Special measures for vulnerable witnesses

Vulnerable witnesses can, for a range of reasons, face barriers to giving evidence in court proceedings.¹ Special measures are a set of arrangements designed to make it easier for such witnesses to provide their best quality of evidence.² They can reduce or remove the stressful environment in which a witness gives their evidence, in turn relieving anxiety and pressure. They may also ameliorate trauma or psychological harm suffered by the witness.³ Arguably, a more comprehensive, reliable, and accurate account of events can be elicited from a vulnerable witness using special measures.⁴

In recent years, statutory reform has resulted in the increased use of special measures for vulnerable witnesses. This was part of a wider Scottish Government initiative aiming to treat victims and witnesses with fairness, dignity, and respect.⁵ Vital testimony of witnesses who would not otherwise feel able to give evidence can be secured, thus safeguarding the public interest. More generally, special measures can increase access to justice for parties by enabling them to place before the court the best evidence in support of their case.⁶

At the same time, an accused/opposing party has the right to cross-examine and effectively test the evidence given by witnesses against them.⁷ The use of special measures potentially undermines this principle by removing the opportunity to challenge a witness’s evidence by traditional means: in the witness box within the courtroom, physically in front of the accused/opposing party.⁸

This article explores the appropriate use of special measures in court proceedings to ensure fairness to all parties involved. It is argued that careful and continuous consideration must be given to whether a witness is vulnerable; and, if so which special measures (if any) would enable that individual to give their best quality of evidence. In safeguarding the interests of an opposing party, challenge or objection to an application for special measures should be raised where there is a genuine doubt that the witness is “vulnerable”, or that their best evidence would in fact be achieved through the measures sought.

What is a vulnerable witness?

The statutory definition of “vulnerable witness” in both criminal and civil proceedings are similar, albeit with slight differences.⁹ In all cases, a child under the age of 18 at the date of commencement of proceedings a “vulnerable witness” by virtue of their age.¹⁰ A witness may also be “vulnerable” if the court is satisfied that there is a significant risk that the quality of their evidence will be diminished in terms of completeness, coherence, and accuracy due to either:

1. Mental disorder; or

2. Fear or distress in connection with giving evidence in the proceedings. ¹¹

In criminal proceedings alone, the definition of “vulnerability” is extended to other categories of witness. For instance, where the court is satisfied that there is a significant risk of harm to the witness because they are giving evidence in the proceedings.¹² Also, complainers of certain categories of offence – namely sexual offences, human trafficking, prostitution, domestic abuse, and stalking - are deemed vulnerable.¹³ Those complainers, as well as children, are therefore automatically entitled to the use of certain special measures.¹⁴

For all other types of vulnerable witness, special measures are not afforded by default. The court in both criminal and civil proceedings must first determine whether the witness is in fact vulnerable. In doing so, various factors will be considered, such as:

• the nature and circumstances of the alleged offence/matter to which the proceedings relate;

• the nature of the evidence which the person is likely to give;

• the relationship (if any) between the witness and accused/opposing party or other parties to proceedings;

• the age and maturity of the witness;

• any behaviour towards the witness by various parties connected to the proceedings;

• other relevant factors such as: social or cultural background, ethnic origins; sexual orientation; domestic or employment circumstances; religious or political beliefs; or a physical disability or impairment;¹⁵ and

• the views and best interests of the witness.¹⁶

An accused person in criminal proceedings can also be a “vulnerable witness” if they meet the criteria above, and thus can apply for the use of special measures whilst giving evidence.¹⁷

The importance of identifying vulnerability

A party intending to cite a witness has a duty to take reasonable steps to identify and assess any vulnerability, and to specify suitable special measures if required.¹⁸ Assessing and identifying a vulnerable witness is not always easy. Sometimes a vulnerability may not become clear until the witness is in court giving their evidence. Early identification of vulnerability is, however, crucial to ensure that the witness receives the appropriate support throughout proceedings.

