Victims, Witnesses, and Justice Reform (Scotland) Bill: child rights and wellbeing impact assessment update

Updates following Stage 2 of the parliamentary process

A new topic – jury service: assistance for jurors with communication – was added to the Bill at Stage 2. A standalone CRWIA has been published for this policy.

A second new topic – victims’ right to receive information – was also added to the Bill at Stage 2. This new part of the Bill contains provisions to reform the Victim Notification Scheme (VNS). We intend to lodge further amendments at Stage 3 related to VNS reform. Impact assessments are being carried out as part of the policy development for the overall legislative VNS reforms, covering the provisions added at Stage 2 and those in the amendments planned for Stage 3.

We have reviewed the original CRWIA that was published when the Bill was introduced and have assessed that the following updates are necessary in relation to changes made to policies in the Bill at Stage 2.

Sexual Offences Court – pre-recording of evidence

The Scottish Court and Tribunals Service’s Evidence and Procedure Review considered the use of pre-recorded evidence and identified several advantages for vulnerable witnesses including children. The Review found that permitting vulnerable witnesses to pre-record their evidence reduces the stress associated with giving evidence in front of a jury and also supports witnesses to provide their best evidence by enabling them to provide a more ‘contemporaneous and accurate account’.

In recognition of this, and in the interests of establishing a specialist court with trauma-informed practice at its heart, section 59 of the Bill is intended to build on previous reforms introduced by the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 by creating a presumption in favour of pre-recorded evidence for all child and adult complainers giving evidence in the Sexual Offences Court (SOC). This will positively impact all groups of children by reducing the risk of re-traumatisation for child complainers or witnesses where they are required to give evidence in front of a jury.

Section 59 of the Bill was amended at Stage 2 to remove the distinction drawn between children aged under 12 and those aged 12 and over, who express a wish to give evidence at the trial, rather than pre-record their evidence. These changes will enable the SOC to give due weight to the views of all children about how they would prefer to give evidence, while still requiring the court to consider what would be in the child’s best interests. This was considered necessary to ensure that the SOC can give due weight to the views of all such children in accordance with article 12 of the UNCRC requirements, as previous drafting of section 59 suggested that it was only children over the age of 12 who would be permitted to give evidence at trial if they expressed a wish to do so.

However, permitting the court to grant such an exception for children under 12 does not mean that it will be required to do so when a child expresses such a wish. In accordance with article 3 of the UNCRC requirements, the SOC will also be required to consider whether this exception would be in the best interests of the child.

The rules in section 59 will only apply to children in the SOC when they are a vulnerable complainer in the case - in other words - when they are the victim of a sexual offence to which those proceedings in the SOC relate. The Bill has also made equivalent changes to the Criminal Procedure (Scotland) Act 1995, which will apply to child witnesses in the SOC (other than complainers) and children who are giving evidence in the High Court and the sheriff courts. These changes are included in section 62C of the Bill, as amended at Stage 2.

Pilot of single judge rape trials

During Stage 2 of the Bill, the provisions that provided for regulations to enable a pilot of single judge trials were removed from the Bill. There is therefore no legislative provision for a pilot to be held, and the policy will not proceed at this time.

As set out in the original CRWIA, the extent to which a pilot would have impacted child complainers and witnesses was not stateable, as the criteria for cases to be included in the pilot were due to have been specified in secondary legislation (or, had the policy proceeded, in amendments to the primary legislation). It therefore cannot be said that the removal of the policy from the Bill has a specific identifiable impact on children and young people. Child complainers and witnesses in cases of rape and attempted rape will continue to have their evidence considered by a jury, as is currently the case.

While any benefits for children and young people that might have been achieved through the pilot will no longer be achieved by that means, other measures in the Bill (such as the creation of the Sexual Offences Court) are also intended to deliver the benefits of an enhanced, more trauma-informed experience for those involved in rape and attempted rape trials.

Additionally, under the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, in the High Court (where rape and attempted rape cases – that is, the cases that would potentially have fallen under the pilot – are heard) there is a statutory presumption that the evidence-in-chief of children under 18 is pre-recorded, to help minimise the negative impacts that giving evidence in court may have on them.