Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill

– in the Scottish Parliament on 9th May 2019.

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Photo of Christine Grahame Christine Grahame Scottish National Party

The next item of business is a debate on motion S5M-17210, in the name of Ash Denham, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

Photo of Ash Denham Ash Denham Scottish National Party

I am here because the Cabinet Secretary for Justice’s paternity leave has started unexpectedly early. I know that members of the Parliament will want to join me in congratulating him and his wife on the birth of their daughter. [

Applause

.]

The cabinet secretary has asked me to thank, on his behalf, the members and clerks of the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee and, in particular, the convener and members of the Justice Committee, for their thoughtful and diligent consideration of the bill.

As always, we are grateful to all organisations and individuals who gave evidence during the Government’s consultation and, latterly, to the Justice Committee. Their evidence was vital and has helped to shape not just the bill but related non-legislative work. I also thank our justice sector partners, who worked closely with our officials to inform the policy development and practical implementation of the bill.

The reforms in the bill will make important improvements to how children, initially in the most serious cases, are able to give evidence about what are often distressing and traumatic experiences. Many more children will be able to record their evidence at an early stage and will not have to wait for the trial. It is right that we support such witnesses to give their best evidence in appropriate surroundings, while ensuring that the interests of accused persons are protected. The reforms do just that.

I am grateful for the constructive scrutiny and support that the proposed changes received from members as the bill progressed. The process is an excellent example of all parties working together on a consensual basis to make proposals as effective as possible.

It is important to acknowledge again the impressive work that was carried out by Lady Dorrian and the Scottish Courts and Tribunals Service in their evidence and procedure review. The work began in 2015—there has been quite a journey to get to this point—and it started a vital debate on whether more could be done to utilise existing special measures and technology to improve how we take evidence. One of the review’s immediate outputs, a new High Court practice note on evidence by commissioner, has already been shown to be having a positive impact.

The Justice Committee’s stage 1 report was detailed and brought a number of important issues to the fore. First, although we are all keen to see the greater use of pre-recording rolled out as quickly as possible, it was helpful to reach an agreed understanding that—given the scale of the reforms—a phased implementation approach is sensible. The committee emphasised the need for careful monitoring and evaluation of each phase, and the need to be kept informed on the outcomes of those evaluations and on more detailed implementation plans as they are developed. I know that the cabinet secretary is in full agreement with the importance of that, and that he will keep the committee updated throughout the implementation of the reforms.

The Deputy Presiding Officer:

I think that you are a very clear speaker, minister. However, according to broadcasting, you need to move your microphone a little closer to you.

Photo of Ash Denham Ash Denham Scottish National Party

I will.

As part of the phased implementation, the new pre-recording rule will first apply to child witnesses in the most serious cases, with the clear intention to extend it to adult deemed vulnerable witnesses in the future. At the bill’s introduction, the offences to which the new rule would apply were significant, but the committee’s in-depth scrutiny and the stage 1 debate made persuasive arguments that the offence of domestic abuse should be added to the list. That major addition to the bill was made at stage 2, and it has been an important one. The cabinet secretary thanks everyone for making such a compelling case and for further enhancing the reforms.

As with most criminal justice reforms, we must get the right balance for victims, witnesses and accused persons. Some in the legal sector raised concerns that the reforms might prevent the cross-examination of child witnesses. Although that was never the intended effect of the bill, it was an important issue, as we do not want any concerns to undermine the legal sector’s support for the changes. The cabinet secretary was therefore happy to propose an amendment to clarify the point at stage 2, and he was grateful that it was supported in committee.

The passage of the bill to date has also focused attention on the development of the barnahus concept in Scotland. The cabinet secretary recently wrote to the Justice Committee with an update on our work in that area, which I trust was helpful. Clearly, there is much more to do. However, we now have a great basis on which to work together to progress that vital area of work.

This bill marks a major milestone, of which we can all be proud.

I move,

That the Parliament agrees that the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill be passed.

Photo of Liam Kerr Liam Kerr Conservative

I am pleased to open for the Scottish Conservatives and, more so, to speak in favour of passing the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

In short, the fundamental principles of the bill are ones that, it is fair to say, all parties and members were able to unite behind. It was clear from the evidence that we heard throughout its passage that the current system for taking evidence from children is less than ideal. Indeed, I recall that our stage 1 committee report quoted Children 1st as suggesting that the current system is “Victorian”.

It certainly became clear from the evidence that too many victims and witnesses of crime currently find themselves being retraumatised by the court process, and that they can often suffer greater trauma and harm. It also became clear that the bill should reduce the distress and trauma that are caused to child witnesses through giving evidence, as well as improve the quality of justice.

The bill does that, because it is at its core about improving the experience and evidential strength of children and vulnerable witnesses in the criminal justice system.

The bill will ensure that children have to give evidence in court only in exceptional cases, and it will enable the greater use of pre-recorded evidence. Its key provision is that, when a child witness is to give evidence in serious criminal proceedings—for one of a set list of offences—the court must enable all of the child witness’s evidence to be given in advance of the hearing.

