never encountered a situation in which something has subsequently come to light that required to be addressed in that way.

John Finnie

Should a requirement to pre-record evidence be built into the legislation?

Lady Dorrian

Certainly, a requirement to pre-record the evidence of young children and children generally is absolutely the way forward. In due course, that could usefully be extended to other vulnerable witnesses. However, that will have resource implications, so it is important to make sure that we get it right for children before we move on with other categories.

John Finnie

Thank you.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I will pick up on that last point about phased implementation to cover other witnesses. What is your view of the requirement being restricted to children in the most serious cases? How might it be rolled out generally to children who appear in the sheriff court and so on?

Lady Dorrian

In our review, when we recommended that that particular approach be taken, we recognised that phased implementation of the change would be necessary. We felt that the best way to start was with children who are among the most vulnerable witnesses with whom we have to deal. We also felt that it would be sensible to limit the requirement to the High Court and to solemn cases.

We were developing a new model of practice that did not require legislation. We felt that, in order to make sure that the process was developed in a careful, managed and consistent way, it was important to limit it to the most serious cases in which children were giving evidence—mostly, cases of pretty serious abuse that are dealt with in the High Court. Our view was that it was important to get it right for those children, and that the danger of expanding the requirement across the country too quickly was that operation of it would be less consistent. It would also be harder for us to evaluate what was working and what was not.

Rona Mackay

I know that you will not be able to tell me exactly, but how long do you think it might take to evaluate that first phase?

Lady Dorrian

We have done our second evaluation report, through which we have identified issues that we need to look at. Some are technical and relate to the nature of filming of evidence and what is displayed on the screen. Some relate to controlling of questions and how that should be done, and so on.

At the moment, the practice note is definitely an evolving document. We will revise it and consider whether we need to change elements after the evaluation. It is difficult to say how long it might take to feel comfortable.

Rona Mackay

Do you envisage that the issues will be relatively easy to resolve?

Lady Dorrian

Yes.

Rona Mackay

They are not huge, serious issues.

Lady Dorrian

They are not: they are technical issues to do with use of equipment, the rooms in which a commission takes place and control of questioning, on which we are in negotiation with the Faculty of Advocates and the Law Society of Scotland.

Rona Mackay

Are you in favour of rolling out the requirement to cover adults and other vulnerable witnesses, in time?

Lady Dorrian

Yes.

Rona Mackay

That is the eventual aim once everything else is moving smoothly.

Lady Dorrian

Yes.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I will follow Rona Mackay’s line of questioning on adult vulnerable witnesses. Does the panel have a specific view on domestic abuse cases? Lady Dorrian said that the requirement to pre-record evidence will be extended to other vulnerable witnesses “in due course”. Should we consider domestic abuse witnesses as vulnerable adult witnesses?

Lady Dorrian

I use the term “vulnerable witness” in the sense in which it is defined by legislation. Obviously, it is for Parliament to determine whether the definition should be expanded.

Jenny Gilruth

Thank you.

Liam Kerr (North East Scotland) (Con)

You say that it is for Parliament to extend the definition. I think that I am right in saying that such extension would be done by regulations. Is using regulations to extend that jurisdiction appropriate, and would that make it too easy and too straightforward to extend the scope without sufficient scrutiny?

10:15  



Lady Dorrian

There are two separate things in that question. My previous answer mentioned the statutory definition of “vulnerable witness”. My view is that whether that definition should be altered would have to be a matter for Parliament to decide. At the moment, the definition encompasses some witnesses who are complainers in domestic abuse cases, but it does not cover them automatically. That is about the statutory definition of “vulnerable witness”.

There is also the question whether the process in the bill should be extended beyond children to other vulnerable witnesses—that is, to others who are defined in statute as being vulnerable witnesses. I do not see any difficulty with that being the subject of regulation, as long as extension of the definition of “vulnerable witness” was done in the knowledge that that could be the consequence. However, I understand that some people feel that extension by regulations is not an adequate safeguard, so that is something with which the committee will have to grapple.

The Convener

I will ask a little more about the definition of “vulnerable” in the context of vulnerable witnesses. In evidence, the Miscarriages of Justice Organisation Scotland suggested that the definition of “vulnerable” is not clear, and that people tend to look at the offence and categorise witnesses as “vulnerable” automatically for certain offences, rather than looking at the person who is in front of them.

Lady Dorrian

There are two separate issues there. There is a category of witnesses who are vulnerable because of the offence for which the trial is to take place, and a witness can also be vulnerable if it can be shown that they require special measures in order to give their evidence more fully because they would be apprehensive, scared or intimidated without that measure. That approach is a model that is designed more to assess the individual vulnerability of a witness, as opposed to the assessment of vulnerability being based on the complaint being about a particular offence having been committed.

The Convener

Does that need more explanation in the policy memorandum, just to make it absolutely clear?

Lady Dorrian

I do not think that there is any difficulty in identifying people who qualify as vulnerable witnesses. On the face of it, the provision that enables classifying a person as a vulnerable witness because they would find it difficult to give their evidence without special measures through being apprehensive and feeling under threat is probably sufficient. I do not have the statute in front of me, unfortunately, so I cannot be precise about the terminology.

The Convener

We might return to definitions later.

Daniel Johnson (Edinburgh Southern) (Lab)

I have further questions on the extensions that are provided for in the bill. As I understand it, the provisions will apply in the first instance to children and to specific types of cases, and that can be extended by regulation. However, the bill stops short of making that possible for all types of cases in all courts. In your view, should the bill go further and make that a possibility, so that we do not need to return to primary legislation in the course of time as the situation evolves and we seek to extend the provision for other types of witnesses and cases?

Lady Dorrian

Ultimately, extending the bill to other courts, including sheriff courts, solemn proceedings and sheriff court summary business is largely a question of resources, as well as being satisfied that we have a model that is clear and consistent. Once we have a model that is clear and consistent, there is no reason—other than the resource implications—for the practice not to be extended to other courts. As long as the resources are available, there would seem to be no difficulty in extending it by regulation, and there is probably a better and easier argument for doing that than there is for extending the categories.

Tim Barraclough (Scottish Courts and Tribunals Service)

I add that the facility for taking evidence by commissioner is available across the piece—that already happens at every level. The question is whether the presumption should apply to a wider range of witnesses.

In the evidence and procedure work that was done, it was recognised that it is necessary to take a proportionate approach. The pre-recorded evidence document talked about different approaches for cases of different levels of seriousness in different levels of court.

I will give an example at the other extreme. We said that it would not be a proportionate response to have a complex process for an articulate 16-year-old who had witnessed a bicycle theft. Although, by definition, that witness is vulnerable, a lot of special measures would not necessarily need to be taken to enable them to provide their evidence. We wanted to make sure that a proportionate approach is taken. As the approach is extended, proportionality should still apply.

Lady Dorrian

That is an important point. It is also worth noting that, at the moment, witnesses other than children can give evidence by commission if their communication or their ability to give evidence is such that that is required. The real question is whether giving evidence by commission should be made the main method of giving evidence. As Tim Barraclough said, there are proportionality issues with that in the lower courts—in the summary court, in particular.

Daniel Johnson

I want to draw out what resources would be required to make the extension of the proposed approach feasible. What resources would be necessary to extend the use of evidence by commission? Are we talking about facilities, court equipment or training for individuals? Will you elaborate on the resource requirements?

Lady Dorrian

If we had a system in which all vulnerable witnesses in the High Court had their evidence captured in commission form, that would have significant resource implications for the police and the Crown as regards how they would go about gathering evidence and what they would do in preparation for how that evidence would be captured in due course, especially given that, with children, the standard way of capturing their evidence-in-chief is in a joint investigative interview, and that would continue. The main resource implications are at that front end.

There would also be resource implications for the court because, for every commission, a ground rules hearing would have to be held. If such a hearing involves assessing the nature of the questions to be asked, it can take some time. There are quite significant resource implications from the point of view of the court’s programme of building in time for the ground rules hearing and for the commission, especially when the commissioner is a High Court judge.

Daniel Johnson

That was helpful—thank you.

Jenny Gilruth

I would like to focus a bit more on taking evidence by commissioner. Lady Dorrian, you pointed out that there has been a 50 per cent increase in taking evidence on commission since the practice note was introduced. Are there any issues with practicalities, such as the use of technology, that would affect the ability to increase the taking of evidence on commission any further?

Lady Dorrian

A number of practical issues exist at the moment. It is extremely important to make sure that the equipment that is used up and down the country is consistent and operates the same systems. There needs to be consistency across the country. Some issues arise with the use of particular premises for commissions. We have largely been using court premises, although not courtrooms, because that enables us to keep control over the nature of the equipment that is used.

We are keen to use remote sites when we can, but at the moment there are difficulties with that, because we have less control over the nature of the equipment that is available. There are certain issues with regard to that, as well as issues of security and safety for remote sites.

Jenny Gilruth

The committee heard from a children’s charity about an example of a child having to give evidence 24 times. That evidence was then ruled inadmissible because the child had had to go through the process so many times. Lady Dorrian, you talked about children’s memories diminishing the further they get from the event. Is there an opportunity through the bill to expedite the process to get this done more quickly, particularly for children?

Lady Dorrian

I am glad that the bill contains provision for that, because we were concerned that, although, through our practice note, we could encourage the use of commissions for children and encourage people to apply for the commission at as early a stage as possible in the proceedings in the High Court, it could not be done until the service of the indictment at the very earliest. We were keen to see some means by which that could be expedited, so I am pleased that the bill contains the possibility that a commission could take place before the service of an indictment.

Jenny Gilruth

Is there an opportunity, with the use of ground rules hearings, for the bill to specify what is required at an earlier stage?

Lady Dorrian

Do you mean that the bill should specify what should take place at a ground rules hearing?

Jenny Gilruth

Yes.

Lady Dorrian

I do not think that there is a requirement to have that in the bill. We have detailed recommendations in our practice note as to what should take place at the ground rules hearing. If you are interested, you can find them in paragraph 11 of the practice note, which covers about two pages. As the document will be under review, we will be able to change those recommendations as and when it appears that something else would assist. The flexibility that would be maintained by having those recommendations on the ground rules hearing set out in the practice note would be much more beneficial than trying to put those into primary legislation, which would be much more difficult to change.

Rona Mackay

Should the bill provide for the use of court intermediaries here, as are used in England?

Lady Dorrian

We are generally in favour of the use of intermediaries, where their assistance would enable a witness to give their evidence in a clearer and more comprehensive way, and where the communication needs of the witness make that necessary. Very often, with children, an intermediary is not necessarily what is required. Asking simple questions, addressing one issue per question and other approaches of that nature are usually sufficient to address children’s communication needs. However, there will be cases where an intermediary would be of great assistance. Although we are in favour of intermediaries in general, I am not entirely sure whether this is the stage to introduce them to the bill.

Another issue is that we do not have a base or cadre of intermediaries who could be called upon to provide that service at the moment. That would be another complication that might hinder progress at this stage.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Lady Dorrian, you spoke about the use of joint investigative interviews. How often is evidence from them used as evidence-in-chief? Is that a regular occurrence and what are the practical difficulties with it?

10:30  



Lady Dorrian

The joint investigative interview is frequently the way in which evidence is gathered from children for their evidence-in-chief. If there are care issues as well as criminal justice issues, there will be a joint investigative interview. Where there is a commission, generally the evidence-in-chief is taken to be the evidence of the joint investigative interview, and that will be played in due course to the jury at the trial. It happens on a regular basis.

One of our working groups looked at the content of joint investigative interviews. I was not involved in that group, but Tim Barraclough might be able to give the committee more information. However, in the working group on recommending a different vision, we recognised that an improvement of the quality of joint investigative interviews would be central and necessary to what we had in mind. There still seems to be an issue, even from the point of view of the commission process, that the quality of joint investigative interviews is not as consistent as one would like.

Fulton MacGregor

In previous sessions, the committee heard that joint investigative interviews are used as the primary means of gathering evidence from children. I should declare that I was previously a social worker and was involved in joint investigative interviews. I am interested in the evidence that we heard that there is often inconsistency in the quality of evidence taken to court. Are there statistics on the number of joint investigative interviews that take place and how many of them result in evidence that is taken to court? I apologise if you do not have the answer to that here and now.

Tim Barraclough

When the working group looked at that, it was hard to get clear statistics. The feeling was that around 5,000—certainly in the thousands—of joint investigative interviews take place per year but the vast majority do not end up in criminal proceedings. They have more than one purpose—they can be about finding out whether there are protection issues—and they may reveal nothing that needs to be taken further. Very often, even if criminal proceedings start, they do not necessarily go to trial. There is a big fall-off in cases because the accused pleads guilty, or for other reasons.

Lady Dorrian

I doubt very much whether the statistic would be meaningful. The percentage of JIIs that end up in court is not a measure of the quality or success of the information-gathering process.

Fulton MacGregor

Would a more meaningful statistic be the number of cases where the JII identified that there should be a prosecution but the quality of the JII did not allow for the prosecution to take place?

Lady Dorrian

If there were cases in which, for example, the Crown decided that it could not proceed on the basis of a JII, that would be a more meaningful statistic. Bear in mind that the decision would not be made simply on the quality of one piece of evidence. There would be issues of corroboration. The Crown might have a JII in a case and not proceed on the basis of an inadequate sufficiency of evidence, as opposed to anything else.

That is one of the measures to look at, but more than one measure would have to be considered. One could try to ascertain the extent to which JIIs have been the subject of objection on the basis of their quality or the use of leading questions. I am not aware of that being a significant issue, but it is another element that could be considered.

Fulton MacGregor

That is helpful.

Moving on from that point, representatives of both social work and the police have been in front of the committee and have talked about looking at new training techniques for JIIs. Is there anything that you think should be included in training on prior statements?

Lady Dorrian

As I said, we produced a report on the use of JIIs that set out clearly what we recommended should be the way forward for the training of both social workers and police officers in the taking of that evidence. I was not on that workstream, but Tim Barraclough might be able to supply more information on it.

Tim Barraclough

As Mr MacGregor said, the group recognised that there was a lot of inconsistency and variation in the quality of JIIs across the piece and that two main things were required to improve consistency and quality. The first of those things was equipment: the technology had to be improved because it was very out of date. Secondly, it was recognised that there had to be a common approach—Mr MacGregor raised that point—because different approaches were being taken in different parts of the country. A common approach to the training of forensic interviewing is required. There is a lot of academic research out there on different ways of interviewing children forensically. Some of the information from the barnahus experience was very useful in that regard. We had experts in both Scotland and the wider United Kingdom who could give advice.

It would be for Police Scotland to give the details, but I understand that it is in the process of changing the approach to training. When we looked at the training, it consisted of a one-week course, with training for four days and interview practice on the final day. However, the training has to be over a much longer period. Alongside that, one of the other things that was picked up was the importance for quality of interviewers being properly trained in forensic interviewing according to the recognised models and practising it regularly in real life. The quality issues came through when a large number of police officers and social workers who were trained in interviewing practised it only once or twice a year, which meant that they could not keep up or develop their skills and that their skills were not evaluated. Therefore, there has to be evaluation and regular practice as well as initial training that is of high enough quality.

Fulton MacGregor

I have a supplementary question that is a bit off topic. In earlier answers to colleagues, you talked about the extension of the rule to other vulnerable witnesses. I was interested in the Scottish Government’s decision not to extend the rule to a child accused. Do you have a view on that?

Lady Dorrian

First, the current legislation provides that a number of specialist measures would be available to an accused child for the giving of evidence. Probably the most appropriate of those measures would be giving evidence by closed-circuit television from a remote location outside the courtroom. It is one thing to sit in a courtroom and listen to a trial in the presence of a jury, but it is another thing to go into the witness box and give evidence to that jury. It might be that CCTV evidence is currently underused in the context of children, young people and other vulnerable witnesses.

Some people have raised the issue of somehow capturing the evidence of an accused child before a trial, but I am afraid that I cannot see how that could ever be done. The accused, whether they are a child or otherwise, is not required to give evidence; the decision about whether they give evidence has to be made in the context of what the evidence at the trial has been, which we will not know until the end of the trial. We might anticipate that the evidence will be A, B and C, but frequently that turns out not to be entirely accurate, and the accused has to respond to what the evidence has been at the trial. I cannot see a way in which the evidence of a child accused could be taken in advance of the trial, nor can I see how requiring an accused child somehow to do that would not be in breach of their rights.

Fulton MacGregor

Thank you for that helpful answer. As the Age of Criminal Responsibility (Scotland) Bill goes through the Parliament, my personal opinion is that we should be moving away from seeing children as perpetrators.

The Convener

That is a matter for a different bill, as you said.

Daniel Johnson

How frequently do technical issues impinge on the quality of JIIs—and also on the quality of evidence taken by a commissioner, given what has happened recently? Have technical issues rendered evidence unusable in court?

Lady Dorrian

I am not aware of technical issues having rendered evidence unusable in court, but we have had technical issues such that the evidence could have been captured on film in a way that was easier to follow, for example. If the evidence is taken on a remote site—for example, if a child is giving evidence at a commission by closed-circuit television—there are issues to do with who is seen on the screen and when, and sometimes the end result is that the child is not given as much prominence on the screen as one might wish them to have. We are very much addressing that at the moment, to ensure that such technical issues do not get in the way of the evidence.

Daniel Johnson

Does that imply that there is a requirement for detailed technical standards for evidence taken by a commissioner and for JIIs, to ensure consistency and quality? Would it be sensible to develop such standards?

Lady Dorrian

We are trying to get some kind of overall, consistent standard of what a commission film looks like. Again, the specification of something in the bill would bring difficulties. Technology advances at a much faster rate than the legislation might be able to follow, so such an approach might not be helpful.

Daniel Johnson

I was not implying that we should include technical standards in the bill. It was more a practical policy point.

Lady Dorrian

The development of standards is certainly sensible.

Tim Barraclough

Across the court estate, there has recently been substantial investment in the technology, such that I do not think that we have particular concerns about the quality of recording, playback and video and audio, given the technology that is now available to us.

I think that the issue that Daniel Johnson raised arises with JIIs, in relation to which there will be greater variability, because different people will provide the equipment. Members should remember that the joint investigative interview is a pre-court procedure, so we do not have a huge amount of influence on how JIIs are conducted; that is more a matter for local authorities and the police. We would like improved quality and consistency, because that makes everything that follows easier.

Daniel Johnson

Thank you; that is helpful.

Lady Dorrian

I endorse what Tim Barraclough said. We would very much like to see an improved and consistent quality of recording in relation to JIIs.

Liam Kerr

May I go back to Fulton MacGregor’s point about the child accused? I totally understand the point that Lady Dorrian made about the logistical and justice reasons for not extending the approach to the child accused—full stop. I get that. However, a conclusion of the evidence and procedure review was that the ability to secure the most comprehensive, reliable and accurate evidence is maximised by a process such as we are talking about. If, as you said earlier, a child is more likely to agree with a questioner, there is an inherent tension in that regard. Is not the answer to Fulton MacGregor’s question that there is more to be said about how we improve the evidence of and our ability to get justice for a child accused?

10:45  



Lady Dorrian

You have to bear in mind the process for a child accused, who has no need to answer anything or give any evidence. Trying to create a situation in which a child accused is somehow required to answer the allegations prior to any trial would have significant constitutional issues. I am not sure that I can say any more about that, as it is not really part of what I anticipated to be the remit of this morning’s discussion.

The Convener

I return briefly to the technology. Are you satisfied or confident that the Scottish Courts and Tribunals Service budget for 2019-20 will be sufficient to have the necessary resources for the technology that would be required?

Lady Dorrian

In order to deal with the use of commissions for children, we are satisfied that we have the equipment. At the moment, we are restricted in places to use; most committee members have seen the room in Parliament house, which is not ideal, and we are looking at other options, which are likely to be resource dependent. Members will know about a very good facility that will be coming on stream in Glasgow, and in due course we will have a good facility in the Highlands when the Inverness justice centre comes on board. However, if the vision is that the commissions should take place more widely across the country and be less focused on court buildings, that would be another issue. Tim Barraclough might have something to add.

Tim Barraclough

The direct answer to the question is that we are confident that the facilities are being brought on stream in places that will cope with the likely increase in commissions, certainly in the short to medium term. The Glasgow facility is expected to have three commission rooms that are dedicated: they are in a separate building and do not have the difficulties that are associated with being in court buildings. That facility operating at a reasonably high capacity—not full—could cope with about 1,000 commissions a year; it would be the centre and we aim to upgrade facilities elsewhere across the country, as Lady Dorrian said. In the short to medium term, we are confident that we will have the facilities and people in place to manage them, as well as the judiciary.

If we look a bit further, as availability of commission hearings is expanded to other categories of witness, we would keep in constant dialogue with the Scottish Government, which has so far been very supportive, for example, in providing the resource for the Glasgow centre. It has indicated that it is keen to be as supportive as it can be. In the short to medium term, we see no problems.

The Convener

The committee will welcome updates about the resource issue as you progress; that is key to ensuring that the proposal will work well and be successful.

Rona Mackay

On the subject of facilities, the committee recently had a trip to Norway during which members visited a barnahus. It is fair to say that we were all very impressed by it. Do you see Scotland moving to that approach in the future? If so, what would be the benefits, practicalities and downside?

Lady Dorrian

As members know, all the countries that operate the barnahus system do so slightly differently, because they have adapted it to their own requirements. We have set out our vision of how a forensic interview of a child might take place, which was designed to meet our system’s particular circumstances.

We suggested a forensic interview of the child, which would require much greater training for the JII and a very different approach. The idea was that lawyers would have minimal involvement in that. That was our view of how we could use some of the best aspects of the barnahus model. We envisaged that such an interview would take place in centres that also had medical or social work facilities available to assist the child.

That vision is very different from what is in the bill. As we recognised in our report, achieving the vision that we set out would involve a long-term strategy, because it requires so much of a cultural change and so much of a change in the form of the forensic interview that takes place.

Rona Mackay

In Norway, we saw how the barnahus model could work in an adversarial system. As you said, the system is different in other countries. In the long term, could such an approach happen in Scotland?

Lady Dorrian

The vision that we suggested could work in that way.

Tim Barraclough

We have visited a number of barnahuses in different countries, which are all slightly different, as Lady Dorrian said. The core idea of a barnahus as a centre that has a number of facilities to receive a child or other vulnerable witness who is reporting a serious offence could be used today in Scotland, in the context of having a really good place for a joint investigative interview. However, the legal system would still have an evidence-by-commission hearing later. The idea of a barnahus as a very good space for interviewing children could be developed now.

The long-term vision that was set out in the report was that in the right cases—given that the procedure is resource intensive—a move could be made to such an approach, but that would mean changing the legal system as well as the facilities that are available, as Lady Dorrian said. The approach would involve much more than just building facilities and having certain people there; it would mean changing the culture, because taking lawyers out of direct questioning of the witness would be alien to how things have been done here.

Rona Mackay

We were impressed to see that the professionals went to the child rather than the child going to them; the approach was holistic. We will wait and see.

Tim Barraclough

There are lots of good ideas that we could introduce as best we can.

Lady Dorrian

Yes.

The Convener

Communication has been a theme in our evidence sessions so far. What are your views on communication with vulnerable witnesses? How much support are they given before, during and after prosecution? The period after they have given evidence and the accused has been convicted is crucial and is not addressed in the bill.

Lady Dorrian

From the court’s point of view, our involvement—

The Convener

Stops.

Lady Dorrian

It also does not start until someone becomes a witness in the court system. The support that might be available to witnesses in advance needs to be discussed with the police and the Crown. Our objective is to ensure that, when a witness gives their evidence, they are given the best circumstances in which they can do so. If that requires them to have screens, to give evidence through CCTV, to have a supporter present or to have a commission to take their evidence, that will be done.

Our focus is on ensuring that the representatives who seek to lead a vulnerable witness—that means not just the Crown but the defence—think about the witness’s requirements, their communication needs and everything else and advise the court of that in the vulnerable witness notice. The court will then specify anything else that requires to be done to assist that process.

However, after that, they move out of the court system. The question of what support may then be available for them seems to be more of a therapeutic issue with which the court has no involvement; nor does it have the skills or expertise to be able to address those issues. There would also be constitutional issues were it to be suggested that the courts should be involved in that.

The Convener

I fully understand that. You are obviously very passionate about this, Lady Dorrian, and you want it to succeed, as we all do. A recent case that has come to my notice suggests that if there is not that support later—this is looking at the legislation as a whole, not from the point of view of the judiciary—we could almost reach a situation in which the vulnerable witness says, “If only I hadn’t given evidence, I would still be able to follow my career and not be rejected because I have been traumatised; I wouldn’t be reviled by my close community; and my family wouldn’t be facing horrendous problems with where they’re living and what they’re doing.”

There is an issue here. If the word goes out that people can give evidence and get the conviction and that is fine, but then there are repercussions, there is a danger that we will not be giving people the support, encouragement and confidence they need to come forward.

Lady Dorrian

One of our objectives in looking at the ways in which the witnesses give evidence is to minimise the harm involved in the process of giving evidence. If there is the risk of harm to the witness from having given evidence, clearly that should be addressed, but it requires to be addressed outwith the court service.

The Convener

I totally understand that.

Lady Dorrian

Tim Barraclough has just reminded me that the recently constituted victims task force may well address such issues and the Lord Advocate is the co-chair of that task force. That might be a more suitable forum to address the issue.

The Convener

When the cabinet secretary comes to the committee, that might be a question for him.

In your submission, you state that it would be helpful to have a definition of solemn proceedings in the bill. Is that right?

Lady Dorrian

Could you just remind me where that is in the submission?

The Convener

The point about the definition was mentioned on page 5 of the committee issues paper. In your submission, you state:

“We wonder, therefore, whether provision of a definition of ‘solemn proceedings’ would be beneficial in”

the context where a child witness is giving evidence in the

“relevant criminal proceedings which are solemn proceedings”.

Later on, you add that there is also no definition of “solemn cases” in the bill, so it is not clear.

Lady Dorrian

The issue is slightly technical, as you will appreciate, because the proceedings are taken to have commenced when the indictment or the complaint is served on the accused. Therefore there is the question of when there are solemn proceedings as opposed to proceedings. Currently, you would only be sure that you had solemn proceedings when the indictment was served.

A petition is how you commence initially solemn proceedings, but proceedings on petition can be reduced to summary complaint so you would not be able to say that a petition meant that there were solemn proceedings. Simply from the point of view of being able to utilise the suggestion in the bill that we could have a commission at a much earlier stage, it would probably be of assistance to have that definition.

The Convener

In previous evidence, the Miscarriages of Justice Organisation Scotland highlighted two other definitions that it thought could be looked at—a definition of the term “ground rules” and a definition of “permissible” in the context of “permissible lines of questioning”, which it thought was vague. Do you think that that needs further clarification?

11:00  



Lady Dorrian

Actually, I do not, because the organisation of the commission is discussed at the ground rules hearing. What is involved in a ground rules hearing is well understood, and I do not see what would be gained from defining it. As I said earlier—I am sorry, but I cannot remember who asked about it—the kind of issues that are raised at a ground rules hearing are listed in detail in the practice note. If as we evaluate the practice note we find that there are other issues that it would be useful to discuss, we can very quickly add them in. If they were listed in the primary legislation, that would not be possible.

What is permissible is a matter for the court to determine. Indeed, it would be very difficult to come up with a comprehensive definition, given how much depends on the actual circumstances of the case. The first rule of permissibility is that the question must be relevant to the circumstances of the case, and as far as the form of questioning is concerned, the questions must be sufficiently geared towards the witness’s level of comprehension. The kind of questioning that would be permissible for a five-year-old child would be quite different from what would be permissible for a 17-year-old or an adult vulnerable witness. My strong feeling, therefore, is that these things can be developed within the overall concept without requiring them to be put in a straitjacket of a definition.

The Convener

It has been helpful to tease that out in discussion.

Tim Barraclough

If the focus of this process is to address a witness’s individual needs, you will want to have the flexibility to do so, and if legislation says that certain things must be covered—which might mean that other things get left out—one’s ability to take that kind of victim or witness-focused approach might well be limited.

The Convener

That, too, was helpful.

A final issue that arises from the policy memorandum relates to the use of the generic term “victim”. It has been suggested that the term “complainer” would be better.

Tim Barraclough

That is certainly the term and formulation that we would use from the court’s point of view. There are a number of cases about the use—and appropriateness—of a particular term by a judge, and the term “complainer” would certainly be of more assistance.

The Convener

That concludes our questioning. I thank Lady Dorrian and Tim Barraclough for their evidence, which has been exceedingly helpful in our scrutiny of the bill.

I suspend the meeting for a five-minute comfort break.

11:03 Meeting suspended.  



11:08 On resuming—  



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Fifth meeting transcript

The Convener

Agenda item 2 is our fifth and final evidence-taking session on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome to the meeting the Cabinet Secretary for Justice, Humza Yousaf, and, from the Scottish Government, Karen Auchincloss and Lesley Bagha, from the criminal justice division, and Louise Miller, from the directorate for legal services. I have already wished the committee a happy new year in private. I take this opportunity to wish the cabinet secretary and his officials the same.

I thank the cabinet secretary for his various submissions to the committee and invite him to make some brief opening remarks.

The Cabinet Secretary for Justice (Humza Yousaf)

Thank you, convener. I reciprocate in wishing you all a happy new year. I hope that you had a good festive break. I also thank the committee for what I think have been extremely thorough and helpful evidence-taking sessions. We have reflected on that evidence in the run-up to this particular meeting.

In recent years, significant changes have been made to the criminal justice system to recognise the interests of vulnerable witnesses. Those measures have included strengthened arrangements to extend access to special measures in court that have been appropriate to help keep children and other vulnerable witnesses out of court through, for example, greater access to remote videolink for summary and solemn cases. However, I strongly believe that more can and should be done to support child and other vulnerable witnesses while protecting the interests of those who have been accused of crimes. That is why, in ensuring that children in the most serious criminal cases can have their evidence recorded in advance of the trial, the bill is a progressive and ambitious step forward.

I have listened with great interest to the evidence that the committee has taken from a broad range of stakeholders over the past couple of months, and I am very pleased that the overwhelming response has been positive and supportive. That said, I accept that some issues were raised in the evidence sessions. It might be helpful if I address a few of them very briefly this morning.

Many stakeholders have asked how and when we intend to commence the bill’s provisions and, in particular, when the power in section 3 will be commenced. We have always made it clear that our initial focus will be on child witnesses in the most serious cases. I trust that the committee received the letter that I sent yesterday. It sets out our proposed approach to commencement—provided, of course, that the bill is approved by the Scottish Parliament—and attached to it is a draft implementation plan. As members will note, and as the letter sets out, it is important that the bill’s provisions be commenced in a phased, manageable and effective way. I know that some stakeholders support that approach.

It is of the utmost importance that we do not overwhelm the system and that we get it right for children and vulnerable witnesses. Not to do so would be to undermine the policy aims of the bill and, more important, to risk making matters worse for the very people whom we seek to protect. However, members will note that the Scottish Government intends to extend the new provision to adults who are deemed vulnerable witnesses, including complainers in sexual offences cases. It is likely that that will initially be commenced in the High Court.

It is important that each stage of the roll-out be evaluated and monitored to ensure that the justice system as a whole is ready to move to the next phase of implementation. I cannot stress enough that I want the justice system to be fully prepared and the necessary information technology and infrastructure to be in place before we move from one phase to another.

As the committee is aware, the Government has already invested almost £1 million to create a new vulnerable witnesses suite in central Glasgow. We have made a further £1.1 million available to the courts service, and we continue to work with it on upgrading other venues and IT equipment so that the court infrastructure is ready for the increase in the number of witnesses having their evidence pre-recorded.

I am aware that some concerns have been raised in relation to potential miscarriages of justice, and I hope that I can allay those concerns. Evidence is and will continue to be tested. Witnesses will continue to be cross-examined in evidence by commissioner hearings under the new statutory rule. They will also have the oversight of a High Court judge or a sheriff.

The bill in no way undermines those fundamental principles, nor does it amend the current definition of vulnerability or the current special measures; it creates a statutory framework to enable the greater use of pre-recorded evidence so that our most vulnerable citizens do not have to undergo the additional stress of having to await trial before giving evidence.

I am, as always, happy to take questions.

Daniel Johnson (Edinburgh Southern) (Lab)

I extend my wishes for a happy new year to the cabinet secretary.

I will begin by asking a broad question. At its heart, the bill represents the view that recording evidence prior to a court case is beneficial to a vulnerable witness. Will the cabinet secretary outline his views of what those benefits are, as well as any potential drawbacks? Will he also tell us what protections are required to make sure that we still see justice being carried out in our courts?

Humza Yousaf

I thank the member for his good wishes and his questions.

It is important to recognise—as I know the member does—that we are not introducing a new special measure. The pre-recording of evidence taken on commission can be applied for and currently takes place, although in some respects we are creating a presumption when it comes to child witnesses. Those safeguards already exist. The evidence being taken on commission would be overseen by a judge or by a sheriff in a sheriff and jury trial.

Organisations such as Barnardo’s Scotland and Children 1st, as well as representatives of the legal profession such as the Faculty of Advocates and the Crown Office, have provided overwhelming evidence to the committee on the benefits of the measure to children and to the criminal justice system generally because it potentially helps to speed up the process.

The really big benefit for children—and, I hope, for adults who are deemed vulnerable witnesses when we extend the measure—is that we can mitigate, as best we can, the potential for the court process to retraumatise them. We know that the court process can have a long-lasting impact. In my conversations with the likes of Rape Crisis Scotland, I have heard that rape complainers often say that the court process not only retraumatised them but, in some respects, was even more traumatic than the incident itself. If we are able to mitigate that, it will increase the efficiency of the court process.

