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Section Six Additional Issues
14. In addition to your answers to the questions above please feel free to set out below any other views or comments you may have on the use of intermediaries to help witnesses give their evidence.
79. Most respondents took the opportunity to summarise their point of view in answering this question. The main points raised are analysed here according to subject topic with the responses attributed to whichever category the respondent belonged.
80. However, the summary given by Justice for Children seems a good starting point as 8 other respondents from across a number of categories wrote that they specifically endorsed Justice for Children 's submission:
- Believes that there are still significant barriers to communicating effectively with vulnerable witnesses
- Believes that the problems posed by inappropriate questioning are endemic to the legal system and cannot be solved by training and guidance alone
- Believes that intermediaries should be introduced as a standard measure for all children required to give evidence in court
- Believes that intermediaries should receive regular training and that there should a be a "bank" of suitable intermediaries
- Believes that having an intermediary may actually assist in cross examination
- Justice for Children, endorsed by 1 academic, 1 individual, 3 voluntary organisations, 2 professional legal associations, 1 mental health organisation
81. The responses below cover more points but are not exhaustive:
82. Communication Needs
- "The evaluation of the pathfinders in England (of the pilots for intermediaries) showed that intermediary referral is most commonly invoked where the vulnerable witness has communication difficulties. 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" - Royal College of Speech and Language Therapy
- "Cannot recall any difficulties in communication when children or the one adult likely to be classified as vulnerable."- member of the judiciary
- "In my experience most witnesses communicate most effectively when they do so personally and directly" - member of the judiciary
- "We are aware that in Scotland the majority of cases do not reach the court "- individual
- "Resilience etc (head injuries or neurological disorders) should not be under-estimated" - member of the judiciary
83. Evidence of Need for Intermediaries
- "Is there really a problem here which would merit the introduction of intermediaries as a statutory special measure under the 2004 Act?" - member of the judiciary
- Need to find out if there is any evidence of an unmet need for intermediaries in Scotland - member of the judiciary
- Evaluation research in England indicates that criminal justice practitioners were very enthusiastic once they had actually used them. There are certainly a lot of misgivings around about this special measure but I don't think I have ever encountered any other innovation which has been met with such enthusiasm once it was experienced in practice - academic
- My experience of carrying out the interviews with abused children in a sensitive way underlined the finding "grilling" the children about their experiences would have been both harmful and ineffective - social worker
- There is wide-spread recognition that children experiencing domestic abuse suffer considerable distress (Jaffe et al 1990) and can display profoundly adverse reactions as a result (Wolfe et al 1986). Aggressive cross-examination may make it difficult for the child to cope - voluntary organisation
84. Act should be embedded first
- What would be preferred is 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 of vulnerable witnesses - police
- We believe that it would be preferable to embed and evaluate the effect of recent reforms, and to deal with take-up as training and support issues, without further amendment at this stage - police
- At present, the application of the special measures has been limited and used sparingly. This may change following the introduction of the legislation into summary criminal proceedings, and it is the Committee's view that it may be that time will be required to assess the success or otherwise of the various measures - professional legal association
85. Preference to pilot the use of intermediaries
- I believe that the research in England (on evaluating the use of intermediaries) cannot be relied upon as a solid basis to implement a system of intermediaries in Scotland, a fully monitored pilot project should be considered before the leap into implementation is made - police/Appropriate Adults
- We cautiously support it, perhaps subject to a pilot first, on the grounds that if accused mentally disordered people need an appropriate adult when interviewed then it is not unreasonable to have a similar system for vulnerable witnesses - mental health organisation
86. Fair trial
- The interests of a fair trail should be paramount - professional legal association
- The Committee has read and considered carefully the response that was prepared by Justice for Children to this consultation and would congratulate them on a thorough and well thought out paper. Overall, the Committee would endorse this response, subject to the following additional comments: Right to a fair trial - professional legal association
87. Clarity of definition
- The roles of supporter, appropriate adult and intermediary need to be clarified in law - mental health organisation
- The assessment of the witness's need is the vital part in ensuring all special measures and legislation are applied properly - voluntary organisation
Conclusions
88. In conclusion the responses received from the consultation fall into two distinct categories. The majority responses came from across the interest groups and, in general, advocated the use of intermediaries for vulnerable witnesses. The converse view, held by a minority, on the whole by some sheriffs/judges/police felt that there was no need, nor evidence of need, to add the use of intermediaries to the provisions made by the Vulnerable Witnesses Act.
89. The largest coherent group (8) by 1 respondent, was those who endorsed the Justice for Children response. In summary this view holds that "tweaking" the system is not sufficient to adequately solve the problems caused by inappropriate questioning in court. They hold the view that intermediaries should be made available to all children, regardless of whether or not they have communication difficulties, as is the case in South Africa. They also believe that intermediaries should be available as a standard special measure, that they should receive regular special training and that there should be a "bank" of intermediaries as in England and Wales. They also believe that having an intermediary may actually assist in cross examination. It should be noted that Justice for Children only addressed the issue of intermediaries for children, and declined to offer a view in relation to adult vulnerable witnesses.
90. Another large group of respondents (7) who also wished to see the regular use of intermediaries differed from the Justice for Children position in addressing the needs of people with learning or communication difficulties. These were concerned that many cases failed to make it to court at all because the witness's communication needs were not recognised and they were consequently deemed as not being reliable witnesses. This, it was claimed, resulted in a lack of access to justice. The respondents in this group tended to come from professionals who worked with vulnerable people, and includes the RCSLT, Enable, mental health organisations. They believe that intermediaries should be professionals with an expertise in working with communication difficulties and that they should be used to agree a communication strategy for court proceedings, and act as a go-between from the examiner to the witness when necessary, but not "interpret" the answer from the witness. The model that emerged bore many similarities to the English and Welsh system.
91. There were a series of additional recurrent themes which appeared in the responses. These were:
- More training was needed for legal practitioners (n=25), including judges (n=17).
- The introduction of intermediaries should be piloted first (n=6)
- There needed to be more research into the possible use of intermediaries in the Scottish context (n=4)
- The current system of special measures should have time to become embedded and evaluated (n=3)
92. Those who took a more cautious view on the use of intermediaries as a statutory special measure had concerns about the impact of procedural changes on the justice system and were also concerned that the introduction of intermediaries might compromise the requirement of Article 6 of the ECHR for the right of an accused person to a fair hearing.
94. There is one more contention which lies at the root of the differences in view and relates to the concept of a fair trail. This is the question of cross-examination. All agree that the defence agents have a right, in the adversarial system, to cross-examine witnesses. However, how they do this is in question. There was a widely held view in the responses that the legal professionals are trained to discredit witnesses in defence of their clients, resulting in a distressing experience for those witnesses (see responses from Justice for Children, Scottish Women's Aid, SCRA, Professor Fiona Raitt etc). The Justice for Children response, along with others cited above, believes that this kind of robust cross-examination does little to extract the truth, reinforces the imbalance of power between the cross-examiner and the witness, and creates the right conditions for a witness to give confused and muddled evidence. In their view the use of an intermediary would go a long way to helping the witness to give more reliable evidence.
Victims and Witnesses Unit
Criminal Justice
August 2008
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