The Scottish Courts and Tribunals Service described it as

“a critical step in improving both the experience of witnesses and the quality of justice”.

It clarified that in a submission to the committee, in which it stated:

“justice would be best served if young and vulnerable witnesses could give evidence in a way that maximised the chances of it being comprehensive, reliable and accurate, and minimised any potential further harm or traumatisation from the evidence-giving process itself.”

Let us also note that the Scottish Court Service’s evidence and procedure review, which the minister talked about earlier, suggested that

“particularly for young and vulnerable witnesses, traditional examination and cross-examination techniques in court are a poor way of eliciting comprehensive, reliable and accurate accounts of their experience.”

Parliament will recall that, although the principles of this bill were sound, there were a number of areas that required review at stage 2. Parliament will be pleased to note that, as requested by the committee and many stakeholders, the cabinet secretary amended section 1 to include child witnesses in domestic abuse cases. I align myself with the minister’s comments on that.

The cabinet secretary also amended the bill to put it beyond doubt that prior statements could be cross-examined. This amendment enables any party to the proceedings to have the court authorise the holding of a commission, which is a power that might be used when new evidence comes to light after the prior statement has been taken.

As members will recall, by working collaboratively with the Government and colleagues across the chamber, I have secured an amendment that compels the Government formally to review the operation and extent of success of the act. I also sought to amend the bill at stage 2 to ensure that victims were given the necessary support after the commission had taken place. I maintain that that is the right thing to do, but Parliament may be interested to know that Lady Dorrian expressed her concern in a letter to the committee that it should not be the role of the judiciary. That is a fair comment and, following assurances from the cabinet secretary that the issue would be addressed by the victims task force, I decided not to press the amendment.

This is absolutely a step in the right direction, but it is only a step. There are further actions worth exploring that may be brought out in the debate today. First, I reiterate my colleague Annie Wells’s call earlier this year to trial a one-sheriff system for domestic abuse victims. As it stands, the entirety of a domestic abuse case and related proceedings could be heard by various judges, especially if civil courts become involved in the event of a subsequent divorce or to make child residence arrangements. The system has been successfully implemented in parts of the US and Australia. Steps should be taken to minimise what victims have to relive, by requiring them to tell their story only once to a single judge.

Many speakers today will no doubt address the barnahus model. For those who are unaware, in its simplest terms—as Margaret Mitchell rightly pointed out, there is no single model—the barnahus is a child-friendly house that deals with criminal investigation; child protection; physical health, including forensic examination; mental health and wellbeing; and recovery and support needs, including family support. The beauty is that this is a multidisciplinary approach, which means that all services are provided under one roof, with relevant professionals coming to the child.

Perhaps the most important thing is that a key role of the barnahus is to produce valid evidence for judicial proceedings in a way that means that the child does not have to appear in court, should the case be prosecuted. As I have made clear previously, I align myself with the committee’s conclusion that there is a compelling case for the implementation of the barnahus principles in Scotland, as the most appropriate model for taking the evidence of child witnesses. I note the cabinet secretary’s assurance that that is the Scottish Government’s preferred direction of travel.

Parliament is called today to indicate its support for the bill. It is clear that the bill is a start, but it is the right start. It is clear that pre-recording evidence of children and adult vulnerable witnesses reduces the stress that they go through and can help ensure that the most accurate evidence is obtained. For those and many other reasons that I look forward to hearing from colleagues throughout the chamber this afternoon, I am pleased to confirm that the Scottish Conservatives will support the passing of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at decision time.

Photo of Daniel Johnson Daniel Johnson Labour

I, too, am pleased to support the bill. It is a good bill—it is a good start.

As we mark the 20 years of the Parliament, it is important to think about what has been done under the devolved settlement. We must remember that, until devolution, judges were appointed by ministers. In 2002, the Judicial Appointments Board for Scotland was established by the Labour-Lib Dem Administration; it was then put on a statutory footing by the SNP Government. That was a positive step forward. It is important to emphasise that progress and to recognise the importance of the judiciary. It is also important for us as legislators to work co-operatively with sentencers to make sure that we make progress in our criminal justice system.

It is important to recognise where the changes have come from—the courts and the judiciary—and that, in some instances, progress will require to be led by judges, so it is important to respect their independence. My remarks about the bill are therefore made with that in mind.

The bill is progress, because it will lead to better evidence being taken and less trauma being inflicted on those who give that evidence. Ultimately, justice must seek to defend and protect the vulnerable, and I think that the bill will do that.

How we have arrived at where we are has been well set out by the minister and by Liam Kerr. I will look at how we must move forward from this point.

The bill contains a number of sound provisions, but they must be a starting point. We need to focus on practice and on the ground rules hearings in particular. When we went up to Parliament house to see pre-recorded evidence in practice, many members of the committee were struck by the different environment that we saw—one that was conducive to the provision of better evidence. However, at the end of the day, it still ended up being a very alien environment with a child being cross-examined by two middle-aged men.

Although we must respect ground rules hearings for exactly the reason that I set out at the beginning of my speech—the need to respect judicial independence—we must look at how we can encourage better practice and ensure that evidence is given in those hearings in the way that we all hope that it will be.