There are a lot of benefits, but the important point is that safeguards need to be in place. The current safeguards are fairly good and strong, but we should be open minded about whether there is a need for improvement.

Daniel Johnson

I agree with much of what the cabinet secretary has said. The bill will lead to a big change for people in the courts in terms of the infrastructure that is required—the technology for the pre-recording of evidence—and the changes in practice. I thank the cabinet secretary for the letter that he provided, but will he expand on the assessments that will be made? A phased approach needs to be taken to ensure that lessons are learned at each stage—indeed, more time should be taken if that is required. How will the assessments be made in terms of practice and infrastructure?

Humza Yousaf

The latter point is hugely important. In some respects, we can look at what is happening in England and Wales, where there is a phased roll-out. The reason that England and Wales are phasing the roll-out is to monitor and evaluate, which it is important that we do. We need to have a degree of flexibility. In my implementation plan, which I forwarded to the committee, dates are attached to some of what we are looking to do, but not to everything. The reason for that is that I want to get things right instead of just giving you an arbitrary date. We need to evaluate and monitor.

I might look to my officials to add some detail of how that work could be done, or I could follow that up with the committee afterwards. We know that High Court cases that involve child complainers and child witnesses will require quite an upgrading of facilities and infrastructure, but a cultural shift will also potentially be required.

The IT infrastructure is really important. I was very interested to read and reflect on the evidence that the committee took on joint investigative interviews, for example. A number of witnesses said that the interviews were not of the quality that they should have been. That alone tells us that there needs to be significant investment in infrastructure. We are providing that investment, and I have seen some of it in the Glasgow city centre location that we will use for child interviews by commissioner. Clearly, the monitoring of that work will be hugely important before we move on to the next phase.

Karen Auchincloss (Scottish Government)

Since the practice note came in, there has been a period of monitoring and evaluation to see how it is bedding in, and we will continue that work once the legislation is in place. The work that we will do with the Crown Office and the Scottish Courts and Tribunals Service could relate to data collection—we could seek feedback on the quality or volume of commissions or on how long a commission has taken. Those are all important factors to consider before we decide whether or when we will roll out the system further.

Daniel Johnson

A key question is why the bill stops where it does. I accept the point about the need for caution. Using a phased approach in relation to child witnesses in solemn or specific types of cases, while making provision for extension to other types of cases and witnesses, makes sense. However, why does the bill not make provision for further extensions, particularly to summary cases? After all, a child does not know to be traumatised just because it is a solemn case rather than a summary case. I am thinking particularly about domestic abuse cases, which might well be heard under summary proceedings. We can understand the potential benefits of those measures to child witnesses in such cases. Why does the bill not include provision to make those further extensions—albeit with the caveats and tests that the cabinet secretary has set out?

Humza Yousaf

That is a really good question, and I hope that I can give the member some reassurance on our thinking on the matter. I will ask my officials to come in if they have anything else to add.

I have recognised, from the committee’s evidence sessions, that the phased approach has been welcomed by a wide range of stakeholders—particularly those in the criminal justice field—from the Faculty of Advocates to the Law Society and to Lady Dorrian. They are supportive of that phased approach because they understand the infrastructure and the resource implication.

10:15  



However, I also understand Daniel Johnson’s question about having something in the bill about summary cases because that might make the provision easier to extend in the way that we are suggesting for adult vulnerable witnesses. I have a couple of things to say on that. In domestic abuse cases—be they summary or solemn—there is nothing currently preventing an application for evidence by commission. There could be an application under the current provisions, and it would be for a sheriff or a judge to look at that application and to grant it or not. The ability to do that currently exists in domestic abuse cases. There is also a difference between the number of solemn cases that are presided over in the High Court and the number of summary cases—Mr Johnson understands the difference in those volumes and its implication. Therefore, it is important to go through the phased approach that we currently have, with the list of offences that we currently have.

A third point is that, when we extend the provision to adults who are deemed to be vulnerable witnesses, it will cover cases involving sexual offences and domestic abuse cases.

There are two separate issues, although I understand that there is some correlation between them. I am not closed minded about the list of offences that will be covered. I have listened to the evidence and I see that the issue of domestic abuse has been raised by a number of stakeholders. As a Government, we should reflect on that. At the same time, however, there is a provision in the bill to amend the current list of offences. As a Government, we should be open minded to the suggestion of including the offence of domestic abuse in the list while understanding the implications of doing so.

There is also the issue of extending the practice to summary cases. I am not quite convinced that we need something about that in the bill. If we were to go down that route, we would have to think about the phasing of the implementation. The current phasing of the implementation begins with children giving evidence in solemn cases in the High Court and in sheriff and jury trials; we will then look at extending it to adults who are deemed to be vulnerable witnesses—again, we will probably look at extending it to trials in the High Court first and then look at extending it to sheriff and jury trials. Would we then look at extending it to summary cases? Would it be extended to summary cases involving children, first, and then to summary cases involving adults? We would have to think about how we would phase that.

If we were to extend the practice to summary cases and create that presumption, it might be unnecessary. Tim Barraclough from the Scottish Courts and Tribunals Service gave the example of a 16-year-old in the summary courts who had witnessed a bicycle theft. Would we require that witness to give pre-recorded evidence? I am not convinced that that would be the best use of time and resources.

For those reasons, on the domestic abuse front, the Government should be open minded on the issue of putting something in the bill. However, I am not quite persuaded of the need to extend the practice to summary cases.

Liam Kerr (North East Scotland) (Con)

Following Daniel Johnson’s question, do you think that there is a risk—particularly given that the category can be extended by regulation—that the category of vulnerable witness could be extended so much that it would almost become the default position?

Also, is there anything in the assertion that the committee has heard that deeming a witness to be vulnerable could enhance their credibility or the weight of evidence that they give?

Humza Yousaf

Extension of potential vulnerability could be a decision for us to make as a Parliament. Agreement to extension of the category would have to be done through an order that was subject to affirmative procedure. Liam Kerr is right that there must be some flexibility. Perhaps not everybody who is captured under the current definition of “vulnerable witness” would have been captured 20 years ago when Parliament first sat. There has to be an element of flexibility, but it would be up to the Parliament to make the decision on whether to extend the definition.

On the second question—I think that I understood it correctly—I note that a few stakeholders who gave evidence to the committee suggested that more weight could be given to pre-recorded evidence and questioned whether that would shift the balance of fairness in a trial. I have seen no empirical evidence or data to back that up; in fact, some of the data that we have suggests that that is not the case and that jurors do not give more weight to pre-recorded evidence than to evidence that is heard in the courtroom.

On safeguards, I go back to the point that I made to Daniel Johnson that pre-recorded evidence by commissioner can happen currently and there are safeguards. There are the fundamental principles that evidence will be tested by the defence and that there will be cross-examination. All that will continue and, of course, the fairness of the trial is still overseen by a judge or sheriff. Those are important safeguards.

Liam Kerr

On the same topic, do you have anything to say in response to the concerns that have been raised that the definition of a vulnerable witness is not necessarily predicated on any inherent vulnerability or characteristic of the witness, but on the charge or allegation that is being made, such that the vulnerability is a function of the charge and not of the witness? Do you have any concerns about that?

Humza Yousaf

Yes. It would be difficult to argue that a complainer who is, potentially, the victim of attempted murder or other serious offence on the list is not a vulnerable person. They might not have been vulnerable had the crime not been committed, but the fact that the crime has potentially or allegedly been committed makes them vulnerable. It is difficult to separate the two issues completely.

In the committee’s evidence sessions, a point was raised about what more can be done to support people who have particular vulnerabilities, such as communication issues and learning difficulties. That is slightly outside the scope of the bill, but the Government is doing a lot of work on the issue in relation to children and ensuring that appropriate adult support is available. In the committee’s evidence sessions, there has also been talk about intermediaries and so on. There is an issue about how we support those who have, to use Liam Kerr’s phrase, “inherent vulnerability”, as well as those who are vulnerable because of the crime that it is alleged has been committed against them.

The Convener

I want to press you a little on that. Clearly, there will be different requirements for adults from those for children. Although the category of vulnerability might not be the issue, there is an issue about the procedures and how many of the previously approved measures that are in place for when evidence is taken from children can be transferred to apply equally to vulnerable adults, and how that will pan out. A lot of different issues have been raised. Is it therefore appropriate for changes to be decided through regulations, albeit that they would be subject to affirmative procedure? Is there a case for looking at the issue fully and, perhaps, for the introduction of more primary legislation? Obviously, for access to justice, it is key that the procedures for pre-recording, protecting and getting the best evidence work well.

Humza Yousaf

I completely understand the thread of the questioning, and it is an eminently sensible question to ask. I had hoped to reassure you, convener—and the committee more widely—on that. The matter is precisely the reason why I think that phased implementation is so important. We need to be able to monitor, evaluate, and learn lessons about what is transferable from how we do things with children to how we do things with vulnerable adults. Where there are commonalities, we should be able to do that.

On the obvious differences that the convener referred to, we should still be able to test that as a Parliament, even if it is by regulation-making order. On the introduction of primary legislation in the future, the committee is well aware of the pressures on the parliamentary timetable. With everything that is going on in the wider context, we do not know what the parliamentary timetable might look like years and years down the line. Would we be delaying something further for not much gain? There would still be parliamentary scrutiny of an affirmative order. Again, I will happily take suggestions from the committee, but we will be testing processes rigorously.

Also, we are working with a range of stakeholders—from the third sector right the way through to justice stakeholders—to ensure that we have the best practice in place for adults who are deemed to be vulnerable witnesses.

Lastly, I will repeat the point that I made to the previous two members: under the current provisions, evidence can be taken by commissioner in certain cases. Where we can learn from that, we should do so.

The Convener

The point about scrutiny is vital. There are pressures on parliamentary time, but those pressures cannot be allowed to compromise potential access to justice, as you are well aware. That is why I welcome the suggestion that you do not totally rule out learning lessons, and the suggestion that there might, in dealing with adults who are deemed to be vulnerable, be a different way forward from regulation through affirmative procedure.

In answer to Daniel Johnson’s questions, you mentioned the assessment information data that you are collecting. Would you be prepared to share that with the committee?

Humza Yousaf

I do not see why I would not. If you do not mind, however, I will reflect on the suggestion with my officials in case there are particular sensitivities that I am not aware of. I do not see why we would not be as open and transparent as possible in the process.

The Convener

That is very helpful. Thank you.

John Finnie (Highlands and Islands) (Green)

Police Scotland sent us information about a form that it uses specifically for potential witnesses at the High Court. It covers the victim’s background and details any vulnerabilities that have been identified. It is referred to as the “victim strategy” and it was agreed on by the Crown Office and Procurator Fiscal Service and Police Scotland. What regard was had to the arrangement, which I understand has been in place since 2014, in shaping the bill?

It seems to me that the victims task force should look at the victim strategy. It covers communication with a witness. To my mind, from reading the information—which we got only yesterday—a measure of training would be needed for officers who would complete that additional part of the police report that is submitted to the Crown. A suggested format is provided.

Any information that you can give us about the existing arrangements and how they have shaped and influenced the bill would be helpful.

Humza Yousaf

I will happily follow up with more detailed information, but I go back to the point that evidence is already taken by commissioner. Good protocols already exist, as John Finnie rightly suggests, and which he knows about from experience, between the police and the courts, and so on. Clearly, if we are going to ramp up the numbers of people who give evidence by commissioner, or pre-recorded evidence, which we hope to do, we will have to ensure that appropriate infrastructure is in place in the courts.

The point that I think John Finnie was alluding to is that clearly it might not be just courts that have to make sure that they have the appropriate infrastructure and training in place; the police will have to do that, as well. The point is well made.

We are at an early stage on the victims task force, which has had one very productive meeting. We have an open mind as to what the task force can discuss.

If my officials do not want to add to that, particularly in relation to the police, we will follow up in writing.

10:30  



Rona Mackay (Strathkelvin and Bearsden) (SNP)

I want to ask about child accused persons, who are not included in the bill. As we know, many of them are vulnerable and have issues. Would you expand on why they are not included? Will you comment on the view of the Miscarriages of Justice Organisation, which advocates that there should be more on the face of the bill on support for vulnerable accused people? What do you think such support might be?

Humza Yousaf

I looked at the evidence on child accused persons that was given to the committee by Lady Dorrian, and found it to be strong and persuasive. As an esteemed figure within the criminal justice system, she has clear experience.

The obvious reasons for why one might not want to extend the measure to child accused persons have been thoroughly thought about. Rona Mackay is correct that there will often be vulnerabilities in relation to a child accused. I have been in Her Majesty’s Young Offenders Institution Polmont and spoken to young people in secure units, and it is difficult not to think of those young people as victims of the adverse childhood experiences that they have suffered—especially the youngest children in the criminal justice system.

I accept Rona Mackay’s point, but there are practical difficulties. The accused does not have to give evidence, and any presumption on pre-recorded evidence would fly in the face of that and could undermine the defence. The accused has access to legal representation, which has a different status to that of a witness.

There could also, when a jury is involved, be practical and logistical issues of delays while arrangements for commission are set up. In most cases, the accused gives evidence after hearing the evidence against him or her. Would a trial have to be stopped to take evidence by commissioner? For a host of practical reasons and for reasons of fairness in terms of the trial and the rights of the accused, I am not persuaded that there are reasons to extend. I note that that view is shared by a number of people in the legal profession.

On miscarriages of justice, I go back to the point that I made to Liam Kerr. We heard some compelling evidence about perceptions—I use that word purposely—of miscarriages of justice, but not much in the way of empirical or substantive data. There was evidence from Euan McIlvride of the Miscarriages of Justice Organisation Scotland and from the Faculty of Advocates on the potential for miscarriages of justice, but both talked generally as opposed to specifically.

Remember that we are not creating a new special measure here, since the non-standard special measure already exists. I will have an open mind if the Faculty of Advocates or others want to propose something for the bill at stage 2—perhaps to tighten up the language that has been used. As the convener said, we want to ensure that nothing that we do undermines the fairness of the trial process.

Rona Mackay

When we visited the High Court, it was mentioned that provision exists for a child accused not to be in court during a hearing, but that that does not always happen. Can the bill be firmed up to ensure that the accused should not be in court while a trial proceeds?

Humza Yousaf

I am not sure that that issue is necessarily for the bill. We could take it back to the Crown Office and speak to the Scottish Courts and Tribunals Service. There are various practice notes, and an evidence and procedure review is taking place.

Karen Auchincloss

We would want to discuss that issue further with the courts service and the Crown Office.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

Good morning to the panel. I will focus on taking evidence by commissioner, which Lady Dorrian’s practice note has increased the use of. In his opening statement, the cabinet secretary spoke about having the necessary infrastructure and IT in place. Are there practical difficulties with how taking evidence by commissioner operates?

Humza Yousaf

Some of the evidence was compelling. For example, the quality of joint investigative interviews has not been good enough; the Solicitor General has told me that we need to improve it and upgrade the IT system. There are infrastructure issues, which is why we will invest in IT. I had the pleasure of visiting the Glasgow city centre location that will be used for pre-recorded evidence for special measures, which the Scottish Government has backed by just shy of £1 million. The suite has state-of-the-art facilities with the latest technology, so I hope that it will get round some of the issues.

We should not be complacent. Jenny Gilruth may be aware that there are 33 recommendations on how to improve joint investigative interviews, which are being taken forward by Police Scotland, Social Work Scotland, the Scottish Courts and Tribunals Service, the Crown Office and Procurator Fiscal Service and so on—a lot of work is being done. It is a good point that we need to be really confident that we have good infrastructure; if we do not, we could ultimately impede justice as opposed to helping justice to run its course in an efficient manner.

Jenny Gilruth

On the timing of taking evidence by commissioner, the Lord Justice Clerk has told the committee:

“When children, in particular, are asked to give evidence at a time that is remote from the event, not only has their memory diminished, but they are more likely to be confused by general questioning about the incident, and in cross-examination might come across—often wrongly—as being shifty or unreliable. Indeed, they not only find it difficult to deal with questions at that stage, but are more inclined to agree with the questioner when they cannot remember something.”—[Official Report, Justice Committee, 18 December 2018; c 3.]

I was quite struck by that evidence at the time. Is there an opportunity in the legislation to expedite the time between reporting and taking evidence, to try to get it right?

Humza Yousaf

I, too, was taken by that evidence, which was very strong indeed. Any of us who interact with children and work with them can recognise exactly what Lady Dorrian was saying—Jenny Gilruth has experience of that. I am not sure that the issue is for the bill, as the practice note helps with some of it. In the bill, we have suggested that taking evidence by commissioner would not have to wait for indictment, although I accept that it would be rare to have evidence by commissioner pre-indictment, and the bill will remove the barrier of seven days before the application can be considered—I am not sure why it has been seven days—so we will be able to speed that up.

We have announced specific funding of £1.1 million—£300,000 for the courts service and £800,000 for the Crown Office—to speed up sexual offence cases. Speeding up cases is hugely important, but the matter is much wider than this legislation.

Jenny Gilruth

Thank you.

I asked Lady Dorrian whether the bill should be more specific on what the ground rules hearing should cover. Do you have a view on that?

Humza Yousaf

The practice note is probably the best place for the detail of that. It is important that the bill is high level; as I said, if we are too prescriptive, legislation ends up being rigid and difficult to amend. The practice note is lengthy and covers quite a few pages; it covers everything from whether wigs should be worn to oaths and affirmations, timings, the need for breaks and so on. That is the right place for such detail. If we made the system too prescriptive by putting most of the detail in primary legislation, it would be difficult for practice to evolve in future.

Rona Mackay

You mentioned intermediaries. Should the bill make provision in that regard? Most of the evidence that we have heard has been favourable towards the use of intermediaries.

Humza Yousaf

Again, I found the evidence on the use of intermediaries compelling. I do not think that it is a matter for the bill, which is quite narrow in scope and was designed to be so to enable us to make the progress that we hope to make on child witnesses and adult deemed vulnerable witnesses.

The use of intermediaries is a wider issue. There is a strong argument for using intermediaries more and better in the criminal justice system. Lady Dorrian’s remarks on the matter were compelling. She said:

“Although we are in favour of intermediaries in general, I am not entirely sure whether this is the stage to introduce them to the bill.”—[Official Report, Justice Committee, 18 December 2018; c 10.]

I agree with her. The use of intermediaries is a much wider issue, which could have implications for other parts of the criminal justice system. We will look further at the matter, although you will understand that it is more an issue for the Crown Office and the courts, but we will probably not include provision in that regard in the bill.

Rona Mackay

Thank you.

Daniel Johnson

Let me connect Jenny Gilruth’s question about what the ground rules hearing should cover and the point about intermediaries. I accept what you said, cabinet secretary. However, the current position is that the ground rules hearing may consider what support is required, and we hear from third sector organisations that they are finding out that a vulnerable individual might give evidence only a very short time before a hearing proceeds. Should there be a presumption that support for vulnerable witnesses will not just be considered but will be found and provided? Such an approach would stop short of providing for an intermediary but would at least be a step towards acknowledging the advantages of having support for a vulnerable witness.

Humza Yousaf

I can see where you are coming from. The important thing to say is that there is no legislative bar to providing assistance to a person who has communication or other needs; there is provision to allow that to happen. The senators of the College of Justice noted that the bill provides that a commissioner may consider permitting such support to be provided for a witness, if that is deemed necessary. The bill addresses your point, somewhat indirectly.

You asked whether there should be a presumption that support will be made available. That takes me back to the point that I made to Rona Mackay. We would have to look at the issue much more broadly and consider, for example, whether there would need to be a registered intermediary scheme, so that we could have a pool of intermediaries—currently no such pool exists. We would have to consider what training intermediaries would need to undergo and what resources would be involved in that.

I am not convinced that there should be a presumption that an intermediary will be used; what we must and should do, which is outside the scope of the bill, is consider how we can improve access to intermediaries and whether they are being used in the best way possible. I agree with Lady Dorrian that we should look at the issue generally, but I am not convinced that it is a matter for the bill.

10:45  



Fulton MacGregor (Coatbridge and Chryston) (SNP)

Good morning, panel. In response to previous questions, you mentioned a couple of times joint investigative interviews and their use as prior statements. Can you comment on their level of use and what you see as the main difficulties with them?

Humza Yousaf

I am sorry, but I did not catch the beginning of that.

Fulton MacGregor

It is about the level of use of joint investigative interviews as prior statements and what you see as the main difficulties.

Humza Yousaf

I do not have figures on their level of use. However, I have found the evidence that the committee has taken quite compelling about difficulties that have delayed some trials because the quality of the joint investigative interviews has not been not good enough. I was pleased to hear that stakeholders are looking at the issue seriously. The evidence and procedure review produced 33 recommendations to strengthen joint investigative interviews, which shows that improvements can and should be made. Those recommendations are being taken forward by the appropriate partners, including social work, which is important.

The Scottish Government has committed more than £300,000 to a joint project that is being led by Police Scotland and Social Work Scotland and will create a revised model for joint investigative interviews and develop a training programme that recognises the depth of knowledge and skills required for that interview process. We will design a national standard for the quality of JIIs, which is also important.

As I said, a separate working group is taking forward the justice-related recommendations, including the roll-out of new IT and so on. A lot of work is being done on the joint investigative interviews that will align with the work on the bill going forward.

Fulton MacGregor

You touched on the training angle. You might not be able to give an answer on this just now, but if the task force recommended something about training, would you support it? It would be about taking a more national approach to joint investigative interviews or having a specialist unit, rather than such interviews being done differently in different local authority areas.

Humza Yousaf

National standards are important. The joint project that I talked about will design a national standard for quality assuring JIIs. The Solicitor General has previously made the same point to me that Fulton McGregor made about the differences in quality in different local authority areas, which can sometimes be stark. We do not want justice being delayed or impeded in one part of the country because of the quality of JIIs while the process runs efficiently in another part of the country. Given the technology of the era that we live in, we should be up to meeting that challenge. I hope that I have reassured the member that the work that we and our partners are doing is moving forward at pace.

Rona Mackay

The committee visited Norway before Christmas and had the opportunity to visit a barnahus there. It is fair to say that we were all very impressed by it. What is your view on the possibility of Scotland adopting the barnahus model? What benefits or difficulties would there be from doing that?

Humza Yousaf

I would be interested in sitting down at some point with members of the Justice Committee to hear about their experience of that Norway visit. The visit took place around the middle of December, so I did not have a chance at the end of the year to catch up with Justice Committee members on it. I would be keen to hear about their direct experience of the barnahus model. I have not travelled to Nordic countries or others to see the model, but I have had a variety of meetings with stakeholders and officials about it. However, seeing the model up close is a different experience. As I said, I hope that I get the opportunity for a conversation with Justice Committee members about their thoughts on the visit.

It should be said that the Government is extremely interested in the barnahus concept, which the First Minister mentioned in her programme for government. It is a separate but interrelated issue. The barnahus concept applies differently in different countries. The model that the committee saw in Norway is justice led, whereas it is led more by health services in other countries. Retaining flexibility is important. Another important difference is that Norway’s justice system is more inquisitorial, whereas ours is more adversarial.

The bill contains important reforms for the short term, such as those on pre-recording evidence in advance of a trial. If a child’s house—a barnahus—were piloted in Scotland, how we pre-record evidence, undertake joint investigative interviews and take evidence by commissioner could all be incorporated into the concept.

There are no plans to have just one forensic interview of a witness, because our legal system is different and, under it, the defence must have the opportunity to test the evidence directly. However, we are interested in the concept, on which the Scottish Government is doing work, particularly in the justice field.

Before the recess, I wrote to the committee to announce that Healthcare Improvement Scotland, in partnership with the Care Inspectorate, had been commissioned to develop Scotland-specific standards for barnahus, based on the PROMISE quality standards. That work will begin early this year and will take about 12 months, because it will include extensive consultation. Once they are published, the standards will form a framework for health, justice and local government services to understand what is required from our collective response to child victims, and I hope that that will provide a road map for developing our approach to barnahus. I will of course keep the committee and Parliament updated on progress.

The Convener

We were all impressed by the forensic interview model, whose results were outstanding. In her evidence, Lady Dorrian said that she thought that such a model was possible in Scotland, and she covered it in her level 1 vision report. Have you had a chance to look at that?

Humza Yousaf

I have not looked at the level 1 vision report, but I am more than happy to speak to Lady Dorrian and others who have experience of the criminal justice system as legal professionals to take their views, which we should do. I understood that having one forensic interview would be difficult in our justice system because, as I said to Rona Mackay, the defence must be able to test the evidence, cross-examine and so on. However, if those who are involved in the justice system say that there are better ways of doing things, we should be open minded about that.

The Convener

That is welcome, because we were all impressed by the forensic interview model.

Daniel Johnson

I will directly follow on from what Rona Mackay and the convener asked about. Our experience raised two interesting points about the Norway model. Norway’s system has adversarial elements—for example, the defence counsel has the right to a follow-up interview, so cross-examination can take place, but that right is not exercised often. A critical element is that the system is police led—highly trained police officers conduct the interviews.

That model looks strikingly like an enhanced JII, albeit in a specialised facility in which other services are available at the same time. If that was combined with the insights in Lady Dorrian’s report, it could provide a long-term aim for a model to enhance JIIs. As we know, JIIs can be admitted as evidence in chief. Will the cabinet secretary reflect on whether the Scottish Government could examine and develop that outline of a long-term model?

Humza Yousaf

I will reflect on that, but what I will say is that we have brought health, local government and justice partners together to examine and explore this issue and potentially to bring out a road map for developing the barnahus concept fully in Scotland. However, I have not yet decided whether it should be justice led, health led or whatever, because we want to make sure that this is as holistic as possible. As I have said, there are barnahus concepts and models other than the Norwegian model, and we should look at that broad spectrum.

I might be putting words in people’s mouths, but I was interested to hear that in the Norwegian model there was almost a presumption against cross-examination, which happens only in exceptional cases. Obviously our system is very different, and the question is what the thinking of the likes of the Faculty of Advocates, the Law Society and others would be on that and how, if we went down such a route, we could reassure them of the fairness of the trial process. As we know, Scotland has a very unique legal and justice system, and it is fiercely guarded.

I will certainly reflect on what the member has said, and as the convener has suggested, I will look at the level 1 vision report and have a conversation with Lady Dorrian about her thoughts on this as well as take into account the thoughts of others in the justice system. However, we are in a good place in that the reforms in this piece of legislation could be incorporated into a barnahus concept and the partners involved will be doing important work on some of these issues over the next 12 months to help us further down the road to having a barnahus concept in Scotland.

The Convener

Cabinet secretary, you should go and see barnahus for yourself—indeed, I cannot commend that enough to you. It provides an opportunity for legal representatives to listen to the evidence and for points to be put in a very efficient, effective and sensitive way. Everyone seemed to be very happy with it, and I think that it would be worth while if you and your officials saw it for yourselves.

That leads us on to our next line of questioning, which is from Shona Robison.

Shona Robison (Dundee City East) (SNP)

Good morning. I want to focus on communication with and support for victims and witnesses. In your very helpful supplementary evidence, you reiterate the fact that £17.9 million has been committed to supporting victims of crime and the third sector organisations involved in that work. The victims task force met for the first time, I think, on 12 December 2018. How do you see its work having synergies and dovetailing with the bill? Timing wise, this bill is where it is in its process, and the task force is in only the early stages of its considerations. How might themes that emerge from the task force’s work impact on the bill as it passes through Parliament? Moreover, what other things in addition to the task force could be used to improve communication with and support for vulnerable witnesses more generally?

Humza Yousaf

That is a good question. At the first meeting of the victims task force, which I should reiterate was extremely productive, we were very cognisant of the fact that a variety of legislation going through the Parliament could impact on victims. This bill is one such piece of legislation, and I know that the committee has also been taking evidence on the Management of Offenders (Scotland) Bill, which might have an impact on victims and their perception and experience of the justice system. I would also highlight the non-legislative work that we are doing, including our commitment in the programme for government to bringing forward a restorative justice plan by spring 2019.

There is a whole load of legislative and non-legislative measures, and the victims task force is very cognisant of them. We have not yet decided whether we will create a separate sub-group to deal with the issue or whether officials will update the task force on the legislative and non-legislative measures going through the Parliament that will impact on victims, but we will reach a position on that shortly.

11:00  



A lot of research is going on around how we can improve the criminal justice system in general, and the court experience in particular, for people with particular vulnerabilities in cases involving certain offences, with sexual offences and rape being at the top of that list. In my most recent talk with the Lord President, he told me that about 70 per cent of cases coming to the High Court are sexual offences and rape cases. I do not have evidence about that, but he said that those cases represent the majority of cases coming to the High Court. A range of things therefore need to be done, one of which is providing financial support to Rape Crisis Scotland, Victim Support Scotland and other agencies.

We are also undertaking important jury research that is looking at a suite of measures that follow on from the debate in Parliament about the removal or not of corroboration and other safeguards in the justice system. This bill is part of that conversation, and the victims task force will consider the bill, or have cognisance of it at least, and be able to feed into the bill process. However, the Parliament and the Government are also looking at a lot of non-legislative issues, so it is important for us to ensure that they are aligned with the victims task force work as well.

Shona Robison

You mentioned the possibility of a sub-group looking at various pieces of legislation to see whether emerging themes from the task force would have an impact on them. If you decide to go down that route, it would be helpful if you came back to the committee on it. Timing is maybe a bit of a challenge here, because important elements might emerge from the task force that could colour the Government’s view of various pieces of legislation going through Parliament.

In terms of this bill, the issue of communication with and support for victims and witnesses is critical. Will the restorative justice action plan that will appear this spring look at both legislative and non-legislative ways forward? With regard to all the pieces of legislation, it would be helpful to set out a clear, consistent way for witnesses and victims to be supported. A lot of work is going on in that area and consistency of message is important. Do you see that restorative justice action plan as a way of pulling some of that work together? How will you ensure that there is consistency across all that work?

Humza Yousaf

It is important to say that, when bills come through the Parliament, the committee engages regularly with the vast majority of the stakeholders who are involved with the victims task force. For example, the committee regularly engages with Rape Crisis Scotland, Scottish Women’s Aid, the Scottish Courts and Tribunals Service, the Crown Office and Procurator Fiscal Service and so on. Many of those stakeholders are very alive to the legislative issues that come through the Parliament, which is why I am not sure whether we need a sub-group or whether it is just a case of officials and organisations feeding into the work of the victims task force to ensure that we are cognisant of the issues. Those stakeholders have already provided input to the bill process—for example, some of the victims task force stakeholders have given the committee oral evidence as well as written evidence.

The restorative justice action plan could draw on the work on the bill and it should, of course, look at both legislative and non-legislative measures. However, given the legislative pressures on Parliament, parliamentary committees and the Government, it would be better to do some things without introducing primary legislation.

There are some good models. For historic reasons, Northern Ireland is fairly well advanced when it comes to restorative justice. There are other jurisdictions that we can look at, while respecting the uniqueness of the Scottish justice and legal systems.

In terms of the wider framework, the victims task force is the right place to address what we do around victims. The task force is looking at and is engaged in many issues. There are common themes that all of us around this table have heard from victims—that they have to retell their story, that they have been retraumatised through the court process and so on—on which we are immediately getting to work. Some of that will include legislative measures, but I can say quite confidently that the vast majority of that can be done without any legislation.

Shona Robison

That is helpful. In your submission, you say that you are driving forward

“a new ‘victim centred’ approach to reduce the need for victims to have to retell their story to several different organisations.”

That cuts through so many areas that this committee is looking at. We have all heard about that issue often. The point that I was making was that, whether we are talking about pieces of legislation such as the bill that we are looking at, or Scottish Government policy more generally, that overriding principle should be at the heart of things.

The Convener

Turning again to the task force and its inclusion in the Government’s submission, I warmly welcome the introduction of this dedicated task force that the cabinet secretary and the Lord Advocate are chairing. I note that you are very keen to hear the voices of victims and their families. How will you advertise that? How will you make that known to people so that they can come forward with their experiences and views?

Humza Yousaf

We discussed the best way to do that quite extensively at the first victims task force meeting. As the committee will recognise, it would be impossible to aurally get the views of every victim directly, so we have to think about how we do that. At the last meeting we decided that the third sector organisations—such as Scottish Women’s Aid, Rape Crisis Scotland, Victim Support Scotland and a few others—who were present and who deal with victims on a daily basis should take the issue away and come back to present us with the best way of doing it.

There was a fair bit of discussion. Should we have a committee evidence type of session with victims and families of victims? That was thought to be too intimidating. Should it be more of an open workshop? I am really open minded. I will be guided by the likes of Victim Support Scotland. In terms of who is there, we need to make sure that there is a range of voices. Clearly, it is incredibly difficult for families to take the very brave step of speaking out about their own experience, especially when we are talking about experiences that have been traumatising and retraumatising.

It is hugely important that we include voices of families such as those of Michelle Stewart or Shaun Woodburn, and we want to make sure that we capture the views of people who have been the victims of a range of different crimes and offences. I see it as an iterative process. I do not see it as just one meeting with victims and the families. We may have a parallel structure that sits next to the victims task force.

I should say that the victims task force itself includes the voices of direct victims. Lynn Burns, whose son, Sam, was tragically murdered at a house party a number of years ago, is perhaps the best known. We have victims inputting directly to the task force, and there is an understanding from all of us that we have to feed in as wide a range of voices as possible.

The Convener

Although we give support to people prior to their giving evidence and during a trial, support after a trial has finished is crucial. Some people are more vulnerable than others after giving evidence. After we pass the bill, it would be a shame—a tragedy, in fact—if people who are encouraged to give evidence then say, “I wish that I hadn’t,” because of the repercussions.

