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Section Five Impact of using intermediaries on the court process in the Scottish Criminal Justice System

10. What, if any, impact do you consider the use of an intermediary might have on examination and cross-examination of a witness?

63. The answers to this question can most readily be understood from the table below.

64. It is clear from the above table that the responses fall into two camps. The judiciary and the professional legal associations have major concerns with compliance with the ECHR Article 6 which states that an accused has the right to test the evidence against him, " We consider the use of cross examination to be an integral part of the adversarial court procedure. This adversarial system is the basis of the right of a party to test the evidence which is available to the court."-Faculty of Advocates. However, many of the other respondents have difficulty with the "common practice" that this involves under-mining and confusing the witness in order to discredit them. "…Such questioning techniques can be used to discredit a witness in the eyes of the jury…" Justice for Children. They go on to say that evidence can be tested better if a vulnerable witness were able to understand the questions being put to them, and that better evidence can be elicited as a result. SCRA and others agree with them, that to test the evidence it is better for a witness to be able to understand the questions.

65. This issue emerges as the kernel of the whole debate on intermediaries and the treatment of vulnerable witnesses, or indeed of any witness, as evidenced by the responses. The recurrent argument put forward by a number of respondents is that if witnesses are not "treated with dignity" the witness becomes so intimidated by the court system, and by cross-examination in particular, that they either refuse to testify or they give misleading evidence out of fright or confusion, causing the trial to collapse or for miscarriages of justice to occur.

66. Below are some of these arguments:

• "The use of an intermediary will allow the jury or judge to make a fair assessment of credibility and reliability, rather than an assessment that is unfairly skewed by the child's lack of comprehension of the questions put." - CHILDREN 1st
• "The use of an intermediary could help the judge or jury assess credibility. The witness would still be in a stressful situation and be asked questions to test and challenge their evidence. However, there would be some assurance that steps were being taken to make sure the witness understood the questions. It is very difficult to assess credibility and reliability where it is not clear if the person understands the language being used or what they are being asked. People with learning disabilities may be more easily confused or persuaded by aggressive cross examination but this does not mean that their initial version of events was unclear or that they are not telling the truth." - Enable
• "Current policy and practice is unsatisfactory, criminal justice practitioners often underestimate the prevalence of miscommunication with vulnerable witnesses and measures are invoked in an inconsistent manner. There are currently witnesses who do not have a voice, cannot give their evidence and are unable to gain justice. Failure to adopt intermediaries into the criminal justice system would result in unsatisfactory support to people with communication difficulties." - RCSLT
• "The situation of the children I interviewed for the above study has obvious parallels with that of child witnesses. Yet I am aware that the experiences of a child being cross-examined in court is likely to be more stressful than that of a child attending a Looked after Children Review Meeting. The court setting is an adversarial setting and is highly formal; unlike that of professionals attending a review meeting, the cross examiner's role is to cast doubt on what the child says, and he or she may have an interest in portraying the child as incredible and unreliable. In my view, the very different interests of those involved in the court process make an intermediary essential if best evidence is to be obtained from children" - Natalie Morgan-Klein
• "An intermediary would play an active role in enabling the parties to communicate in a manner that facilitates the best possible understanding of the evidence…Assisting witnesses to recount an event accurately does not strike at a party's fundamental right to a fair hearing. Where a child is inhibited from describing what happened because court premises, procedures and language are all alien to their experience, it is in the interests of all parties to minimise that effect if it allows the evidence to be led," -SCRA.
• "It would eliminate direct confrontation with the prosecution and defence and should ensure that the best evidence is provide," - Strathclyde Police.
• "the use of an intermediary will facilitate in the cross examination. By providing appropriate language to fit the needs of the individual witnesses, they will be able to comprehend and respond to the posed questions and consequently give better evidence. The use of intermediaries will prevent the unfair advantage being taken of the witness's (child or adult) lack of understanding of the judicial terms and questions asked during the cross-examination," - Victim Support Scotland

67. Other comments include the following:

• "The Committee is of the view that the right to cross-examine should remain regardless of the special measure applied. If this were to be removed the Committee would anticipate legal challenges in terms of ECHR" - Faculty of Law- Criminal Law sub-committee
• "It might act as an incentive to the examiner to focus their questions more appropriately so as in effect to "dispense" with the need for an intermediary. In other words it would become a matter of professional pride that the intermediary's services were not needed." Professor F Rait
• "I believe the use of intermediary may interfere with the examination of the witness unless the role is properly defined and the correct procedures for the use of the intermediary put in placed." Tayside Police - Appropriate Adults
• "We consider the use of cross examination to be an integral part of the adversarial court procedure. We are concerned…the use of intermediaries will interrupt the flow of evidence...basis for challenge to the fairness of the court proceedings...the added time and expenditure" - Faculty of Advocates.
• "Assisting witnesses to recount an event accurately does not strike at a party's fundamental right to a fair hearing." -SCRA
• "By providing appropriate language to fit the needs of the individual witnesses, they will be able to comprehend and respond to the posed questions and consequently give better evidence. We also believe that the use of intermediaries will prevent the unfair advantage being taken of the witness's (child or adult) lack of understanding of the judicial terms and questions asked during the cross-examination" - Victims Support Scotland
• "Aggressive and confrontational style of questioning can provoke feelings of extreme anxiety in a child who has experienced this behaviour in an abusive parent…thus affecting the accuracy of their responses." - Scottish Women's Aid.
• "The concerns regarding cross-examination were tested in a 1996 challenge to the South African system (case Klink v Regional Court Magistrate NO and Others)…found that though cross-examination through an intermediary may be blunted it does not mean that the accused in denied a fair trail" - More findings about this case can be found in the response by Justice for Children - Appendix D.