The Advocates Gateway is a particularly useful tool for practitioners in the process of identifying and supporting vulnerable witnesses.¹⁹ This resource can be accessed online and includes practical evidence-based guidance on vulnerable witnesses and special measures. It sets out the best practice and has been endorsed by the High Court of Justiciary.²⁰ The Gateway offers a range of toolkits tailored to different scenarios; one of which specifically assists with identifying vulnerability.²¹ That toolkit sets out practical examples of questions which practitioners can ask a witness, and certain behavioural characteristics displayed by a witness which might warrant further investigation into possible vulnerability. It is fundamental that practitioners familiarise themselves with the various toolkits to ensure they are fully equipped to identify and support a witness’s vulnerability throughout proceedings.

The availability of Special Measures

There are a range of special measures available to vulnerable witnesses.²² The following are some of the most regularly used in court proceedings:²³

Evidence by a Commissioner:²⁴ A hearing is held separately and in advance of the trial itself, usually in a more informal environment with comfortable seating and no court attire worn by the legal personnel.²⁵ The Commissioner is usually a judge for High Court proceedings, or otherwise a Sheriff. The evidence is pre-recorded and subsequently played to the court at the trial. The accused/opposing party generally watches the Commission from a separate location. The style, length, and manner of the questioning is tailored to the witness’s needs and vulnerabilities, which is usually determined in advance of the Commission.²⁶ Legal representatives may be asked to submit written questions in advance of the hearing.²⁷

Television live link:²⁸ Arrangements can be made for a vulnerable witness to give evidence during the trial either from another room within the court building, or from a remote site, while the accused and other parties are in the actual courtroom.

Screen:²⁹ A physical screen is positioned in front of the witness box within the courtroom to hide an accused/opposing party and members of the public from the sight of the witness. The other parties will still be able to see and hear the witness through a television link which is played around the court.

Supporter:³⁰ The supporter may be present while the witness is giving evidence but cannot prompt or influence the witness in any way – they are simply there as a silent presence. This may be a volunteer from the Witness Service, or another person known to the witness.

Prior statement as evidence-in-chief:³¹ A prior statement is lodged as a witness’s evidence-in-chief, without the witness having to adopt the statement in court. Often this is in the form of a recorded Joint Investigative Interview given to police, but it could also be a written statement. There is no such provision for the admission of prior statements as evidence-in-chief in civil proceedings more generally,³² though specific provision exists in relation to certain Children’s Hearings proceedings.³³

Securing Special Measures for Vulnerable Witnesses

For a vulnerable witness to benefit from special measures, various procedural hurdles must be overcome:

1. Child and deemed vulnerable witnesses

As explained above, children and “deemed” vulnerable witnesses in criminal proceedings have automatic entitlement to one or more of the “standard” special measures. These are: television live link a screen; and/or a supporter.³⁴ There is now a presumption that child witnesses in some of the most serious criminal cases will give evidence in advance of trial, outwith the court setting.³⁵ In those circumstances, evidence by a Commissioner, a supporter, and use of prior statement as evidence-in-chief are now treated as “standard” special measures which the court must authorise unless exceptional circumstances exist.³⁶ All other special measures sought will only be granted at the court’s discretion. To obtain special measures, a Vulnerable Witness Notice must be lodged and intimated in accordance with the statutory requirements.³⁷ A new simplified procedure is due to come into effect whereby such Notices seeking only “standard” special measures will be granted administratively by the clerk of court.³⁸

Where special measures are sought for a child in civil proceedings, a Child Witness Notice must be lodged and intimated.³⁹ The court must authorise the special measures it deems appropriate for the child. There is a presumption that live link or screen, either with or without supporter, is appropriate for a child witness,⁴⁰ though other measures may be sought. While a child’s wishes in respect of special measures will be taken into consideration, the best interests of the child are a paramount consideration.⁴¹