Will the cabinet secretary look specifically at more closed communities, such as rural villages, where it can be difficult to return to the community because everyone knows exactly who has given evidence due to the small scale of the place where the incident happened? There may also be power structures in such communities. If the Government were to issue a call for evidence to ask people to come forward, that evidence might need to be taken in private, to protect those people so that they can give a full understanding of what the repercussions can be. That would be very welcome.

On the more general communication, we are looking at a wraparound service and a holistic approach, but that will fall down badly if we do not have a practical system of communication so that everyone is fully up to speed with where things are with the victim and their family. Has the cabinet secretary considered that?

Humza Yousaf

Yes, I have. I will refer to both points, which the convener has made well. On her first point, I could not agree more. I have spoken to a number of victims who felt after the court process that there was very little support, and Victim Support Scotland tells me about that directly.

We often talk about throughcare for prisoners, which is right and important because it helps to reduce reoffending. The question is where the throughcare is for victims and others. Structures exist, but there is more that we can do, for sure—I do not argue with that. A lot can and should be done, and the victims task force will look at that.

On the second point, closed communities and the differences between rural and urban settings have been discussed extensively. As might be expected, I can give experiences from the ethnic minority community, particularly the subcontinental Asian community. I have come across various examples of very brave women who have spoken about domestic abuse then unfortunately felt, when they were returned to the community, that they had to move away because they were too vulnerable. It is a good point, which the task force is looking at.

On communication, I am not sure whether I understood correctly what the convener was speaking about, but the task force will look at—and the Government is already looking at—the victim notification scheme. It is clear that victims and their families often feel that the victim notification scheme does not go far enough and could be widened out to further offences. It could do better with regard to communication, as victims do not feel that they are given enough information about the entire process, from someone being imprisoned, to the potential first grant of temporary release to be at home on unescorted leave or escorted leave, to the eventual release, the parole system and so on. The parole system side of that is being looked at, and the first grant of temporary release and the victim notification scheme will no doubt be part of the victims task force’s consideration.

The Convener

I know that we are very aware of keeping the victim informed, but my point was about the team who are looking after the victim and their family and making sure that they are kept up to date. Barnardo’s, Police Scotland and other witnesses have made the point forcibly that communication is absolutely essential for everyone to be kept up to date. It is not about the expert person who is there but about ensuring that the whole team is up to date and knows exactly where things are with the victim, the support that has been given, where the problems are and so on, so that the team can be as effective as possible.

Humza Yousaf

Again, the victims task force should help with that, because it will bring the police to the table, as well as other partners. Further, this year, Victim Support Scotland will introduce its homicide service—we are still discussing whether that is the most appropriate name. It will function almost as a one-stop shop in terms of providing support for a bereaved individual throughout that traumatic process and ensuring that other partners are informed about what is going on. That will be like a pilot scheme for exactly what you are talking about.

The Convener

Thank you. That is encouraging.

John Finnie

Previously, in relation to domestic abuse, the committee heard that coercive and controlling behaviour might not always be evident to other parties. In relation to the harassment of witnesses, which happens regularly, internet social media is often used to that end. Does the task force have access to expertise on that? Something on social media that can look quite innocuous to a third party can turn out to be a pernicious part of a longer process.

Humza Yousaf

The task force did not talk about that important issue at its first meeting, but it was indirectly mentioned by a few stakeholders with an interest in it, including Scottish Women’s Aid, Rape Crisis Scotland and Action Against Stalking.

Our crime statistics show that there has been a rise in sexual offences that take place in cyberspace. A lot of work is going on in that regard. As you will be aware, a lot of sexual offences involving young people are committed in cyberspace, although that is not exclusively the case. Catherine Dyer’s working group is examining the issue of young people and sexual offending and is thinking about the steps that we need to take as a society in order to deal with the offences. The issue is part of a wider scheme of work that is going on in the Government. As I said, the task force did not specifically discuss the issue at its first meeting, although I have no doubt that it will be part of some of the work strands that we take forward.

The Convener

I thank the cabinet secretary and his officials for what has been a worthwhile and encouraging evidence session. That concludes the public part of our meeting. Our next meeting will be on 15 January, when we will hear from the cabinet secretary on the Management of Offenders (Scotland) Bill.

11:17 Meeting continued in private until 12:09.  



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20 November 2018

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27 November 2018

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4 December 2018

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18 December 2018

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8 January 2019

Justice Committee Stage 1 report 

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Stage 1 debate on the Bill transcript

The Presiding Officer (Ken Macintosh)

The next item of business is a stage 1 debate on motion S5M-15699, in the name of Humza Yousaf, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

14:57  



The Cabinet Secretary for Justice (Humza Yousaf)

I am delighted to open the debate on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

I thank the Justice Committee and its convener, Margaret Mitchell, for the stage 1 report and I thank the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee for their consideration of the bill.

I extend my thanks to the many stakeholders and individuals who gave evidence. I was encouraged to hear so many speak to the benefits that pre-recording evidence can bring. Some rightly pointed out the challenges and areas where more can still be done to improve our criminal justice system for the most vulnerable witnesses. I am very aware of that, and it is one of the reasons why I set up the victims task force. I look forward to the debate, which I have no doubt will be positive and constructive, on these significant proposed reforms.

I am grateful for the Justice Committee’s support for the general principles of the bill and in particular its endorsement of the proposed new rule requiring the evidence of child witnesses in the most serious criminal cases to be recorded in advance of the trial. The committee made a number of detailed recommendations to which the Government responded yesterday.

I will set out the principles of the bill and the positive changes that it will bring to the criminal justice system if it is passed by the Parliament. I will also address some of the key points that the committee raised. First, however, it is important to acknowledge the work of the Lord President, Lord Justice Clerk and the Scottish Courts and Tribunals Service’s evidence and procedure review. The review made recommendations on how to improve the treatment of vulnerable witnesses. It also involved wider stakeholders and creates a long-term vision for how evidence can be taken. It is also having a more immediate positive impact, in particular due to the new High Court practice note on evidence by a commissioner.

The bill would not have been introduced without the leadership of my predecessor Michael Matheson on improving how evidence is taken from children and it is a vital first step towards the vision that, where possible, child witnesses should not have to give evidence at trial.

I turn to the main provisions of the bill. Evidence by commissioner is a special measure that allows for evidence to be pre-recorded and played at trial without the witness having to be present. The date and time for evidence by commissioner is scheduled in advance, avoiding uncertainty for vulnerable witnesses and minimising the distress that is caused by delays to the trial. The atmosphere is less formal than it is in full court proceedings and evidence can be recorded directly or via remote video link from another location. The early capture of the evidence enables the vulnerable witness to recall events more accurately, ends their involvement in the trial sooner and, when necessary, allows for quicker recovery.

We should not forget that evidence by commissioner can currently happen by application. However, the bill’s main reform is the creation of a new rule that makes a presumption that evidence by commissioner will happen for child complainers and witnesses under 18 in the first instance. The presumption will ensure that, where those individuals are due to give evidence in the most serious of cases, that evidence will be pre-recorded, unless an exception applies.

The bill also introduces a power to extend the proposed new rule in due course to adult “deemed vulnerable witnesses” in solemn cases, which could include complainers in sexual offence, human trafficking, stalking and, potentially, domestic abuse cases. I sympathise with the view that there should be a quicker roll-out to other categories of vulnerable witness, but it is vital that this major reform is undertaken in a phased, considered and effective way, by first targeting the youngest witnesses in the most serious cases. That is why the bill proposes a framework for the phased extension of the requirement to pre-record other vulnerable witnesses. The approach was supported by many stakeholders in the evidence sessions and I am pleased that the committee agrees that a phased approach to implementation is sensible.

Liam McArthur (Orkney Islands) (LD)

The cabinet secretary is right to say that the evidence was overwhelmingly in favour of a phased approach, but he will also be aware that there was compelling evidence for the inclusion of domestic abuse cases alongside the cases that he has listed. Is the cabinet secretary minded to accept that and introduce an amendment to that effect at stage 2?

Humza Yousaf

Mr McArthur has pre-empted what I was going to say later in my speech, but I am very open. I thought that the evidence was compelling and very powerful. Liam McArthur will be aware of the steps that the Government has taken in order to improve the awareness and the tackling of domestic abuse and, of course, of the provisions that will come into force in the spring. I am extremely open and I am looking at the implications for resources and so forth, which are important and cannot be ignored. I am minded to lodge an amendment in the future, but I have to do some more work in that regard. I will listen to what else members have to say on the matter.

Daniel Johnson (Edinburgh Southern) (Lab)

Further to Mr McArthur’s point, the cabinet secretary will be aware of the discussions around summary cases in general. Given that the vast bulk of domestic abuse cases are summary, is there a proposal to look at encouraging the use of similar techniques in those cases, given that it is possible for sheriff courts to do so?

Humza Yousaf

That is a good point and I will look at that encouragement where I can. It is correct to say that the vast majority—I think almost 94 or 95 per cent—of domestic abuse cases are dealt with by way of summary proceedings. I think that Mr Johnson will accept that if we were to extend the presumption to summary cases, that would almost be the wrong way round. It is important that we apply the presumption to the more serious cases—solemn cases—first and foremost and that we focus on the most vulnerable, namely the youngest, witnesses in our society. Notwithstanding that, Mr Johnson’s point is valid.

Can I check how much time I have for my opening statement, Presiding Officer?

The Deputy Presiding Officer (Christine Grahame)

You have 12 minutes, but I am happy to give you a little more time.

Humza Yousaf

Thank you.

The Deputy Presiding Officer

I said that without having my microphone on.

Humza Yousaf

That is okay, I heard you.

The Deputy Presiding Officer

I know, but the world has to hear me, cabinet secretary.

Humza Yousaf

In terms of the implementation of the legislation, legislative reform, as Daniel Johnson has just pointed out, is only a part of the work that is needed to ensure that there is much greater use of pre-recording. It is vital to ensure that there are sufficient modern facilities and pre-recording technology to enable this important reform to be implemented in practice. We heard time and again in the Justice Committee’s evidence sessions that there is work to be done in relation to the facilities and the infrastructure when it comes to pre-recorded evidence. In October last year, I announced £950,000 of funding to support the Scottish Courts and Tribunals Service with the creation of a new child and vulnerable witness-friendly hearings suite in Glasgow. The facility, which I have visited, will make significant improvements to the experience of victims and witnesses in the Glasgow area.

We have also made a further £1.1 million available to the Scottish courts service and are working with it to upgrade other venues and technology. The funding is important to get the court infrastructure ready for the increase in the number of witnesses having their evidence pre-recorded. We have shared with the Justice Committee a provisional implementation plan for the staged commencement and extension of the rule requiring pre-recording. Before the plan can be finalised, it is important to see whether any significant changes are made to the bill during the parliamentary process that could affect it. However, once the approach has been agreed, I would be happy to share further details with the committee.

I turn to issues that were raised in the stage 1 report. I was pleased that the committee supported a broad range of provisions in the bill. On the issue of cross-examination, I recognise that some legal stakeholders have concerns that the bill may enable a prior statement to be used as a witness’s only evidence, even when the defence wants to cross-examine. The bill does not in any way limit or alter the right of the defence to cross-examine a vulnerable witness who has their evidence pre-recorded, and nor does it limit in any way the ability of the defence to test the evidence. However, I am keen to allay any concerns on the matter and I will consider in advance of stage 2 whether an amendment is required to clarify that point.

Liam McArthur asked about domestic abuse cases. I note the committee’s recommendation that the bill should be amended to include domestic abuse in the list of offences covered by the rule. I am open to the suggestion that the list should be extended to include domestic abuse offences in solemn cases and I will be interested to hear the views of other members during the debate. A number of stakeholders—including the National Society for the Prevention of Cruelty to Children, in its briefing, and many others, including, I think, Scottish Women’s Aid—suggested such an extension. I am open to that, but I think that we would all accept that it has some implications that I have to work through.

The committee welcomed the provisions in the bill that would require a ground rules hearing before the taking of evidence by commissioner. However, the committee asked that we consider whether there should be greater scrutiny of the questions to be asked at the commission. I can understand that, sometimes, it may be of benefit for questions to be lodged in advance. However, I am not convinced that requiring that in primary legislation is the best approach. I agree with Lady Dorrian, who said in evidence that in order to maintain flexibility, the High Court practice note is the more appropriate place to set out the detail of what should be required at the ground rules hearing. Again, though, I am open-minded.

On prior statements and additional measures to support vulnerable witnesses, the committee made a range of recommendations on broader matters such as joint investigative interviews and the work of the victims task force. I will ensure that those recommendations are discussed at the next meetings of the task force and the joint investigative interviews governance and working groups. My response to the committee highlighted the significant on-going work to improve the quality of JIIs, which should enable them to be used even more frequently as part of a child’s pre-recorded evidence.

The committee made a number of recommendations relating to the implementation of the barnahus principles in Scotland, and I am happy to accept its invitation to discuss those matters. Many committee members travelled to Norway to see for themselves barnahus in practice. The barnahus concept is about much more than evidence and the justice process. It supports a child’s recovery from the point at which they disclose abuse, as well as supporting their right to justice. Accordingly, any move to implement the barnahus model would need to look at all those issues holistically. It is also accepted by most, if not all, members of the committee that every barnahus, whichever jurisdiction it is in, should be relevant to that jurisdiction. Tweaks and appropriate nuances may therefore be needed so that, collectively, we come up with what we think is a Scottish barnahus approach and have a road map to that destination.

I strongly believe that the justice system should be compassionate, trauma-informed and able to respond effectively to the needs of victims and witnesses. There have been significant changes in recent years to the criminal justice system to recognise the interests of those groups. However, more can be done, and I am determined that more should be done, to support child and other vulnerable witnesses, and I am confident that the bill is a major step towards achieving that. I look forward to the rest of the debate and to hearing the views of members across the chamber.

I move,

That the Parliament agrees to the general principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

The Deputy Presiding Officer

Before I move on, I ask members who have not yet pressed their request-to-speak buttons to do so now. I call Margaret Mitchell to speak on behalf of the Justice Committee. Convener, you have nine minutes.

15:10  



Margaret Mitchell (Central Scotland) (Con)

It is a pleasure to speak on behalf of the Justice Committee in today’s stage 1 debate on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, and I thank all those who gave evidence to the committee. The committee thanks Lady Dorrian and the Scottish Courts and Tribunals Service staff for arranging visits for members to see the current arrangements for pre-recording evidence. Our grateful thanks also go to all at the barnahus in Oslo, for the time that they spent with us during our visit to the facility in December. That first-hand experience was invaluable for scrutinising the bill and forming a longer-term view of the changes that are required to improve the experience of child witnesses. I thank the Justice Committee clerks and committee members for their hard work in producing the report.

Legislation already allows for a child or vulnerable witness’s evidence to be recorded in advance of a criminal trial. However, despite an increase in pre-recording, it is still not common practice. The committee therefore supports the bill’s new rule, which would generally require all of a child’s evidence in the most serious cases to be pre-recorded. Removing children and vulnerable witnesses from the court environment and the traditional examination-in-chief and cross-examination has several advantages: it reduces their distress and trauma; it improves the quality of their evidence, because taking evidence earlier in the process aids their ability to recall events; and it allows them to get on with their lives.

Crucially, undue delay is avoided, the potential consequences of which Barnardo’s has set out compelling evidence about. Some young people who were 14 when they had offences committed against them were 16 and a half by the time they presented in court. Barnardo’s stated:

“Because of the trauma that they have experienced, they can be involved in a lot of behaviours ... not seen to be positive. What the court sees is a difficult, belligerent, drug-addicted, alcoholic young person instead of the child they were when the offences happened.”—[Official Report, Justice Committee, 27 November 2018; c 12.]

Nevertheless, the committee fully recognises that the new rule will have major implications for our adversarial criminal justice system. Not only will it require sufficient facilities and technology to pre-record evidence; more significantly, there will need to be a shift in legal practice and culture. The committee therefore agrees with the Scottish Government that a phased approach to implementation is sensible. Given the importance of getting this right, the committee recommends that progression between phases should be based on careful and detailed evaluation.

The committee agrees that the initial phase should focus on child witnesses in the most serious cases. However, following powerful evidence about the pressures that children can experience when giving evidence in domestic abuse cases, it urges the Scottish Government to amend the bill to include those cases in the new rule. The cabinet secretary’s comments and his confirmation in today’s debate that he will listen to views on that subject are very welcome.

The committee also supports the phased extension of the new rule to other serious offences and to adults who are deemed to be vulnerable witnesses, which the bill provides for through affirmative regulations. It is crucial that there be sufficient parliamentary scrutiny of the regulations, preferably before they are introduced. The committee welcomes the cabinet secretary’s willingness to share information that was gathered during the evaluation of earlier phases of implementation and asks to be provided with early notification of the Government’s intention to lay regulations extending the rule. Members must be able to consider whether the necessary technology and facilities are in place to cope with any extension of the rule and whether any lessons can be learned from earlier phases of implementation.

In view of those undertakings, and on balance, the committee considers that the approach outlined in the bill is appropriate to allow vulnerable witnesses to benefit from the provisions without any delay caused by primary legislation being required, although that does not preclude the possibility of the committee recommending that an extension of the rule be provided for in primary legislation if that is deemed necessary.

The committee accepted the Mental Welfare Commission for Scotland’s comment that

“a bad interview done early is no better than a bad interview done in a trial.”—[Official Report, Justice Committee, 27 November 2018; c 33.]

The committee therefore recommended that all those who are involved in questioning child and vulnerable witnesses receive appropriate trauma-informed training, and the committee seeks assurances from the cabinet secretary that sufficient resources will be in place to deliver that training.

In addition, the committee considers that there should be measures in place to protect witnesses against the risks of harassment and further victimisation throughout the process, including after they have given evidence and proceedings have concluded. That is immensely important not only to protect individuals from harm but to ensure that other potential witnesses are not deterred from giving evidence. The committee welcomes the establishment of the new victim task force to look at that issue in detail.

The committee was unanimous in its strong support for implementing the barnahus principles in Scotland. During our visit to the barnahus in Oslo, we saw that the facility, which is located away from the court, is child friendly and provides a range of support services under one roof. Crucially, the visit allowed the committee to understand the one forensic interview approach, whereby the child is interviewed by a highly trained police officer, with no direct questioning by lawyers. However, the rights of the accused are protected by allowing the defence to request a supplementary interview when that is necessary. That interview is carried out by the same police interviewer, who asks the defence’s additional questions to test the child’s evidence. The one forensic interview approach delivers benefits both in the quality of the evidence that is obtained and in supporting children’s recovery from trauma.

The committee realises that that approach would require a significant shift in legal culture and practice, as well as substantial resources, but the committee considers that it could be used in appropriate cases. Furthermore, no less a person than the Lord Justice Clerk, Lady Dorrian, has said that she sees no reason why the barnahus system cannot be adopted in Scotland in the longer term.

In the meantime, priority should be given to developing an enhanced process for joint police and social work interviews with children, to be conducted by highly trained interviewers in child-friendly facilities, with other support services available under one roof. That would deliver significant benefits for child witnesses and would be a meaningful step towards implementing the barnahus principles.

The Justice Committee unanimously supports the general principles of the bill and its aim to increase the use of pre-recorded evidence. Nonetheless, it is evident that a barnahus model is far removed from current practice in Scotland. The committee therefore calls on the Scottish Government to work towards adapting the one forensic interview approach and recommends that urgent action be taken to adopt elements of the barnahus principles and to ensure that progress is made within the current parliamentary session to drive forward efforts to fully implement those principles in the longer term.

15:19  



Liam Kerr (North East Scotland) (Con)

I am very pleased to close for the Scottish Conservatives and speak in favour of the principles—[Interruption.]

The Deputy Presiding Officer

I think that you are opening for the Conservatives, Mr Kerr.

Liam Kerr

I am pleased to open, as well as close—[Laughter.]—the debate for the Scottish Conservatives and speak in favour of the principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

At the outset, I echo the convener’s gratitude to the clerks, not only for the quality of the report, which succinctly and clearly reflects the key points and the committee’s examination of the bill, but because, contrary to initial concerns, they had not shredded the draft that I left with them, which had all today’s speaking notes scribbled on it—although, having begun by saying that I was closing, I might wish that they had shredded it after all.

The fundamental principle of the bill is one that, as the convener said, the committee and the Scottish Conservatives are united behind. At its core, the bill is about improving the experience and evidential reliability of children and vulnerable witnesses in the criminal justice system. It does that by increasing the use of pre-recorded evidence.

When a child witness—the bill notably and rightly excludes a child accused—is to give evidence in solemn criminal proceedings involving one of a set list of offences such as murder, culpable homicide, assault to the danger of life or human trafficking, the court must enable all their evidence to be given in advance of the hearing. In other words, in an extension to the protections that are already in place, in those cases all the child’s evidence will be given in advance.

As the convener set out, that was pretty much universally agreed to be a good thing. The Scottish Courts and Tribunals Service described it as

“a critical step in improving both the experience of witnesses and the quality of justice”.

In that regard, I found compelling the evidence of Children 1st that

“Scotland’s justice system—designed for adults and rooted in the Victorian era—often causes them greater trauma and harm.”

Notable, too, was the SCTS’s “Evidence and Procedure Review Report”, in which it was suggested that

“particularly for young and vulnerable witnesses, traditional examination and cross-examination techniques ... are a poor way of eliciting comprehensive, reliable and accurate accounts”.

Some witnesses and MSPs feel that we should go further, and we may well hear about that in the debate. Certainly, the committee concluded that there would be merit in expanding the rule requiring pre-recording to child witnesses in domestic abuse cases. That makes sense, as the cabinet secretary noted. A number of submissions made that point, too. One would have thought that it stands to reason that the potential, almost special, nature of the trauma to a child in such cases, as highlighted in evidence from Scottish Women’s Aid, would mandate such special measures. That is particularly the case, given that, logically and as suggested by the advocacy, support, safety, information and services together project, the new Domestic Abuse (Scotland) Act 2018 could lead to greater numbers of children being cited to give evidence. I agree with Liam McArthur that there seems to be merit in including child witnesses in such cases. I am encouraged by the cabinet secretary’s response to Liam McArthur’s intervention, in which he stated his willingness to consider the proposal, and I look forward to developments at stage 2.

Humza Yousaf

I have looked at the figures, and although domestic abuse cases that go to solemn proceedings make up only 4 per cent of the total, that equals about 150 High Court cases and 750 sheriff and jury cases.

I am absolutely open-minded to the suggestion, but does Liam Kerr agree that, given the number of cases involved, it is undoubtedly important for the Government and others to examine the resource implications of making that potential change?

Liam Kerr

I agree with the cabinet secretary that the resource implications are crucial. I will say something specific about that shortly, but I will track back slightly before I do so.

On the same theme, in an intervention, Daniel Johnson brought up what is potentially a key issue. In its submission, the NSPCC suggested that, as only a few cases of domestic violence go to solemn proceedings, there is a danger that, by excluding summary proceedings, we exclude child witnesses in domestic abuse cases. Like Daniel Johnson, I find that concerning.

I note that the Lord Advocate has presented a response in which he specifically addresses the point. If I do not respond to the cabinet secretary’s intervention in two seconds, I ask him to reiterate some of those concerns, which were well expressed by Daniel Johnson.

During our evidence sessions, the suggestion was made—I suspect that it will be repeated in the debate today—that we should go further, particularly in relation to adults who are deemed to be vulnerable witnesses, and that we should expand the categories of people who would be covered by the provisions on pre-recording and automatic special measures. The bill gives ministers the power to do that, but the cabinet secretary indicated that that would involve a long timeline. His approach is supported by the Crown Office and Procurator Fiscal Service, which felt that it would be appropriate to take evidence-based, deliberate decisions over time on expanding the categories.

I accept that that approach will cause understandable frustration, but I agree with the cabinet secretary that it makes sense. The bill makes a seismic change that goes to the heart of the criminal justice system. The cabinet secretary highlighted his concern that quicker expansion may overwhelm the system.

It seems vital that whatever we put in place is introduced in a managed way that takes account of what will be a cultural paradigm shift, as highlighted by the Scottish Courts and Tribunals Service in particular.

A significant cost seems to be involved: the financial memorandum estimates the annual recurring costs of the bill’s provisions to be up to £3.5 million. The maximum estimated cost of extending the new rule to all adults who are deemed vulnerable witnesses is around £14 million.

The committee concluded that a phased approach is sensible—I agree with it on that point. To try to implement everything at once could be counterproductive. We might end up in a worse place than the one in which we started, with an inefficient and ineffective approach and the potential for miscarriages of justice.

On that point, I will pick up on a point that the convener made. The ability to expand the categories of protection by regulation caused me some consternation. My concern was whether, given that this is a managed but significant change to the system, expansion of categories by regulation affords sufficient opportunity for scrutiny. The Faculty of Advocates, in particular, expressed concern about that.

The committee heard a great deal of evidence on that point. The cabinet secretary noted that primary legislation could cause delay. In my view, delaying matters to get them right is never a bad thing. However, it was reassuring to hear the cabinet secretary promise to share the evaluation evidence with the committee prior to scrutiny of any such regulations. We also received an undertaking in that regard in the Government’s response yesterday.

Today, the Parliament is asked to indicate whether it supports the principles of the bill. The Justice Committee’s report provides strong evidence—as, no doubt, will today’s debate—that the principles of the bill are the right ones. It is clear that pre-recording evidence of children and adult vulnerable witnesses reduces the distress that such witnesses go through and can help to ensure that the most accurate evidence is obtained.

Throughout our evidence gathering, it was clear that the bill is a start and that there are other areas into which protection of vulnerable witnesses might go. I look forward to hearing representations from colleagues across the Parliament in that regard.

I am pleased to confirm that the Scottish Conservatives will support the principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at decision time.

15:27  



Daniel Johnson (Edinburgh Southern) (Lab)

This is a useful and important debate, in which we can come together in agreement about how we can modernise and improve our justice system, to make it more effective and more humane.

I, too, thank the Justice Committee clerks and my fellow committee members. I also thank the numerous organisations who submitted evidence, orally and in writing, to the committee—without their efforts we simply could not do our work.

In particular, I thank the Scottish Courts and Tribunals Service, because the opportunity to see facilities and hear about how evidence on commission is taken was hugely important. I also thank the Norwegian police for the time that they took to show us the barnahus model that operates in Norway.

Above all, I thank Lady Dorrian, because the bill represents a substantial amount of her work and effort. She first made the proposals in 2015; broader reforms were initiated in 2013. Her practice note, which has meant that evidence is being taken on commission, was produced in 2017. We should not underestimate the time that it has taken to get here.

The bill’s provisions undoubtedly represent a useful step forward for the Scottish judicial and court system and will improve the experience of child witnesses. As a number of members have said, we must not retraumatise young people who give evidence in court. It is vital that they give evidence; it is equally vital that we ensure that they do so in a way that does not retraumatise them.

More important, the bill is about improving the quality of evidence that is given by reducing the time that it takes to take evidence—the committee heard that it takes considerably less time when a witness provides their evidence on commission—and by reducing stress. That will improve the accuracy and quality of the evidence that is given.

For those reasons, Labour supports the bill at stage 1.

It is important that we examine the provisions and consider how the bill might be improved. Moreover, we should consider the next steps that we can take to improve our justice system. Therefore, I want to talk about how we ensure that the interests of the child are best met; the investment that is required; and the possible extension of the provisions to other types of witness and other types of hearing.

The ground rules hearing is absolutely central to the proposals on protecting the interests of the child. The prosecution and the defence will set out how they will cross-examine the witness and draw out the evidence for the court through the ground rules hearing. There will still be cross-examination—we saw that in examples of evidence taken on commission when the committee went to the High Court. The ground rules hearing will ensure that things are conducted in a way that is humane and effective in gathering evidence.

It struck me that the process will be very reliant on the training and practice of the advocates who will conduct the evidence gathering. Although the ground rules hearing is important and it is right that we do not overburden the bill with provisions or requirements, we must understand the dependency on the ground rules hearings being conducted properly and recognise that they rely on agreement. Trust is involved. We will trust the advocates to take their duties seriously and responsibly. We must review how the process is carried out to ensure that it is not abused and does not go in directions that were not foreseen. Although advocates in the main may approach matters in the way that we would hope, the intention at the point of legislating can sometimes result in practice that was not intended. Therefore, we need to keep the process under examination.

We must also ensure that there is adequate support and that a common point of contact is provided to vulnerable witnesses, particularly children. A number of third sector organisations made that point. Should we have a much more proactive and positive duty at the ground rules hearing to look at what sort of support is provided to witnesses who are providing evidence that is taken on commission?

Much has already been made of the requirement to have a phased approach and why that is necessary, given the investment and the undertaking that the bill represents. I agree with what has been said. The Government is right to look at a phased approach. As Liam Kerr pointed out, it is critical that we get this right and that we take our time to do so. However, we must ensure that investment takes place. When I looked at the room that is used in Parliament house, I was struck by the fact that it is still essentially a conference room in a court building and that it falls far short of the child-friendly environment that we might wish for. I welcome the investment in a new evidence suite in Glasgow, but will we make such facilities available to every child who gives evidence in Scotland, wherever they may do so? We need to ensure that there is consistent access for vulnerable witnesses.

We must also focus on training, legal practice and culture. The investment cannot simply be in technology and spaces.

I want to briefly mention domestic abuse. Although I welcome the cabinet secretary’s comments, if the bill is about establishing a principle on the right way to take evidence from vulnerable witnesses, why does it not provide for at least the possibility of extending the provisions to summary cases? I understand the arguments and the restrictions in respect of investment and the requirements that exist, but if the principle is right and the strategy that has already been set out in the bill is for staged implementation, should not provision for that final extension to summary cases be provided for? The Government should certainly look at ways in which the practice is encouraged in sheriff courts, because it is possible for them to take evidence in that way.

I am running out of time. I, too, am opening and closing for my party, so I will get a second chance to get in the bits of my speech that I have not managed to get in, which I am very thankful for.

The bill is a significant step forward. It takes the right approach in its proposals and how they will be implemented. However, we must always challenge, so we must seek to go further in the bill and in future steps that we can take with our court system in Scotland.

The Deputy Presiding Officer

I should clarify that Gordon Lindhurst will close for the Conservatives. He was looking a bit peeved.

15:34  



John Finnie (Highlands and Islands) (Green)

Like my Justice Committee colleagues, I thank witnesses and parliamentary staff, various organisations for their briefings and our friends in Norway for their helpful advice.

As I hope that the committee report evidences, there has been detailed scrutiny of the Government’s proposals. There are a couple of recurring themes. One theme, which I hope to talk about in a bit more detail later, is the tension between the adversarial system as applied at the moment and the inquisitorial system that is more in keeping with the proposals in the bill. The other is the rights of witnesses and the accused.

The Scottish Green Party will unequivocally support the bill at stage 1.

I take us back to the case for reform as outlined in the committee’s report. We highlighted the Scottish Courts and Tribunals Service’s “Evidence and Procedure Review Report”, which is from 2015. I make no apologies for this long quote, because it is helpful. The Scottish Courts and Tribunals Service report says:

“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.”

It continues:

“recounting traumatic events is especially distressing for children, and can cause long-term damage”.

Importantly, it says that that approach

“is a poor way of eliciting comprehensive, reliable and accurate accounts of their experience”.

We are told that the status quo damages witnesses in the same way that it disadvantages the public interest and the interests of the accused. I do not think that any of us wants to see that situation prevail.

Children 1st’s written evidence, which has been alluded to, says:

“Over and over again child victims and witnesses”

of crime

“have told us that Scotland’s justice system”

is, as someone mentioned earlier,

“designed for adults and rooted in the Victorian era”

and that it

“causes them”

additional

“trauma and harm”.

The submission goes on to mention the

“scientific understanding of child development”.

The extent to which child development has been mentioned in our deliberations is heartening. Understanding the needs of individuals—whomever they may be—is important, and there is growing awareness of that, not least in relation to the impact of adverse childhood experiences and trauma awareness. A lot of organisations, including Police Scotland, are very much aware of that.

The Children 1st submission also tells us:

“Developmentally children’s ability to recall memories varies with both age and their experiences of trauma.”

I join others in supporting the extension of the provision to domestic abuse cases and summary cases. Although the cabinet secretary is supportive of that, if I noted him correctly he said that the implications have to be worked through. I resolutely support that approach, and the incremental approach that the committee is in favour of. We are talking about a significant investment in time, training and facilities. It is crucial that we get this right and that, most important, we take practitioners from all sectors with us.

Daniel Johnson is correct to say that it is about getting the facilities right. I sat with Daniel and other members in the room that he spoke about—I mean Daniel Johnson. I beg your pardon, Presiding Officer. I saw the face.

The Deputy Presiding Officer

You read my lips.

John Finnie

I know that expression.

I sat with Daniel Johnson and others in the room that he spoke about. Yes, it was not particularly child friendly, but we saw the benefit of having such a facility for the child.

It is important that we get the whole criminal justice system right. The Lord Advocate has just responded to the committee’s report. His letter is pretty much like the Scottish Government’s response, and we are very pleased to have those responses, albeit that they have come at the 11th hour. He mentions the need to disclose obligations in adequate time. The ground rules hearing that has been mentioned is a fundamental part of what we are seeking, and the timing associated with that is crucial. We have had debates about whether it should be pre or post indictment. We do not want a situation in which someone is unnecessarily put through trauma only for the Crown Office and Procurator Fiscal Service to decide against taking forward a case because it is not in the public interest or because there is an insufficiency of evidence to proceed; equally, we do not want trauma to be caused by having to wait to give evidence. That is another tension and balance that needs to be worked through. That will be helped by having an expeditious process, which the Lord Advocate refers to in his response. The Crown Office and Procurator Fiscal Service has created 41 additional posts in the High Court to tackle the most serious cases, in which such an approach is likely to be used.

