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Section Two Barriers to communication with child and adult vulnerable witnesses within the current Scottish Criminal Justice System and methods for removing them

1. a) Do you feel that there currently are barriers to communicating effectively with child or adult vulnerable witness in the Scottish criminal justice system?

Yes No

1b) If yes, what do you consider to be the nature and cause of any such barriers?

16. Only 3 respondents believed that there were no barriers to communicating with vulnerable witnesses in court. These respondents were 2 members of the judiciary and 1 police force. A further member of the judiciary felt that the only barrier to effective communication was the reliability of the CCTV equipment. Throughout the questionnaire these four consistently held the view that there was no evidence for any necessary change to the status quo.

17. However, 24 respondents considered that there were currently barriers to communicating effectively with child and adult vulnerable witnesses in the Scottish court system. These respondents came from all the categories of interest groups, including the police and the judiciary.

18. The two main barriers to communicating effectively with vulnerable witnesses advanced by respondents were the adversarial system itself (15 respondents), and the inappropriate use of advocacy techniques (17 respondents).

19. The 17 respondents who commented and advanced the view that inappropriate advocacy techniques were a barrier cited the following examples:

• confusing language,
• advanced vocabulary,
• double negative questions,
• repetitive questioning,
• leading questions,
• questions incorporating disbelief,
• and assumptions about the witness's capacity, for example, using questions about time which certain vulnerable witnesses find difficult to answer directly as a result of their condition.

20. Research was quoted extensively on the effects of such questioning on child witnesses and on adult vulnerable witnesses with learning difficulties or mental disorders (see bibliography at end - appendix E).

21. The research quoted by an academic (Professor F Raitt, School of Law, Dundee University) reflects many of the points raised consistently throughout the responses, and quoted here:

"Research with children in Scotland has found that many children continue to experience the trial as an attack on their credibility and dignity.[1] This echoes recent research in England where interviews with 50 children who had appeared as witnesses, painted a gloomy picture of their experiences, despite recent reforms and special measures. …….combined with complex grammatical structures. Leap-frogging style of questioning confuses children. The children's experiences which were said to reveal a chasm - an implementation gap - between policy objectives and actual delivery around the country".

22. The British Psychological Society considered that "Forensic questioning creates particular problems for Vulnerable Witnesses. Evidence in psychological literature suggests that lawyers do not adapt their questioning techniques to the needs of witnesses, nor do judges intervene to clarify or assist communication… Complex sentences, advanced vocabulary, double negatives, closed questions, leading questions…."

23. Enable and the Royal College of Psychiatrists (Scottish Division) both considered that the interests of witnesses and accused were not served by the current system which presented barriers to justice for people with learning difficulties or with mental disorders.

24. Inter-related with inappropriate questioning (sometimes described as "lack of advocacy skills") were a number of other barriers:

• The barrier created by the practitioner's lack of understanding of the specialist communication needs of vulnerable witnesses (7 respondents cited this, including a member of the judiciary). This was seen as a problem which arises from the start of the process and carries through to trial and judgement. "Police and social workers are not trained to recognise when victims/witnesses have high-level communication needs."(individual) "The main barrier to effective witness communication is due to courtroom officials, lawyers and judges lacking awareness and insight into communication difficulties". "Practitioners within the judiciary not understanding communication difficulties which results in the collapse of cases." These communication difficulties were described by the Royal College of Speech and Language Therapists as:

"Vulnerable witnesses can have one or a number of communication difficulties which necessitate particular communication support provisions, for example vulnerable witnesses with communication difficulties or the preferred terminology - "Communication Support Needs" ( CSN) may have difficulties:
- Understanding verbal, non verbal or written communication of others
- Understanding complex language and concepts such as the ambiguity or implications of particular questions or answers
- Expressing themselves, including difficulties describing past events coherently, and feelings."

• Assumptions about capacity and reliability. Without specialist training, assumptions about capacity and reliability provided barriers, especially for witnesses with learning difficulties.
• This in turn led to a lack of access to justice for these vulnerable witnesses.

25. Some respondents cited a lack of support for vulnerable witnesses as a barrier, or claimed that its provision was patchy across the country.

26. Finally several respondents considered that the Criminal Justice System itself was a barrier, citing the formality of the court setting and lack of awareness of the support available to vulnerable witnesses.

1c) How could any such barriers be addressed?

27. 17 respondents believed that the main way to address these barriers was through the use of intermediaries. 15 of these volunteered the view that they should be statutory. A further 5 wished to see the use of Appropriate Adults extended both at the early stages of the proceedings and into court (though one respondent felt that this would not be helpful). It was also suggested that AAs should be extended to children. (A small number of these respondents conflated or confused the role of intermediary with that of Appropriate Adult, and any decision to use intermediaries should therefore make very careful distinctions between the two.)