2. Other vulnerable witnesses

For all other vulnerable witnesses, the granting of special measures is a decision for the court. A Vulnerable Witness Application must be lodged and intimated.⁴² The court must first be satisfied that the witness is “vulnerable” in terms of the definition,⁴³ and secondly that the measures sought are appropriate for taking the witness’s evidence. In determining the appropriateness of special measures, the court must consider:

• the possible effect on the witness if required to give evidence without special measures;

• whether it is likely that the witness would be better able to give evidence with special measure(s); and

• the various factors relevant to determining vulnerability.⁴⁴

Essentially, the court must consider whether the special measures would facilitate a witness in giving their best evidence. Regard must be had also to the views and best interests of the witness.⁴⁵

When are special measures appropriate?

1. Criminal proceedings

The introduction of the statutory presumption that certain complainers are “vulnerable” resulted in a sharp increase in the use of special measures in criminal cases.⁴⁶ With the more recent legislative initiatives aimed at increasing the use of prior statements and evidence by a Commissioner, it is anticipated that pre-recording evidence will become increasingly more common in criminal cases.⁴⁷

The increased use of special measures has understandably resulted in concerns that the opposing party may be denied the opportunity to properly confront a witness and challenge their credibility or reliability. It has been argued that placing a degree of stress or pressure upon a witness may be necessary to test the veracity of the evidence.⁴⁸ It may be more difficult for the fact-finder to adequately assess a witness’s demeanour where special measures are in place.⁴⁹ Furthermore, the use of special measures might suggest to the fact-finder that the witness has something to fear or requires protection, which could lead inadvertently to a presumption of guilt.⁵⁰

Special measures do not, however, undermine the right to a fair trial - and more specifically the accused’s right to confront and cross-examine witnesses against them⁵¹ - so long as the proceedings as a whole are fair.⁵² A fair trial requires the interests of an accused/opposing party to be ‘balanced against those of witnesses or victims called upon to testify.’⁵³ The right to cross-examination may therefore be attenuated (though of course not entirely negated), where necessary to protect the rights and interests of vulnerable witnesses.

In balancing the competing interests of parties and safeguarding the interests of an accused/opposing party, special measures should only be used where they are in fact necessary to enable a vulnerable witness to give their best evidence.⁵⁴

2. Civil proceedings

In contrast to the criminal process, special measures are used much less frequently in civil proceedings. Yet they may be just as valuable in enabling a vulnerable witness to give their best evidence. For example, reparation actions are increasingly being raised in the civil courts by complainers of rape, domestic abuse, or historic child abuse.⁵⁵ Often child and family law proceedings will also be inextricably linked with those types of criminal allegations. The status of special measures in civil proceedings is arguably asymmetric where they ultimately involve the same allegations against the same people as in criminal proceedings.

Currently the onus is on the practitioner who is citing the witness to take an active role in identifying vulnerability and in ensuring that the most appropriate special measures are applied for. A new legislative category of “deemed vulnerable” witness in certain Children’s Hearings and parental responsibility hearings involving allegations of specific crimes is currently pending.⁵⁶ This will likely increase the use of special measures in some civil hearings involving sensitive or violent criminal allegations.

There is, however, scope for the definition of “deemed vulnerable” witness to extend to other types of civil cases involving allegations of crime. Parties in civil proceedings involving particularly sensitive or violent criminal allegations should surely be afforded the same entitlement to special measures as those in criminal proceedings. This would guard against arbitrary outcomes and unfairness to parties. It is hoped that the legislation will be amended to reflect this.

Selecting the most appropriate special measures

Despite the law’s presumptions as to which special measures may be appropriate for certain categories of vulnerable witness, each witness will have a unique set of circumstances. One vulnerable witness may receive great benefit from certain special measures while the same measures would not necessarily help another to give their best evidence. It is therefore crucial that practitioners properly consider which special measures would best suit the individual needs of a vulnerable witness.