The committee took evidence on joint investigative interviews, which involve Police Scotland and social work staff. Those interviews are an important part of our process, but they are a long way away from the barnahus system, which started in Iceland and applies across Nordic countries, and which we saw in Norway. That involves three years of training for police officers. We saw charts on the wall about the expectation of children’s understanding at different stages—the developmental issue is important.

The proposals are excellent, but there is a way to go, and we will work on that.

15:40  



Liam McArthur (Orkney Islands) (LD)

Like colleagues, I thank the clerks, the Scottish Parliament information centre and others for supporting the committee and I thank in particular all who gave oral and written evidence during our stage 1 consideration of the bill.

Like others, Scottish Liberal Democrats strongly support the bill’s principles, although they are hardly controversial. That can present challenges, as cross-party consensus can sometimes blunt robust scrutiny, but I am confident that that is not a risk in this instance, because the committee has already identified a number of areas where we will look to work with the Government to improve and strengthen the bill at stages 2 and 3.

Before I turn to those aspects, I, like others, record my gratitude to those who hosted the committee’s visit to Oslo at the end of last year. It was enormously helpful to see at first hand how the barnahus—child’s house—principles are applied in Norway. Approaches differ between the countries that apply the principles, but the visit demonstrated clearly to the committee what a genuinely child-centred and integrated approach to criminal justice looks like.

For a country such as Scotland that aspires to be the best place to grow up in, barnahus must be at least part of the yardstick against which we measure ourselves. I accept that the one forensic interview approach of barnahus would require a shift in legal culture and practice here, given our adversarial system. Nevertheless, we see the lighthouse model being trialled in London, and there was almost unanimous support from those from whom we took evidence—including, as our convener said, Lady Dorrian, to whom we owe a huge debt of gratitude—for moving more quickly towards adopting the principles.

As the NSPCC pointed out, integrating justice, healthcare and on-going therapeutic social care services under one roof—often in purpose-built, child-friendly accommodation—is the best, if not only, means of effectively reducing trauma for child victims and witnesses while maximising the chances of capturing their accounts of what happened. It is fair to say that we are still some way off that.

The Scottish Courts and Tribunals Service admitted in its 2015 review that

“Scotland is still significantly lagging behind those at the forefront in this field.”

However, the SCTS has argued—rightly—that the bill is a

“critical step in improving both the experience of witnesses and the quality of justice.”

Enabling greater use of pre-recorded evidence from children and vulnerable witnesses is the right way to go and builds on the special measures that are in place. As Lady Dorrian made clear, ways must be found to take evidence from children and other vulnerable witnesses

“in an environment and in a manner that does not harm them further, but allows their evidence to be given and tested fully and appropriately.”

Humza Yousaf

I have been listening carefully to Liam McArthur and reflecting on what he has said. Does he agree that the relative consensus in the Parliament could be an advantage in helping to shift the legal culture that has applied in Scotland not just for decades but for centuries? If we put collective effort into dealing with obstacles that we might come across, that might have value in helping to shift mindsets.

Liam McArthur

That is a valid point and I do not diminish the value of consensus. Sometimes, the perception has been that the demand for reform that has emanated from the Parliament has been met with resistance in the legal community, but the evidence that we took suggested that that community has an appetite to collaborate with us. I hope that that will bear fruit.

The balance is crucial, and the rights of the accused cannot be lost in the process. The Law Society of Scotland made valuable points about the need for early identification of cases and effective communication by the COPFS, including timely disclosure of information. Without that, the defence is unlikely to be able to test the evidence fully. That said, the Lord Advocate is right to identify ground rules hearings, which would be overseen by a judge or sheriff, as an opportunity to strike the right balance between defence and prosecution interests, as well as to ensure that the questioning of a child or vulnerable witness is carried out in an appropriate and sympathetic fashion.

The committee felt strongly that when evidence is then taken by commissioner, every effort should be made to minimise any delay that could affect a child’s recollection of events and to avoid, if at all possible, the need for such recorded interviews to be carried out more than once. While none of that is entirely new, the committee quickly recognised that what the bill proposes will have serious resource implications for aspects from training through to equipment and facilities, as was mentioned by John Finnie and Daniel Johnson. Some of those have already been recognised by the Scottish Government, and I welcome the additional investment that has gone into the Scottish Courts and Tribunals Service and the Crown Office and Procurator Fiscal Service. However, if such measures are to be applied routinely and to a consistently high standard, we should not underestimate what will be involved or the pressure that they will place on the criminal justice system.

For example, we already know that support for victims and witnesses in our courts and wider communities is stretched. That message came through during our earlier inquiry into the Crown Office and Procurator Fiscal Service. Welcome though the bill’s provisions undoubtedly are, they will inevitably compound the challenge that is faced by many of those services. That is why it makes sense for the Government to adopt a phased approach to implementation, starting with the most serious solemn cases in the High Court that involve child victims and witnesses. I can entirely understand the impatience in some quarters to see the measures rolled out for all victims and witnesses in the High Court and sheriff courts. However, the committee heard overwhelming evidence that there is a significant risk that the system would be unable to cope with that, which is an outcome that would serve no one’s interests. Therefore, I accept the case for working through each phase systematically, reviewing and learning lessons before seeking to extend the provisions.

However, I agree that the categories of cases in section 1 that are covered by the rule need to be expanded to include domestic abuse. Again, the evidence that we heard in that regard was both overwhelming and compelling. The Cabinet Secretary for Justice suggested that he had an open mind on that, which I welcome, and I encourage him to accept that case and to lodge an amendment at stage 2. As for future changes to the circumstances in which the protections and provisions would apply, again, there is sense in enabling those through regulations.

In conclusion, let me—as most other members have done already—quote Children 1st, which stated:

“a joined up approach to the care and justice needs of child victims and witnesses through a Barnahus or ‘Child’s House’ is the best way to get it right for children from the moment they tell their story, ensuring that the child and their family get the support they need to recover. This will ensure that we have a justice system that is able to do both what is best for children and best for securing evidence.”

I hope that we can go some way towards ensuring that ahead of stage 3.

The Deputy Presiding Officer

We move to the open debate and speeches of six minutes.

15:48  



Rona Mackay (Strathkelvin and Bearsden) (SNP)

Let me start by saying that this is a good bill and I am happy to commend its general principles to the chamber.

As the deputy convener of the Justice Committee, I thank the clerks for all their work in producing a fair, well-balanced report. As we have heard from my colleagues, the bill achieved consensus among the committee. We heard a lot of evidence from stakeholders in the legal profession, children’s organisations and the court service, whom I thank for giving evidence.

In essence, the bill will ensure that children in the most serious criminal cases—those who have been victims of or witnesses to sexual offences, murder, assault or danger to life—are spared the trauma of giving evidence in court. It will enable them to give pre-recorded evidence much closer to the time of the offence. The Lord Justice Clerk, Lady Dorrian, told the committee:

“When children, in particular, are asked to give evidence at a time that is remote from the event, not only has their memory diminished, but they are more likely to be confused by general questioning about the incident”.—[Official Report, Justice Committee, 18 December 2018; c 3.]

That is crucial. Being asked to recall an event that may have taken place some time ago can be extremely distressing and traumatising for a child.

In its written submission, Children 1st told us:

“Over and over again child victims and witnesses have told us that Scotland’s justice system—designed for adults and rooted in the Victorian era—often causes them greater trauma and harm. At the same time, as scientific understanding of child development—and recently our understanding and awareness of the impact of Adverse Childhood Experiences—has grown, it has become overwhelmingly evident that Scotland’s traditional approach to justice is the least effective for eliciting consistent, reliable accounts from child victims and witnesses.”

As we know, the bill applies only to witnesses in solemn cases that are heard in the High Court, but a phased extension is proposed to cases that are heard in the sheriff court, under which child witnesses of domestic abuse would be covered. Along with other members, I am extremely keen for that to happen as soon as possible, as the majority of domestic abuse cases are heard in the sheriff court. I am pleased that the justice secretary has said that he will keep an open mind on including such a provision in the bill.

I understand the need for a phased approach that involves monitoring and evaluation of the effect of the bill on court procedure and resources. I hope that a successful evaluation can be carried out quickly and that arrangements will be put in place for the extension of what is proposed from the High Court to the lower courts. I hope, too, that the proposal will be extended to cover adult vulnerable witnesses in solemn cases, who could benefit in the same way by giving recent unpressured evidence in a less-intimidating environment.

Rape Crisis Scotland said that cases often take two years or longer to move from the police report stage to trial, only for complainers

“to get a call the night before to say the trial isn’t going ahead ... This causes considerable distress, and does not assist in complainers being able to give their best evidence.”

I understand that special measures are put in place for witnesses who have been assessed by Crown Office staff, and I urge that that practice be continued until the new rule applies.

The bill also focuses on the quality of joint investigative interviews by police and social work, which are vital, particularly when use is made of pre-recorded evidence. As with all aspects of the bill, it is vital that thorough trauma-informed training is given to all parties who are involved in taking evidence, and I am encouraged to note that a new JII training programme is expected to be finalised by March. Interviewing vulnerable witnesses takes a very special skill, and such skills are certainly necessary when JIIs are carried out or evidence is pre-recorded.

The bill does not cover the taking of pre-recorded evidence from a child accused although, from our knowledge of adverse childhood experiences, we know that such children have many issues and are often extremely vulnerable. They are children, too. However, I understand that the right of the child accused to remain silent must be respected and that the issues surrounding the recording of evidence before the trial has begun are complex. As the decision about whether a child witness should give evidence at the trial must be made in the context of the trial, it can be made only at the end of the trial. Taking evidence beforehand could prejudice their case or risk the evidence not being entirely accurate.

Nevertheless, the Lord Justice Clerk pointed out that there are special measures that can be put in place, such as enabling evidence to be given by live television link, but they are currently underused. That is not acceptable. I urge defence counsel to consider all measures that could be used and to apply them to the child accused in all cases to minimise the trauma that is involved.

I am pleased that the justice secretary, the former justice secretary, the Lord Justice Clerk and the legal profession generally are fully supportive of the barnahus model for the giving of evidence by children. As the convener and others have said, the Justice Committee had the opportunity to visit the state barnahus in Oslo before Christmas, and we were extremely impressed with the one forensic interview system, which is operated in a child-friendly environment. Shortly after I was elected, I met Mary Glasgow and Harriet Hall of Children 1st, who explained the benefits of the barnahus to me. I was totally and utterly convinced that having such a system should be Scotland’s aim. I am delighted that we are making some progress towards that and that it will become a reality in the not-too-distant future. In evidence to the committee, the justice secretary said that scoping arrangements would be put in place early in 2019, and I would welcome an update on that.

The bill represents a huge step forward in reducing the trauma that is faced by children in our justice system, and I commend its general principles to the chamber.

15:53  



Maurice Corry (West Scotland) (Con)

I welcome this stage 1 debate on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill and thank the members of the Justice Committee and its clerks for their helpful insight and scrutiny of the bill.

It is crucial that witnesses come forward to participate in court cases. Their evidence is what makes for robust and fair verdicts, but the quality of their participation is at risk, especially if they are deemed to be vulnerable witnesses. We can all see that Scotland’s court process is far from perfect. For vulnerable witnesses and children, in particular, the system can be almost overwhelming. Unless special care is taken when they are questioned, young witnesses can feel as though they are reliving their experience all over again. Pursuing a just and fair outcome without prejudice while ensuring that the witness is not placed in a distressing situation can be a sensitive balance to get right.

We have seen the benefit of adopting in courtrooms more special measures that are designed to help vulnerable witnesses. Television live links or supporters who sit with witnesses as they give evidence have been helpful methods of improving the process for young witnesses, especially if they are prone to feelings of anxiety and stress.

The proposal in the bill to allow, for some child witnesses, the pre-recording of evidence outwith the courtroom is rightly the next step to take. It will mean that, apart from in exceptional circumstances, those vulnerable witnesses will avoid the unnecessary trauma of being questioned in court, which will remove the mental burden that that places on child witnesses in the most serious cases. There is no doubt that the change in the law will help us to safeguard more readily the interests of children who have been the victims of human trafficking, sexual offences or abuse. At the same time, it will uphold the rights of those who are accused.

As well as the benefit for vulnerable witnesses, there will be a benefit for the quality of the proceedings and justice as a whole. By giving all the evidence in advance of the trial, witnesses will be able to recall their experiences far more readily and with greater accuracy and clarity, which will surely make for a more informed verdict. It will mean that witnesses have the best chance to participate in the process as helpfully as possible. Moreover, they will be free from what is often a lengthy wait until the trial.

We see pre-recorded evidence for such witnesses as the way forward, but it would be a mistake to stop there. The Scottish Government hopes to adopt a phased approach in implementing the new rule and expanding it to cover other vulnerable witnesses. Surely, that should start with the inclusion of child witnesses in domestic abuse cases. As we have heard, the Justice Committee has suggested that approach, and I believe that it was right to do so. The implications of domestic abuse are far reaching but, often, those who are most harmed are the children at the centre. Young people who experience such abuse are in desperate need of the same readiness to support them through the criminal process.

As the committee suggested, wider support mechanisms for vulnerable witnesses are well worth exploring. Providing the time and resources to allow special training would reduce the chances of harmful questioning of child witnesses and ensure that they are treated sensitively and fairly. Offering specialised and appropriate training would surely work well in tandem with implementing pre-recording of evidence.

It is equally important that we understand better the proposed timetable for the changes. We should not neglect the capacity that the bill has—we must ensure that it is as effective and impactful as it can be. To achieve that, it needs to be clear and structured in setting out the proposed phased implementation. Only with clarity can we ensure that change will actually happen.

Scotland’s court system desperately needs to improve. We cannot expect reliable and rock-solid evidence from children if it is taken in a traditional setting that neglects to recognise their needs. The bill offers progress in breaking down those courtroom barriers and a way to allow more accurate evidence giving in a safer environment.

The bill will provide a welcome change. It gives some assurance that vulnerable child witnesses will be involved in our court processes in the most sensitive and appropriate way. It safeguards their mental health and ensures more stable and certain evidence. I hope that, for the sake of other vulnerable witnesses and Scotland’s future criminal procedure, the support for wider reform will not go unnoticed.

15:58  



Fulton MacGregor (Coatbridge and Chryston) (SNP)

It is a great pleasure to speak in the debate. I will not be met with much objection from colleagues across the chamber when I say that it is legislation such as that proposed in the bill that we all came into politics for. The proposed legislation will have a positive effect on people’s lives and will go some way to rectifying discrepancies in our current system. For those reasons, I was privileged to be one of the members of the Justice Committee who scrutinised the bill. I join the convener, the deputy convener and others in putting on record my thanks to the clerking team for their work on the bill under immense pressure and in preparing the stage 1 report, which I encourage anyone who is watching the debate to check out.

As others have said, the bill’s main policy objective is to improve how children and vulnerable witnesses participate in the criminal justice system by enabling greater use of pre-recorded evidence. Many have fought for such a change in the law for a long time, including the Moira Anderson Foundation, which is based near my constituency. The vast majority of evidence that the committee heard from stakeholders, including among many others Barnardo’s and Children 1st, was supportive of the need to reform and of the introduction of a rule ensuring that, in the most serious of cases, evidence from a child is taken pre trial.

There are many areas of the bill that I could focus on in the limited time that I have, but it will probably come as no surprise to my committee colleagues that I will spend a little time looking at the use of joint investigative interviews by the police and social work. At the moment, they are used in connection with child protection measures, and at this point, I must declare an interest as a registered social worker with the Scottish Social Services Council.

The committee heard how joint investigative interviews could be an integral part of the process and that there was more scope to use them as evidence in chief, thereby limiting damage to child victims and witnesses and preventing the need for them to give evidence at trial. However, we also heard that it was not always possible to use such interviews, and the committee found it difficult to ascertain exactly how often they were used.

I was involved in joint investigative interviews for around eight years and although there was a lot of good and innovative practice, I do not think that any of my previous colleagues will mind my saying that there is scope for change and improvement—in fact, they would expect me to say it. For example, specific JII training is very intense, but it is only a week long; after that, a worker’s involvement in such interviews can be very sporadic, with perhaps only a handful or even fewer than that a year. The committee’s scrutiny of the bill got me thinking about how many interviews I had been involved in and although it is obviously not possible to say exactly, I am reasonably confident in stating that the figure was no more than 30 over an eight-year period. That falls well short of the 100 to 150 hours that Mary Glasgow felt was required to gain an appropriate level of expertise.

I therefore welcomed the evidence that was given by Kate Rocks of Social Work Scotland, who told the committee about the joined-up discussions that were going on with the police to expand the training to a year and the possibility of having a smaller group of workers who would be highly skilled in carrying out the interviews. I also welcomed the cabinet secretary’s response to the committee about the governance and working groups that have been set up and the fact that, as Rona Mackay pointed out, the training programme is expected to be finalised in March.

Perhaps such a move would also fit in with the principles of the barnahus model. As everyone who has spoken has said, the committee visited Oslo, and I think that it is fair to say that we were very impressed by what we saw there. That said, I think that we have already put in place many of the barnahus principles through our child-centred approach, but something relatively simple that we could do would be to have a one-stop shop for all the services that are involved to save a child from having to go to one place for an interview, another for a medical assessment and perhaps another for therapeutic support.

I think that the conclusion in the committee report, as relayed by the committee convener Margaret Mitchell, sums it up best, and bringing all of that together might require having a specific venue in, say, each health board area, in four areas across Scotland or whatever. Such a setting would also allow the crucial issue of support to be addressed. In our evidence gathering, we heard lots of testimonies, and the suggestion was that, although it was very important to gather evidence for criminal proceedings, a perhaps more significant and important issue was the need for continued support during and after the process and to deal with any trauma that the child witness might experience.

I conclude where I started by making it clear that the bill has been introduced as a result of real people’s real-life experiences. In that respect, I want to share an example that involves a constituent of mine. What I am about to say has been agreed with the child’s mother to protect anonymity.

Last week, I had a parent in my office asking for help. Her child had been a key witness in a case that had resulted in the accused serving a prison sentence, but she told me that no one had sat down with the then nine-year-old or the parents to explain what was going on or how their statement would be used in the case. Because the accused pled guilty, the young person was spared the ordeal of having to testify before him in court, but they are fully aware that their evidence was a major part of securing the guilty plea. At one point, the child said, “It was scary that my mum had to leave the room and I had to speak to strangers”.

The experience has led to a severe deterioration in the child’s mental health, because every day they live in fear about what might happen when the individual is released from prison. The mother described having to deal with nightmares and self-harm, and she also told me about the day that she found her child attempting suicide. Thankfully, she made the shocking discovery in time. No victim should ever have to go through that, and that is why it is so important that the bill’s provisions are put in place as quickly as possible.

Not all of the bill is relevant to the case that I have just highlighted, but its principles are. I know that the mother is watching today’s proceedings, and I hope that this is the start of changes being made to the law that will mean so much to her and her family. It is such real-life situations that make the bill so important. Moreover, given what I have said, it would be fitting if the bill were to pass at stage 1 during children’s mental health week.

This is an important bill, and I thank the Government, the current cabinet secretary, his predecessor and others for bringing it forward. I commend the general principles to the chamber and hope that members will vote for them.

16:04  



Johann Lamont (Glasgow) (Lab)

I was not involved in the bill’s development, but I have found it very interesting to read the report and the briefings that we have secured. Like other members in the chamber, I have direct experience of constituents telling me how they have felt let down by the justice system. From the start of the Scottish Parliament, we have been trying to understand how people experience the justice system and trying to find ways to ensure that witnesses and victims feel that they get justice. I can remember very early in the Parliament a woman who had been the victim of a serious sexual assault talking about feeling that the court system had compounded her terrible experience rather than giving her a sense of justice. I think that the bill is part of understanding that experience, because those voices are still there. Fulton MacGregor’s very powerful description of a young person’s direct experience of the justice system gives us all pause and should act as a spur to ensure that the journey of making the justice system fair continues.

The bill is another step in wrestling with the challenge of how we ensure that the accused has a fair trial and that those who give evidence are able to do so in a way that allows that evidence to be thorough and testable. I would argue that we have made progress in creating a fairer system, because things that we were told were simply impossible as they would challenge the justice system and the protections in it are now part of the accepted court process. I expect that the bill’s provisions will also be seen in that way in the future.

We need to think about how we treat victims, witnesses and complainants in the context of understanding criminal behaviour in all its many forms and the particular impact of particular crimes on victims. For example, I know from my conversations with adult survivors of child sexual abuse that their vulnerability still lives with them every day. We need a court system that understands that, too. We also need to think about the decisions at the prosecution stage on taking cases forward and whether they reflect the vulnerability of witnesses and victims; for example, if the victim is a person with a learning disability the case might not be taken forward as it might be deemed that their evidence will not be seen as credible. We need to reflect on those issues.

There is, of course, a danger and a challenge for us all in doing the relatively easy bit—obviously, I have done less work on the bill than committee members, who have done a lot of work on it—of passing legislation and feeling pleased that we have got that right. However, legislation must be placed in the context of the need for it to be effective and to ensure that it is enforced and that the changes are resourced properly. We do not want to end up just taking resource from one place and putting it in another in order to match the legislation’s demands, only to see one piece of legislation having unintended consequences for another part of the system.

We need to understand how we can prevent people from becoming vulnerable to crime in the first place and how supported they are personally. For example, for children who are victims of domestic abuse, with all that that means for them, we need to look at the availability of safe places and the responses of the school system, the housing system and the agencies round about the young person. Those supports will, in their own way, give help to a child who might find himself or herself in a courtroom, which can be the end point of what might have been a traumatic journey of conflict and violence. We cannot separate the court process from the budget and resources that must support victims under the new system.

As an example of the challenge involved in that, I raise in particular the important role of the children’s hearings system in the broader justice system. The children’s hearings system is symbolic of our understanding of the need to put the child at the centre of the justice system, but it is also the practical expression of how we make that support real. Despite the sterling work of the volunteers and staff who manage the hearings system, the system is under pressure from, for example, lack of social work support, the inability to have social background reports produced and the inability of panels to make certain disposals because the resource is simply not there to make them happen. The danger is that young people are being ill-served by a system that is overstretched and pressured.

The Scottish Government needs to reflect on its choices in budgeting terms as well as in policy terms. In my view, it is simply short-sighted to target local government for budget cuts, given that many of the key supports for the justice system lie with schools, community safety, support groups and social work departments, most of which sit within local government.

I support the bill, given the way in which it continues the journey towards ensuring that victims are treated fairly in the justice system and that, as a consequence, our justice system serves society better. However, I simply reflect that we should all take seriously not just the legislation; we should not see it in isolation but look at what must underpin it—not only resources to deliver the process but resources to provide broader support and protection for those who live with the trauma of abuse and crime day by day.

The points that Fulton MacGregor made in his conclusion are absolutely right—it is not just in the moment of giving evidence that a child or vulnerable witness has to be supported, but before they give evidence and afterwards as well. That is what will make the legislation real in the lives of young people and vulnerable witnesses.

16:10  



Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I thank the Justice Committee’s clerks for all their work in pulling together a report ahead of today’s stage 1 debate.

Of course, the bill should not be considered in isolation. For the Government, this is clearly part of a wider agenda that is focused on the rights of victims and witnesses. However, if we consider that the Government designated 2018 the year of young people, it is timely that we now reflect, as a Parliament, on how the justice system listens to the views of our young people when it really counts. Indeed, as John Finnie said, it is vital that we get this right.

As has already been mentioned, it is now nearly two years since the Lord Justice Clerk, Lady Dorrian, introduced the High Court practice note that was the first step towards improving how our courts take evidence from children and vulnerable witnesses. Today, the provision to take evidence by commissioner remains the main policy objective, with greater use being made of pre-recorded evidence from child witnesses in the most serious cases. That original practice note from 2017 looked to build greater consistency into application of taking evidence on commission by minimising the risk of trauma through taking practical decisions about location, for example, more sensitively.

Section 5(4) of the bill seeks to make changes to the Criminal Procedure (Scotland) Act 1995 that will allow for the possibility of pre-indictment commissions. I want to revisit why that provision is so important.

The ASSIST—advocacy, support, safety, information and services together—service is a domestic abuse advocacy and support service that is based in Glasgow. ASSIST advised the committee that children’s evidence

“should be taken in advance and as near to the ‘incident’ as possible.”

Furthermore, we were told by Daljeet Dagon from Barnardo’s Scotland:

“we often find that statements are taken and the police investigation concludes years before the actual process takes place. Recently, we found ourselves chapping the doors of young women who are now in their 20s but who had given statements when they were aged 14 and 15. Their situation had moved on, yet we were going back and retraumatising them, saying, “We’ve got new evidence. Are you willing to come forward? We don’t know how long the process is going to take.”—[Official Report, Justice Committee, 27 November 2018; c 4.]

Perhaps this was most powerfully illustrated when Daljeet Dagon went on to give the example of a young person who gave the police 27 statements in total. By the time the trial went to court, she was deemed to be an unreliable witness.

The original 2017 practice note encouraged the use of commissions for children, and application for a commission at the earliest possible stage in High Court proceedings. The Lord Justice Clerk has therefore welcomed the new provision in the bill for the possibility for a commission to take place before serving of an indictment, as the committee heard.

One of the committee’s key recommendations is that

“section 1 of the Bill should be amended to include domestic abuse in the list of offences covered by the rule requiring pre-recording,”

in particular, because of

“the trauma that children can experience in such cases.”

As Scottish Women’s Aid has argued,

“This is a crucial issue, given the trauma that can be caused to children and young people experiencing domestic abuse”.

In addition,

“given the numbers of children likely to come under the auspices of the new offence,”

it is imperative that the offence be included. I appreciate that the cabinet secretary has previously indicated to the committee that he is willing to consider such an extension. In my view, there is an opportunity to join up legislation that has already been passed in Parliament on domestic abuse, so I am glad to have heard the cabinet secretary reiterate that point today.

The committee’s visit to Norway to see the barnahus model in action was, as has been said today, a formative experience in respect of how we might seek to improve children’s experiences of the justice system. The model is a one-stop shop where services come to the child. It struck me that the barnahus model has much in common with our own getting it right for every child approach, which is also child centred.

The bill has the potential to be truly groundbreaking if we get it right. Although I note the investment in Glasgow in a dedicated child and vulnerable witness suite, perhaps there is an opportunity for the Government to pilot the barnahus model on a small scale in the first instance, during this parliamentary session, because our experience, as Daniel Johnson alluded to in his comments, is that it was a siphoned-off room within the court buildings, which is not what the barnahus model is about, according to our experience on our visit to Norway.

Although much can be learned from the Norwegian approach, a Scottish equivalent will have to be tailored to reflect our differing public services. I note that Healthcare Improvement Scotland and the Care Inspectorate are already involved in the development of Scotland-specific standards for barnahus. The Government’s response to the committee advises:

“This will enable us to set out a roadmap for improvements.

These Scotland-specific standards will be based on the European PROMISE Quality standards for Barnahus. It is anticipated that the scoping stage will begin in early 2019.”

I note the cabinet secretary’s commitment to meet the committee to discuss the barnahus model in more detail, but I make a request to the cabinet secretary that both Healthcare Improvement Scotland and the Care Inspectorate collaborate with education colleagues in that work, in order to avoid duplication and to acknowledge the sound grounding of education policy that already exists in the area, particularly in relation to trauma-informed schools and the wider adverse childhood experiences agenda, which Rona Mackay mentioned.

The strength of the barnahus model is, of course, that children are able to give evidence in the most comfortable environment possible, thereby avoiding retraumatisation. The taking of evidence on commission is part of the answer for Scotland, but a look again at the practicalities of location and environment, as Lady Dorrian specified in the original practice note, should be the next step in ensuring consistency of provision in that respect across the country. That should be the focus of the bill, if we are really to improve children’s and vulnerable witnesses’ experiences of the Scottish justice system.

Lady Dorrian said in 2017:

“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.”

Transparency, fairness and dignity in order to protect our vulnerable witnesses and to ensure that Scotland’s children are spared the trauma of giving evidence in court are all aims that I am glad every MSP can support.

16:17  



Annie Wells (Glasgow) (Con)

I am very pleased to speak in this stage 1 debate. Although I am not a member of the Justice Committee, I am aware of how important the bill is to victims and witnesses of crime. Too many people find themselves being retraumatised by the court process. We all agree that that is not right. In supporting the reform, we are taking a positive step in the right direction.

However, there is still more to do; I stress that Scotland must become the gold standard for victim support. The bill aims to improve how children and vulnerable witnesses experience criminal trials by enabling greater use of pre-recorded evidence. Significantly, the bill’s focus is on child witnesses in the most serious cases, unless there is a significant

“prejudice to the fairness of the hearing”,

or if the child witness is “aged 12 or over” and

“expresses a wish to give evidence”

in a way that would serve their “best interests”.

Although the current methods of pre-recording will continue to be used, the bill also aims to improve the process of taking evidence by commissioner in all cases, not only when the new rule applies. That is a welcome move. Children’s groups have been clear that the justice system in its current form causes distress and trauma. The charity Children 1st likened it to what was in place during the “Victorian era”.

Not only should the introduction of pre-recording reduce the trauma that is caused to child witnesses—it should also improve the quality of justice. A review of criminal procedure by the court service concluded that, for children in particular, traditional examination and cross-examination techniques in court are more likely to produce inaccurate and unreliable accounts of their experiences. That view was supported by the Lord Justice Clerk, who stated the importance of getting evidence from children as close to the event as possible. Confusion can arise from memory loss, which increases the likelihood that the witness will agree with the questioner when they cannot remember something.

Importantly, and of reassurance to people who are concerned about potential miscarriages of justice, research has shown that pre-recording evidence does not make jurors more sympathetic, and that use of pre-recorded evidence from child witnesses has no significant effect on the outcome of the trial.

There is always a need to put checks and balances in place. We support that, too. The Faculty of Advocates made that point and stressed the requirement for sufficient safeguards to be put in place

“to enable the rule to operate fairly”

and so that evidence can be tested on an informed basis.

The bill gives ministers the power to expand the rule to adult vulnerable witnesses in cases of rape, sexual assault and domestic abuse. It is obvious why, in such cases, a victim would not want to give evidence in the presence of the alleged perpetrator, whether in the courtroom or via a live television link. I ask members to think about whether they or a loved one would really wish to go through the heartache and pain of having to relive what happened over and over again. Sometimes, the process can take years to come to an end, so it is no surprise that victims say that the process leaves them traumatised.

I appreciate the fact that the process for applying for special measures will be simplified. I also understand that the courts system is under huge strain and that reforms need to be implemented in an effective and manageable way. Undeniably, however, it will be disappointing to women who are affected by those heinous crimes that they will have to wait until the mid-2020s to be offered the same reforms. Rape Crisis Scotland stated that the current approach to taking evidence from adult vulnerable witnesses causes significant distress and trauma, with frequent significant delays in cases coming to trial. Trials can be cancelled at the last minute, which puts more strain and pressure on the witnesses.

On potential changes to put victims at the heart of the justice system, I strongly support the introduction of the one-sheriff system for victims of rape and sexual assault, which the Scottish Conservatives have previously called for in cases of domestic abuse. As things stand, victims of those crimes can have their cases and related proceedings heard by various judges and so have to relive their stories over and over again. It is vital that we look at the one-sheriff approach, which has been trialled successfully elsewhere, and assess the impact that it would have on reducing retraumatisation. I therefore ask the cabinet secretary for his thoughts on how a one-sheriff system could be implemented for such cases.

I reiterate my support for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at stage 1. To give evidence as a victim or witness is difficult enough; to do so as a child or as the victim of domestic violence, rape or sexual assault is even more difficult. It is fundamentally important that we support victims of crime. The bill will play an important role in that.

That said, there is still much more to do, so we must strive to reach a point when Scotland is the gold standard for victim support.

16:22  



Shona Robison (Dundee City East) (SNP)

As a member of the Justice Committee, I support the general principles of the bill and welcome the consensus that has been demonstrated in the debate.

The bill forms part of a much wider and more ambitious programme of work being undertaken to improve and modernise the experience of victims and witnesses in the justice system. The bill’s objective is to improve how children and vulnerable witnesses participate in the criminal justice system, with greater use of pre-recorded evidence. It would apply in solemn cases, such as those that other members have mentioned.

As has also been said, few can imagine being an already traumatised young child, who is interviewed, sometimes multiple times, or who has to relive harrowing events at a later date through the traditional judicial processes for giving evidence. The bill will help to remove any legislative obstacles that would have a detrimental effect on the greater use of pre-recorded evidence and that includes the power to make the pre-recording of evidence available to adults who are deemed to be vulnerable witnesses in solemn cases.

The bill is supported widely, including by the judiciary and many third sector organisations. I am pleased that the Scottish Government is committed to looking at how the Scandinavian barnahus principles could work in the context of Scotland’s child protection, health and justice system. Unfortunately, due to a prior engagement, I was the only member of the committee not to see the barnahus model in real life in Norway, but I spoke to other committee members and they were very impressed with the model’s potential.

The model was adopted because it was recognised that multiple agencies’ information sharing and co-ordination were poor and it was introduced to overcome those challenges. Children were previously required to give multiple interviews to professionals from each agency, thereby damaging the reliability of the evidence that they were able to provide, and they were being traumatised by having to give testimony in court. Consequently, few suspected perpetrators were charged and convicted and victims were not adequately supported to recover from the trauma of sexual abuse.