Much thought was given to extending the provisions. We must recognise that we in Scotland are not necessarily at the forefront of measures that make provision for vulnerable individuals giving evidence in court. It is welcome that the Government lodged amendments to extend the provisions to domestic abuse cases. Likewise, I note the extension of the provisions to other persons deemed vulnerable, but we must ensure that those provisions are enacted as effectively and as constructively as possible. I believe that my colleague Jackie Baillie will speak further on that point.

Likewise, during stage 2, I spoke a lot about extending the approach to other types of case. The vast bulk of cases that go through our courts will go through the sheriff court, which will be unaffected by the provisions in the bill. I tested and probed that position, and I understand that it would have been inappropriate to extend the provisions to such cases, given the resource requirements and the nature of trials in the sheriff court, many of which would delayed by such a move. However, I ask that we look at the special measures, such as they exist, in the sheriff court to make sure that they are as good as possible and that the best technology and the best techniques possible are used.

Finally, I want to talk about the barnahus concept. We need to be careful of buzzwords and although the barnahus concept is an incredibly important one, with an important set of principles, sometimes some of us who are used to talking about these issues are a little bit too comfortable using the term. In essence, it is not that complicated. It is about having interviews with vulnerable witnesses as early as possible and making sure that those interviews are taken by specialist individuals with extensive training, in a context that is comfortable for and sympathetic to the individual giving the evidence. It is also about ensuring that, wherever possible, that interview is done only once.

Given that the evidence gathered in joint investigative interviews can be taken as evidence in chief, I do not believe that we in Scotland are that far away from being able to deliver barnahus, through better training for JIIs and better investment to make sure that there are no technical problems with that evidence, which I believe sometimes happens. We can achieve that. We must ensure that we make that progress, and I think that we can do so through collective focus and effort.

I thank the minister for her letter, in which she set out much of what she has said about how the Government seeks to make progress, funding for Children 1st, which is based in my constituency, consultation and developing standards.

I thank Lady Dorrian, among other people, for showing such leadership and I look forward to voting for the bill at decision time.

Photo of John Finnie John Finnie Green

I am delighted to say that the Scottish Green Party will support the bill at decision time.

I thank all the witnesses whom the committee heard from, the clerks and everyone who has contributed, including by providing briefings. We have carried out very detailed scrutiny. As I have said in the chamber previously, the Parliament is at its very best when committees provide detailed scrutiny of legislation.

One of the briefings that I received was from Children 1st—an organisation that needs no introduction. It included a case study of its work with a woman and her 15-year-old son in the Highlands. Her son was one of the witnesses when she was the victim of domestic abuse. She said:

“My son is still haunted by the fact that he had to sit in the court waiting room. He said it was the worst day in his life. Even though there was a court case, my ex was still trying to harm us all the time. Our lives were very much in danger.

My son was terrified that we’d run into my ex at court. His anxiety was going through the roof. He couldn’t cope going to college: he was too scared. He didn’t leave my side. He had really bad anxiety and didn’t sleep through the night. I didn’t think he’ll ever recover but things are getting better.

Children 1st should be brought in right away, and stay until the end of court. Children should always know there’s that lifeline.”

That indicates the trauma faced by victims of domestic abuse and the children who are involved. Some of us are only too familiar with such situations, given the evidence that we have taken. Everything requires to be child centred.

The bill is a fine piece of legislation, but of course it is not the finished article, and our direction of travel means that there will be more work to come. The Scottish Government’s positive response to the committee’s stage 1 report, not least in relation to domestic abuse, is welcome.

What is the purpose of our justice system? Self-evidently, the system needs to deliver justice for everyone, including the accused. Sometimes, we forget that.

Comments have been about the ability to cross-examine, which is very important. However, even in an adversarial system, we know that the best evidence—of which oral testimony is a vital part—is delivered when witnesses feel comfortable. The reality is that being in court is stressful for everyone, and that witnesses, particularly children and vulnerable people, will respond best when the groundwork has been done.

Lady Dorrian has been mentioned, and we should not underestimate the importance of her intervention in 2015, which led to the introduction of the practice note. Along with colleagues, I visited the High Court to see an example of how evidence by commissioner might be taken. Such steps are very positive, but people have rightly identified that special measures are already in place. I have had contact with constituents who have had cause to deal with such measures, and the experience has been mixed. We heard evidence that things do not always work out, particularly in relation to domestic abuse cases.

In a briefing that we received, the Law Society of Scotland talked about the administration of cases—which is a very simple thing—and said that early information is required for additional measures. We can get the top-level stuff right, but getting the simple stuff right can be just as important.

Adverse childhood experiences should be addressed through the courts; they should not be compounded by attendance at court. The question is the extent to which the bill will ameliorate the trauma, which will be ever present.

How long do I have left, Presiding Officer?

The Deputy Presiding Officer:

I can be generous. Do you want me to be generous, Mr Finnie?

Photo of John Finnie John Finnie Green

I always like it when you are generous, Presiding Officer.