1. Expert reports

In applying for special measures, the lodging of supportive evidence such as medical, psychological, or psychiatric reports is influential but not mandatory.⁵⁷ Obtaining such information can nevertheless assist practitioners in determining which special measures would be most appropriate for an individual; particularly if a witness has a series of issues affecting vulnerability. Input may appropriately be sought from an array of experts, depending on the nature of the witness’s vulnerability. Examples would include a psychiatrist, psychologist, independent social worker or expert in speech and language difficulties. It may also be helpful seek the opinion of a professional who has personally treated the witness such as a doctor or social worker.

2. Considering the different features of each special measure

In determining the most suitable special measures for an individual, consideration must be given to the different characteristics of each option:

Evidence by a Commissioner: This has the benefit of a much more relaxed and informal setting than the traditional courtroom setup. It allows for evidence to be captured at an early stage in proceedings which reduces the pressure on a vulnerable witness to recollect events months or even years later.⁵⁸ It also removes the stress of the witness having to wait until they are called to testify in court in the actual trial or proof. However, technical difficulties may arise with the pre-recording of evidence, which can result in the vulnerable witness having to repeat their evidence in its totality.⁵⁹ The Commissioner procedure is also distanced from the judge and/or jury, involving the risk that the witness’s evidence will lose impact upon the court.⁶⁰

Prior Statement as Evidence-in-Chief: An advantage of this is that the witness is required to answer fewer questions, with the statement usually being taken at an early stage in proceedings.⁶¹ There may, however, be a lengthy gap before the witness is cross-examined.⁶² The witness will not have the same opportunity to be warmed up and eased into questioning prior to cross-examination.⁶³ Also, the presentation of the evidence to the court may be adversely impacted which could risk stripping the emotion and rapport achieved from oral evidence.⁶⁴

Television Live Link: This may benefit some vulnerable witnesses by removing them from the courtroom setting. However, the inherent remoteness involved may cause a sense of exclusion from proceedings if the vulnerable witness is the only party in a separate room.⁶⁵ And, if the witness is giving evidence in the actual court building, there is a continued risk that they will come face-to-face with an accused/opposing party.⁶⁶ There can also technical difficulties associated with the remote nature of the live link. Issues with sound and picture quality can exacerbate the physical and emotional distance between the witness and the rest of the court.⁶⁷

Screen: There may be benefit in physically shielding the vulnerable witness from an accused/opposing party.⁶⁸ This measure allows for face-to-face contact between the witness and lawyers asking the questions, which may facilitate better interaction and rapport. Some vulnerable witnesses may still prefer to give their evidence in the courtroom and be in the same space as the people asking them questions. However, even with a screen, a witness may still feel unsettled the courtroom environment with the knowledge that they are still in the presence of the accused/opposing party.⁶⁹

Supporter: Some vulnerable witnesses will benefit from the knowledge that there is a supporter sitting beside them.⁷⁰ Others, however, may not like the idea of having an unfamiliar supporter and would prefer to be supported by someone known to them, such as a family member or support worker. On the contrary, a vulnerable witness may prefer not to have a person known to them present while they are giving difficult testimony. For that same reason, some would feel more comfortable giving the evidence without any supporter at all. It should also be noted that a person due to give evidence cannot be a supporter until their own evidence is completed.⁷¹

The different features of various special measures will suit some witnesses more than others. The various toolkits available on the Advocates Gateway also provide helpful guidance as to which special measures may be appropriate depending on different types of vulnerabilities.⁷²

3. The importance of speaking to the witness

It is fundamental for any practitioner determining the appropriate special measures to discuss the options with the vulnerable witness. The various features of each special measure should be carefully and clearly explained to the witness before their views are sought. It must always be borne in mind that a vulnerable witness might not wish to use any special measures while giving their evidence. Some will want to face the accused/opposing party and literally “have their day in court”.⁷³ Whilst the witness’s view of the most suitable special measures for them (if any) is paramount, it is not inappropriate to steer a witness in a particular direction in circumstances where it would be in their best interests to do so.

