Pre-recording of evidence by witnesses
Witnesses are categorised as 'vulnerable' if they are likely to suffer significant risk of harm as a result of giving evidence.
This includes victims of sexual assault, domestic abuse, trafficking and stalking, and those under the age of 18.
We are making it easier for vulnerable witnesses to give evidence in criminal trials by increasing the use of pre-recorded evidence in advance of trial.
The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 creates a new rule for child witnesses under 18 to ensure that, where they are due to give evidence in the most serious cases, they will be allowed to have it pre-recorded in advance of the trial. This will usually be by the special measure 'evidence by commissioner'.
This means they will not have to give evidence in court.
The exception to this is if it is shown that this would significantly prejudice the interests of justice in the individual case.
Questioning of the witness is still carried out by defence and prosecution lawyers, with a video recording being played during the trial.
The rule covers criminal cases where the charge involves:
- murder, culpable homicide and assault to the danger of life
- rape and other sexual offences
- domestic abuse
- abduction and plagium (child kidnapping)
- human trafficking, slavery and female genital mutilation
- an attempt to commit an offence above
The Act includes powers to extend the rule to adult witnesses deemed to be vulnerable. This covers complainers of sexual offences, stalking, domestic abuse and human trafficking.
A number of changes to the current process for the pre-recording of evidence will also be introduced, including:
- the introduction of a separate ground rules hearing, if necessary, which would be held prior to evidence being taken by way of commissioner to ensure that parties are prepared, so commissions run more effectively than at present
- removing the current legislative barrier for special measure vulnerable witness notices to be lodged earlier (pre-indictment) so commissions can take place before service of the indictment if appropriate to do so. This is likely to happen rarely but it does give flexibility to the party calling the vulnerable witness to do so at this earlier stage if appropriate but does not require it
- a simplified intimation process for standard special measures for child and deemed vulnerable adult witness, streamlining the current process by making it an administrative rather than judicial process
The Act, which received Royal Assent in June 2019, has been informed by findings from a public consultation.
It builds on the earlier Victims and Witnesses (Scotland) Act 2014 which introduced new rights for vulnerable witnesses to help them give their best evidence.
The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (Commencement No. 1 and Transitional Provision) Regulations 2019 came into force on 20 January 2020. The regulations will ensure that any child witness under the age of 18 giving evidence in the most serious cases in the High Court will be allowed to have it pre-recorded, sparing them the trauma of giving evidence during a trial. The regulations will have a practical effect to all relevant cases in the High Court from this autumn.
It is important to note that not all provisions of the Act will be commenced at this point, and some of the provisions that have been commenced will apply to all criminal cases. Read more about the requirements in the policy note.
It is essential that future commencement and rollout of the provisions of the Act continue to be undertaken in a managed and effective way, to ensure that the intended benefits are delivered to those involved in these most serious cases. The draft implementation plan (on the Scottish Parliament website) details the initial stages of the roll-out, including suitable periods of evaluation and monitoring.
If you have any queries, please contact: ceu@gov.scot
Reporting requirements under the Act
The Act includes a reporting requirement which places an obligation on Scottish Ministers to lay a report in Parliament evaluating whether the Act has helped witnesses to participate in the criminal justice system. The evaluation covers the first three years of the Act coming into force. The Act also requires Scottish Ministers to set out the next steps that they intend to take in relation to further commencement of the Act. The Act also sets out specific sources of information that must be included in the report for the purposes of conducting the evaluation full details of which can be found at Section 9 of the Act.
The results of the evaluation show that the Act has resulted in a large increase in the number of witnesses pre-recording their evidence ahead of trial and is therefore effective supporting vulnerable witnesses to participate in the criminal justice system. You can read the full findings of the evaluation in the report.
In addition to the evaluation we also published a three month review report in December 2023. This review will help us take forward the future roll out of the Act.
Implementation of the Act
We have adopted a phased approach to rolling out the presumption in favour of pre-recorded evidence and this is set out in the implementation plan which was published alongside the Act. To date (December 2023), the provisions of the Act, have been commenced for children under the age of 18 giving evidence in relation to cases which are to be heard in the High Court involving specific offences.
The timeline for further roll out of the Act as identified in the implementation plan has been impacted by the Covid-19 pandemic and the resulting backlog in criminal court cases. The Scottish Government remain committed to rolling out a presumption in favour of pre-recorded evidence for all groups of vulnerable witnesses identified in the implementation plan. We are working closely with justice partners through our Expansion of Pre-recorded Evidence Implementation Group and will produce a revised implementation plan setting out clear timescales by the end of March 2024.
Joint investigative interviews (JIIs)
JIIs are formal interviews carried out by police and social work who need to interview children to get their accounts of events that are being investigated, and to assess whether the child (or any other child) is in need of protection.
Police and Social Work Scotland are leading on work (alongside other justice agencies) to improve the quality and process for JIIs with vulnerable child witnesses and implement the recommendations of the Evidence and Procedure Review Joint Investigative Interviews Workstream.
Work includes updating national guidance and improving technology and facilities for JIIs. We have committed more than £400,000 to develop a new training programme for frontline staff on carrying out JIIs.
Improving the quality of JIIs will ensure that they can be more routinely used as evidence in chief, increasing the use of pre-recorded evidence.