As my colleague Daniel Johnson said, the key to the barnahus model is, in part, already in play in Scotland. Joint investigative interviews are undertaken by the police service and criminal justice social workers. We heard about the challenges of the system, in relation to compatibility. However, I thank our friends in Norway for our very informative visit to one of the houses that is used, which allowed us to see the forensic nature of such interviews and the level of training that is provided to those who carry them out. As with most things, it is very important that the system is adequately resourced.

Like many others, I took great pleasure in receiving the cabinet secretary’s letter in April, which explained the next stages of the delivery of the barnahus model. There is a welcome recognition of the need to take a collaborative approach that involves the Scottish Courts and Tribunals Service to get us to where we all want to go.

As I said, I am delighted that domestic abuse cases are now covered. We know that the pernicious effects of controlling and coercive behaviour can be offset if we get good evidence. We want the very best in our criminal justice system. The bill is progress, but there is work still to do.

The Deputy Presiding Officer:

You are looking at me anxiously, Mr McArthur, but I can be generous with you, too. Isn’t that nice?

Photo of Liam McArthur Liam McArthur Liberal Democrat

You may come to regret that, Deputy Presiding Officer.

I congratulate Humza Yousaf and his wife, Nadia, on the birth of their daughter. Can I say how much I am looking forward to the 20-page commemorative pull-out in

The National

, which must surely follow that event?

I start by thanking my committee colleagues, the Scottish Parliament information centre, the clerks and all those who gave evidence to us throughout consideration of the bill. I also want to record my thanks to the cabinet secretary and his officials for the constructive way in which they engaged with the committee throughout the process. Needless to say, the Scottish Liberal Democrats warmly welcome and strongly support the provisions of the bill, which will give children and young people, as well as vulnerable witnesses, greater protection in our criminal justice system. That is not simply in the interests of victims and witnesses; it is also in the interests of achieving greater fairness and efficiency in the system as a whole, as others have said.

Special measures already exist to enable children and vulnerable witnesses to give their best evidence. However, there is a compelling case for extending and strengthening those measures; indeed, the longer-term objective should be to take children out of our courts entirely. That position is supported by Children 1st and many others. I will develop that point a little further in a minute.

First, I want to acknowledge one of the key changes that the committee—acting in unison, as others have said—managed to secure. The process of rolling out the reforms—enabling more extensive use of pre-recorded interviews, ground rules hearings and joint investigative interviews—will not be without its challenges. It will certainly put enormous pressure on almost every part of our justice system, from the third sector through to our courts.

Therefore, the phased approach that is proposed in the bill, whereby categories of case will come within the scope of the bill over time, is sensible. It makes sense to reflect on experience and to ensure that, where appropriate, lessons are learned before we embark on the next phase. However, delaying of exclusion of child witnesses from giving evidence in domestic abuse cases was never an acceptable proposition, so I am delighted that the cabinet secretary agreed to the committee’s call for those witnesses to be included in the first phase of the roll-out.

Although the changes are welcome, they fall short of where we ultimately need to get to. Again, I am grateful to those who hosted our visit to Oslo last year to see at first hand how the barnahus principles are applied in Norway. I firmly believe that that genuinely child-centred and integrated approach to criminal justice is what we must aspire to here in Scotland.

I accept that the “one forensic interview” approach of barnahus might require a shift in legal culture and practice in Scotland, given our adversarial system, but that is not an insurmountable obstacle. As the NSPCC in Scotland points out, integrating justice, healthcare and on-going therapeutic social care services all under one roof, in purpose-built child-friendly accommodation, is the best, if not the only, means of effectively reducing trauma for child victims and witnesses, while maximising the chances of capturing their accounts of what has happened.

Lady Dorrian’s contribution to the wider debate has been recognised by everyone. I whole-heartedly agree with her that ways must be found to take evidence from children and other witnesses

“in an environment and in a manner that does not harm them further, but allows their evidence to be given and tested fully and appropriately.”

Needless to say, I am particularly interested in how the model might be tailored to work in more rural and island areas. The fact that the model has been such a success in Norway—a country that has many remote, rural and island areas of its own—should give us confidence in our endeavour.

I welcome the commitments to the adoption of a Scottish barnahus model, and to a review of progress being made towards that goal, that were made by the cabinet secretary at stage 2, and which have been repeated by the minister this afternoon. The committee will take a great interest in that, and will keep ministers’ and other stakeholders’ feet to the fire.

I will conclude, as I did at stage 1, with a quotation from Children 1st, which said:

“a joined up approach to the care and justice needs of child victims and witnesses through a Barnahus or ‘Child’s House’ is the best way to get it right for children from the moment they tell their story, ensuring that the child and their family get the support they need to recover. This will ensure that we have a justice system that is able to do both what is best for children and best for securing evidence.”

The Scottish Liberal Democrats strongly endorse that sentiment and will continue to work with ministers and colleagues from across Parliament to make it a reality—sooner, rather than later. For now, we look forward to voting for the bill at decision time.

