Good morning, and thank you for the opportunity to make opening remarks on the bill.
The main purpose of the bill is to improve how children, in the first instance, and vulnerable witnesses participate in our criminal justice system, by enabling the much greater use of pre-recorded evidence in advance of trial.
The bill builds on the work of the Scottish Courts and Tribunals Service’s evidence and procedure review, which made recommendations on how to improve the treatment of vulnerable witnesses in the Scottish criminal justice system. Those recommendations included proposals on how to protect vulnerable witnesses—focusing on children in the most serious cases—from further traumatisation, by introducing a new rule that they will pre-record their evidence.
The main reform in the bill is to create a new rule for children under 18 who are complainers or witnesses, to ensure that, where they are due to give evidence in the most serious cases, they will have it pre-recorded, unless an exception applies. The new rule applies only to solemn cases; committee members will have noted that the bill makes no provision in relation to summary cases. However, in a summary case it is currently possible to pre-record under the current legislative provisions.
The bill does not extend the new rule to a child who is accused. That was considered, but it was decided that it was not appropriate, given the practical issues. Those issues are expanded on in the policy memorandum. Again, it is important to note that, under the current legislative provisions, the evidence of an accused person can be pre-recorded.
The bill includes a power for the proposed new rule to be extended to adults who are deemed vulnerable witnesses in solemn cases. That will potentially include complainers in sexual offence, human trafficking, stalking and domestic abuse cases. The Scottish Government considers that those categories of witness would benefit from the greater use of pre-recording; the power therefore ensures that the bill’s most significant reform can be extended beyond child witnesses in due course.
As committee members will be aware, evidence by commissioner is the special measure that is used to allow for evidence to be pre-recorded in advance of a criminal trial. The benefits of the approach are that the date and time for evidence by commissioner can be scheduled in advance, avoiding uncertainty for vulnerable witnesses, the atmosphere is less formal than that of full court proceedings, and evidence can be recorded directly or via remote videolink from another location. The evidence is then played at the trial without the witness having to be present.
The bill removes legislative barriers that might have a detrimental effect on the greater use of pre-recorded evidence. If appropriate, a commission could happen prior to service of an indictment, although, as committee members will note from the policy memorandum, in the short to medium term it is considered that applications for evidence by commissioner to be taken in advance of the indictment are likely to be rare.
The bill introduces the concept of a “ground rules hearing”, to ensure that all parties are prepared and the issues set out in the practice note are considered. It is important to note, however, that the bill provides the flexibility for the ground rules hearing to be conjoined with another hearing, if appropriate.
The bill also makes provision with regard to the role of the commissioner, to ensure that the commissioner has the same powers as a judge to review the arrangements for a vulnerable witness giving evidence and to encourage that the same judge undertakes the ground rules hearing and the commission, where that is reasonably practicable.
Finally, the bill makes provision for a new, simplified intimation process for standard special measures for child and deemed-vulnerable adult witnesses, which, where it applies, will streamline the current process by making it an administrative rather than a judicial process.