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Section Four Possible status of intermediaries within the Scottish Criminal Justice System
9. Please indicate whether you agree, disagree or are unsure about the following statements:
These figures should be treated with caution. See discussion below.
| | Agree | Disagree | Automatic right | Unsure |
|---|
a) | The individual needs of the witness (child or adult) would need to be assessed in advance and taken into account in deciding whether to appoint an intermediary as a special measure. | 18 | 0 | 8 | 0 |
|---|
b) | The individual needs of the witness (child or adult) would be the decisive factor in deciding whether or not to appoint an intermediary as a special measure. | 16 | 2 | 7 | 1 |
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c) | The use of an intermediary should be treated as a 'standard' special measure for child witnesses if introduced under the Act | 13 | 13 | - | 2 |
|---|
d) | The use of an intermediary should be treated as a 'further' special measure for child witnesses if introduced under the Act | 12 | 4 | 5 | 2 |
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e) | Intermediaries should be available on application to the court for adult vulnerable witnesses | 17 | 1 | 0 | 0 |
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Total Submissions Received | No comment made | Consultees that commented |
|---|
32 | n=4 | n=28 |
60. A quantitive analysis of these answers is misleading as the legal terminology of "standard" and "further" were not always understood, despite an explanation being given in the consultation paper. The legal subtleties embedded within all 5 questions were not apparent to many respondents. Furthermore, the way the questions were posed allowed some ambiguity in the answers. For example some respondents answered these questions even when they did not believe that intermediaries should be introduced, thus distorting the value of a quantitative analysis. 8 respondents held the same views as Justice for Children's contention that there should be a presumption of need for an intermediary for all children and consequently disagreed with the statement at b) thus aligning themselves with respondents who specifically disagreed with having any intermediary at all. These responses have been separated out and are now under the additional column entitled "automatic right". Because of the problems stated above, the responses to these questions should be treated with caution.
61. 2 respondents suggested that the current Act, as it stands, should be given time to become embedded before further changes were introduced.
62. Comments were added to the multiple choice answers and these included:
- "A vulnerable person's ability to respond to the process of examination and cross-examination cannot be readily predicted in advance as one could not replicate the conditions of the courtroom. It would be far better to have an intermediary available, than to have to adjourn a trial if the need for one was not anticipated, but in fact subsequently required… I have a preference for intermediaries being standard, as children still have the option of persuading the court they do not need certain measures. " - Professor F Raitt.
- "Justice for Children favours the South African/ Pigot model because it works on the assumption that children need an intermediary because they are children rather than because they have communication difficulties. The model used in England and Wales is based primarily on the assumption that communication difficulties prevent a child from being able to give their best evidence…At the very least intermediaries should be standard for children under 12, and "further" for children over 12."- Justice for Children.
- "Need to demonstrate that the quality of the witness's evidence will be improved by the use of an intermediary…The test should be the effect the intermediary would have on the quality of the evidence, in the context of the overriding need for a fair trail." - COPFS
- "The individual needs of the witness would be the deciding factor" - Faculty of Advocates.
- "The deciding factor should always be a fair trial" - member of the judiciary.
- "Complexities associated with appointing intermediaries could best be addressed if the measure were "further" - Victim Support Scotland.
- "Intermediaries should be, at the least, statutory in order to ensure that they are used" - Mental Welfare Commission.
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