The Deputy Presiding Officer:

We move to the open debate. The generosity continues; all four members in the debate can have five minutes each, if they wish. That has made your afternoon, Ms Baillie. I call Jenny Gilruth, to be followed by Maurice Corry.

Photo of Jenny Gilruth Jenny Gilruth Scottish National Party

I am grateful for the opportunity to speak in today’s stage 3 debate, particularly given the legislation that we agreed to only 48 hours ago.

On Tuesday, we voted to raise the age of criminal responsibility from eight to 12, and this evening we will vote to protect child witnesses in the most serious criminal proceedings. Those two pieces of legislation put children’s needs at the heart of our criminal justice system. I contrast that with Children 1st’s evidence to the Justice Committee, which was cited earlier by Liam Kerr, that Scotland’s justice system is inherently “Victorian” and often causes children “greater trauma and harm”.

The bill therefore marks a hugely significant shift, which is epitomised in section 1(3) of the bill, which states:

“The court must enable all of the child witness’s evidence to be given in advance of the hearing unless the court is satisfied that an exception is justified under subsection (7) or (8).”

That use of language is crucial, because it denotes a shift in power from Scotland’s court system towards putting witnesses’ needs first. As we have heard this afternoon, pre-recording evidence from vulnerable witnesses, especially children, will reduce trauma and distress.

I am proud that the Scottish Government has also included domestic abuse specifically in the bill. As the committee heard in evidence sessions, that is particularly important given the widening scope of what we now understand constitutes domestic abuse.

Pre-recording evidence is, of course, important in avoiding retraumatising of vulnerable witnesses. As the Lord Justice Clerk told the committee:

“When children ... are asked to give evidence at a time that is remote from the event, not only has their memory diminished, but they are more likely to be confused by general questioning about the incident, and in cross-examination might come across—often wrongly—as being shifty or unreliable.”—[

Official Report

,

Justice Committee

, 18 December 2018; c 3.]

That is an important point. Pre-recording evidence should expedite the process and avoid the need for evidence to be taken repeatedly from a witness. The example that has stuck with me was given to the committee by Daljeet Dagon of Barnardo’s Scotland, who told us of the witness who had to give 27 statements to the police. By the time the trial went to court, she was deemed to be an unreliable witness. So, another reason why the bill is so important is that it will result in better-quality evidence.

The Scottish Government is taking a phased approach to implementation of pre-recording of evidence; that approach is supported by the legal profession. At first, the rule will apply only to certain child witnesses giving evidence in the most serious cases in the High Court. That will allow witnesses who are most vulnerable to be supported swiftly. That approach is not simply about installing video recording equipment; it is about challenging an enshrined culture in the legal system, which historically has not always put witnesses’ needs—in particular, the needs of children—at its heart. Indeed, as the Crown Office and Procurator Fiscal Service told us,

“Phasing will allow the system to absorb change while minimising risk both to the system and to individual cases.”

In my contribution to the stage 2 debate, I raised the link with the Scottish Government’s getting it right for every child, or GIRFEC, policy, which is the foundation stone of our education system. I compared the barnahus model—a one-stop-shop where services come to the child—to our GIRFEC approach, which is also child-focused. Many schools in Scotland now also focus on being trauma informed. In Glenrothes, our police officers have embraced the trauma teddies scheme, which provides children with reassurance during or after distressing events.

In the cabinet secretary’s letter to the committee last month, he pointed to the Government’s commissioning of Healthcare Improvement Scotland, in partnership with the Care Inspectorate, to develop Scotland-specific standards for barnahus. I was glad to hear the minister mention commitment to that in her speech. It is welcome to have a commitment to concrete action, but I again encourage the Government to look at the links with our child-focused education system and to ensure that education partners are linked into development of the standards. It cannot be about just the justice system, if we are to get it right for every child.

Let us use the expertise that we have in Scotland to build a system that truly supports and protects child witnesses. I very much hope that that is exactly what our Scottish standards for barnahus will do in the future.

Photo of Maurice Corry Maurice Corry Conservative

I, too, thank everybody who has been involved in bringing the bill to this stage, particularly the clerking team. I welcome this debate on the bill at stage 3. What the bill puts forward—the pre-recording of evidence for some child witnesses outwith the courtroom—is an important step to take.

For the sake of those witnesses, many of whom are victims of atrocious crimes, it is vital that the proposed changes are as effective and sensitive as possible.

The bill is a positive move forward and I join my colleagues in supporting it. I found the committee report to be sound in its helpful analysis of the bill, and it is right that some of its recommendations have been listened to and will be adopted. It is that scrutiny that strengthens the possibility of real change to Scotland’s justice system.

As was generally agreed at stage 1, the bill deserves a gradual and careful implementation. It would do no good to overload the court process without consideration of the detailed planning and resources that are needed to secure meaningful and effective change that balances a fair outcome for the perpetrator with the respect and support that are owed to the witness. We have to be mindful of the different proceedings and the vulnerable witnesses at the heart of those cases.