The barnahus model offers all the services under one roof in a non-threatening and child-friendly environment. A trauma-trained interviewer is with the victim, and on a video link are a range of professionals, including the police, child protection and the prosecutor and defence solicitors. They communicate via an earpiece with the interviewer who relays questions in a child-friendly manner that is consistent with the principles of forensic interviewing. It is vital that the interview is carried out as quickly as possible after the alleged offence; the children’s charity Children 1st agrees that it is in the best interests of the child to give their complete testimony as soon as possible. It minimises the anxiety that is felt by children and allows directed support networks to work with children to improve their welfare.

Although I fully understand that some stakeholders that are involved in the consultation want quicker progress towards the barnahus model, it is crucial to get it right and to take a phased approach. The Scottish Government’s proposed phased approach could initially be in the form of a pilot scheme, and it would allow the system to absorb change while minimising risk both to the system and, importantly, to individual cases. Our justice system is not identical to those in Scandinavia and we have to recognise that.

I therefore welcome the Scottish Government’s commissioning of Healthcare Improvement Scotland with the Care Inspectorate to develop Scotland-specific standards for the barnahus approach—that is the right way to proceed. The specific standards would balance a child’s right to recovery with their right to access justice in a child-centred way, in line with the United Nations Convention on the Rights of the Child and, of course, the getting it right for every child approach. I am sure that progress can be made towards adopting the best elements of that system here in Scotland, and I look forward to progress in the foreseeable future.

16:27  



Rhoda Grant (Highlands and Islands) (Lab)

I, like other speakers, welcome the bill. Anything that makes giving evidence easier for children and vulnerable witnesses has to be welcomed. The bill is geared towards children, but it must be wider, to recognise the nature of the crime and how that can make witnesses vulnerable.

I will speak about domestic abuse, as many people have done this afternoon. I welcome the cabinet secretary’s comments on considering amending the bill to make sure that the process is available in cases of domestic abuse where children are giving evidence. That is the right thing to do, rather than introducing that at a later date. The trauma that is attached to domestic abuse is well understood for adults, but not for children. It has a long-lasting effect on their development, so it is really important that, where possible, we limit the trauma as much as possible.

We can imagine a case in which a child is in court giving evidence against a parent—having that person in the same room makes the evidence giving very difficult. It is serious, but quite often the justice system does not treat domestic abuse as serious. That point was made by Daniel Johnson; most cases are summary cases. The NSPCC noted that a tiny minority of domestic abuse cases are heard in solemn court proceedings; therefore, if the first phase of reform is limited solely to solemn cases, a large number of vulnerable children who will potentially give evidence in domestic abuse cases will not benefit or be protected under this system.

It is important that the ability to pre-record evidence is extended to all domestic abuse cases, regardless of which court they are heard in. It should also be extended to all child witnesses. A court case can take one or two years to come to court and young children will forget the evidence that they have to give, whereas if their evidence were recorded at the time, when the incident was fresh in their minds, they would be much better witnesses. Children in all court cases should be protected, but particularly those involved in domestic abuse cases.

That goes for adults as well, and particularly those who are victims of domestic abuse. Domestic abuse relies on coercion and control and therefore coming face to face with their abuser in court can have a devastating effect on the victim giving evidence in the case. It is right that the bill focuses on children, who need our protection. However, it should be extended to adults in not only domestic abuse cases, but cases where witnesses are vulnerable adults, people with learning difficulties or people with poor physical or mental health. Those people should be afforded the same protections as children, because the way in which they give evidence at a later date could be compromised if they are not.

Humza Yousaf

Although we are moving towards a presumption of evidence by commission, which we will implement in phases in cases involving adults who are deemed to be vulnerable, it is important to say that as things stand, if there is an application, evidence from adults can already be taken by commission.

Rhoda Grant

I hope that the bill makes that the norm and that that is applied to adult vulnerable witnesses.

Other members talked about rape and sexual abuse cases. That is another area to which the approach should be extended. Those crimes leave victims extremely vulnerable. We have heard during parliamentary debates stories in which victims have said that the process of going through court was worse than the damage done by the original crime. That is unacceptable. We need to protect people.

I have constituents in the Highlands who have had to go to Glasgow because rape and sexual abuse crime is tried in the High Court. That is not local and those cases can be cancelled at very short notice. In some cases, women have had to arrange childminding, cover for their jobs and somewhere to stay in Glasgow—as well as somewhere to stay for those who are giving them support, the cost of which is not always covered—and they have had to cancel it all at the last minute. If their evidence was recorded, that would not happen.

I know that I am short of time, Presiding Officer, and forgive me if I abuse my position in the debate, but I want to flag up to the Cabinet Secretary for Justice the issue of custody of children who have suffered domestic abuse. Custody is given to abusive partners. I know that it is an issue that the Scottish Government is considering and that the bill is perhaps not the right place to address it. However, I do not believe that a domestic abuser should automatically get custody of their child. Indeed, the opposite is the case: the abuser should not get custody until they can prove to the courts and to the victims of their abuse that they will not harm the child or use the custody to further promote their abuse.

The bill is welcome and overdue. It is striking that Children 1st talked about the court process being an adverse childhood experience, rather than the crime that the child had suffered. Justice should be cathartic, rather than abusive. I hope that the bill will be a step in that direction.

The Presiding Officer (Ken Macintosh)

That brings us to the debate’s concluding remarks.

16:34  



Daniel Johnson

It has been a useful and very consensual debate. The touchstone is the trauma and length of time that the bill seeks to eliminate. The convener and deputy convener of the Justice Committee, as well as other members such as John Finnie, have brought to life the importance of reducing trauma and the amount of time between the event that is witnessed and the gathering of evidence, because reliability is key.

Many members have made the point that our courts reflect a Victorian way of doing things. The bill is an important step towards modernising our courts and our justice system.

It is important to look at the reliability of what is being proposed, and I thank Annie Wells for reminding us that the bill proposes a sound way of taking evidence. In such consensual debates, it is easy for us to leap to conclusions, but it is important to bear witness that the evidence shows that pre-recording evidence is reliable and does not unduly sway juries one way or another.

It is also important to reflect on context, and for doing so I thank my colleague Johann Lamont. We should view the measures not in isolation but in the context of our wider services and the wider circumstances that people find themselves in.

I particularly thank my colleague Fulton MacGregor for his remarks. He provided some of the context. The example that he gave of the child and the clear trauma that providing evidence gave that individual brought to life the importance of delivering the proposals as quickly and efficiently as we can. He also provided some of the technical detail about the JIIs that I was not able to cover in my introductory remarks.

When we examine what takes place in the initial contact that a child or vulnerable person has with the authorities—the integrated approach of social work and the police, the training and the focus that is happening—we begin to see some of the next steps that we can take. Most important among the proposed measures is the proposal about how we can promote such evidence as evidence in chief in the courts, meaning that direct evidence is not required from individual witnesses.

I thank my colleagues Jenny Gilruth, Rona Mackay and Shona Robison for describing the barnahus model that we saw, which means that I do not have to. When we compare and contrast the JII with the barnahus model both generally and specifically in Norway—its single interview in an integrated facility where other forensic procedures can take place and the three-year training that the police officers in the barnahus in Norway have to undertake, which involves taking a bachelor’s degree, as opposed to the one year that we are just proposing and not even delivering for the people who undertake JIIs—we can see how a JII could conform to the barnahus model. We could deliver much of what we seek from that model through a JII, and I urge the Government to look at how that can be done.

Much is made of the ability to test evidence and the need for cross-examination. In Norway, the fact that a second interview can be requested shows how we could deliver the testing of the evidence that is so important to our legal system. I urge the Government to look at that.

John Finnie

I am grateful to the member for taking an intervention. Does the member recall—as I do—that, although there is the facility in the barnahus model to request a second interview, such is the efficiency of the initial interview that a second one is very rarely called for by the defence?

Daniel Johnson

I thank my colleague for that intervention. I was struck by that point, too. It points to the place that we could arrive at if we are so minded.

The key point—it is one that many members have made—is that we must not see the bill as an end point but must push to go further. The comments that have been made about domestic abuse cases, which have been acknowledged by the cabinet secretary, point to the fact that we must strive to go as far as we possibly can.

Although it is a good bill, its logic leads to a danger of defining vulnerability by reference to the charge or the court in which an individual gives evidence, which is clearly not right. An individual who gives evidence is not traumatised because of a particular charge or court; they are traumatised because they are having to recount the experience that they had. We must therefore expand the measures as widely as possible and make them the norm. It is self-evident that expansion to other courts and charges is the next step.

It is a good bill, but it has to be the first step on the journey, not the last.

16:40  



Gordon Lindhurst (Lothian) (Con)

There has been interesting discussion in the chamber today, and much agreement has been evident in the speeches that we have heard. In particular, there is agreement that the bill could improve not only the experience of the justice system but the quality of the evidence—something that is in the interests of not just witnesses and victims but justice itself.

To put it simply, it is better to take evidence closer to the time of events, while memories are still fresh. I say that from direct experience as an advocate in many, many criminal trials before our courts. Video evidence that is taken at the time can, therefore, be of more value than evidence that is taken directly from a witness many months—if not years—later, as members have said. The obvious answer to that, on one level, is that court proceedings should take place more quickly. Indeed, the Faculty of Advocates made that point during evidence taking.

Our court system has been referred to as “Victorian”. I am not sure that I recognise that as an accurate description of where we are—and I say that as someone who has dealt with child witnesses in a courtroom setting. Indeed, I have dealt with victims of sexual offences who were as young as three at the time of the commission of the offences. Changes have been made in Scotland over the past 40 years or more, such as the introduction of the standard special measures that are available, which are described in the committee’s report. For example, live television video links allow evidence to be taken from outside the courtroom.

However, there is always room for improvement—there is no doubt about that. As Liam Kerr pointed out, the bill, in effect, extends the protections that are already in place. It can be viewed as a bill that takes sensible next steps. Ensuring the participation of witnesses, especially vulnerable people, is vital to the effective pursuit of justice. Maurice Corry rightly referred to the need to bear in mind the difficult balancing act that must take place if the outcome is to be just and fair and no witness is unnecessarily to suffer distress in the process.

In trying to strike that balance, it is critical that we get it right for all the parties who are involved in criminal proceedings, because, as well as efforts to reduce the stress that vulnerable witnesses often feel and thereby improve the evidence that is available from such witnesses, there must be safeguards to prevent miscarriages of justice, as Annie Wells said. There is, of course, no single, one and only consideration when it comes to dealing with justice and crime, but an honest desire to find out the truth of what happened needs to be one of the overriding considerations. The committee received evidence of that.

The issue is particularly pertinent because the success of the bill will depend on the child’s evidence being tested sufficiently and on an informed basis. That will involve full disclosure of evidence at an early stage. As the bill progresses, it is important that concerns about current trends on late disclosure be addressed. Late disclosure can result in a need to revisit evidence with a witness, which defeats the purpose of the bill.

If we are to get things right, the answers might not be entirely simple and straightforward. Changes might need to be informed by the experience that follows the bill. That is why I welcome the Cabinet Secretary for Justice’s commitment to take a careful approach to the changes and to the timetable for implementation, which will include reaching out further to all children who give evidence and to adult vulnerable witnesses.

As Annie Wells pointed out, we need a more detailed timetable, with thought given to which groups of people could benefit through these measures. As the committee’s report highlights, it is partly a matter of resources. In any country, starving the justice system and the courts of the resources that they need is a false economy. That applies as much to Scotland as to anywhere else. As has already been mentioned, the risk is that we overwhelm the system, meaning that procedures such as commissions do not operate as they should and the aims of the bill—the interests of vulnerable witnesses and justice—are not met as a result. That would be counterproductive and could defeat the good intentions behind the desire to immediately include all vulnerable groups.

Like Liam Kerr, I hope that the evaluation evidence will be shared with the committee, as was promised, so that sufficient parliamentary scrutiny can be applied to any consideration of further extending the bill’s provisions. That could facilitate the speedy extension of the provisions, as and when appropriate, to other witnesses.

With my colleagues, I look forward to developments and to the cabinet secretary’s further careful consideration of these matters.

16:46  



Humza Yousaf

The debate has been excellent: it has been very constructive, insightful and, at times, extraordinarily powerful. It is sometimes worth taking a step back. I think that, despite our various differences in a number of policy areas, every single one of us is in politics to make a difference to the most vulnerable people across Scotland, and that is what the bill very much aims to do.

I want to pick up on a point that Liam McArthur made at the beginning of the debate about the consensus on the bill, which is a good thing. Having been in front of the committee, I can say that there is no lack of scrutiny of the bill. That is also good, and I have every faith in my Opposition colleagues robustly scrutinising the bill. That consensus has not come about by accident; it has resulted from a lot of reflection and from taking people on the journey with us. It is great that we have progressively minded people in the legal institutions that we put our faith in, from the Lord Advocate to the Lord President to the Lord Justice Clerk and many others. It is great that we have consensus, but that certainly has not come about by magic by any stretch of the imagination.

I will try to pick up on many of the points that have been raised in the debate. Members from almost every political party suggested that the Government consider extending the list in the bill to include domestic abuse cases. I reiterate that I am seriously considering that as the direction of travel in which the Government will move, but I have to consider the implications. I highlight again some of the numbers. Four per cent of cases that were marked for trial on indictment in the sheriff court were domestic abuse cases; 0.9 per cent were marked for trial in the High Court. The percentages are small, of course, but we are talking about 150 High Court cases and, I think, 710 sheriff and jury cases. Not all such cases will necessarily involve a child witness but, nonetheless, I have to take those considerations into account if there is phased implementation. Notwithstanding all of that, I am quite confident that we can get to a position at which we will, I hope, extend the list.

Daniel Johnson

Is it worth inquiring into the numbers of cases that involve children? We could therefore get an idea of the resources that might be required for implementation.

Humza Yousaf

I am doing that as part of my consideration of the issue. Despite that, that is the direction that the Government should absolutely go in and in which I will take the Government if I can.

Another issue that I think has been raised by members from every political party is the barnahus model and Scotland fully adopting the barnahus concept. It is the Scottish Government’s intention to implement barnahus. It is really important for it to be recognised that we are making improvements and that we are making our way towards that approach. Clearly, in order to get there, we will have to take others, including our legal institutions, with us along the way.

When John Finnie intervened during Daniel Johnson’s closing speech, he made a very good point about secondary interviews not often being taken up. However, I know that John Finnie recognises that our system is very different from an inquisitorial system. Our adversarial system is not decades but centuries old. That legal tradition is not to be scoffed at by any stretch of the imagination and it has served us well. Although it presents inherent difficulties, they are not insurmountable, and I take Lady Dorrian’s point that, in the long term, we should have one forensic interview.

John Finnie

On joint investigative interviews, I am not being critical of the practitioners, but if we can enhance the quality of the system, we are likely to reduce the trauma or the requirement for a revisiting interview.

Humza Yousaf

John Finnie makes that point very well. I will come to joint investigative interviews shortly.

I will finish off my point about the barnahus model. On Rona Mackay’s point, significant work is under way to explore the barnahus concept, and I am happy to update the Justice Committee on our work to develop—I hope by April—Scotland-specific standards for barnahus. I will therefore go back to the Justice Committee to give further detail on how we are getting on with that.

Liam McArthur

I am very encouraged by what the cabinet secretary is saying. Does he accept that, by making it explicit that not only the direction of travel but the ultimate objective is to put in place the barnahus concept, those who have concerns about how that is achieved will have certainty about where we are going? We can then work on the solutions to the problems, rather than get overly vexed about the problems themselves.

Humza Yousaf

Yes. I am more than happy to say on the record that that is our destination. We want to have barnahus—or a bairn’s hoose or whatever members want to call it. I again make the point that the barnahus model is different in each of the jurisdictions in which it has been adopted, depending on the legal framework. That point should not be lost.

Members have made very valid points about joint investigative interviews. I have heard from the Lord Advocate, the Solicitor General for Scotland and many in the legal professional about the quality—and, sometimes, the lack of quality—of joint investigative interviews.

Members will probably know that the “Evidence and Procedure Review Child and Vulnerable Witnesses Project Joint Investigative Interviews Work-stream Project Report” made 33 recommendations on how the current JII model could be strengthened. The recommendations are being progressed by the relevant organisations and multi-agency working groups have been established. The Scottish Government has also committed more than £300,000 to a joint project, led by Police Scotland and Social Work Scotland, which will create a revised JII model and develop an approach to investigative interviewing of children that is trauma informed and achieves best evidence through more robust planning and interview techniques.

All that said, I was struck by Jenny Gilruth’s comment about our partners being wider than just those in the legal system and our need to look at education and health improvement. I will reflect on her point and see how we can include those wider sectors in some of our work.

I thank the committee and all the members who spoke in the debate for their important recognition of the fact that we must have a phased implementation approach. We all want to get to a place where everybody who is vulnerable—child or adult—has the opportunity to give evidence by commission, which they can do on application as things stand, and where the presumption is in favour of their giving evidence in a trauma-informed way, including through pre-recorded evidence by commissioner. Equally, we cannot afford to overwhelm the system—as, I think, John Finnie said. We must get it right, not rush it.

Members across the chamber are, of course, right to press the Government for further detail on the implementation plan. Once we have that, I will, of course, share it with members.

Daniel Johnson and other members spoke about the ground rules hearing. I reiterate what I said in my opening speech. There may be benefit in lodging questions in advance, but I warn against any suggestion that such a requirement should be in primary legislation. I was struck by Lady Dorrian’s stage 1 evidence that

“The flexibility that would be maintained by having those recommendations on the ground rules hearing set out in the practice note would be much more beneficial than trying to put those into primary legislation, which would be much more difficult to change.”—[Official Report, Justice Committee, 18 December 2018; c 10.]

I am pleased that the committee is so minded, too.

I turn to other issues that were raised. Many members, including Daniel Johnson in his closing speech, made the valid point that, although we are—for right, good and understandable reasons—focusing on solemn cases because they are the most serious cases, there is no doubt that witnesses and complainers in summary cases can be vulnerable. As Rhoda Grant said, the majority of domestic abuse cases go through summary proceedings. The Government will reflect on that valid point.

Extending the approach to summary cases would have serious implications for resources and other matters, which is why we are dealing with solemn cases first, after which we will perhaps look at summary cases. However, the point about vulnerability is not lost and is well made by members across the chamber. Daniel Johnson’s point about measurements of vulnerability is also something for us to reflect on.

I will reflect on a number of other points that were made. Annie Wells made a powerful speech, as did others, about taking a holistic approach to victim support. From the moment that I was appointed as the Cabinet Secretary for Justice, I have ensured that we look to strengthen the support that we give victims. Victim Support Scotland is a key player in that, as are Rape Crisis Scotland, Scottish Women’s Aid and many other organisations.

The victims task force will be a key group, and the Justice Committee has already asked me to go to future meetings to update the Parliament on the task force’s work, which I have agreed to do. I extend to Annie Wells and any other member who is not on that committee the opportunity to have a briefing and an update on the task force and the difference that we are making and to suggest issues that we should consider.

Annie Wells asked for my opinion on the one-sheriff system for certain cases. I noted and will reflect on what she said. I know that she is aware that court programming, including the scheduling of judges, is very much a matter for the Lord President, whose territory I am always wary of stepping on. If she has not done so, Annie Wells might want to raise the issue directly with him.

Substantial points were made about the need for trauma-informed training. Jenny Gilruth and Shona Robison made their points about that well, as did other members across the chamber. It is important to approach that in a joined-up way. The Deputy First Minister, who is on my right, and I are often in meetings together to talk about the trauma-informed approach, the ACEs agenda and overlapping governmental responsibilities.

Developing an ACE and trauma-informed workforce, including implementing national trauma training, is a programme for government commitment. In June last year, the Deputy First Minister announced £1.35 million of investment to launch a national trauma training programme, which involves training that is consistent with the transforming psychological trauma framework. Specific lead projects have been identified to raise awareness among medical professionals and those in the criminal justice system of how to handle trauma and adverse childhood experiences. On 30 January, the Judicial Institute for Scotland announced plans to provide new refresher training for all sheriffs and judges ahead of the provisions on the new domestic abuse offence coming into force.

The Scottish Government plans to host a round table early this year that will allow NHS Education for Scotland and the Law Society of Scotland, together with many other stakeholders from the legal profession, to discuss opportunities to develop a bespoke trauma-informed training resource for solicitors that will count towards continuing professional development. We take seriously the points about the trauma-informed approach and trauma-informed training.

I end by thanking Fulton MacGregor for his very powerful account, which he received from his constituent, of the impact that going through a court process can have on a vulnerable individual, especially a child. That is the reason why we—not just the Scottish Government, but all of us in the Parliament who support the bill—are doing what we are doing.

I thank members for their detailed scrutiny of the bill, which has yielded many suggestions on which the Government will reflect. I am pleased to say that we will do so with an absolutely open mind. I have greatly enjoyed the stage 1 debate and look forward to stage 2, when we will look at the amendments, and to working with members from across the chamber to ensure that we get our criminal justice system right for the most vulnerable people in our society.

Financial resolution

A financial resolution is needed for Bills that may have a large impact on the 'public purse'.

MSPs must agree to this for the bill to proceed.

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Financial resolution transcript

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-15277, in the name of Derek Mackay, on the financial resolution for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.—[Humza Yousaf]

The Presiding Officer

The question on the motion will be put at decision time.

Vote at Stage 1

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-15699, in the name of Humza Yousaf, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at stage 1, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

The Presiding Officer

The final question is, that motion S5M-15277, in the name of Derek Mackay, on the financial resolution to the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

MSPs agreed that this Bill could continue

Stage 2 - Changes to detail 

MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.

Changes to the Bill

MSPs can propose changes to a Bill  these are called 'amendments'. The changes are considered then voted on by the lead committee.

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting on amendments

Documents with the amendments considered at this meeting held on 12 March 2019:

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First meeting on amendments transcript

The Convener (Margaret Mitchell)

Good morning, and welcome to the Justice Committee’s ninth meeting in 2019. No apologies have been received.

Agenda item 1 is stage 2 of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. I ask members to refer to their copy of the bill and to the marshalled list of amendments and groupings for this item.

I welcome the Cabinet Secretary for Justice, Humza Yousaf, and his officials.

Section 1—Child witnesses in certain solemn cases

The Convener

Amendment 1, in the name of the cabinet secretary, is in a group on its own.

The Cabinet Secretary for Justice (Humza Yousaf)

Good morning, convener and committee.

At the heart of the bill is the reform to require pre-recording, in the first instance, to have to take place for certain categories of child witness in the most serious cases. The new rule in favour of pre-recording is subject only to some narrowly drawn exceptions.

The substantial change that the reform, if passed, will bring about cannot be overestimated. That has been recognised by the committee with its support for a phased approach to implementation. I am very grateful for the committee’s understanding and consideration on that point and on the need to ensure that the reforms are commenced in an appropriate and managed way that does not overwhelm the system. For that reason, the list of offences is intended to capture only the most serious cases. The bill also includes a power to add to, otherwise amend or remove the list of offences, although I accept that it may be some time before it is appropriate to use that power. I was interested to hear the committee’s views on the list as it is set out in the bill, particularly its views on whether the offences that are listed strike the right balance.

In the committee’s stage 1 report, I read with interest its views and the views of stakeholders who also raised the issue, including the Scottish Children’s Reporter Administration, Children 1st, Scottish Women’s Aid, Barnardo’s Scotland and the ASSIST—advocacy, support, safety, information and services together—service at Community Safety Glasgow. I am grateful to those stakeholders for taking the time to set out their position on that important provision. In particular, powerful evidence was heard that giving evidence in domestic abuse cases can be particularly distressing for children. I found that testimony very persuasive. I also listened carefully to the stage 1 debate, during which members expressed their opinions on why domestic abuse should be added to the list of offences that the rule applies to in solemn cases. I found many of the committee members’ reasons for inclusion compelling and was convinced that the provision is an addition that will really strengthen the reforms in the bill.

However, as I indicated in the stage 1 debate, I had to be sure of the implications of widening the remit of the pre-recording rule. That could not be done lightly, as any widening of the rule’s remit is likely to have major practical and financial implications, and I am grateful that members showed that they understood why it was appropriate to carry out further work. Since the stage 1 evidence sessions, my officials have carried out a detailed appraisal of the impact of such an amendment and have consulted justice stakeholders including the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service, to ensure that the implications have been given due consideration.

There is no denying that such an amendment could have substantial resource implications for the justice sector. I remember Daniel Johnson specifically making a request during the debate for the number of High Court and sheriff and jury cases that might involve a child witness. We have projected that the number of cases involving a domestic abuse offence in which a child may be called is likely to be approximately 43 High Court cases a year and around 203 sheriff and jury cases a year. That is only a rough estimate, though—there might be even more. Furthermore, we need to see what effect the new domestic abuse offence will have on case numbers over the coming years. Indeed, it is very relevant that the committee is considering this amendment today, as it is less than three weeks since the commencement of the Domestic Abuse (Scotland) Act 2018.

Despite those significant implications, it is important that we take progressive action to improve the experience of child witnesses in domestic abuse solemn cases. This provision is an ambitious step, but, as I say, many members here today have put forward a compelling case for its inclusion. Once again, I put on record my thanks to all of you for raising the issue and to all the stakeholders who contributed, and I thank the committee for recommending a significant and very important addition to the bill.

I am pleased to move amendment 1.

Liam McArthur (Orkney Islands) (LD)

I thank the cabinet secretary for his comments. He has fairly summed up the conclusion that the committee reached. We all recognise the resource implications and pressures that amendments such as amendment 1 might place on the justice system. I am interested in getting a better understanding of where the pressures are likely to fall and what additional resources the Government may need to put in place to ensure that there are no knock-on implications for other cases. However, I welcome the move that the cabinet secretary has made in lodging amendment 1, and I will certainly support it.

Daniel Johnson (Edinburgh Southern) (Lab)

I echo Liam McArthur’s comments. During the stage 1 debate, there was considerable discussion of the merits of extending the provisions in the bill to the summary procedure. We are all mindful of the need not to overwhelm the system by going too far too quickly. However, with that in mind, and given that the measures could be used under the summary procedure, has the cabinet secretary given any consideration to possible non-legislative measures the use of which might be encouraged where appropriate? That applies to domestic abuse cases, in particular, but also to any case in which vulnerable witnesses give evidence under the summary procedure.

John Finnie (Highlands and Islands) (Green)

I welcome amendment 1. To make a general comment, I know the frustration that Opposition MSPs often feel in respect of legislation that is introduced by the Government and what is sometimes felt to be a not particularly positive response to stage 1 reports. However, this is a good example of the process working. That is not intended in any way as a criticism of the Government. The fact that the cabinet secretary talked about the implications and the on-going consultation, which is important, shows that we can make a recommendation that can have wider implications. I welcome amendment 1 and will support it.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I welcome the amendment. I give credit to the cabinet secretary and the Government for taking on board what stakeholders and the committee said at stage 1. It is an absolutely fantastic amendment.

I ask the cabinet secretary, in summing up, to say whether the research that his officials have done has highlighted anything on the number of children who might become witnesses compared to what the situation would be if the legislation was not in place.

The Convener

We all welcome the fact that the cabinet secretary has taken account of our recommendation in the stage 1 report. The committee considered the issue and all members agreed that the provisions should be extended to domestic abuse cases that are dealt with under the solemn procedure, as a way of addressing the issue but not impacting on the phased approach, the aim of which is to get it right at every stage.

The cabinet secretary talked about a projection of 43 High Court cases and 203 sheriff and jury cases, but there is no guarantee that child witnesses would be involved, so it will be interesting to hear his comments in answer to Fulton MacGregor’s question.

Humza Yousaf

I thank members for their comments and feedback. I do not have all the detail on the research behind the numbers that I quoted of 43 cases in the High Court and 203 sheriff and jury cases. However, I can come back to the committee with some detail if members are interested. It is important to say that the figures are projections and estimates rather than exact figures and that there is an important caveat relating to the new domestic abuse offence.

The estimated cost—again, I add the caveat that it is estimated—of adding domestic abuse to the list of offences in solemn cases could increase the recurring cost of the bill by up to approximately £1.3 million per year. It is clear, from the financial memorandum, that the reforms will be expensive to implement. However, they are important, as the committee and stakeholders have said, so the costs can be justified.

If the bill is passed, we will continue to monitor the financial implications of the changes, and we will engage fully with our justice sector partners—in particular, with the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service—on their funding requirements. The financial requirements that arise from the bill will be considered in the next spending review.

Liam McArthur

That is a helpful clarification. I accept that it might be difficult to put precise figures on it, but can the cabinet secretary assure the committee that, ahead of stage 3, we will see a revised financial memorandum that firms up the figures as far as possible?

Humza Yousaf

Yes. I will be happy to explore that. We will have to look at the financial implications of any amendments that are agreed to at stage 2, which will affect the financial memorandum.

I do not have anything to add to the points that Daniel Johnson made other than that he is absolutely right. The special measures that we have put in place are perhaps not being used to their fullest at the moment. A lot of work has to be done to encourage the use of those measures, particularly for the most vulnerable. I am happy to take the conversation with Daniel Johnson offline—or to continue it formally with the committee, if members wish—in seeking what more can be done through non-legislative measures to ensure that the use of special measures is greater than is currently the case.

Amendment 1 agreed to.

The Convener

Amendment 2, in the name of the cabinet secretary, is grouped with amendment 5.

Humza Yousaf

The amendments in this group are both of a technical nature. I will not lie—I had to ask my officials to go over the technical detail a couple of times so that I could fully grasp it.

Amendment 2 is a technical amendment to ensure that two sets of provisions that are contained in the bill function properly in relation to each other. They are the new rule in favour of pre-recording and the simplified notification procedure for standard special measures.

Section 271D of the Criminal Procedure (Scotland) Act 1995 enables the court at any time, up to and including when a vulnerable witness is giving evidence, to review the arrangements for the giving of that evidence at the request of any party to the proceedings or of the court’s own accord. The bill modifies the review provision for cases in which the new pre-recording requirement applies. The modifications are necessary so that the exercise of any review in such cases is applied consistently with the pre-recording requirement.

The bill also modifies section 271D of the 1995 act to allow the court to review the arrangements for taking a vulnerable witness’s evidence when the arrangements were the result of the new simplified procedure for requesting standard special measures administratively and were not authorised by a court order. That is what subsection (4A), which is referred to in amendment 2, does.

However, the simplified notification procedure does not apply in cases to which the new pre-recording requirement applies. That is because taking evidence on commission requires a judge or sheriff to be appointed as commissioner, a commission hearing to be set and a ground rules hearing to be set and conducted, which are matters that need to be dealt with through court orders.

I am proposing a simple technical amendment to remove the modification of the review provisions that relates to the simplified notification procedure from the modified version of section 271D of the 1995 act, which will apply to cases that fall within the new pre-recording requirement.

Amendment 5 addresses an anomaly in the bill as introduced. As the committee is aware, even though standard special measures are an automatic entitlement for children and deemed vulnerable witnesses, the sheriff or judge still has to authorise the use of those measures. That is required even though the other party cannot object.

Section 6 simplifies the procedure for seeking standard special measures for child witnesses or deemed vulnerable witnesses. I am grateful to the committee for welcoming the reforms to streamline the process in its stage 1 report. The policy intent was always that the simplified procedure should be available for all child witnesses who are entitled to standard special measures. That would have included the child accused, but, inadvertently, the bill did not contain appropriate technical modifications to facilitate that. The standard special measures for the child accused are a live television link and a supporter, but the measures do not include screens. Amendment 5 provides for appropriate technical adjustments, to ensure that, in the future, the same administrative procedure for requesting standard special measures can apply seamlessly to a child accused as to other child and deemed vulnerable witnesses.

10:15  



The bill does not apply the pre-recording rule to the child accused, as that would raise complex issues about interaction with the accused’s right to silence. There is, however, no justification in procedure terms for treating a child accused’s application for standard special measures any differently from that of any other child witness in a situation outside the new rule. We consider that simplifying the procedure for standard special measures should also benefit a child accused. It would, of course, still be for the defence to consult their client on the most appropriate special measure if they chose to give evidence.

I move amendment 2.

Amendment 2 agreed to.

The Convener

Amendment 3, in the name of the cabinet secretary, is in a group on its own.

Humza Yousaf

In any legislation proposing reforms to our criminal justice system, it is important that we strike the right balance. The intention behind the bill is—in the interests of justice—to support vulnerable witnesses better by reducing the potential impact on them and helping them to give their best evidence, but we are clear that that can and must be done while securing the right to a fair trial.

I have been keen to emphasise that it is not our intention that the bill’s provisions should limit or prevent cross-examination. We do not consider that the bill does that or that it affects the necessary safeguards. It simply, but importantly, requires that the evidence of many more of our most vulnerable witnesses be pre-recorded in advance of trial. However, I listened to the concern that was expressed during stage 1 by many important voices in the legal sector that the bill’s reforms could potentially enable the use of a prior statement as a witness’s only evidence in circumstances in which another party wishes to cross-examine that witness. That could potentially have the effect of, for example, preventing a defence representative from questioning the witness.

The committee rightly raised that concern in its stage 1 report and asked what steps the Scottish Government intends to take to address them. Although we do not agree with the view that was expressed on the effect that the bill’s provisions could have in that regard, it is clear that the concern is genuine and that we need to do what we can to allay it.

We considered that the best approach would be to put the matter beyond doubt in the bill. We could have added a clarifying provision confirming that none of the bill’s provisions would preclude the right of the other party to cross-examine the witness, but that approach could have had an unintended consequence, as the right to cross-examine is not and has not needed to be set out in legislation. It has always been accepted that cross-examination is needed for a fair trial, so such an amendment could have cast doubt on other areas where the right to cross-examine has simply been assumed and nothing explicit has been said about preserving it. Amendment 3 proposes a slightly different approach, but one that we consider would have the same effect. It would create an appropriate mechanism that parties could use to require a commission to be held in cases in which the court had originally decided to admit a prior statement as the witness’s sole evidence.

