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29 March 2017, 09:29
New guidelines have been published to improve the way evidence from child and vulnerable witnesses is taken in court cases.
Scotland's Lord Justice Clerk, Lady Dorrian, has drawn-up the advice around commissions; in which examination and cross-examination of vulnerable witnesses is recorded in advance of a trial to reduce their need to attend court in person.
The guidance, known as a 'practice note', sets out the practical arrangements for commissions to ensure "the minimum risk of further trauma'' and says questioning should be adapted to a "witness' capacity to understand''.
It will require the parties to a court case to consider and discuss in advance the lines of inquiry to be pursued, the form of questions to be asked, and the extent to which it is necessary to put the defence case to the witness.
It is the latest stage in the Scottish Courts and Tribunal Service's (SCTS) Evidence and Procedure Review.
Lady Dorrian said: "A successful Commission depends not only on the practical arrangements, but also on the nature of the questioning.
"There has been a great deal of work done to show that if questioning is adapted to match a witness' capacity to understand and respond, the quality of the evidence elicited can be transformed and the witness' experience improved immeasurably.''
She added: "This is not something that any party should be fearful of, and it is not intended to constrain the parties unduly; the evidence from experience in England suggests that the requirement to think about lines of questioning in advance has benefited everyone.
"In all aspects of the work being undertaken we should never lose sight of the underlying aim. That is to secure a justice system which allows the guilt or innocence of an accused to be determined on the basis of the best possible quality of evidence available, in a manner that does not cause undue distress or harm to any participant in the process, and which is transparently fair, efficient and effective.''
The Scottish Government supports the implementation of the practice note.
Justice Secretary Michael Matheson said: "Giving evidence during a criminal trial can be a stressful event for anybody but particularly so for children and vulnerable adult witnesses.
"We want to ensure that they have all the necessary support to reduce anxiety and ensure they can give their best evidence, while maintaining the necessary rights of accused persons.
"I therefore very much welcome Lady Dorrian's new legal practice note as it is one of the first steps, in what I see, as a journey to improve the experiences of children and vulnerable witnesses in our criminal justice system.
"As I have said previously, we must strengthen our system of support for child and vulnerable witnesses and I consider that in many cases the use of pre-recorded evidence will be the best way to do this.''