More widely, the bill has encouraged us to take a step back to consider the best way to take evidence from child witnesses. None of us can condone the risk of vulnerable witnesses feeling targeted or traumatised by the court process. As I have said in the chamber before, the quality of their participation is vital to the outcome of the verdict. Therefore, ensuring that evidence is pre-recorded in those cases will provide children of different ages and abilities with a process that offers them the best chance to give accurate and informative evidence. As the children’s charity Barnardo’s Scotland highlighted, the better the support the witness receives, the better the evidence they give.

The bill should surely encourage us to look at transformations that could go further. With that goal in mind, I support the committee’s recommendation to explore the case for establishing a barnahus approach, which would take into account the importance of providing the right services to support young witnesses in a child-friendly setting. There is a persuasive argument that that pathway might be better equipped than a court process to handle children through what can be an intimidating and traumatic experience for them. Although I appreciate that the concept would take time to establish, I welcome the Government’s commitment to share progress on what a Scottish approach to barnahus-inspired principles would look like.

I am pleased that child witnesses in domestic abuse cases will now be included in the bill, as a result of the stage 2 amendment that was lodged by the justice minister. That addition to the bill was much needed, especially given the introduction of the Domestic Abuse (Scotland) Act 2018, as the ASSIST—advocacy, support, safety, information and services together—project highlighted in its insightful evidence. Under that new law, we expect to see a rise in the number of children who are called to give evidence under solemn procedure, the thought of which must weigh heavy on the mental health of those witnesses. With that in mind, the expansion of the provision in the bill to include domestic abuse cases is right and vital.

Further to that, it is worth exploring a one-sheriff system for victims of domestic abuse. If we are looking to stop the retraumatisation of witnesses, they would surely benefit from relaying their account to a single judge. We have seen how that can work in Australia and the United States, for example. The fact that that approach might promote greater efficiency is also worthy of note. Perhaps, following the passing of the bill, a trial of such a system should be the next step, as it could be how we make Scotland’s justice system work even better for victims.

Scotland needs its courts to be of the highest standard possible. For that to happen, we need to restore confidence in the justice process. We cannot lose the scope for wider reform that the bill encourages. We all want the bill to target the gaps and creaks in our court system and, with careful implementation and a clear view of the future steps that we must take, I believe that it can.

Photo of Jackie Baillie Jackie Baillie Labour

Thank you, Presiding Officer. You and the previous occupant of the chair are nothing if not generous with time.

I welcome the bill and its intention to ensure that there is support for children and the most vulnerable in our society at what can be an extremely difficult and often distressing time for them. It is all about giving the best possible evidence. I understand the immediate focus on children and I welcome the amendments that were made at stage 2 to include domestic abuse victims.

I will speak specifically about section 3, as that is the part of the bill that deals with other categories of vulnerable witnesses. The criteria and timing are entirely in the gift of the Scottish ministers. I have not heard any indication of a timetable to enact that aspect of the legislation, but I believe that it must not be left to gather dust on a shelf. I am particularly keen to hear from the minister in her summing up when she will extend measures to other vulnerable witnesses. I am afraid that I am less patient than many of my colleagues in the chamber.

I want to focus on people with learning disabilities as vulnerable witnesses. As convener of the cross-party group on learning disability, I am particularly keen to ensure that their voice is heard in every aspect of society, and that includes our criminal justice system. The debate has largely focused on children and I want to ensure that the views of people with learning disabilities are not overlooked or somehow othered in discussions surrounding the bill.

According to the Scottish Government’s survey, learning disabled people in Scotland were more likely to be victims of a crime in 2016-17 than non-disabled people. It is a fact that the heightened level of vulnerability that comes with having a learning disability makes some of them prime targets for criminal acts ranging from small-scale theft to sexual abuse and rape. It is vital, therefore, that their experiences of the criminal justice system are heard. I urge the Scottish Government and the minister to do that when considering the implementation of the bill.

The reform that is central to the bill, which essentially mandates for child witness statements for serious cases to be given in advance, is absolutely right, but it must be extended to people with learning difficulties as soon as possible. Presiding Officer, day-to-day tasks that may seem easy and even mundane to you and me can be hugely stressful and testing for many people with a learning disability. We know that some learning disabilities create real barriers to people feeling comfortable when talking to others or going to new and unknown places. Imagine for a moment the trauma that can occur from asking an individual with a learning disability not only to be the centre of attention in a courtroom but to relive over and over a horrific crime that they were a witness to, while being asked questions—often very personal questions—by a stranger.

The Equality and Human Rights Commission stated:

“People with learning disabilities can find the court environment very challenging, and often don't understand what is being said or what is happening.”

Prior statement giving completely removes that situation and will allow everyone to feel as comfortable as possible, given the circumstances. The Government’s policy statement says that extending provisions to other vulnerable witnesses represents “a major change”, and I agree. It also says that that will take time, but it would be useful for us to know how much time—what the target is for implementation—and to have an assurance that it will not be left on the shelf.

