Getting it right for child witnesses

Justice Secretary Michael Matheson MSP raises issues of child witness rights and protections during a speech at a Justice for Children conference.

Thank you for inviting me to give the final speech at what I understand has been an inspiring and informative conference. I'm struck by the breadth of experience in the room today, with representatives from all parts of our justice system and from other jurisdictions, as well as experts in representing and listening to the voices of children and young people. Importantly we are all here with a common purpose - getting it right for child witnesses.

As a government, we are committed to making Scotland the best place in the world for a child to grow up. This commitment extends across all aspects of life and is one that is of particular importance to me as a father, and in my role as the Cabinet Secretary for Justice.

While we strive to raise our children in a world safe from crime, we must also ensure that, where children and young people are unfortunate enough to become victims or witnesses of crime, we do as much as we can to help and support them. This support must attend to the child's individual needs and wellbeing while they are assisted to give their best evidence.

I believe that further reform in this area is absolutely vital, and I'm delighted to have the opportunity to speak to you today about my vision for the justice system we should all be working towards.

I think it's worth taking a few minutes, however, to reflect on the progress made over recent years before considering where that continuing journey might take us. Over this period, the interests of child witnesses – and victims and witnesses in general – have become an integral part of our justice system.

The Vulnerable Witnesses (Scotland) Act 2004 set the scene for much of the subsequent work in this area by recognising in statute that some witnesses require additional support measures – special measures – to give evidence effectively, such as giving evidence remotely via video link.

The implementation of that Act between 2005 and 2008 required both significant work and, critically, a significant cultural shift in how we treat child and vulnerable witnesses. The successful use of special measures demonstrated that it is possible to move away from traditional methods of giving evidence without jeopardising the integrity of the justice system.

In 2013, recognising that the work to protect the interests of victims and witnesses was far from complete, we introduced what was to become the Victims and Witnesses (Scotland) Act 2014. The 2014 Act introduced a variety of measures which improved the support and information available to victims and witnesses.

Key measures now in force include new rights for victims and witnesses to access information about their case; new duties on justice organisations to publish standards of service; and new rights for alleged victims of certain offences, including sexual offences, to specify the gender of their police interviewer.

The Act significantly extended the existing special measures. It redefined 'child witness' to include those up to the age of 18, thereby increasing the number of young people automatically entitled to use the standard special measures when giving evidence. It also extended automatic eligibility beyond children to alleged victims of sexual offences, human trafficking, domestic abuse and stalking.

Last year, we built on the improvements made by the Victims and Witnesses Act through the Victims' Rights (Scotland) Regulations 2015. These regulations set out many of the rights of victims in statute for the first time, and included obligations on criminal justice agencies to ensure that the needs of victims are assessed and taken into account during criminal investigations – and that the best interests of the child should be considered.

We also published the Victims' Code for Scotland, setting out clearly and in one place the rights and support available to people in Scotland should they be unfortunate enough to fall victim to crime - and we are committed to producing a child friendly version of this important document.

I think it's clear that a lot of progress has been made over the past decade or so in improving the provision of support to victims and witnesses of crime. However, it's equally clear to me that our journey is not at an end.

I would like to take this opportunity to commend Lord Carloway, the Evidence and Procedure Review Steering Group and the Scottish Courts and Tribunals Service for their work in bringing 'clear sky thinking' to how our justice system can be further modernised to improve both the quality of evidence and the experiences of the most vulnerable witnesses.

The initial Evidence and Procedure Review report concluded that subjecting children to the traditional adversarial form of examination and cross-examination at court is no longer acceptable; is unlikely to elicit the best quality of evidence from them, but is likely to cause them further distress.

The follow-up Next Steps report, published earlier this year, recommended that urgent consideration be given to changing, as quickly as reasonably achievable, the way that children and young people are questioned and cross-examined, with a presumption in favour of the use of pre-recorded evidence.

Both the Law Society of Scotland and the Faculty of Advocates welcomed the original Evidence and Procedure Review and Next Steps report, and the Faculty have hosted their own conference on vulnerable witnesses.

Following from the Next Steps report, the Lord Justice Clerk, Lady Dorrian, and Courts Service have led valuable work to improve how evidence is taken from vulnerable children under the existing legislative arrangements, in particular through evidence on commission.

However, I recognise fully that there is a wider role for Government, working with key stakeholders within the legal profession and third sector, in setting and progressing the longer-term vision for how we better support and protect child witnesses.

My view is that children should be spared the trauma of giving evidence in a formal court environment. Indeed, I want to eliminate the need for children to attend court at all during the trial.