28. 15 of the above respondents specified that the role of intermediary should be made statutory as, like the status of special measures before the Vulnerable Witnesses Act, they would not be used otherwise. For instance SCRA stated: "The use of special measures will take time to become embedded across all court proceedings, but it is likely that a measure founded in statute will have an impact on the experiences of witnesses. Statutory measures will also be more likely to promote consistency and fairness in application across Scotland, which can only be of benefit to vulnerable witnesses. However, more could be done, particularly in addressing the gap which can exist between good policy, the legislation and implementation on the ground... The statutory provision of intermediaries is just one aspect of ensuring that these communication needs are properly considered and addressed." ( SCRA)

29. Most respondents who replied considered that some improvement to the justice system was called for, but only 7 considered that improving the system alone would reduce the barriers to communication for vulnerable witnesses. A further 2 felt that the current changes made by the Vulnerable Witnesses Act should be better embedded before changes were made.

30. Almost all the respondents to this question considered that the most effective way to improve the system itself (with or without intermediaries) was by better training for the police, the lawyers and the judiciary (25 respondents). This, it was stated, would result in better adherence to the various guidelines on the treatment/questioning of vulnerable witnesses, and to a better understanding of the specific communication needs of those with mental disorders. (This subject is dealt with in more detail under questions 2 and 3.) A typical and concise response was given by COPFS: " The lack of appropriate training in techniques of questioning child witnesses or witnesses with certain disabilities or learning difficulties and/or a lack of understanding of the nature of certain medically recognised disabilities or learning difficulties on the part of key court personnel can contribute to the witness providing incomplete evidence in terms of quality, accuracy and coherence" ( COPFS)

31. Other suggestions for improving the system for vulnerable witnesses included better guidance (and awareness of that guidance) for judges in making interventions, improving the time scales to trial, and raising awareness of the provisions of the Act amongst defence counsel, procurators fiscal and the judiciary.

2. a) Could better use be made of the court's powers within the current legal framework to help effective communication between a child or adult vulnerable witness and the court?

Yes No

b) If yes, how?

32. All 25 respondents who considered there were barriers recommended better training for advocates, judges and other court practitioners. This would include better training in the communication needs of vulnerable and child witnesses for the judiciary. Respondents holding this view came from across the spectrum of interest groups. Several respondents went so far as to suggest there should be mandatory training in existing measures for all those likely to come in contact with vulnerable witnesses, including members of the judiciary.

33. However, Justice for Children and those who endorsed their response were unconvinced that "tweaking" the system would be sufficient to address the imbalance of power between a vulnerable witness and those legal practitioners cross-examining them. Several other respondents also held this view.

34. 17 felt that improved training, whilst valuable, was insufficient to change the culture within the courts, and therefore intermediaries were necessary to redress the unfair balance of power between the vulnerable witness and the legal practitioners. One respondent wrote "The introduction of intermediaries ought to deflect the negative impact of poor questioning technique without detracting from the substance of the question"

35. When asked if better use of the court's current powers could be made to improve communication it was suggested that the judge's powers of intervention should be used more effectively to regulate inappropriate questioning of child and adult vulnerable witnesses. However one respondent countered this suggestion, "Judges' powers of intervention to regulate inappropriate questioning are limited and can be counter-productive".

36. Other strong suggestions include improvement in the management of trials and other court procedures, more efficient technology including the use of remote sites and CCTV, and adaptive language-use in court. It was also suggested that Appropriate Adults could be better used, and extended into court and to children, though it was pointed out that Appropriate Adults were not communication specialists and therefore did not have the appropriate skills. Another suggestion was to have specialist courts/lawyers/judges who could be called upon when vulnerable witnesses were cited.

37. Overall, the respondents considered better training for all legal practitioners, raising awareness of the provisions of the Act, and better awareness of Common Law measures could all be applied to improve the current system, but this would not be sufficient.

38. 3 respondents felt that there was little need for change. Again, these came from within the judiciary and police.

3. a) Could better use be made of training, guidance and awareness-raising in improving communication between the court and child or adult vulnerable witnesses?

Yes No

b) If yes, how?

39. There were 27 responses to this question; the overwhelming majority (25 respondents) felt that better use could be made of training. Of those, 17 respondents also felt that training was not enough in itself because the problem lay inherently in the adversarial system or that many legal practitioners would still ignore the current problem of lack of communication or access to justice.

40. 20 of the respondents who thought that training could be improved thought that this applied to all legal professionals and court staff. 19 respondents specifically mentioned training for judges, and many believed that this should be compulsory. 15 wished to see better training for the police, and one judge felt that medical experts should be trained in court procedure.

41. The types of training suggested were general awareness raising and familiarity with the guidance packs, including the new guidance on Common Law and the ability for judges to intervene where questioning was inappropriate, and training in the development of communication skills of children, the special communication needs of those with autism, ASD, ADHD and other neuro-developmental disorders.

42. The Faculty of Advocates wished to emphasise the need for more and better quality training in how to question vulnerable witnesses. They added that there were professional rules which, if breached, could result in disciplinary action being taken. The Faculty goes on to say, "We think that further and better training of judges and lawyers might well result in a better system".

43. Other points raised were:

• Specialist training would hopefully engage the legal profession in the spirit of the Act.
• Attitudes might change if all legal practitioners, including police officers, lawyers, judges, sheriffs etc. were all trained in appropriate questioning techniques etc.
• There was no need for more training, just more awareness.

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