Finally, I want to mention the appropriate adult scheme. It is not directly connected with the bill, but the Scottish Government consulted on that last year and it is referred to in the policy memorandum. Indeed, the Government made a commitment to launch the scheme this year, so I ask when it will be launched. In that, and in the implementation of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, it is essential that progress is made to ensure that the most vulnerable people in Scotland have the protection that they need and deserve, and that that is not put off for another day.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

It is a great pleasure to speak in the debate—as it was at stage 1—as we stand, at stage 3, on the verge of making the bill law. I hear what others have said about its being just a start, and I agree with that, especially on the back of the main theme of Jackie Baillie’s speech. However, it is a very significant start, because this is real and proper legislation that will have a positive effect on people’s lives and will go some way to rectifying the discrepancies in our current system. Such people include the constituent whom I mentioned in my stage 1 speech, whose situation I highlighted again to the cabinet secretary at portfolio question time a couple of weeks ago. That is the sort of real-life situation that will be helped, in the future, by the passing of the bill. I know that the people involved continue to monitor the proceedings.

As members know, I was a member of the Justice Committee, and the argument for progressing the bill was very much won at stage 1, as has been reflected today in the chamber. The majority of the evidence that the committee heard from stakeholders, including Barnardo’s and Children 1st, was supportive of the need to reform the system and to introduce a rule that would ensure that, in the most serious cases, evidence from a child is taken at the pre-trial stage. It is also worth mentioning that, if, as seems likely, the bill is passed at decision time, that will present opportunities for children from black and minority ethnic backgrounds, who we know can face additional challenges when it comes to criminal and court proceedings.

As colleagues will know, I was particularly pleased that the bill process gave a good airing to the subject of joint investigative interviews, which Daniel Johnson focused on. Several years ago, when I was a social worker, I would share my frustrations with colleagues after carrying out such interviews. Never in a hundred years did I think that I would have the opportunity to talk about those experiences in our national Parliament, where changes can be made. That is why I have welcomed the steps that are being taken to allow joint investigative interviews to be used as evidence in chief. Those steps include expanding the training and increasing the number of interviews that are carried out by individual practitioners, which are two areas in which we heard that there were difficulties. That could lead to our going down the road of specialised expertise, which I think practitioners, the police and social workers would support.

I would also like to comment on the issue that has perhaps been the most prominent during the bill’s passage—the issue of Scotland moving to a barnahus model, which was raised again during today’s stage 3 consideration of amendments. I have said previously that my experience suggests that we could certainly move to such a model at least on a practice level, if not on a legal level, relatively straightforwardly, and I nodded eagerly when Daniel Johnson made that point. I think that we could interview children, offer support to families and provide health investigations in a one-stop child-friendly environment, because the current situation, whereby the involvement of health professionals and social work takes place at different points, which everyone accepts is not in the best interests of children, is a bit patchy.

That brings me to Margaret Mitchell’s amendment 7. Although I spoke against it and voted against it, I want her to know that I think that it is honourable that she has been a champion of the barnahus model. However, amendment 7 was a wee bit out of place and I could not support it. Despite what I said about the move to a barnahus model being relatively straightforward on a practice level, amendment 7 would have given risen to various complex legal technicalities, which the cabinet secretary and the Government would have had to look at. Most important, it risked retraumatising children, which is why I could not vote for it. Nevertheless, I credit Margaret Mitchell for her passion in this area. I think that she was very much taken by what the committee saw in Oslo, as we all were.

I welcome the cabinet secretary’s letter to the committee, which outlines that a scoping report will be produced as early as June this year and that final standards are expected by 2020. To my mind, that represents rapid progress, which must be welcomed. As the cabinet secretary said, that will allow for a collaborative approach between Healthcare Improvement Scotland, the Care Inspectorate and other partners on how we can deal with the difficulties in this area, such as those to do with pre-recording.

I commend the bill to Parliament.

The Deputy Presiding Officer:

We move to the closing speeches.

Photo of Daniel Johnson Daniel Johnson Labour

One of the advantages of opening and closing a debate for your party is that you get to say the things in your closing speech that you ran out of time to say or forgot to say in your opening speech. I congratulate Mr Yousaf: of all the reasons not to be present in the chamber, his is a pretty good one. I also acknowledge the contribution of Ash Denham, who has been left holding the legislative baby while Humza has gone off to hold an actual baby. I think that she has done very well, because the bill is technical and has taken everyone into a great deal of detail.

One of the key things that I want to highlight is the important fact that the bill does not stand in isolation. Other members have mentioned the Age of Criminal Responsibility (Scotland) Bill, and we are currently scrutinising the Management of Offenders (Scotland) Bill. The Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill can be a mark of progress, but it will be so only in conjunction with other legislation and other measures.

There are commitments to reducing short sentences and moving towards community sentencing. It is vital that the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill sits alongside those measures, that the proper investment is made in the technology and facilities that are required to deliver it and that, above all else, it enjoys the confidence of sentencers and legislators.

There is undoubtedly a confidence issue around community sentencing. We need to focus holistically, to ensure that the measures in the bill gain and enjoy the confidence that it seeks to provide. Above all else, we must, as Liam McArthur said—he made his point very well—aim to take children out of courts. The courts are no place for children. They serve only to traumatise them, and, in so doing, undermine the very things that, as I set out earlier, the justice system does to protect them.