Child witnesses should not have to worry about hearings that are cancelled or adjourned with little or no notice, and of trial dates which are rescheduled to suit parties other than themselves. We have a duty to protect the best interests of each child and young person and, as such, the criminal justice process should adapt itself to their needs – not the other way around.

I want their role in the proceedings to conclude as early as possible. Such an outcome is not only right for the child but it is also in the interests of justice. It should enable children to give better evidence if they are asked questions closer to the time of the alleged offence.

I realise that giving evidence in criminal proceedings will always be a difficult and trying experience, but it should not be an ordeal. It is vital that our criminal justice system and procedures should not cause children further stress or anxiety where this can be avoided.

We need to consider the best environment for children to be able to find their voice in speaking about often very traumatic events. This work must address the timing of the pre-recording of their evidence, how long it is appropriate for the questioning to last, the most appropriate venue for the child to give that evidence and the questioning styles that are adopted. All these issues must now be considered and the best approach found.

I have already asked my officials to look at what legislative changes will be required to allow for pre-recorded evidence to be taken earlier in the criminal justice process.

As you have heard today, intermediaries can also play an important role in planning and facilitating communication with a vulnerable witness. It is evident that, for the intermediary role to operate effectively, careful consideration must be given to the establishment and resourcing of intermediaries and their integration into our justice system.

We can learn from the strengths and weaknesses of the intermediary system in England and Wales, and of the outcome of the recent pilot in Northern Ireland, when determining the best option for supporting child witnesses in Scotland.

I know that this is a vision which is shared by many of us across our justice system, and it is encouraging to see so many of you here today. I am grateful that the legal profession is also showing a willingness to take a leading role in bringing about these changes too.

I see this as a real opportunity for us to work together, to make a real difference to child witnesses. We absolutely can and must make this work for Scotland.

I want to move swiftly to carry out the necessary reform to protect and support children giving evidence in criminal proceedings.

I am entirely open as to how we achieve this, and discussions like those which have taken place today will assist in shaping a Scottish approach to this issue.

But I will not compromise on the end goal: that we strengthen our system of support for child witnesses, that we minimise the distress and trauma of giving evidence, and that we ensure that children are able to give quality evidence as early as possible in criminal proceedings.

Testing evidence is a vital part of our criminal justice system. But this is not about removing the rights of the accused, or denying them a fair trial. It is about protecting and supporting children, and a move to the pre-recording of evidence by children should ensure that they are able to provide the best evidence possible.

In taking this agenda forward in Scotland we can draw on positive progress elsewhere. We have heard about the experiences of our Norwegian participants who work with child victims and witnesses, and I would like to thank them for speaking to us today.

The Barnehus approach is a very interesting model, which share similarities with Scotland's Whole System Approach in youth justice – in that it provides a multi-agency, multi-discipline approach with practitioners coming together to ensure the best outcome for the child.

I am also interested in the use of pre-recorded evidence in chief and ground rules hearings in England and Wales. These ensure that the questions to be asked and the time for the cross examination itself are all agreed in advance. Such increased scrutiny can not only be of benefit to the witness but to the trial process as a whole.

The work in these jurisdictions shows that this can be done. It is important that we learn from them, and learn quickly. In doing so, we will create a model together. A model that we can all be proud of, and which will protect and support child witnesses to give their best evidence.

Let me give you some examples of key principles that need to be considered in any model to achieve best evidence from child witnesses in Scotland.

  • First, recording the interview of a child witness as soon as possible after an alleged offence. Evidence shows that this aids recall and minimises the trauma of the child.

  • Ensuring that any interview with a child witness is conducted by highly trained professionals, who understand the needs and vulnerabilities of that child.

  • Ensuring that the interview is conducted in a safe and secure environment.

  • Allowing that interview to be used as examination in chief in any criminal proceedings.

  • Recording cross-examination of the child witness as early as possible in the proceedings.

  • Ensuring that any testing of evidence is carried out in a sensitive manner, which is appropriate to the needs and vulnerabilities of the child.

  • Allowing that testing of evidence to be used at trial.

There will, inevitably, be different views and ideas about how these elements might operate in practice whilst ensuring the right of the accused to a fair trial. However, the ultimate aim should be to avoid children having to experience the trauma of attending court during the trial.

I believe we can create a new model that works for Scotland, which recognises the unique nature of our criminal justice system. The use of pre-recorded evidence should be the norm rather than the exception for all child witnesses. To be clear, this work is one of my key priorities and I look forward to engaging with many of you over the coming months as we take these vital reforms forward.



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