The amendment would enable any party to the proceedings to have the court authorise the holding of a commission. For example, a party to the proceedings could have a commission set up for them to conduct their cross-examination of the witness when a child had already given their evidence in the form of a prior statement and further evidence came to light at a later stage. The remedy is to enable a party who needs to cross-examine the child witness to seek a review of the order authorising the use of that special measure of prior statement alone and to request a commission hearing. The amendment would require the court to authorise evidence taking by commissioner, which would enable the child to be cross-examined.

I am grateful to all those who gave evidence in writing on the issue and to the committee for its consideration of the matter. It is important that we continue to have wide support for the pre-recording rule, and amendment 3 should give the necessary reassurance to deal with the concerns that have been raised. Indeed, we consulted representatives of the Faculty of Advocates, who confirmed that the faculty is content with the amendment.

I move amendment 3.

Amendment 3 agreed to.

Section 1, as amended, agreed to.

Sections 2 to 4 agreed to.

Section 5—Taking evidence by commissioner

The Convener

Amendment 4, in the name of Liam Kerr, is in a group on its own.

Liam Kerr (North East Scotland) (Con)

Amendment 4 makes it clear that the commissioner has power to take steps to protect vulnerable witnesses

“after the conclusion of proceedings”.

Its effect is that where a special measure is presided over by a commissioner, the commissioner must consider whether the witness will participate in the proceedings more effectively if they are assured of protection after the conclusion of the proceedings.

The justice system must recognise that although the formal process of giving evidence might be over when proceedings conclude, victims and other vulnerable witnesses might require further protection and support afterwards. Amendment 4 would add to the powers that are available to commissioners if they deem that the steps could reasonably be taken; it would not mandate action or place an overly burdensome duty on them.

Since lodging amendment 4, I have received Lady Dorrian’s very helpful comments on it and other proposed amendments. If the cabinet secretary is minded to oppose amendment 4, I ask that, in replying, he set out what work the victims task force is doing to support and protect vulnerable witnesses after the conclusion of proceedings, as far as their mental and physical wellbeing is concerned.

I move amendment 4.

Daniel Johnson

Amendment 4 is interesting, in that while there is broad agreement that the bill’s provisions on taking evidence by commissioner are measured and reasonable, there are concerns about whether some go far enough towards proactively seeking assurances that vulnerable witnesses will be supported through the process in the way that they need to be, and that they will have continuity of contact. I very much bear in mind what Lady Dorrian has said, but question marks remain over whether the requirements should be made more proactive rather than passive.

Therefore, I will not support amendment 4. I will abstain, in the hope that the Government will consider the possibility of improving some of those provisions.

Liam McArthur

I am grateful to Liam Kerr for setting out the purpose behind amendment 4. He is absolutely right about the concerns that we heard throughout stage 1, about what Daniel Johnson has referred to as continuity of contact. However, Lady Dorrian has made a very important point about the suitability of such an amendment for a bill of this type. Therefore, while I will listen very carefully to what the cabinet secretary says on the work of the victims task force—that is probably where the issue would be best addressed, as it needs to be—I cannot, for the reasons that Lady Dorrian set out, support amendment 4 as it stands.

John Finnie

I have a great deal of sympathy with what Liam Kerr has said. However, I adopt the same position as Liam McArthur. It is quite evident that a lot of support is provided throughout the process, from engagement with the police and social work services to during the court proceedings. However, from my casework I have seen that that support can tail off. In some communities, in particular geographical areas, there can also be a lasting legacy. Therefore I, too, will be very keen to hear what the cabinet secretary says about the victims task force.

Fulton MacGregor

Like others, I will not support amendment 4, although I have some sympathy with its aims. At stage 1, I raised the case of a child witness, in which there had been a perceived lack of support. However, I do not think that the issue should be put into legislation by means of the bill; it is more a matter for practice. Having listened to the cabinet secretary’s remarks in summing up the stage 1 debate, I feel that the matter will be progressed.

The Convener

I, too, very much welcome the fact that Liam Kerr has lodged amendment 4. The fact that there is support for witnesses and their families prior to their enduring trial but not afterwards, when there can be repercussions for them, is a real issue. I know that the cabinet secretary recognises that, especially in closed communities and rural settings. I am therefore pleased that the lodging of amendment 4 has allowed him to respond to that issue.

Humza Yousaf

I thank Liam Kerr for raising the issue and for lodging amendment 4. The Government will resist the amendment, for the reasons that other members have mentioned. However, like other members, we appreciate the intent behind the amendment.

On 8 January, when the issue was raised by the convener, I said that we often talk about throughcare for prisoners. Early on in my role as Cabinet Secretary for Justice, it struck me that it is important that we also consider throughcare for victims and others. From my engagement with victims—I do not doubt that committee members have engaged with victims, too—and as John Finnie will also know, from his experience in his previous role, I know that victims often feel, if they have needed to go through a really difficult ordeal, that the level of support that is available to them tails off at the end of a trial. That is not the end of the experience for victims by any stretch of the imagination. There can be shock when victims receive, for example, a letter that tells them that the person who committed the crime will have their first grant of temporary release or will have a parole hearing. Such a letter can come a number of years after a trial takes place, so the need for support is vital.

I acknowledge the points that the convener and John Finnie made about the real issues in relation to witnesses from closed communities, as well as the differences between rural and urban settings.

A lot of the work that we have done on supporting victims is underpinned by the Victims and Witnesses (Scotland) Act 2014, which includes the right of a victim to protection during and, importantly, after a criminal investigation. There is also the requirement for the police to carry out an individual assessment of a victim’s needs by considering a variety of factors, including the risk of repeat victimisation and intimidation. Those rights are set out in the victims code. However, members are absolutely right in that one of the core remits of the victims task force will be to look at that issue, in order to improve support, advice and information for victims and witnesses of a crime at all stages of the criminal justice system, including the trial process. The work will include looking at the information and support that are available to child and vulnerable witnesses.

The victims task force will look at how we can improve end-to-end support for victims and witnesses throughout the criminal justice system and beyond. That will include ensuring that victims and witnesses feel safe from any threat of harassment, victimisation or intimidation—for example, after the conclusion of a trial or when an offender is due to be released from prison, bearing in mind that that could be years after the initial trial takes place.

A key focus for the victims task force will be to drive forward work to develop a new victim-centred or single-point-of-contact approach to supporting victims and witnesses at every stage, because many victims have told us that retelling their story is a retraumatising experience for them.

The work will be led by Victim Support Scotland, in collaboration with task force members. A report setting out further details of the victim-centred approach will be published this spring. We can ensure that the report is sent to the convener, for her to distribute to the committee more widely.

I will not restate the objections to amendment 4, because Lady Dorrian, whom many members have referenced, can articulate them far better than I can. Although everyone—including Lady Dorrian, through her letter—recognises the good intent behind the amendment, the bill is not the right place for it. Indeed, it would not necessarily be in the courts’ remit to look at end-to-end support. That said, I reiterate that, although I do not support it, Liam Kerr’s amendment raises some very important issues. I hope that I have given him and the wider committee real assurances that a core part of the victims task force will be to look at the issue.

Liam Kerr

I am grateful to all members for their persuasive arguments. As the cabinet secretary rightly pointed out, we can all agree with the principle behind my amendment. In that regard, I was pleased to hear the cabinet secretary’s reassurances, and I hope that we will see evidence of the victims task force taking on the issue. Lady Dorrian’s argument is, of course, well reasoned and persuasive. For all those reasons, unless the committee is particularly minded to vote on it, I will withdraw amendment 4.

Amendment 4, by agreement, withdrawn.

10:30  



The Convener

Amendment 6, in my name, is in a group on its own.

Amendment 6 seeks to amend the bill to ensure that parties who are involved in the taking of evidence by commission must comply with training requirements relating to the questioning of vulnerable people. It follows the evidence that the committee heard about the importance of, and need for, appropriate training for all who are involved in the process of taking evidence by commissioner. As well as being provided to judges and sheriffs, such training should be provided to prosecution and defence solicitors and advocates who are involved in ground rules hearings and the subsequent commission. Amendment 6 has been lodged as a probing amendment to facilitate a discussion about what would be required to ensure that appropriate training takes place.

In addition to her formal evidence, the committee has received from Lady Dorrian very helpful new comments that explain, for example, that the training could not and should not be regulated

“through Court rules in an Act of Adjournal”,

because that would interfere with section 24 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which governs the rights of audience of qualified practitioners. Furthermore, in Lady Dorrian’s view, the introduction of such a provision would have far-reaching consequences for Scots legal practice. More significantly in the context of the bill, it would be contrary to the collaborative process that was adopted by the evidence and procedure review group,

“in which the professions were fully invested and were willing participants”.

For the purposes of today’s discussion, and in order to focus on the best possible training measures, it should be recognised and accepted that the Scottish ministers will be responsible for the determination and delivery of such measures. In this area, the committee’s evidence highlighted the importance of ensuring that the training process is tailored to individual needs. Children 1st stated that in order to ensure that witness questioning is carried out appropriately,

“all professionals involved in forensic interviewing of children”

should have

“the skills and knowledge to sensitively elicit the best evidence”

without retraumatising the witness. Children 1st, Social Work Scotland, Police Scotland, NHS Education for Scotland’s psychology directorate and Victim Support Scotland all emphasised the need for the training to be trauma informed and sufficiently resourced, and I would be grateful if the cabinet secretary would address both of those crucially important points.

Finally, academic research has suggested that to improve the quality of investigative interviewing of children, it would be best practice to adopt the National Institute of Child Health and Human Development protocol training system rather than continue with the traditional structural focus of the model that is used in Scotland. I would therefore be grateful if the cabinet secretary would comment on that protocol and its key recommendations, which are that recording interviews is the best way to preserve evidence and that it should be explained to children before the substantive interview phase of communication that they are in control of the interview and that, if they do not know the answer to the question or do not understand it, they should say so. In addition, suggestibility and misleading questions should be avoided. An unconnected topic practice interview would help to establish a rapport with the child and would provide the opportunity to practise open-ended prompts such as “Describe how or where” and so on. Monitoring and assessment of training should be carried out periodically well in advance of, say, a two-year deadline for review, to allow improvements to be factored in as the training progresses.

I look forward to hearing the comments of the cabinet secretary and other members on those proposals.

I move amendment 6.

John Finnie

I have a great deal of sympathy with what the convener said. We recently visited the Court of Session to see the training available. I have often been critical of the training that is delivered and its relevance, particularly in relation to this aspect. The issue is challenging, for the reasons that the convener has laid out in detail about leading questions and the like.

We know, from the committee’s visit there, about all the factors that are considered in Norway regarding the appropriateness of engagement with children at different levels, ages and abilities. The issue is complex and important, and training needs to be a foundation stone if the bill is to be successful.

There is a “however” coming, I am afraid. Lady Dorrian has laid out the reasons why the bill is not the vehicle in which to deal with the issue. It still has to be picked up, though, so I will listen intently to what the cabinet secretary has to say.

Daniel Johnson

I thank the convener for lodging this probing amendment, which gets to the heart of the fundamentally important point about the way in which children are questioned and their evidence is obtained. Although the measures in the bill are welcome, their success will come down to the way in which advocates and judges put questions to children. The convener’s point about the need to monitor and encourage best practice was extremely well made. Given the proposals in other amendments to have reviews, I wonder whether lodging at stage 3 an amendment to introduce a provision to monitor and promote best practice might be a way of taking the issue forward. I welcome both the raising of the issue and the sentiment, and hope that the amendment leads to further developments at stage 3.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I agree with the previous comments. The amendment is well intentioned, but, for the reasons that Lady Dorrian outlined, I do not think that it is practical. Training is really important and has to be at the top of the agenda, so I look forward to the cabinet secretary’s remarks.

Liam McArthur

We have all lodged probing amendments to bills in the past. This one serves the useful function of underscoring the issue that came through loud and clear, not only from the visit to Norway but from other evidence that the committee took, which said that the bill will only be as good as the way that it is delivered by well-trained professionals. The amendment provides an opportunity for the cabinet secretary to underscore that point and set out measures to ensure that such training takes place as the bill is rolled out.

Humza Yousaf

I agree with the sentiment that members have expressed. It is important that any questioning of vulnerable witnesses is carried out to the highest standard, and training is a key element in achieving that. I therefore welcome the convener’s probing amendment, which has raised the issue and allowed us to focus on the important role that training has in the questioning of witnesses. Unfortunately, we cannot support it; we will resist it for the good reasons that have been mentioned by Lady Dorrian and committee members.

The most recent meeting of the victims task force was hosted by the Judicial Institute for Scotland, which is the agency tasked with training judges and sheriffs. That gives further reassurance that the victims task force is looking at training as a live issue. Training for judges and sheriffs is for the Judicial Institute, and training requirements for solicitors and advocates are for their professional bodies. The inclusion of training requirements in an act of adjournal would therefore be unprecedented and, as Lady Dorrian has said, inappropriate, as it would cut across the professional regulatory responsibilities of the Faculty of Advocates and the Law Society of Scotland. I know that that is not the convener’s intention. It is not for the court or the Lord President to determine what training is appropriate for advocates or solicitors, or to certify an appropriate provider.

Amendment 6 might undermine the principle that once a practitioner has the right of audience, the court cannot refuse to hear him or her. It might also cut across the role of the Lord Advocate as the independent head of the system of criminal prosecution. As you will be aware, the Lord Advocate is the prosecutor in all High Court trials; advocate deputes appear by reason of the commission that he gives them, and it is a matter for the Lord Advocate to decide to whom he gives such a commission. The amendment might constrain him in cases involving evidence before a commissioner, but again I do not believe that to be the convener’s intention in lodging this amendment.

None of my comments should be taken to suggest that I do not agree on the importance of training in this area, but I consider that that can be dealt with in a more appropriate and effective way. One area where it might be addressed is in the High Court practice note that came into effect on 8 May 2017 and which provides extensive guidelines for practitioners for the taking of evidence by commissioner. It also directs practitioners to the advocate’s gateway website, which provides helpful guidance on how to ask appropriate questions depending on the age of a child or young person.

There is also a supplementary practice note that will come into effect in April, which contains further detail about the submission of questions in writing in advance and sets out a protocol for the general approach to be taken. The protocol was agreed by the Crown, the Faculty of Advocates and the Law Society of Scotland, and the greater use of that procedure will help to ensure that questioning is appropriate. Perhaps the four issues that the convener has well articulated can be examined when the practice note comes into effect in April, but we can take away what the convener has said and have those conversations with the Crown, the Faculty of Advocates and the Law Society of Scotland to ensure that those principles are reflected in the note. That would be a more appropriate way of addressing the issue and would ensure that we did not undermine the important role of organisations whose remit covers the training of judges and lawyers.

On the point about trauma-informed training on which the convener has rightly pressed the Government, it is a hugely important issue, and the 2018-19 programme for government includes a commitment to developing an adversity and trauma-informed workforce. We have announced £1.35 million to launch a national trauma training programme to support the Scottish workforce in responding to psychological trauma, and that will be in line with the first knowledge and skills framework for the Scottish workforce, “Transforming Psychological Trauma”, which was published last year by the Scottish Government and NHS Education for Scotland. I hope that that gives the convener some reassurance, but I would also add that in its first couple of meetings the victims task force has often talked about the need for a trauma-informed approach to the criminal justice system.

The Convener

Can you address the specific point about resources? All the people whose views I have read out and the people from whom we took evidence very much sought an assurance that the training would be sufficiently resourced.

At the same time, can you explain how, on an on-going basis, you will know and be assured that the training is happening? How is the quality or effectiveness of that training monitored at present?

Humza Yousaf

As far as training is concerned, we have regular discussions with the Scottish Courts and Tribunals Service and various agencies, and I have related to them what the Judicial Institute for Scotland has said. It is up to them to determine the appropriate training for judges and sheriffs, but we often work closely with them, particularly when new legislation is coming into force. For example, there has been extensive training for judges and sheriffs in relation to the domestic abuse legislation, and that, of course, comes with resource implications. If the Judicial Institute feels that there is a need for more training for sheriffs and judges, it can make that representation to the Government.

As for our overview of the situation, I am always very aware that the Government has to respect the independence of our judges and sheriffs. We can, of course, be involved in this kind of activity, but we must do so only when appropriate, and it is certainly not something that we would set out in primary legislation.

For example, the Scottish Government hosted a round-table meeting in February this year for NHS Education for Scotland, the Law Society of Scotland, the Faculty of Advocates, academics and other stakeholders from the legal profession to discuss opportunities to develop bespoke trauma-informed training resources for solicitors to count towards continuous professional development. It is important that training is developed practically like that, rather than there being an inflexible approach via legislation. I hope that hearing that we have regular dialogue with the Judicial Institute for Scotland on resources and training needs provides an element of comfort.

10:45  



The Convener

The cabinet secretary will appreciate that the training aspect—the content of the training and the effectiveness of questioning—will be key to the success of the bill’s provisions. Amendment 6 has been helpful as a probing amendment in ruling out an act of adjournal as a way of taking matters forward. However, there remains the question of the NICHD protocol, which has very sensible suggestions regarding, for example, explaining to a child that they do not have to feel under pressure to answer questions, that they can say that they do not understand and can ask for more explanation and that they can simply say that they do not know, if that is the case. It is about avoiding suggestibility and misleading questions and having more practice in open-ended questions, which are all germane to getting the best evidence and moving towards the forensic interview. A practice interview, even on an unrelated topic, could also be helpful in practising techniques and establishing rapport in order to put the child at ease. Crucially, there should be monitoring and assessment of the training to see whether it is effective, rather than just stating that trainees have done their training and that is it.

Is the cabinet secretary prepared to meet me to discuss the matter a bit further to see whether we could add anything to the bill at stage 3 that could ensure that the very best training is carried out?

Humza Yousaf

Yes, of course. I am very happy to meet and explain my views on the issue. The four points that the convener articulated are eminently sensible. However, the caveat is that I suspect that the Crown Office, the Faculty of Advocates and the Law Society of Scotland would be much better placed to judge whether there would be any unintended consequences of what is suggested. It is important to explore that in further detail with those stakeholders. I am happy to meet the convener, but she might also want to touch base with those stakeholders to get their views on the issue.

The Convener

That is very helpful, and I appreciate that it would also be important to meet those stakeholders. I propose to withdraw amendment 6.

Amendment 6, by agreement, withdrawn.

The Convener

Amendment 7, in my name, is grouped with amendment 8.

The bill is silent on the issue of additional commission hearings, but it was confirmed at stage 1 that, if new evidence emerged, a further commission hearing could take place. I therefore lodged amendment 7, which is a probing amendment, to provide the committee with the opportunity to discuss the issue.

The amendment proposes that, where an additional commission hearing with a witness is required, the court must meet a test for the taking of new evidence of there being a

“compelling reason for doing so.”

Academic research and the 1989 Pigot report recommended the pre-recorded capture of evidence to ensure that children should not be revictimised by having to give evidence all over again in court. The same principle should apply to additional commission hearings.

The additional comments by the Lord Justice Clerk, Lady Dorrian, are extremely helpful here. She pointed out that although there might be some advantage in setting out a new process to allow the holding of a further commission hearing, there would also be significant risks. For example, if the bill had such a provision, experience suggests that, in practice, applications for a commission hearing would rapidly become a routine occurrence. That would undermine two of the bill’s central objectives: to minimise the uncertainty as to when a witness might have to appear; and to avoid repeat appearances.

It is the judiciary’s view that there is already sufficient flexibility in the current court procedures to allow for such follow-up hearings, if required. It would be helpful to have on the record the cabinet secretary’s understanding of the legal basis for the taking place of multiple commissions, where necessary and appropriate.

In its stage 1 evidence, the committee heard that there has been no instance in which new circumstances have arisen that gave cause for a second commission hearing. Given that, and given Lady Dorrian’s comments, does the cabinet secretary agree that it is not necessary or desirable for the bill to provide for additional commissions?

Amendment 8, which is also in my name, provides for a review of the bill’s impact, focusing on

“the taking of evidence from child witnesses by commissioner on multiple occasions in relation to the same proceedings”.

The review would have to be carried out up to two years after the bill receives royal assent, and the Government would be allowed a year to respond.

Although amendment 8 provides for the review to be carried out up to two years after royal assent, it is important to stress that, given the proposed phased approach to adults, it might be sensible to carry out the review to establish effectiveness before the two-year deadline. I would be grateful for the cabinet secretary’s view on whether the review provision should be in the bill.

I move amendment 7.

John Finnie

I do not support the proposed approach. The evidence from Norway is that if we get a robust system first time around, there will be no such requirement.

However, you have raised a valid point, convener. As is always the case with justice issues, there is a tension between the rights of the complainer and the rights of the accused. I am reassured by the very clear statement from Lady Dorrian that the judiciary’s view is that, if a further accusation were to come forward, there would be sufficient flexibility in current court procedures to deal with that. The bill as it stands meets the requirements of both the complainer and the accused.

Fulton MacGregor

Like John Finnie, I do not support amendment 7. We heard from various witnesses that we need to limit the number of times that a child is retraumatised—the convener raised that issue. An important point is that nothing in the bill prevents a second commission from taking place if the circumstances require it. We need to trust the practitioners who work with the children involved to make those judgments.

Humza Yousaf

I thank the convener for amendment 7, on the power to hold a second commission, and amendment 8, on a review of the impact on child witnesses who give evidence on multiple occasions in the same proceedings.

On amendment 7, it is helpful to have the opportunity to consider whether specific provision is required to enable a second commission to take place. It is an important point, so this has been a valuable discussion.

The policy intent is clear. We do not want multiple commissions, as that would remove the main benefit for the child or vulnerable witness of pre-recording their evidence. It would also delay the point at which the experience would be over and done with and the witness could attempt to move on with their life.

However, it is necessary to have a procedure for allowing another commission to happen in the rare circumstances in which there is a need to recall a witness for further questioning. I note from the stage 1 report and the comments of many members of the committee that it is accepted that we need to limit the impact of further questioning. It is right to seek clarification on whether a specific provision is required or the current legislative framework will suffice.

In the Scottish Government’s response to the committee’s stage 1 report, we advised that we would consider further whether a specific provision in the bill on second commissions would be helpful, but it is still our view that it is unnecessary.

As has been mentioned, Lady Dorrian, the Lord Justice Clerk, has written to the committee to advise that the judiciary’s view is that

“there is already sufficient flexibility within current court procedures to allow for a follow-up hearing if it is required.”

She helpfully highlighted the risks in setting out a new process to allow the holding of a further commission hearing. In particular, if there was an explicit procedure in the bill, such applications would become routine, which

“would undermine two of the central objectives of the Bill”.

The very existence of a separate procedure could encourage applications for further commissions. That is at the heart of the issue that concerns me most about setting out a separate procedure.

The convener asked about our legal understanding of the position. We align ourselves with what Lady Dorrian said—we believe that a second commission could be done by review under section 271D of the 1995 act and that more than one vulnerable witness notice can be submitted under section 271A of the 1995 act, so there are already mechanisms that the court could use to order a second commission if that was necessary.

Amendment 8 focuses on reviewing the bill’s impact and specifically the impact on child witnesses who have had to give evidence on multiple occasions in relation to the same proceedings. Of course I understand the rationale and the good intention behind the amendment, and I agree with the principle that these important reforms should be evaluated.

As we set out in the implementation plan, which I sent to the committee on 7 January, monitoring and evaluation are integral to ensuring that the commencement and roll-out of the bill are undertaken in a managed and effective way. However, there are a number of issues that mean that I cannot support amendment 8.

The first issue concerns timing. The amendment would require a review process to commence two years after royal assent, which we expect would be in approximately June 2021. Under the implementation plan, we expect in those two years to conclude the first six-month evaluation of the operation of the provisions in the High Court. It would not make sense to embark on another evaluation so soon after that, particularly given that the new rule would not yet have been rolled out to sheriff and jury cases.

The second issue is about inflexibility. I accept the convener’s point that, if a child witness has given evidence on multiple occasions in relation to the same proceedings, that is an important factor that we must consider. However, to create an entirely new process to focus appraisal on that one issue might be disproportionate, particularly given that, as Lady Dorrian pointed out, there has not yet been an instance where new circumstances have arisen to give cause for a second commission hearing.

In any evaluation, there should be close monitoring of a range of other matters, such as the volume of commissions and the types of cases, as well as how commissions are working operationally, to ensure that the reforms are having the desired effect and to inform decisions about the next stage of the roll-out. Furthermore, we would want to evaluate not just the bill’s impact but aspects of the broader system, such as the High Court practice note.

Thirdly, the amendment would require consultation with “vulnerable witnesses” when the report is prepared. It is important to hear the voices of the people we seek to support, but the matter is clearly sensitive, and I am concerned that a statutory obligation could not only be ineffective but have unintended consequences for the people we seek to protect—for example, they might have to retell their stories.

All that considered, I see merit in potentially having a review provision in the bill, which I intend to comment on in the debate on the next group. However, a review that focuses on multiple commissions, which are unlikely to be numerous, is not the preferred approach.

Convener, I hope that my comments have given sufficient reassurance on second commissions to enable you not to press amendment 7 or move amendment 8.

The Convener

As I said at the outset, amendment 7 is a probing amendment. I think that it has been useful to get on record the cabinet secretary’s view, which concurs with the judiciary’s view, that there is sufficient flexibility in the current court procedures to allow such follow-up hearings, if they are required, without setting that out in the bill, and that setting it out in the bill would be undesirable and would only encourage applications, which would not be helpful.

11:00  



It has also been useful to hear the cabinet secretary’s comments establishing that there would be an evaluation after six months, which is roughly the time when we would want to think about commissions and other aspects of the bill.

I think that it has been helpful to put that discussion on the record. In light of that, I seek the committee’s permission to withdraw amendment 7.

Amendment 7 withdrawn.

Section 5 agreed to.

After section 5

Amendment 8 not moved.

Sections 6 to 8 agreed to.

After section 8

The Convener

Amendment 9, in the name of Liam McArthur—I am sorry, I mean Liam Kerr. Were you panicking there, Mr McArthur?

Liam McArthur

Amendment immediately withdrawn. [Laughter.]

The Convener

Amendment 9, in the name of Liam Kerr, is grouped with amendment 10.

Liam Kerr

Throughout stage 1, the Scottish Government made the point, rightly, that these reforms must be progressed slowly in order that careful monitoring can take place throughout implementation with regard to different groups of vulnerable witnesses in various types of proceedings. The cabinet secretary has just made clear his view that any review must be wide and all-encompassing. I agree, which is why amendment 9 would place the requirement to review the operation of the act on a more formal basis and include it in the legislation.

The report that is envisaged by amendment 9 would enable the committee and the Parliament to scrutinise the reforms closely and receive all the information that they require to do so. When the cabinet secretary decides to halt or progress a particular phase or extension, the report would give the public confidence that there is an evidence base behind such a move and ensure that the cabinet secretary is accountable for that decision.

If the cabinet secretary is minded to speak against the amendment—he has indicated that he intends to comment in depth on amendments 9 and 10—I would be grateful for suggestions about how the Government proposes either to share the progress and results of extension with the committee or to move to such an outcome at stage 3.

I move amendment 9.

The Convener

Amendment 10 is another probing amendment, which focuses on the principle of moving to the barnahus model. The amendment specifically seeks to ensure that, after the bill has received royal assent, there will be a review of the progress that has been made by the Government and Government agencies towards implementing the principles of a Scottish version of the barnahus model.

The committee has been clear that it wants to see how the collecting of information has evolved and what progress has been made towards the one forensic interview and barnahus-type model before the end of this parliamentary session. I would be grateful to hear the cabinet secretary’s view on how that objective can be realised.

Daniel Johnson

I welcome both amendments in the group. As a general principle, I think that the idea of embedding the requirement for a review of a piece of legislation in that legislation itself often makes sense. It makes particular sense in this case, given what the bill seeks to do with regard to the change in the way in which evidence is gathered and the experience of the courts, which is, ultimately, the intention of the bill. Reviewing whether that effect has been achieved, and whether there are further steps that could be taken following implementation, makes a great deal of sense.

With that in mind, I think that amendment 9, in the name of Liam Kerr, is well framed and broadly stated in looking at the effect of the legislation in general. It is not prescriptive and gives flexibility with regard to the contents of the review, and it requires ministers to respond with consideration to the key agencies and actors involved in the operation of the legislation. My only concern is that a period of three years might be a little too short, for the reasons that the cabinet secretary set out in his response to the previous group of amendments, but that could easily be remedied and other considerations taken into account at stage 3.

I urge members to support amendment 9, as I will if the member chooses to press it.

Shona Robison (Dundee City East) (SNP)

I have sympathy with the sentiments behind amendments 9 and 10. Boiling them down, I think that they represent an attempt to ensure that progress is made and that the Government has a timeframe for demonstrating progress on important measures, particularly the shift to the barnahus model, that have been supported by all committee members.

However, my question is whether this is the only way of achieving that aim. We will have to hear what the cabinet secretary says, but if the intention behind the amendments can be achieved in a different way that does not require to be set out in the bill, I would be sympathetic to such a move. The most important thing is that we achieve progress towards an end that the committee has unanimously agreed on.

Fulton MacGregor

I welcome amendment 10 as a probing amendment. At stage 1, many of us pointed out that the infrastructure is already in place; police and social work already conduct joint investigative interviews, and the health services are already involved in assessments. It might be relatively straightforward to put in place a pilot for a one-stop-shop barnahus approach, and I will be interested in hearing what the cabinet secretary says about that. I think that that issue, too, was raised at stage 1. Although I will not vote for amendment 10 at this stage, I welcome it as a probing amendment.

Rona Mackay

Again, I think that amendment 9 is well intentioned, but I am worried about the retraumatising aspects of it. For that reason, I cannot support it.

As for amendment 10, I am happy that the issue has been brought up, and I look forward to hearing the cabinet secretary’s views on the matter. As Shona Robison said, everyone is very supportive of Scotland moving to the barnahus model, and I look forward to hearing from the cabinet secretary whether that could be done without putting prescriptive provisions in the bill.

Humza Yousaf

I thank the convener and committee members for their remarks, and I thank Liam Kerr and the convener for raising the issue of the monitoring and evaluation of the legislation by lodging amendments 9 and 10. I understand the rationale behind the amendments, and I very much agree with the principle that these important reforms should be evaluated.

As I said a moment ago, the implementation plan, which I sent to the committee on 7 January, has monitoring and evaluation as an integral part of the bill’s phased introduction. It is crucial that commencement and roll-out of the bill’s provisions are undertaken in a managed and effective way to ensure that the intended benefits are delivered to the individuals involved in these most serious of cases. We have included dates for only the first three phases in the draft implementation plan, because we must ensure that there is a suitable period of evaluation and monitoring before moving to the next stage of implementation. I intend to update the committee on that monitoring work after it has been completed for each phase and on what that evaluation means for moving to the next planned stage.

We need to retain flexibility in the timing of the evaluations, so it would not be appropriate to set that out in primary legislation. However, that is different from having an overarching provision in the bill to review and report to the Scottish Parliament on how the new pre-recording rule is working in practice. I understand that that is the intention behind Liam Kerr’s amendment and I can see the merits of such a provision. I am very much minded in favour of such an addition to the bill. Unfortunately, there are issues in relation to amendment 9 that mean that I cannot support it at this time.

Daniel Johnson

Will the cabinet secretary clarify whether he would accept the amendment if it did not have a set timeframe or had a longer timeframe? How long a timeframe would he accept?

Humza Yousaf

There are several issues with the amendment, in addition to the timing, which I was about to discuss. I suggest that I work with Liam Kerr and other members who are interested in the overarching review to see whether we could come back with a proposal at stage 3. I would not object to Daniel Johnson taking part in those conversations. I agree with the sentiment in principle, although there are other issues.

The drafting of the review provision suggests that any report on the impact of the act would focus on the support and information that are provided to vulnerable witnesses and would detail any new proposals from ministers in relation to that. Although I agree that monitoring and reviewing such information and support are important, I do not think that the proposed report on the operation of the act is an appropriate vehicle for such a review. As the bill does not propose any reforms on providing information to vulnerable witnesses, a statement on the impact of the legislation on such issues is likely to be very limited.

By highlighting the issue in his amendment, Liam Kerr has raised a vital matter. A key focus for the victims task force is the development of a victim-centred approach, which will include consideration of the support and information materials that are made available to all victims and witnesses. That approach, led by the task force, will enable a comprehensive review of information and support. We must ensure that the statutory review is timed to be as effective as possible, after those reforms have had a real chance to make the difference that we all believe they will.

It might be better to start the review three years from the date of commencement of the first phase of the roll-out of the pre-recording rule, rather than from royal assent. I emphasise that any statutory review would be in addition to our monitoring of each phase of the roll-out, on which we would update the committee.

In the previous group, I explained why I think that the amendments’ reference to consultation with vulnerable witnesses poses problems. However, although the amendment does not quite have the effect that I think is intended, it is a very constructive proposal. As I said, if Liam Kerr is willing not to press amendment 9, I would be happy to work with him and other members on an amendment to the bill at stage 3 to include a provision on a formal review of the act.

On amendment 10, I thank the convener for highlighting the importance of working towards ensuring that children’s evidence is taken in a child-centred setting, where children can access the wraparound care and support that they need. I am aware of the committee’s deep and sincere interest in the barnahus concept. A Scottish version of the barnahus concept is the best way to achieve that aim; as I said in the chamber on 5 February, that is the intended outcome of the Scottish Government’s work on the matter. I can fully understand why the committee is keen to ensure that progress is made and the evidence that the committee has gathered will inform our future work.