4. Continuously monitoring and reviewing special measures

The appropriateness of special measures may change throughout proceedings. The court can review the situation and vary or even revoke special measures at any time (including after the witness has started giving evidence).⁷⁴ It is therefore important for practitioners to continuously monitor a witness’s vulnerability, and the appropriateness of the arrangements in place for them to give their evidence. If circumstances have changed which call for review, an application should be lodged by the party citing the witness.

Opportunities to oppose or challenge special measures

There are various avenues available to object to or challenge special measures sought by the opposing side. In criminal cases involving child and “deemed” vulnerable witnesses, objection is only permitted where the special measures are not “standard” ones.⁷⁵ Objection can, however, be made to any special measures sought by the other “non-automatic” categories of vulnerable witness.⁷⁶ In contrast, there is no express provision permitting a party to object to special measures in civil cases, though as special measures will not be granted automatically, parties have the right to be heard.⁷⁷

Furthermore, special measures may be varied or revoked if the arrangements in place would give rise to significant risk of prejudice to the fairness of the trial, or to the interests of justice, which significantly outweighs the risk of prejudice to the witness giving evidence.⁷⁸ This gives parties the opportunity to challenge the appropriateness of special measures at any point in proceedings. There is no express provision for a party who has not cited the witness to apply for review of special measures in civil proceedings. However, in the interests of fairness, parties can draw to the court’s attention any concerns with the appropriateness at any time, which can trigger review on the court’s own motion.⁷⁹

When is objection to special measures appropriate?

As already pointed out, the judicial attitude is that special measures do not generally undermine the right of a party to confront and cross-examine witnesses against them. The court will therefore only entertain objections to special measures in exceptional circumstances. One example could be where the physical size of a witness is crucial to a party’s case, and this cannot be adequately assessed where special measures are in place.⁸⁰

Careful thought is required prior to opposing special measures. Indeed, it is unlikely to be in the interest of any party to be cross-examining a clearly distressed witness. Special measures should not be opposed, therefore, unless the challenging party has a properly reasoned objection which is supported by evidence.

Nevertheless, it is worth bearing in mind that special measures are “special” for a reason. The legal tests and procedural hurdles exist to ensure that they are only available to those who truly require them. In other words, special measures should only be sought if:

1. The witness is actually “vulnerable” in terms of the statutory definition;⁸¹ and

2. The particular special measures to be applied will in fact enable the vulnerable witness to give their best evidence.

Evidence may be available which contradicts an assertion by a witness in support of an application for special measures. One example is where a witness claims that their quality of evidence would be diminished through fear of the opposing party, yet evidence shows that the witness has in fact been contacting and even intimidating the opposing party. Any material that the party has lodged alongside a Vulnerable Witness Application should be carefully assessed to confirm whether it does in fact support the Application. For instance, a witness may claim to have a medical condition which would cause them distress if they had to give evidence in the courtroom yet fail to provide any proper vouching.

Whilst the courts will not entertain frivolous objection or challenge, it is worth raising with the court any genuine concern that the use of special measures will prejudice a party to the proceedings.

Conclusion

Special measures can be invaluable in enabling a vulnerable witness to give their best evidence in court proceedings. It is, however, is essential that the interests of all parties are balanced to ensure that proceedings as a whole are fair. Practitioners must take the appropriate steps to properly assess vulnerability, and, if required, determine the most suitable special measures to assist that individual witness in giving their best evidence. Challenge or objection to special measures may be in the interests of an opposing party where: a witness does not appear to be truly “vulnerable”; a witness would not in fact present their best quality of evidence with use of the measures, or; where the use of special measures would prejudice the fairness of the trial or the interests of justice. These considerations should be monitored and kept under review throughout proceedings.