Scottish provisions for vulnerable witnesses

Cooper and Grace discussed the special measures for vulnerable witnesses in England and Wales ¹ . We hope to provide the context of these provisions in Scotland.

In Scottish legislation an individual may be deemed vulnerable when giving evidence if they are under 18 or have a mental disorder which may affect the quality of this evidence. Under the Victims and Witnesses (Scotland) Act 2014 ‘standard special measures’ are given for vulnerable witnesses. In contrast to England and Wales, these measures also apply to those who are accused. The following measures are included in the Criminal Procedure (Scotland) Act 1995 (3) (Section 271H).

‘Taking of evidence by a commissioner’: an individual appointed by the courts takes the evidence.

‘Use of a live television link’: the witness gives evidence from somewhere outside the courtroom by means of a live television link, not necessarily within the court building.

‘Use of a screen’: the accused is physically concealed from the witness, although the court ensures that the accused can watch and hear the witness giving evidence.

‘Use of a supporter’: supporters can be selected by witnesses or on their behalf. Their role is to support witnesses while the witnesses give evidence. If they also have to give evidence, they must do so before acting as supporters.

‘Giving evidence in chief in the form of a prior statement’: a statement by the witness is lodged in evidence without the witness having to speak in court.

If it is felt that these measures are necessary, a Vulnerable Witness Application must be lodged by those who are citing the witness. This application includes which measures are being requested and the views of the witness, including any carer if possible. The court has the final decision on which measures are most appropriate.

In contrast to England and Wales legislation, the Vulnerable Witnesses (Scotland) Act 2004 put an end to the competence test for witnesses. Competency is set out in England and Wales legislation under the Youth Justice and Criminal Evidence Act 1999. The advantage of removing this test is that it allows the judge or jury to determine the witness's reliability, rather than a test which did not necessarily ensure the truthfulness of their evidence. This ensures that vulnerable people have the opportunity to be heard.

It is important that practitioners working with vulnerable witnesses who may be appearing in the Scottish courts are aware of these procedures, as their input could drastically change a witness's experience of the court. Psychiatrists are in a position to advise on optimum conditions to aid a patient's mental state, and in so doing not only ensure a fair legal process, but also a legal process that is as stress-free as possible.