11. What, if any, impact do you consider the use of an intermediary might have in enabling the jury (or judge) to make an assessment of the witness's credibility and reliability?

68. Only 23 responded to this question. 17 of those felt that the use of an intermediary would have a positive effect on the jury, allowing it to understand the answers better, clarify the evidence and increase confidence in the witness's replies. It would also allow some witnesses to be heard by a jury at all.

69. 4 respondents (2 members of the judiciary and 2 representatives of police) believed that the jury would be adversely affected by the presence of an intermediary, citing that cross-examination could be blunted or that the jury may assume that the presence of the intermediary indicated a less reliable/credible witness. However, it was suggested that this could be countered by carefully explaining to the jury the role of the intermediary at the outset, and that any inappropriate "interpretation" of the cross examination questions by the intermediary could be challenged in court.

12. What would be the advantages and disadvantages of adding the use of an intermediary as a statutory special measure under the Act?

70. The responses can best be understood in the table below

71. It is important not to attach too much significance to the figures given. As can be seen from the answers to this question, some of the points raised were also addressed elsewhere, and in some cases did not address the actual point of intermediaries being made statutory as opposed to non statutory. The figures are only given as an indication of the trends developed in the responses.

72. The main points which emerged were a concern that if the role of intermediary were not made statutory there would be limited funding for them, and consequently they would not be used; if it were not statutory then there would not be procedures in place to assess the witness, or to acquire the appropriate intermediary to fit the witness's needs. It was also felt by some that if it were not statutory then intermediaries would not be used, any more than other special measures were used before they were made statutory. To make them statutory would take the necessary culture change further down the route to a better experience for witnesses, and would elicit better evidence.

73. The disadvantages to having the statutory use of intermediaries were mostly described by members of the judiciary and police whose focus was very much on the legalities of a hearing. VSS supported the use of intermediaries but were concerned that defence lawyers might challenge the hearing if they were used.

74. The points raised overall were many and varied. A flavour of some additional points raised can be seen from the following:

• "If made statutory it will require primary legislation, rather than by regulations, in order to make the use of intermediaries clear."
• "While there is provision currently under common law there is no evidence it is being used."
• "There is a need to recognise the complexities involved in the communication process, (if made statutory) it would mean that the use of intermediary would be routinely considered, and it would send a strong message that the needs of vulnerable witnesses should be considered."
• "We would like to add that the use of intermediaries would be of particular benefit to those children who may have experienced additional difficulties in their lives such as domestic abuse, not least because this is a notoriously difficult area to prosecute."
• "Justice for Children have already submitted two papers to the Scottish Government outlining the advantages of intermediaries" - ( the latest one included at Appendix D)

13. What are the advantages and disadvantages of working within the current legal framework?

75. Some respondents did not fill in this question, nor the previous one, as they rightly felt that they had responded to it elsewhere. Those dispersed replies have been incorporated into the table below as best as possible. It was also noted that some considered this question the inverse of the previous one and responded accordingly. For this reason no purpose would be served in giving the standard statistics.

76. The responses are summarised in the table below:

Again, caution should be used when considering these statistics.

77. In response to this question, while there was the usual split in favour of intermediaries being made statutory against those who considered the status quo adequate there was also a small number who felt that the present changes following the Vulnerable Witnesses Act should be allowed to bed down before any changes were undertaken. Another option mooted by a small number was to have pilots in specific areas to see how well they worked.

78. Respondents' views can be summed up with the following quotations:

• "The disadvantage of the current framework is that it is not achieving what it was intended to achieve, i.e. securing a vulnerable witness's best evidence. Extending the special measures to include intermediaries can only enhance the likelihood of better quality testimony." - Academic
• "The current framework has the advantage of flexibility. I can see no disadvantage working within it."- member of the judiciary
• "One of the major disadvantages of working within the current legal framework is the definition of vulnerable adult. The Act does not address communication deficiencies, regardless of how serious, as a reason to define the witness as vulnerable." -VSS
• "What would be preferred is a critical evaluation of the current legislation, which is still young, to see if it is fit for purpose, and is being utilised to the best advantage for vulnerable witnesses." - Police

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