However, the issue for consideration today is whether amendment 10, although well meaning, would actually have the effect that is intended. In 2015, the Scottish Courts and Tribunals Service’s evidence and procedure review produced a comprehensive review of the process and identified clear areas for action. That was a detailed process, which took place over several years. I am not convinced that a Government-led review considering the same areas is necessary or appropriate at this time. Furthermore, introducing a requirement for another wide-ranging review of the process for taking evidence from children would inevitably divert resources from making progress on that important work.

In order to meet the requirement in amendment 10, any review would be focused on the way in which evidence is taken. Although that is an important part of the barnahus model, the concept is so much more than the type of accommodation in which evidence is recorded, although that is a vital element. It is about wraparound care and providing services that truly address trauma and promote recovery to vulnerable child victims at the earliest opportunity.

11:15  



To perform a thorough, systematic review, work would need to begin in this parliamentary session, so the resource that we intend to commit to scoping how the barnahus model could work in Scotland and the development of Scottish-specific standards might have to be diverted to undertake another review of the evidence-taking process, which has already been done. That would be on top of the review into the operation of the act, which, with respect to Liam Kerr’s amendment 9, I have said should be added to this legislation. Although I understand that the amendment is considered to be a way to ensure that progress is made, I do not consider that such a review is the best way to do that, particularly as the report from the review would not be required until the next parliamentary session.

We are committed to working with stakeholders to consider how the concept would work in Scotland, which is why we have asked Healthcare Improvement Scotland and the Care Inspectorate to develop Scottish-specific standards for barnahus that are based on best practice from Nordic countries. That work will involve extensive consultation, including with health boards, children’s services, the third sector and justice partners, so it would be informed directly by children and young people’s evidence and their thoughts.

I do not believe that amendment 10 would be the best way of achieving that truly child-centred, trauma-informed response. The work that we are beginning on the barnahus concept in Scotland will do that. Instead of supporting the amendment, I am happy to commit today to providing a formal report to Parliament on progress that has been made on barnahus. I also reiterate the undertaking that was made in my letter to the committee of 12 December and in the stage 1 debate on 5 February to keep Parliament updated on progress in developing a Scottish approach to barnahus.

I hope that my comments will reassure members of my commitment in this area and that we will have the opportunity to work together on how to best ensure that progress is made in developing a Scottish approach to barnahus. I reiterate that I consider that that is most likely to be achieved by focusing on making progress rather than by committing to yet another review. I ask for amendment 9 not to be pressed.

Liam Kerr

I am grateful to members for their thoughts; it has been an interesting discussion. In particular, I take Daniel Johnson’s point, which succinctly summarised many of my views in lodging the amendment in the first place.

I am interested in the point that three years from royal assent is too soon, and I hear the cabinet secretary’s points on the implementation plan and on general timing and drafting. I think that the committee will agree that it is crucial that we get this right, and I welcome the cabinet secretary’s offer to work with us to ensure that outcome before stage 3.

On that basis, if the committee will indulge me, I will withdraw the amendment.

Amendment 9, by agreement, withdrawn.

Amendment 10 not moved.

Section 9—Consequential amendments

Amendment 5 moved—[Humza Yousaf]—and agreed to.

Section 9, as amended, agreed to.

Sections 10 to 12 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. I thank the cabinet secretary and his officials for attending.

Our next meeting is on Tuesday 19 March, and we now move into private session.

11:19 Meeting continued in private until 12:14.  



Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill with Stage 2 amendments

Additional related information from the Scottish Government on the Bill

Scottish Parliament research on the discussion of the Bill

Stage 3 - Final amendments and vote

MSPs can propose further amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law

Debate on the proposed amendments

MSPs get the chance to present their proposed amendments to the Chamber. They vote on whether each amendment should be added to the Bill.

Documents with the amendments considered at this meeting on 9 May 2019:

Video Thumbnail Preview PNG

Debate on proposed amendments transcript

The Deputy Presiding Officer (Christine Grahame)

The next item of business is stage 3 proceedings on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list of amendments and the groupings of amendments.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds—I know that you are taking this all down carefully in handwriting as I say it. The cabinet secretary is! I am so impressed. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.

Section 5—Taking evidence by commissioner

The Deputy Presiding Officer

Members should now refer to the marshalled list of amendments. Group 1 is on taking evidence by commissioner: presiding over a ground rules hearing. Amendment 2, in the name of the cabinet secretary, is grouped with amendments 3 to 6. I ask the minister, Ash Denham, to move amendment 2 and to speak to all the amendments in the group.

The Minister for Community Safety (Ash Denham)

The amendments in this group are all of a technical nature. Section 5 of the bill makes provision for taking evidence by commissioner. It introduces the requirement for there to be a ground rules hearing before evidence is taken by commissioner. Depending on the circumstances, the ground rules hearing may be presided over by the commissioner, another judge of the High Court or another sheriff.

The amendments in the group do two things. First, they improve the drafting by making it more precise. The references in section 5 to “a judge” are wide enough to include a sheriff, too, so it is not necessary to use the word “sheriff” as well as the word “judge”. Secondly, the amendments ensure that, in a case where a ground rules hearing is not presided over by the commissioner, it is presided over by a judge of the court that appointed the commissioner.

Amendment 2 seeks to remove the reference to a sheriff, because a reference to a judge is sufficient to include a sheriff, and to clarify that the judge who presides over a ground rules hearing is to be a judge

“of the court which appointed the commissioner”.

Amendments 3, 4 and 6 seek to remove references to a sheriff, because the references to a judge are sufficient to include a sheriff. Amendment 5 will make a minor adjustment to improve the precision of the drafting.

I move amendment 2.

Amendment 2 agreed to.

Amendments 3 to 6 moved—[Ash Denham]—and agreed to.

After section 8

The Deputy Presiding Officer

Group 2 is on a report on the operation of sections 1 and 5. Amendment 1, in the name of Liam Kerr, is the only amendment in the group.

Liam Kerr (North East Scotland) (Con)

Members might recall that, at stage 2, I lodged an amendment that sought to implement a review of the operation of the bill as enacted. A good and incisive debate took place on my amendment, which included the cabinet secretary not only making persuasive points, but undertaking to work with me and other interested members to create something that would achieve the goals that we all felt were worthy.

I am pleased to report that that engagement took place, and I am grateful to the cabinet secretary and the Government staff for working collaboratively to put together amendment 1, which is a good amendment. Its purpose is to require the Scottish ministers, following consultation with key stakeholders, to conduct a formal reporting review of the operation of the bill as enacted. As amendment 1 is drafted, there will be two elements to the review process. First, there will be a qualitative review of whether the pre-recording reforms in the legislation have helped witnesses to participate effectively in the criminal justice system. Secondly, certain data must be included to show how many child witnesses have benefited from those reforms.

The review period covers the three years from the commencement of pre-recording for child witnesses under the bill as enacted. The draft implementation timetable indicated that pre-recording for child witnesses would start in January 2020. That should mean that the report of the review would be published by the end of 2023. Subsection (2) of the proposed new section sets out the information that the report must include, but it does not prevent the provision of any additional data that might be appropriate, recognising the need to maintain the principles of the independence of our courts and the protection of sensitive details of individual cases.

Amendment 1 will also require ministers to set out the next steps for commencing the pre-recording rule for any purposes or groups for whom it has not yet been commenced by the time the report is prepared, such as adult deemed vulnerable witnesses. It is a good amendment.

I move amendment 1.

Daniel Johnson (Edinburgh Southern) (Lab)

I voice my support for amendment 1. It has been clear throughout the passage of the bill that although the bill represents progress, it is not the finished article. We must continue to make progress in protecting vulnerable people as they interact with the criminal justice system.

The review process for which amendment 1 provides is an important step in ensuring that we see the progress that we all hope that the bill will bring. The recording of qualitative evidence on the effect that the measures in the bill will have on vulnerable witnesses in the court system will be particularly useful. For all those reasons, Labour members will support amendment 1.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I, too, want to express my support for my colleague Liam Kerr’s amendment 1. During the stage 2 proceedings, he continually raised the need for such a report to be prepared, and it is to his credit that he has worked with the Government to produce an amendment that works. I believe that the review process will demonstrate that a lot of children and young people and other vulnerable people will have been helped by the passage of the bill.

15:30  



Ash Denham

I am grateful to Liam Kerr for lodging this important amendment. I know that, had the cabinet secretary been leading the discussion today, he would have placed on record his appreciation for having had the opportunity to work with him and others, as he mentioned, to ensure that amendment 1 appropriately reflects the strong views that were expressed at stage 2 for a mechanism to deliver a more formal review of the legislation.

I believe that we all recognise that we must be able to measure the extent to which the bill’s objectives have been delivered—everyone impacted by the legislation would expect nothing less. Being clear about our intent, and how we are going to monitor and evaluate, are fundamental to that goal.

The Government is committed to a transparent process, and it is right that the Parliament should want to be kept fully updated as the reforms progress. I also acknowledge the fact that the provision has been drafted to ensure that it does not impact on the independence of our courts in relation to individual cases.

Amendment 1 reflects our pragmatism and ability to achieve consensus throughout the passage of the bill. On that positive point, I thank Liam Kerr for his amendment, which I am happy to accept.

The Deputy Presiding Officer

I call Liam Kerr to wind up.

Liam Kerr

I have nothing further to add other than to thank colleagues for their comments and to endorse what has been said.

Amendment 1 agreed to.

The Deputy Presiding Officer

Group 3 is on reporting on the process for taking evidence from child witnesses in criminal proceedings. Amendment 7, in the name of Margaret Mitchell, is the only amendment in the group.

Margaret Mitchell (Central Scotland) (Con)

Amendment 7 focuses on ensuring that Scotland makes progress in moving towards the barnahus model. In particular, it responds to and addresses the cabinet secretary’s comments at stage 2 when I lodged a probing amendment on the same topic.

The amendment provides that, three months after the bill has received royal assent, there must be a review of the Government’s progress towards adopting the barnahus principles and that that must happen

“at 6 monthly intervals thereafter until the Parliament is satisfied that the matters have been sufficiently progressed.”

The review will cover what

“progress has been made toward taking evidence from child witnesses in criminal proceedings—

“(i) in accommodation other than court buildings,

(ii) in accommodation that provides such other support to child witnesses as is considered appropriate,

(iii) in as few interviews as possible”,

which is shorthand for moving towards forensic interviews.

In its stage 1 report, the committee made it crystal clear that it is essential to ensure that that issue, and making progress towards a Scottish barnahus model, remains on the agenda for the Government in this parliamentary session and, crucially, at the start of the next session for the incoming Government in 2021.

The amendment also makes provision for the Parliament to remain informed about the development of the interview process and the progress that is being made towards achieving a “one forensic interview” approach before the end of this session.

As the minister is aware, the Cabinet unanimously agreed on working towards implementing the barnahus principles. The committee’s stage 1 report states:

“The Committee recognises that there is no single model of the Barnahus and that its implementation would have to be adapted in the context of Scotland’s adversarial criminal justice system. However, the Committee does not consider that this should prevent the Scottish Government from moving towards full implementation of the Barnahus principles, specifically a ‘one forensic interview’ approach.”

Therefore, I hope that members will support amendment 7, to ensure that progress to achieve that objective is monitored, reviewed and brought back to the Parliament in this session and the next.

I move amendment 7.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I rise to speak against amendment 7, which is in the name of Margaret Mitchell, although I believe that it is well intentioned. The committee fully supports the introduction in Scotland of the barnahus model of a child-friendly, “one forensic interview” way of taking evidence from children—personally, I would like to see it happen tomorrow—but amendment 7 is not helpful as part of this bill.

The amendment assumes an obligation to move towards a new model when no such obligation is introduced by the bill. Indeed, no evidence was taken from the stakeholders who would implement it. The Scottish Government is working with stakeholders to consider how the model could operate in Scotland, and the cabinet secretary has written to the committee with a clear timeline of how that work would progress, along with Healthcare Improvement Scotland and the Care Inspectorate. Commenting on the bill, Children 1st said:

“We are pleased that the Cabinet Secretary has set out a clear timetable for the next stages in the delivery of the Barnahus approach in Scotland and the recognition of the need for a fully collaborative approach.

We welcome the commitment made during the stage 2 discussion of the Bill to review the progress that has been made by the Government and Government agencies after the bill has received Royal assent.”

There is also no correlation between the subject of the reporting requirements that are set out in amendment 7 and the objectives that are set out in the bill. The amendment seeks to introduce an onerous six-monthly reporting requirement with no clear end date and to ensure that that duty would continue until Parliament was satisfied that sufficient progress had been made. It sets out no mechanism or threshold that would allow Parliament to identify whether that had been achieved. Meeting such an indefinite reporting requirement would divert Government resource away from work on progressing the barnahus concept in Scotland, which is now well under way.

Amendment 7 specifies that ministers must consult child witnesses in preparing those repeated reports. The most important point to make in that regard is that asking child witnesses to revisit their experiences risks retraumatising them, and they would have no knowledge or experience of the new model that is the subject of the questions. Moreover, such an obligation is likely to be practically difficult and perhaps legally impossible, due to data protection issues associated with accessing and retaining details of child witnesses and contacting them without their consent or the consent of their carers.

There is also a technical flaw in the definition of child witnesses, in that the amendment refers to “the 1995 Act”, a term that is defined in neither the amendment nor the bill.

I thank Margaret Mitchell as convener of the Justice Committee for her enthusiastic support of the barnahus model, but I ask her not to move amendment 7 for the reasons that I have outlined.

The Deputy Presiding Officer

Well, she has already moved it, so you cannot ask her not to.

Daniel Johnson

I am somewhat conflicted, because I agree with everything that Margaret Mitchell has said. She is absolutely correct to state that we need to maintain our focus on the development of the barnahus model and to ensure that it is delivered as quickly as possible. However, I disagree with how she has set out to do that in her amendment.

As Rona Mackay made clear, the six-monthly reporting periods are unduly onerous and, given the effort that would be required, might well be counterproductive. I understand why Margaret Mitchell has applied the threshold of the Parliament being satisfied with progress, but I am not entirely clear what that satisfaction would mean in practical terms. It might lead to future disputes, which I do not think would be helpful.

For those reasons, we will vote against amendment 7, should the member choose to press it. However, I ask the Government to reaffirm its commitment to the barnahus model and perhaps provide further detail on how that work is progressing at the earliest available opportunity, either in response to this amendment or in the course of the stage 3 debate.

Fulton MacGregor

In speaking against amendment 7, I want to back up what Rona Mackay and, to a certain extent, Daniel Johnson have said. The barnahus concept was perhaps the most defining feature of the passage of the bill, and in that respect, the committee’s trip to Oslo was very valuable. We all want to get to the position where we can introduce barnahus, but the amendment puts undue pressure on the Government. The cabinet secretary has already written to the committee, outlining plans for how we will get there, including tackling the various legal challenges that we heard about. I know that the convener understands that—indeed, she has already mentioned it.

Finally—I will not overdo this point—I want to mention the issue that Rona Mackay highlighted about the retraumatisation of children. Given that that could be an outcome, I just do not think that voting for the amendment is acceptable. As a result, I, too, encourage colleagues to reject the amendment, but in doing so, I make it clear that that should not be mistaken as our not being supportive of the barnahus concept, which is something that we all want to be introduced.

Ash Denham

I am grateful to Margaret Mitchell for her continued commitment to achieving progress in ensuring that children’s evidence is taken in an appropriate setting, where the right support is available.

As the cabinet secretary has said to the Parliament throughout the passage of the bill, a Scottish version of the barnahus concept is the Scottish Government’s intended destination and the bill is an important initial step towards that destination. We are committed to making progress towards a truly trauma-informed, recovery-focused response to child victims.

However, although I understand the positive sentiments behind amendment 7, I do not believe that the overarching reporting requirement as set out by the amendment is the right way to deliver that progress. In order to meet the requirement as drafted in the amendment, resource would be focused on indefinite, repeated, short-term reporting to Parliament on where and how often children’s evidence is being taken. We believe that that resource would be better directed towards delivering such improvements holistically, in the context of the expertise of those interviewing children and the quality of the wraparound care and support that are provided to them and their families.

The amendment as drafted would also introduce a statutory requirement for ministers to consult child witnesses in the preparation of reports. Clearly, the voices of children and young people are crucial in shaping how barnahus should operate in Scotland. However, I am concerned that introducing a statutory obligation to consult highly vulnerable child witnesses in the preparation of frequent, repeated reports could have some troubling consequences. We heard clear evidence during the passage of the bill about the retraumatising impact that repeated retelling of their experiences can have on vulnerable child witnesses. It is important that, wherever possible, we try to remove—not add to—that burden.

In addition, it is highly likely that data protection issues would pose a barrier to accessing details of child witnesses whose evidence has been pre-recorded. Even if it was possible, the amendment would require ministers to consult those vulnerable children who are currently going through the process of giving evidence in our criminal courts about what they think about progress towards a different system. At such a difficult time in their lives, that does not seem at all appropriate. I am sure that that was not the intention behind Margaret Mitchell’s amendment, but we believe that that would be its effect.

I understand and commend the intention to ensure that children’s voices are heard, but particular care is required in how we achieve that. I believe that the answer is to develop our approach on barnahus in partnership with organisations that support children and their families every day, such as Children 1st. I want to let them tell us how best to engage with and include children’s views. For that reason, we are providing funding to Children 1st to support work on participation and children’s rights, which will help to shape our approach to barnahus.

As the cabinet secretary set out in his letter to Margaret Mitchell last week, work is now under way by Healthcare Improvement Scotland and the Care Inspectorate to develop Scotland-specific standards that will set out the road map to barnahus. That work is now at the scoping stage. A stakeholder event will take place this summer and we will share draft standards for wide consultation at the end of this year.

At stage 2, the cabinet secretary committed to keeping Parliament up to date on progress with this work, as requested by Daniel Johnson just a moment ago. I repeat that commitment today—we will come back to Parliament on progress before the end of this parliamentary session. That will be in addition to the regular updates that we will provide on the progress of the victims task force, which will give Parliament a full picture of all the work that is under way to improve victims’ journeys through the justice system.

We have listened to the Justice Committee’s strong views on the benefits of the barnahus concept and I am grateful for our consensus on the need to transform how we respond to child victims and witnesses. I do not believe that amendment 7 would achieve that transformation. Instead, it would mean that, rather than progress being made towards that important objective, resources would be focused on a constant cycle of consultation to prepare a report every six months, with the unintended consequence that that would take up the majority of time and greatly reduce the real progress that could be made.

What is needed now is careful work across the justice, child protection and health systems and the wider legal community, and we are beginning that work as we move towards a Scottish version of barnahus, which will start with the improvements under the bill.

I hope that what I have said makes my commitment clear. On that basis, I ask Margaret Mitchell to withdraw her amendment 7.

15:45  



Margaret Mitchell

I thank all the members who have spoken for their comments. I was somewhat puzzled by Rona Mackay’s remarks, which Fulton MacGregor supported, about stakeholders not having been consulted on the barnahus model and on having one forensic interview. The committee took so much evidence on that, and I cannot think of any witness who was not in favour of having one forensic interview and of moving to a Scottish barnahus as soon as we can.

The minister referred to the timetable that the cabinet secretary set out but, unfortunately, that runs only until summer next year and falls well short of ensuring that the end of the year means the very end of 2001. Crucially, the timetable does not keep the matter on the agenda to ensure that it will be there for any incoming Government after the 2001 parliamentary elections.

Fulton MacGregor

As everybody has said, everybody supports the barnahus concept, which stakeholders support, too. However, is Margaret Mitchell saying that all the stakeholders who gave evidence to the committee agree with her amendment 7?

The Deputy Presiding Officer

I want to check whether I heard something correctly. Did Margaret Mitchell refer to 2001 or 2021?

Margaret Mitchell

I should have said 2021; if I said 2001, we would be going back in time.

My amendment would support introducing one forensic interview as the best way to ensure that children and other vulnerable witnesses are not traumatised time and again through having to give evidence, and it would move us towards the barnahus model. All the stakeholders who gave evidence were in favour of that so, by extension, I contend—

Rona Mackay

Will the member take an intervention?

Margaret Mitchell

If the member will excuse me, I would like to make progress.

It is really important for the committee to follow through on its commitment to ensure that such an approach is introduced as soon as possible.

Daniel Johnson expressed concern about the consultation process. Reporting twice a year would not be unduly onerous, given that consultation can take many forms. Those involved would be the Crown Office and Procurator Fiscal Service, where people are engaged in the process daily; Police Scotland; the Scottish Courts and Tribunals Service; and vulnerable witnesses. Members have said that such an approach would retraumatise vulnerable witnesses, but I think that the people who were to consult them would have the wit to ensure that they talked not about their traumatic experience but about how they found the evidence-taking process.

Such issues are not insurmountable, but a far bigger risk is that the proposals would be resource intensive, as with much legislation that the Parliament passes. Legislation has been passed for which resourcing has not been provided, and the danger is that we will make a provision and do an excellent report but the issue will gradually slip off the agenda and be forgotten. For that reason and to do the best for vulnerable witnesses—including children and others who might be phased into the process—I will press my amendment.

The Deputy Presiding Officer

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

The Deputy Presiding Officer

There will be a division. As this is the first division of the afternoon, I suspend proceedings for five minutes.

15:49 Meeting suspended.  



15:54 On resuming—  



The Deputy Presiding Officer

We move to the division on amendment 7.

For

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Scott, John (Ayr) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mason, Tom (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Greene, Jamie (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Carlaw, Jackson (Eastwood) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

Against

Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Swinney, John (Perthshire North) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smith, Elaine (Central Scotland) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McNeill, Pauline (Glasgow) (Lab)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Leonard, Richard (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Findlay, Neil (Lothian) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Bibby, Neil (West Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Deputy Presiding Officer

The result of the vote is: For 29, Against 82, Abstentions 0.

Amendment 7 disagreed to.

The Deputy Presiding Officer

That ends consideration of amendments. I ask members who are leaving the chamber to do so quietly, please.

As members will be aware, at this point in the proceedings the Presiding Officer is required under standing orders to decide whether, in his view, any provision of the bill relates to a protected subject matter, that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. [Interruption.] Members have a funny idea of leaving quietly.

In this case, the Presiding Officer’s view is that no provision of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be passed at stage 3.

Final debate on the Bill

Once they've debated the amendments, the MSPs discuss the final version of the Bill.

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Final debate transcript

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a debate on motion S5M-17210, in the name of Ash Denham, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

15:56  



The Minister for Community Safety (Ash Denham)

I am here because the Cabinet Secretary for Justice’s paternity leave has started unexpectedly early. I know that members of the Parliament will want to join me in congratulating him and his wife on the birth of their daughter. [Applause.]

The cabinet secretary has asked me to thank, on his behalf, the members and clerks of the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee and, in particular, the convener and members of the Justice Committee, for their thoughtful and diligent consideration of the bill.

As always, we are grateful to all organisations and individuals who gave evidence during the Government’s consultation and, latterly, to the Justice Committee. Their evidence was vital and has helped to shape not just the bill but related non-legislative work. I also thank our justice sector partners, who worked closely with our officials to inform the policy development and practical implementation of the bill.

The reforms in the bill will make important improvements to how children, initially in the most serious cases, are able to give evidence about what are often distressing and traumatic experiences. Many more children will be able to record their evidence at an early stage and will not have to wait for the trial. It is right that we support such witnesses to give their best evidence in appropriate surroundings, while ensuring that the interests of accused persons are protected. The reforms do just that.

I am grateful for the constructive scrutiny and support that the proposed changes received from members as the bill progressed. The process is an excellent example of all parties working together on a consensual basis to make proposals as effective as possible.

It is important to acknowledge again the impressive work that was carried out by Lady Dorrian and the Scottish Courts and Tribunals Service in their evidence and procedure review. The work began in 2015—there has been quite a journey to get to this point—and it started a vital debate on whether more could be done to utilise existing special measures and technology to improve how we take evidence. One of the review’s immediate outputs, a new High Court practice note on evidence by commissioner, has already been shown to be having a positive impact.

The Justice Committee’s stage 1 report was detailed and brought a number of important issues to the fore. First, although we are all keen to see the greater use of pre-recording rolled out as quickly as possible, it was helpful to reach an agreed understanding that—given the scale of the reforms—a phased implementation approach is sensible. The committee emphasised the need for careful monitoring and evaluation of each phase, and the need to be kept informed on the outcomes of those evaluations and on more detailed implementation plans as they are developed. I know that the cabinet secretary is in full agreement with the importance of that, and that he will keep the committee updated throughout the implementation of the reforms.

The Deputy Presiding Officer

I think that you are a very clear speaker, minister. However, according to broadcasting, you need to move your microphone a little closer to you.

Ash Denham

I will.

As part of the phased implementation, the new pre-recording rule will first apply to child witnesses in the most serious cases, with the clear intention to extend it to adult deemed vulnerable witnesses in the future. At the bill’s introduction, the offences to which the new rule would apply were significant, but the committee’s in-depth scrutiny and the stage 1 debate made persuasive arguments that the offence of domestic abuse should be added to the list. That major addition to the bill was made at stage 2, and it has been an important one. The cabinet secretary thanks everyone for making such a compelling case and for further enhancing the reforms.

As with most criminal justice reforms, we must get the right balance for victims, witnesses and accused persons. Some in the legal sector raised concerns that the reforms might prevent the cross-examination of child witnesses. Although that was never the intended effect of the bill, it was an important issue, as we do not want any concerns to undermine the legal sector’s support for the changes. The cabinet secretary was therefore happy to propose an amendment to clarify the point at stage 2, and he was grateful that it was supported in committee.

The passage of the bill to date has also focused attention on the development of the barnahus concept in Scotland. The cabinet secretary recently wrote to the Justice Committee with an update on our work in that area, which I trust was helpful. Clearly, there is much more to do. However, we now have a great basis on which to work together to progress that vital area of work.

This bill marks a major milestone, of which we can all be proud.

I move,

That the Parliament agrees that the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill be passed.

16:02  



Liam Kerr (North East Scotland) (Con)

I am pleased to open for the Scottish Conservatives and, more so, to speak in favour of passing the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

In short, the fundamental principles of the bill are ones that, it is fair to say, all parties and members were able to unite behind. It was clear from the evidence that we heard throughout its passage that the current system for taking evidence from children is less than ideal. Indeed, I recall that our stage 1 committee report quoted Children 1st as suggesting that the current system is “Victorian”.

It certainly became clear from the evidence that too many victims and witnesses of crime currently find themselves being retraumatised by the court process, and that they can often suffer greater trauma and harm. It also became clear that the bill should reduce the distress and trauma that are caused to child witnesses through giving evidence, as well as improve the quality of justice. The bill does that, because it is at its core about improving the experience and evidential strength of children and vulnerable witnesses in the criminal justice system.

The bill will ensure that children have to give evidence in court only in exceptional cases, and it will enable the greater use of pre-recorded evidence. Its key provision is that, when a child witness is to give evidence in serious criminal proceedings—for one of a set list of offences—the court must enable all of the child witness’s evidence to be given in advance of the hearing. The Scottish Courts and Tribunals Service described it as

“a critical step in improving both the experience of witnesses and the quality of justice”.

It clarified that in a submission to the committee, in which it stated:

“justice would be best served if young and vulnerable witnesses could give evidence in a way that maximised the chances of it being comprehensive, reliable and accurate, and minimised any potential further harm or traumatisation from the evidence-giving process itself.”

Let us also note that the Scottish Courts and Tribunals Service’s evidence and procedure review, which the minister talked about earlier, suggested 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.”

Parliament will recall that, although the principles of this bill were sound, there were a number of areas that required review at stage 2. Parliament will be pleased to note that, as requested by the committee and many stakeholders, the cabinet secretary amended section 1 to include child witnesses in domestic abuse cases. I align myself with the minister’s comments on that.

The cabinet secretary also amended the bill to put it beyond doubt that prior statements could be cross-examined. This amendment enables any party to the proceedings to have the court authorise the holding of a commission, which is a power that might be used when new evidence comes to light after the prior statement has been taken.

As members will recall, by working collaboratively with the Government and colleagues across the chamber, I have secured an amendment that compels the Government formally to review the operation and extent of success of the act. I also sought to amend the bill at stage 2 to ensure that victims were given the necessary support after the commission had taken place. I maintain that that is the right thing to do, but Parliament may be interested to know that Lady Dorrian expressed her concern in a letter to the committee that it should not be the role of the judiciary. That is a fair comment and, following assurances from the cabinet secretary that the issue would be addressed by the victims task force, I decided not to press the amendment.

This is absolutely a step in the right direction, but it is only a step. There are further actions worth exploring that may be brought out in the debate today. First, I reiterate my colleague Annie Wells’s call earlier this year to trial a one-sheriff system for domestic abuse victims. As it stands, the entirety of a domestic abuse case and related proceedings could be heard by various judges, especially if civil courts become involved in the event of a subsequent divorce or to make child residence arrangements. The system has been successfully implemented in parts of the US and Australia. Steps should be taken to minimise what victims have to relive, by requiring them to tell their story only once to a single judge.

Many speakers today will no doubt address the barnahus model. For those who are unaware, in its simplest terms—as Margaret Mitchell rightly pointed out, there is no single model—the barnahus is a child-friendly house that deals with criminal investigation; child protection; physical health, including forensic examination; mental health and wellbeing; and recovery and support needs, including family support. The beauty is that this is a multidisciplinary approach, which means that all services are provided under one roof, with relevant professionals coming to the child.

Perhaps the most important thing is that a key role of the barnahus is to produce valid evidence for judicial proceedings in a way that means that the child does not have to appear in court, should the case be prosecuted. As I have made clear previously, I align myself with the committee’s conclusion that there is a compelling case for the implementation of the barnahus principles in Scotland, as the most appropriate model for taking the evidence of child witnesses. I note the cabinet secretary’s assurance that that is the Scottish Government’s preferred direction of travel.

Parliament is called today to indicate its support for the bill. It is clear that the bill is a start, but it is the right start. It is clear that pre-recording evidence of children and adult vulnerable witnesses reduces the stress that they go through and can help ensure that the most accurate evidence is obtained. For those and many other reasons that I look forward to hearing from colleagues throughout the chamber this afternoon, I am pleased to confirm that the Scottish Conservatives will support the passing of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at decision time.

16:08  



Daniel Johnson (Edinburgh Southern) (Lab)

I, too, am pleased to support the bill. It is a good bill—it is a good start.

As we mark the 20 years of the Parliament, it is important to think about what has been done under the devolved settlement. We must remember that, until devolution, judges were appointed by ministers. In 2002, the Judicial Appointments Board for Scotland was established by the Labour-Lib Dem Administration; it was then put on a statutory footing by the SNP Government. That was a positive step forward. It is important to emphasise that progress and to recognise the importance of the judiciary. It is also important for us as legislators to work co-operatively with sentencers to make sure that we make progress in our criminal justice system.

It is important to recognise where the changes have come from—the courts and the judiciary—and that, in some instances, progress will require to be led by judges, so it is important to respect their independence. My remarks about the bill are therefore made with that in mind.

The bill is progress, because it will lead to better evidence being taken and less trauma being inflicted on those who give that evidence. Ultimately, justice must seek to defend and protect the vulnerable, and I think that the bill will do that.

How we have arrived at where we are has been well set out by the minister and by Liam Kerr. I will look at how we must move forward from this point.

The bill contains a number of sound provisions, but they must be a starting point. We need to focus on practice and on the ground rules hearings in particular. When we went up to Parliament house to see pre-recorded evidence in practice, many members of the committee were struck by the different environment that we saw—one that was conducive to the provision of better evidence. However, at the end of the day, it still ended up being a very alien environment with a child being cross-examined by two middle-aged men.

Although we must respect ground rules hearings for exactly the reason that I set out at the beginning of my speech—the need to respect judicial independence—we must look at how we can encourage better practice and ensure that evidence is given in those hearings in the way that we all hope that it will be.

Much thought was given to extending the provisions. We must recognise that we in Scotland are not necessarily at the forefront of measures that make provision for vulnerable individuals giving evidence in court. It is welcome that the Government lodged amendments to extend the provisions to domestic abuse cases. Likewise, I note the extension of the provisions to other persons deemed vulnerable, but we must ensure that those provisions are enacted as effectively and as constructively as possible. I believe that my colleague Jackie Baillie will speak further on that point.

Likewise, during stage 2, I spoke a lot about extending the approach to other types of case. The vast bulk of cases that go through our courts will go through the sheriff court, which will be unaffected by the provisions in the bill. I tested and probed that position, and I understand that it would have been inappropriate to extend the provisions to such cases, given the resource requirements and the nature of trials in the sheriff court, many of which would delayed by such a move. However, I ask that we look at the special measures, such as they exist, in the sheriff court to make sure that they are as good as possible and that the best technology and the best techniques possible are used.

Finally, I want to talk about the barnahus concept. We need to be careful of buzzwords and although the barnahus concept is an incredibly important one, with an important set of principles, sometimes some of us who are used to talking about these issues are a little bit too comfortable using the term. In essence, it is not that complicated. It is about having interviews with vulnerable witnesses as early as possible and making sure that those interviews are taken by specialist individuals with extensive training, in a context that is comfortable for and sympathetic to the individual giving the evidence. It is also about ensuring that, wherever possible, that interview is done only once.

Given that the evidence gathered in joint investigative interviews can be taken as evidence in chief, I do not believe that we in Scotland are that far away from being able to deliver barnahus, through better training for JIIs and better investment to make sure that there are no technical problems with that evidence, which I believe sometimes happens. We can achieve that. We must ensure that we make that progress, and I think that we can do so through collective focus and effort.

I thank the minister for her letter, in which she set out much of what she has said about how the Government seeks to make progress, funding for Children 1st, which is based in my constituency, consultation and developing standards.

I thank Lady Dorrian, among other people, for showing such leadership and I look forward to voting for the bill at decision time.

16:14  



John Finnie (Highlands and Islands) (Green)

I am delighted to say that the Scottish Green Party will support the bill at decision time.

I thank all the witnesses whom the committee heard from, the clerks and everyone who has contributed, including by providing briefings. We have carried out very detailed scrutiny. As I have said in the chamber previously, the Parliament is at its very best when committees provide detailed scrutiny of legislation.

One of the briefings that I received was from Children 1st—an organisation that needs no introduction. It included a case study of its work with a woman and her 15-year-old son in the Highlands. Her son was one of the witnesses when she was the victim of domestic abuse. She said:

“My son is still haunted by the fact that he had to sit in the court waiting room. He said it was the worst day in his life. Even though there was a court case, my ex was still trying to harm us all the time. Our lives were very much in danger.

My son was terrified that we’d run into my ex at court. His anxiety was going through the roof. He couldn’t cope going to college: he was too scared. He didn’t leave my side. He had really bad anxiety and didn’t sleep through the night. I didn’t think he’ll ever recover but things are getting better.

Children 1st should be brought in right away, and stay until the end of court. Children should always know there’s that lifeline.”

That indicates the trauma faced by victims of domestic abuse and the children who are involved. Some of us are only too familiar with such situations, given the evidence that we have taken. Everything requires to be child centred.

The bill is a fine piece of legislation, but of course it is not the finished article, and our direction of travel means that there will be more work to come. The Scottish Government’s positive response to the committee’s stage 1 report, not least in relation to domestic abuse, is welcome.

What is the purpose of our justice system? Self-evidently, the system needs to deliver justice for everyone, including the accused. Sometimes, we forget that.

Comments have been about the ability to cross-examine, which is very important. However, even in an adversarial system, we know that the best evidence—of which oral testimony is a vital part—is delivered when witnesses feel comfortable. The reality is that being in court is stressful for everyone, and that witnesses, particularly children and vulnerable people, will respond best when the groundwork has been done.

Lady Dorrian has been mentioned, and we should not underestimate the importance of her intervention in 2015, which led to the introduction of the practice note. Along with colleagues, I visited the High Court to see an example of how evidence by commissioner might be taken. Such steps are very positive, but people have rightly identified that special measures are already in place. I have had contact with constituents who have had cause to deal with such measures, and the experience has been mixed. We heard evidence that things do not always work out, particularly in relation to domestic abuse cases.

In a briefing that we received, the Law Society of Scotland talked about the administration of cases—which is a very simple thing—and said that early information is required for additional measures. We can get the top-level stuff right, but getting the simple stuff right can be just as important.

Adverse childhood experiences should be addressed through the courts; they should not be compounded by attendance at court. The question is the extent to which the bill will ameliorate the trauma, which will be ever present.

How long do I have left, Presiding Officer?

The Deputy Presiding Officer

I can be generous. Do you want me to be generous, Mr Finnie?

John Finnie

I always like it when you are generous, Presiding Officer.

As my colleague Daniel Johnson said, the key to the barnahus model is, in part, already in play in Scotland. Joint investigative interviews are undertaken by the police service and criminal justice social workers. We heard about the challenges of the system, in relation to compatibility. However, I thank our friends in Norway for our very informative visit to one of the houses that is used, which allowed us to see the forensic nature of such interviews and the level of training that is provided to those who carry them out. As with most things, it is very important that the system is adequately resourced.

Like many others, I took great pleasure in receiving the cabinet secretary’s letter in April, which explained the next stages of the delivery of the barnahus model. There is a welcome recognition of the need to take a collaborative approach that involves the Scottish Courts and Tribunals Service to get us to where we all want to go.

As I said, I am delighted that domestic abuse cases are now covered. We know that the pernicious effects of controlling and coercive behaviour can be offset if we get good evidence. We want the very best in our criminal justice system. The bill is progress, but there is work still to do.

The Deputy Presiding Officer

You are looking at me anxiously, Mr McArthur, but I can be generous with you, too. Isn’t that nice?

16:19  



Liam McArthur (Orkney Islands) (LD)

You may come to regret that, Deputy Presiding Officer.

I congratulate Humza Yousaf and his wife, Nadia, on the birth of their daughter. Can I say how much I am looking forward to the 20-page commemorative pull-out in The National, which must surely follow that event?

I start by thanking my committee colleagues, the Scottish Parliament information centre, the clerks and all those who gave evidence to us throughout consideration of the bill. I also want to record my thanks to the cabinet secretary and his officials for the constructive way in which they engaged with the committee throughout the process. Needless to say, the Scottish Liberal Democrats warmly welcome and strongly support the provisions of the bill, which will give children and young people, as well as vulnerable witnesses, greater protection in our criminal justice system. That is not simply in the interests of victims and witnesses; it is also in the interests of achieving greater fairness and efficiency in the system as a whole, as others have said.

Special measures already exist to enable children and vulnerable witnesses to give their best evidence. However, there is a compelling case for extending and strengthening those measures; indeed, the longer-term objective should be to take children out of our courts entirely. That position is supported by Children 1st and many others. I will develop that point a little further in a minute.

First, I want to acknowledge one of the key changes that the committee—acting in unison, as others have said—managed to secure. The process of rolling out the reforms—enabling more extensive use of pre-recorded interviews, ground rules hearings and joint investigative interviews—will not be without its challenges. It will certainly put enormous pressure on almost every part of our justice system, from the third sector through to our courts.

Therefore, the phased approach that is proposed in the bill, whereby categories of case will come within the scope of the bill over time, is sensible. It makes sense to reflect on experience and to ensure that, where appropriate, lessons are learned before we embark on the next phase. However, delaying of exclusion of child witnesses from giving evidence in domestic abuse cases was never an acceptable proposition, so I am delighted that the cabinet secretary agreed to the committee’s call for those witnesses to be included in the first phase of the roll-out.

Although the changes are welcome, they fall short of where we ultimately need to get to. Again, I am grateful to those who hosted our visit to Oslo last year to see at first hand how the barnahus principles are applied in Norway. I firmly believe that that genuinely child-centred and integrated approach to criminal justice is what we must aspire to here in Scotland.

I accept that the “one forensic interview” approach of barnahus might require a shift in legal culture and practice in Scotland, given our adversarial system, but that is not an insurmountable obstacle. As the NSPCC in Scotland points out, integrating justice, healthcare and on-going therapeutic social care services all under one roof, in purpose-built child-friendly accommodation, is the best, if not the only, means of effectively reducing trauma for child victims and witnesses, while maximising the chances of capturing their accounts of what has happened.

Lady Dorrian’s contribution to the wider debate has been recognised by everyone. I whole-heartedly agree with her that ways must be found to take evidence from children and other witnesses

“in an environment and in a manner that does not harm them further, but allows their evidence to be given and tested fully and appropriately.”

Needless to say, I am particularly interested in how the model might be tailored to work in more rural and island areas. The fact that the model has been such a success in Norway—a country that has many remote, rural and island areas of its own—should give us confidence in our endeavour.

I welcome the commitments to the adoption of a Scottish barnahus model, and to a review of progress being made towards that goal, that were made by the cabinet secretary at stage 2, and which have been repeated by the minister this afternoon. The committee will take a great interest in that, and will keep ministers’ and other stakeholders’ feet to the fire.

I will conclude, as I did at stage 1, with a quotation from Children 1st, which said:

“a joined up approach to the care and justice needs of child victims and witnesses through a Barnahus or ‘Child’s House’ is the best way to get it right for children from the moment they tell their story, ensuring that the child and their family get the support they need to recover. This will ensure that we have a justice system that is able to do both what is best for children and best for securing evidence.”

The Scottish Liberal Democrats strongly endorse that sentiment and will continue to work with ministers and colleagues from across Parliament to make it a reality—sooner, rather than later. For now, we look forward to voting for the bill at decision time.

The Deputy Presiding Officer

We move to the open debate. The generosity continues; all four members in the debate can have five minutes each, if they wish. That has made your afternoon, Ms Baillie. I call Jenny Gilruth, to be followed by Maurice Corry.

16:25  



Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I am grateful for the opportunity to speak in today’s stage 3 debate, particularly given the legislation that we agreed to only 48 hours ago. On Tuesday, we voted to raise the age of criminal responsibility from eight to 12, and this evening we will vote to protect child witnesses in the most serious criminal proceedings. Those two pieces of legislation put children’s needs at the heart of our criminal justice system. I contrast that with Children 1st’s evidence to the Justice Committee, which was cited earlier by Liam Kerr, that Scotland’s justice system is inherently “Victorian” and often causes children “greater trauma and harm”.

The bill therefore marks a hugely significant shift, which is epitomised in section 1(3) of the bill, which states:

“The court must enable all of the child witness’s evidence to be given in advance of the hearing unless the court is satisfied that an exception is justified under subsection (7) or (8).”

That use of language is crucial, because it denotes a shift in power from Scotland’s court system towards putting witnesses’ needs first. As we have heard this afternoon, pre-recording evidence from vulnerable witnesses, especially children, will reduce trauma and distress.

I am proud that the Scottish Government has also included domestic abuse specifically in the bill. As the committee heard in evidence sessions, that is particularly important given the widening scope of what we now understand constitutes domestic abuse.

Pre-recording evidence is, of course, important in avoiding retraumatising of vulnerable witnesses. As the Lord Justice Clerk told the committee:

“When children ... are asked to give evidence at a time that is remote from the event, not only has their memory diminished, but they are more likely to be confused by general questioning about the incident, and in cross-examination might come across—often wrongly—as being shifty or unreliable.”—[Official Report, Justice Committee, 18 December 2018; c 3.]

That is an important point. Pre-recording evidence should expedite the process and avoid the need for evidence to be taken repeatedly from a witness. The example that has stuck with me was given to the committee by Daljeet Dagon of Barnardo’s Scotland, who told us of the witness who had to give 27 statements to the police. By the time the trial went to court, she was deemed to be an unreliable witness. So, another reason why the bill is so important is that it will result in better-quality evidence.

The Scottish Government is taking a phased approach to implementation of pre-recording of evidence; that approach is supported by the legal profession. At first, the rule will apply only to certain child witnesses giving evidence in the most serious cases in the High Court. That will allow witnesses who are most vulnerable to be supported swiftly. That approach is not simply about installing video recording equipment; it is about challenging an enshrined culture in the legal system, which historically has not always put witnesses’ needs—in particular, the needs of children—at its heart. Indeed, as the Crown Office and Procurator Fiscal Service told us,

“Phasing will allow the system to absorb change while minimising risk both to the system and to individual cases.”

In my contribution to the stage 2 debate, I raised the link with the Scottish Government’s getting it right for every child, or GIRFEC, policy, which is the foundation stone of our education system. I compared the barnahus model—a one-stop shop where services come to the child—to our GIRFEC approach, which is also child-focused. Many schools in Scotland now also focus on being trauma informed. In Glenrothes, our police officers have embraced the trauma teddies scheme, which provides children with reassurance during or after distressing events.

In the cabinet secretary’s letter to the committee last month, he pointed to the Government’s commissioning of Healthcare Improvement Scotland, in partnership with the Care Inspectorate, to develop Scotland-specific standards for barnahus. I was glad to hear the minister mention commitment to that in her speech. It is welcome to have a commitment to concrete action, but I again encourage the Government to look at the links with our child-focused education system and to ensure that education partners are linked into development of the standards. It cannot be about just the justice system, if we are to get it right for every child.

Let us use the expertise that we have in Scotland to build a system that truly supports and protects child witnesses. I very much hope that that is exactly what our Scottish standards for barnahus will do in the future.

16:29  



Maurice Corry (West Scotland) (Con)

I, too, thank everybody who has been involved in bringing the bill to this stage, particularly the clerking team. I welcome this debate on the bill at stage 3. What the bill puts forward—the pre-recording of evidence for some child witnesses outwith the courtroom—is an important step to take. For the sake of those witnesses, many of whom are victims of atrocious crimes, it is vital that the proposed changes are as effective and sensitive as possible.

The bill is a positive move forward and I join my colleagues in supporting it. I found the committee report to be sound in its helpful analysis of the bill, and it is right that some of its recommendations have been listened to and will be adopted. It is that scrutiny that strengthens the possibility of real change to Scotland’s justice system.

As was generally agreed at stage 1, the bill deserves a gradual and careful implementation. It would do no good to overload the court process without consideration of the detailed planning and resources that are needed to secure meaningful and effective change that balances a fair outcome for the perpetrator with the respect and support that are owed to the witness. We have to be mindful of the different proceedings and the vulnerable witnesses at the heart of those cases.

More widely, the bill has encouraged us to take a step back to consider the best way to take evidence from child witnesses. None of us can condone the risk of vulnerable witnesses feeling targeted or traumatised by the court process. As I have said in the chamber before, the quality of their participation is vital to the outcome of the verdict. Therefore, ensuring that evidence is pre-recorded in those cases will provide children of different ages and abilities with a process that offers them the best chance to give accurate and informative evidence. As the children’s charity Barnardo’s Scotland highlighted, the better the support the witness receives, the better the evidence they give.

The bill should surely encourage us to look at transformations that could go further. With that goal in mind, I support the committee’s recommendation to explore the case for establishing a barnahus approach, which would take into account the importance of providing the right services to support young witnesses in a child-friendly setting. There is a persuasive argument that that pathway might be better equipped than a court process to handle children through what can be an intimidating and traumatic experience for them. Although I appreciate that the concept would take time to establish, I welcome the Government’s commitment to share progress on what a Scottish approach to barnahus-inspired principles would look like.

I am pleased that child witnesses in domestic abuse cases will now be included in the bill, as a result of the stage 2 amendment that was lodged by the justice minister. That addition to the bill was much needed, especially given the introduction of the Domestic Abuse (Scotland) Act 2018, as the ASSIST—advocacy, support, safety, information and services together—project highlighted in its insightful evidence. Under that new law, we expect to see a rise in the number of children who are called to give evidence under solemn procedure, the thought of which must weigh heavy on the mental health of those witnesses. With that in mind, the expansion of the provision in the bill to include domestic abuse cases is right and vital.

Further to that, it is worth exploring a one-sheriff system for victims of domestic abuse. If we are looking to stop the retraumatisation of witnesses, they would surely benefit from relaying their account to a single judge. We have seen how that can work in Australia and the United States, for example. The fact that that approach might promote greater efficiency is also worthy of note. Perhaps, following the passing of the bill, a trial of such a system should be the next step, as it could be how we make Scotland’s justice system work even better for victims.

Scotland needs its courts to be of the highest standard possible. For that to happen, we need to restore confidence in the justice process. We cannot lose the scope for wider reform that the bill encourages. We all want the bill to target the gaps and creaks in our court system and, with careful implementation and a clear view of the future steps that we must take, I believe that it can.

The Deputy Presiding Officer (Linda Fabiani)

Jackie Baillie, to be followed by Fulton MacGregor.

16:33  



Jackie Baillie (Dumbarton) (Lab)

Thank you, Presiding Officer. You and the previous occupant of the chair are nothing if not generous with time.

I welcome the bill and its intention to ensure that there is support for children and the most vulnerable in our society at what can be an extremely difficult and often distressing time for them. It is all about giving the best possible evidence. I understand the immediate focus on children and I welcome the amendments that were made at stage 2 to include domestic abuse victims.

I will speak specifically about section 3, as that is the part of the bill that deals with other categories of vulnerable witnesses. The criteria and timing are entirely in the gift of the Scottish ministers. I have not heard any indication of a timetable to enact that aspect of the legislation, but I believe that it must not be left to gather dust on a shelf. I am particularly keen to hear from the minister in her summing up when she will extend measures to other vulnerable witnesses. I am afraid that I am less patient than many of my colleagues in the chamber.

I want to focus on people with learning disabilities as vulnerable witnesses. As convener of the cross-party group on learning disability, I am particularly keen to ensure that their voice is heard in every aspect of society, and that includes our criminal justice system. The debate has largely focused on children and I want to ensure that the views of people with learning disabilities are not overlooked or somehow othered in discussions surrounding the bill.

According to the Scottish Government’s survey, learning disabled people in Scotland were more likely to be victims of a crime in 2016-17 than non-disabled people. It is a fact that the heightened level of vulnerability that comes with having a learning disability makes some of them prime targets for criminal acts ranging from small-scale theft to sexual abuse and rape. It is vital, therefore, that their experiences of the criminal justice system are heard. I urge the Scottish Government and the minister to do that when considering the implementation of the bill.

The reform that is central to the bill, which essentially mandates for child witness statements for serious cases to be given in advance, is absolutely right, but it must be extended to people with learning difficulties as soon as possible. Presiding Officer, day-to-day tasks that may seem easy and even mundane to you and me can be hugely stressful and testing for many people with a learning disability. We know that some learning disabilities create real barriers to people feeling comfortable when talking to others or going to new and unknown places. Imagine for a moment the trauma that can occur from asking an individual with a learning disability not only to be the centre of attention in a courtroom but to relive over and over a horrific crime that they were a witness to, while being asked questions—often very personal questions—by a stranger.

The Equality and Human Rights Commission stated:

“People with learning disabilities can find the court environment very challenging, and often don't understand what is being said or what is happening.”

Prior statement giving completely removes that situation and will allow everyone to feel as comfortable as possible, given the circumstances. The Government’s policy statement says that extending provisions to other vulnerable witnesses represents “a major change”, and I agree. It also says that that will take time, but it would be useful for us to know how much time—what the target is for implementation—and to have an assurance that it will not be left on the shelf.

Finally, I want to mention the appropriate adult scheme. It is not directly connected with the bill, but the Scottish Government consulted on that last year and it is referred to in the policy memorandum. Indeed, the Government made a commitment to launch the scheme this year, so I ask when it will be launched. In that, and in the implementation of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, it is essential that progress is made to ensure that the most vulnerable people in Scotland have the protection that they need and deserve, and that that is not put off for another day.

16:38  



Fulton MacGregor (Coatbridge and Chryston) (SNP)

It is a great pleasure to speak in the debate—as it was at stage 1—as we stand, at stage 3, on the verge of making the bill law. I hear what others have said about its being just a start, and I agree with that, especially on the back of the main theme of Jackie Baillie’s speech. However, it is a very significant start, because this is real and proper legislation that will have a positive effect on people’s lives and will go some way to rectifying the discrepancies in our current system. Such people include the constituent whom I mentioned in my stage 1 speech, whose situation I highlighted again to the cabinet secretary at portfolio question time a couple of weeks ago. That is the sort of real-life situation that will be helped, in the future, by the passing of the bill. I know that the people involved continue to monitor the proceedings.

As members know, I was a member of the Justice Committee, and the argument for progressing the bill was very much won at stage 1, as has been reflected today in the chamber. The majority of the evidence that the committee heard from stakeholders, including Barnardo’s and Children 1st, was supportive of the need to reform the system and to introduce a rule that would ensure that, in the most serious cases, evidence from a child is taken at the pre-trial stage. It is also worth mentioning that, if, as seems likely, the bill is passed at decision time, that will present opportunities for children from black and minority ethnic backgrounds, who we know can face additional challenges when it comes to criminal and court proceedings.

As colleagues will know, I was particularly pleased that the bill process gave a good airing to the subject of joint investigative interviews, which Daniel Johnson focused on. Several years ago, when I was a social worker, I would share my frustrations with colleagues after carrying out such interviews. Never in a hundred years did I think that I would have the opportunity to talk about those experiences in our national Parliament, where changes can be made. That is why I have welcomed the steps that are being taken to allow joint investigative interviews to be used as evidence in chief. Those steps include expanding the training and increasing the number of interviews that are carried out by individual practitioners, which are two areas in which we heard that there were difficulties. That could lead to our going down the road of specialised expertise, which I think practitioners, the police and social workers would support.

I would also like to comment on the issue that has perhaps been the most prominent during the bill’s passage—the issue of Scotland moving to a barnahus model, which was raised again during today’s stage 3 consideration of amendments. I have said previously that my experience suggests that we could certainly move to such a model at least on a practice level, if not on a legal level, relatively straightforwardly, and I nodded eagerly when Daniel Johnson made that point. I think that we could interview children, offer support to families and provide health investigations in a one-stop child-friendly environment, because the current situation, whereby the involvement of health professionals and social work takes place at different points, which everyone accepts is not in the best interests of children, is a bit patchy.

That brings me to Margaret Mitchell’s amendment 7. Although I spoke against it and voted against it, I want her to know that I think that it is honourable that she has been a champion of the barnahus model. However, amendment 7 was a wee bit out of place and I could not support it. Despite what I said about the move to a barnahus model being relatively straightforward on a practice level, amendment 7 would have given rise to various complex legal technicalities, which the cabinet secretary and the Government would have had to look at. Most important, it risked retraumatising children, which is why I could not vote for it. Nevertheless, I credit Margaret Mitchell for her passion in this area. I think that she was very much taken by what the committee saw in Oslo, as we all were.

I welcome the cabinet secretary’s letter to the committee, which outlines that a scoping report will be produced as early as June this year and that final standards are expected by 2020. To my mind, that represents rapid progress, which must be welcomed. As the cabinet secretary said, that will allow for a collaborative approach between Healthcare Improvement Scotland, the Care Inspectorate and other partners on how we can deal with the difficulties in this area, such as those to do with pre-recording.

I commend the bill to Parliament.

The Deputy Presiding Officer

We move to the closing speeches.

16:43  



Daniel Johnson

One of the advantages of opening and closing a debate for your party is that you get to say the things in your closing speech that you ran out of time to say or forgot to say in your opening speech. I congratulate Mr Yousaf: of all the reasons not to be present in the chamber, his is a pretty good one. I also acknowledge the contribution of Ash Denham, who has been left holding the legislative baby while Humza has gone off to hold an actual baby. I think that she has done very well, because the bill is technical and has taken everyone into a great deal of detail.

One of the key things that I want to highlight is the important fact that the bill does not stand in isolation. Other members have mentioned the Age of Criminal Responsibility (Scotland) Bill, and we are currently scrutinising the Management of Offenders (Scotland) Bill. The Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill can be a mark of progress, but it will be so only in conjunction with other legislation and other measures.

There are commitments to reducing short sentences and moving towards community sentencing. It is vital that the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill sits alongside those measures, that the proper investment is made in the technology and facilities that are required to deliver it and that, above all else, it enjoys the confidence of sentencers and legislators.

There is undoubtedly a confidence issue around community sentencing. We need to focus holistically, to ensure that the measures in the bill gain and enjoy the confidence that it seeks to provide. Above all else, we must, as Liam McArthur said—he made his point very well—aim to take children out of courts. The courts are no place for children. They serve only to traumatise them, and, in so doing, undermine the very things that, as I set out earlier, the justice system does to protect them.

I agree with the many members of the Justice Committee who highlighted how useful and informative our trip to Oslo was. It helped us to burst the jargon around the barnahus model. It struck me—it clearly struck Fulton MacGregor, too—that we are not terribly far away from that approach, given our joint investigative interviews and special measures.

There is an adversarial system in Norway, but it also has the barnahus model. Critically—this is the point on which we will have to reflect—what enables Norway to protect its adversarial system is the possibility of a secondary interview, although I understand that that measure is not used often, because of the confidence that exists in the barnahus model and, indeed, the professionalism with which the interviews take place. We ought to aim towards a system that can incorporate the important adversarial aspects of our justice system in a way that has the confidence of all those who participate in it. That will require investment and, above all else, training.

I will make one other point about the barnahus model. The police officers who carry out the interviews and run the barnahus approach have to undertake a three-year degree so that they get the specialised training that is required for that model. I fully believe that that is what we must aim for in Scotland.

The other key point that was raised in the debate—by John Finnie and Jackie Baillie, I think—is the fundamental need to improve people’s experience. Vulnerable people do not know that they will be traumatised because of where they are or the nature of the crime that might have been committed against them. If there is one possible flaw in the bill—I reflected on this issue during its passage—it is that the bill defines vulnerable people by the type of crime. I understand why that definition is used, but a child does not know that they will be traumatised if they give evidence under summary or solemn proceedings. That they can be traumatised in that way is clearly not right. We need to apply the barnahus principles, to ensure that those traumatising experiences are avoided and that giving evidence is not, as John Finnie said, the worst experience of a child’s life.

Likewise, vulnerability is not defined by age. Jackie Baillie’s speech was extremely powerful. There is every possibility of adults with vulnerabilities or learning disabilities being traumatised by their experience of court—in some ways, perhaps more than others. We must ensure that the measures in the bill are extended to those vulnerable people as quickly as possible to ensure that they, too, are supported.

Above all else, this is about taking people with us. This is about making progress, but we must take sentencers, legislators and, indeed, wider society with us, so that we can achieve the benefits and the progress that we all hope will result from the passing of the bill this evening.

16:49  



Margaret Mitchell (Central Scotland) (Con)

The Justice Committee’s scrutiny of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill has provided an excellent example of a parliamentary committee united in its support for, and working together to improve, legislation. I thank all committee members for their constructive contributions, and I pay tribute to all the organisations and witnesses who gave invaluable evidence to the committee. As always, the clerks have given the committee superb support, for which I thank them.

I want to thank both the Scottish Courts and Tribunals Service and Lady Dorrian for arranging a visit to the High Court to see how evidence is currently pre-recorded.

The committee also visited a barnahus in Norway and saw at first hand the benefits of providing child witnesses with a dedicated child-friendly facility away from the court, with a range of support services under one roof, and of the “one forensic interview” approach, which delivers the best evidence and reduces, and helps recovery from, trauma. The committee is extremely grateful to all the staff at the barnahus in Oslo for their warm welcome, and for the time that they spent answering our questions and explaining how the barnahus approach secures the best evidence from children in order to help secure a prosecution.

The bill’s main policy objective is to improve the participation of children and vulnerable witnesses in the criminal justice system through greater use of pre-recording of their evidence in advance of a criminal trial. As a result of a provision in the bill, pre-recording all of a child’s evidence will generally be required in the most serious cases. That new rule will have major implications for our adversarial criminal justice system, and it will require a major shift in legal practice and legal culture. In view of that, the Scottish Government’s phased approach to the rule’s implementation makes sense, as does the requirement for detailed analysis of each phase, with the initial phase focusing on child witnesses. That is why amendment 1 in the name of Liam Kerr was so important. I also point out that, as a result of a stage 2 amendment that was supported by the entire committee and all members in this debate, phase 1 will now include child witnesses in solemn domestic abuse cases.

Issues that were raised by the committee in its stage 1 report and at stages 2 and 3 include the importance of, and necessity for, effective training in interview techniques, and the requirement for that to be monitored. As the Mental Welfare Commission said,

“a bad interview done early is no better than a bad interview done in a trial.”—[Official Report, Justice Committee, 27 November 2018; c 33.]

In other words, as Daniel Johnson and John Finnie effectively argued, the significance of training for those who are involved in joint investigative interviews of children and other vulnerable witnesses cannot be overstated.

There is also a need for measures to support and to protect witnesses against harassment or further victimisation throughout the evidence-giving process, including—this is crucial—after they have given evidence. In that respect, the continuing work of the Government’s new victims task force, which is looking at ways of improving the experience of victims and witnesses who give evidence, is extremely welcome. That will be essential not only in protecting witnesses from harm, but in ensuring that witnesses are not deterred from giving evidence.

Finally, the committee emphasised its commitment to moving, as soon as possible, to a Scottish barnahus model. Although I welcome the cabinet secretary’s letter updating the committee on what is planned up to summer 2020, it falls short of providing on the face of the bill a timetable of reviews up to the end of this parliamentary session and into the next. I thank Fulton MacGregor for his kind remarks, but I concur with Jackie Baillie’s comments about the necessity for progress and a timetable for implementation.

In conclusion, I ask the Scottish Government to commit today to providing the substantial resources for the new technology that will be necessary to achieve a Scottish barnahus. In the meantime, the Scottish Conservatives will have much pleasure in voting for the bill this evening.

16:54  



Ash Denham

I begin my closing remarks by thanking again the many stakeholders and individuals who gave evidence to the committee—in particular, on the benefits that pre-recording evidence can bring. I suspect that many of those people are looking on to see the conclusion of the debate today.

I also thank everyone who has contributed to the very constructive and well-informed debate this afternoon. It is clear that we are all committed to the key principles that underpin the bill. I consider that that positive approach has been the hallmark of the bill’s entire process, and is a true reflection of the professionalism and integrity of the Justice Committee, as is its vigorous examination of the bill and amendments.

I believe that we now have a bill which has broad and significant cross-party support, on which we can lay the foundations for further protection of the most vulnerable victims and witnesses. It reflects a positive template for managing legislation for the future.

That said, we do not doubt the scale of the challenge and the appetite for rapid and early momentum. The bill prepares the foundations: now is the time for clear progress on delivering the reforms. We will continue to work closely with our justice sector partners and stakeholders to ensure that the reforms work well in practice and benefit vulnerable child witnesses.

At this juncture, I put on record again my welcome and support for the sentiment behind amendment 1—the review amendment that was lodged by Liam Kerr. I believe that it provides a suitable and sensible mechanism through which we will be able to determine how successful is delivery of the measures that are detailed in the bill. We need to learn from our successes and from evidence about what we could do better. I am pleased that others in the chamber today have also seen fit to support Liam Kerr’s amendment.

The Deputy Presiding Officer

Excuse me, minister. Will members who have just arrived in the chamber be a bit quieter, please? Thank you.

Ash Denham

I regret that we were unable to support Margaret Mitchell’s amendment 7. We believe that the amendment would have placed an unnecessary and potentially inhibiting legislative burden on the Scottish Government. I hope that what I have said today reassures Parliament that we are committed to developing a truly trauma-informed and child-centred response to child victims. I believe that we have consensus on that: it will take careful work across the justice, health and child protection systems in the coming months.

We will continue to communicate with Parliament and the committee about progress on barnahus and key milestones. I am happy to make that commitment again today.

I will now address some points and common themes that have emerged from the contributions this afternoon. A number of members, including Liam Kerr, mentioned barnahus, as we would expect. I note the strong interest both in moving towards that as a destination and in the idea of keeping up momentum, which has come across strongly from members.

Of course, barnahus is about more than just criminal justice; it involves healthcare, child protection and the legal profession, so it is right that we take the time, across Government and with our key stakeholders, to develop a Scottish version of the barnahus model. We have set out a clear timetable to develop standards for Scotland. I hope that that reassures members that we are committed to keeping up momentum.

Daniel Johnson made a number of points, the first of which being that the bill is a really good starting point. I thank him for that view, which was echoed by others across the chamber. He also made a point about potentially developing the ground rules hearings further in the future. He will be aware of the latest High Court practice note, which sets out a general approach for preparing questions in advance for child witnesses, for instance. Obviously, the practice note can be updated over time, which I think offers an appropriate level of flexibility.

Daniel Johnson also raised a point about greater use of special measures. It is important that vulnerable witnesses in general are aware of the special measures that are available to them. The Crown Office is beginning a process of reviewing all the correspondence that is issued by the victim information and advice service, as well as information leaflets and so on, to make sure that they are as understandable and clear as possible and so that people have the right information.

The Scottish Courts and Tribunals Service plans a rolling programme of upgrades across its estate, which will ensure that technology—Daniel Johnson made a point about that—and equipment in courtrooms and in live television link rooms keep pace with improvements.

I will address a couple of points that Jackie Baillie made. Changing the way in which evidence is taken for so many needs to be done in a controlled and careful way. We will deal first with child witnesses in the most serious cases but, as has been noted, the bill includes a framework for extension to other vulnerable witnesses, so that it can cover more deemed vulnerable witnesses over time. It is important to make the changes in a managed way, as I am sure Jackie Baillie understands. The draft implementation plan sets out the Government’s intentions; unfortunately, I cannot give any commitment beyond that today.

Jenny Gilruth mentioned a child witness who was made to give evidence 27 times. That example alone shows us why the bill will be transformative and will lead to a better quality of evidence.

I am delighted to have spoken to the bill at stage 3, because it is clear how important the changes will be. The bill is a major milestone in ensuring that many more children can pre-record their evidence before a criminal trial. I hope that all of us in the chamber will support the reforms, and that we will pass the bill.

Final vote on the Bill

After the final discussion of the Bill, MSPs vote on whether they think it should become law.

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Final vote transcript

The Presiding Officer (Ken Macintosh)

There is one question to be put. The question is, that motion S5M-17210, in the name of Ash Denham, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, be agreed to. As the question is on passing a bill, there will be a division.

For

Wightman, Andy (Lothian) (Green)
Whittle, Brian (South Scotland) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tomkins, Adam (Glasgow) (Con)
Swinney, John (Perthshire North) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Smith, Elaine (Central Scotland) (Lab)
Simpson, Graham (Central Scotland) (Con)
Scott, Tavish (Shetland Islands) (LD)
Scott, John (Ayr) (Con)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, Tom (North East Scotland) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harris, Alison (Central Scotland) (Con)
Harper, Emma (South Scotland) (SNP)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Griffin, Mark (Central Scotland) (Lab)
Greene, Jamie (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Findlay, Neil (Lothian) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Carlaw, Jackson (Eastwood) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Bibby, Neil (West Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

The result of the division is: For 112, Against 0, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill be passed.

Meeting closed at 17:02.  



Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill as passed

This Bill was passed on 9 May 2019 and became an Act on 13 June 2019. 
Find the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act on legislation.gov.uk

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