I agree with the many members of the Justice Committee who highlighted how useful and informative our trip to Oslo was. It helped us to burst the jargon around the barnahus model. It struck me—it clearly struck Fulton MacGregor, too—that we are not terribly far away from that approach, given our joint investigative interviews and special measures.

There is an adversarial system in Norway, but it also has the barnahus model. Critically—this is the point on which we will have to reflect—what enables Norway to protect its adversarial system is the possibility of a secondary interview, although I understand that that measure is not used often, because of the confidence that exists in the barnahus model and, indeed, the professionalism with which the interviews take place. We ought to aim towards a system that can incorporate the important adversarial aspects of our justice system in a way that has the confidence of all those who participate in it. That will require investment and, above all else, training.

I will make one other point about the barnahus model. The police officers who carry out the interviews and run the barnahus approach have to undertake a three-year degree so that they get the specialised training that is required for that model. I fully believe that that is what we must aim for in Scotland.

The other key point that was raised in the debate—by John Finnie and Jackie Baillie, I think—is the fundamental need to improve people’s experience. Vulnerable people do not know that they will be traumatised because of where they are or the nature of the crime that might have been committed against them. If there is one possible flaw in the bill—I reflected on this issue during its passage—it is that the bill defines vulnerable people by the type of crime. I understand why that definition is used, but a child does not know that they will be traumatised if they give evidence under summary or solemn proceedings. That they can be traumatised in that way is clearly not right. We need to apply the barnahus principles, to ensure that those traumatising experiences are avoided and that giving evidence is not, as John Finnie said, the worst experience of a child’s life.

Likewise, vulnerability is not defined by age. Jackie Baillie’s speech was extremely powerful. There is every possibility of adults with vulnerabilities or learning disabilities being traumatised by their experience of court—in some ways, perhaps more than others. We must ensure that the measures in the bill are extended to those vulnerable people as quickly as possible to ensure that they, too, are supported.

Above all else, this is about taking people with us. This is about making progress, but we must take sentencers, legislators and, indeed, wider society with us, so that we can achieve the benefits and the progress that we all hope will result from the passing of the bill this evening.

Photo of Margaret Mitchell Margaret Mitchell Conservative

The Justice Committee’s scrutiny of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill has provided an excellent example of a parliamentary committee united in its support for, and working together to improve, legislation. I thank all committee members for their constructive contributions, and I pay tribute to all the organisations and witnesses who gave invaluable evidence to the committee. As always, the clerks have given the committee superb support, for which I thank them.

I want to thank both the Scottish Courts and Tribunals Service and Lady Dorrian for arranging a visit to the High Court to see how evidence is currently pre-recorded.

The committee also visited a barnahus in Norway and saw at first hand the benefits of providing child witnesses with a dedicated child-friendly facility away from the court, with a range of support services under one roof, and of the “one forensic interview” approach, which delivers the best evidence and reduces, and helps recovery from, trauma. The committee is extremely grateful to all the staff at the barnahus in Oslo for their warm welcome, and for the time that they spent answering our questions and explaining how the barnahus approach secures the best evidence from children in order to help secure a prosecution.

The bill’s main policy objective is to improve the participation of children and vulnerable witnesses in the criminal justice system through greater use of pre-recording of their evidence in advance of a criminal trial. As a result of a provision in the bill, pre-recording all of a child’s evidence will generally be required in the most serious cases. That new rule will have major implications for our adversarial criminal justice system, and it will require a major shift in legal practice and legal culture. In view of that, the Scottish Government’s phased approach to the rule’s implementation makes sense, as does the requirement for detailed analysis of each phase, with the initial phase focusing on child witnesses. That is why amendment 1 in the name of Liam Kerr was so important. I also point out that, as a result of a stage 2 amendment that was supported by the entire committee and all members in this debate, phase 1 will now include child witnesses in solemn domestic abuse cases.

Issues that were raised by the committee in its stage 1 report and at stages 2 and 3 include the importance of, and necessity for, effective training in interview techniques, and the requirement for that to be monitored. As the Mental Welfare Commission said,

“a bad interview done early is no better than a bad interview done in a trial.”—[

Official Report, Justice Committee

, 27 November 2018; c 33.]

In other words, as Daniel Johnson and John Finnie effectively argued, the significance of training for those who are involved in joint investigative interviews of children and other vulnerable witnesses cannot be overstated.

There is also a need for measures to support and to protect witnesses against harassment or further victimisation throughout the evidence-giving process, including—this is crucial—after they have given evidence. In that respect, the continuing work of the Government’s new victims task force, which is looking at ways of improving the experience of victims and witnesses who give evidence, is extremely welcome. That will be essential not only in protecting witnesses from harm, but in ensuring that witnesses are not deterred from giving evidence.

Finally, the committee emphasised its commitment to moving, as soon as possible, to a Scottish barnahus model. Although I welcome the cabinet secretary’s letter updating the committee on what is planned up to summer 2020, it falls short of providing on the face of the bill a timetable of reviews up to the end of this parliamentary session and into the next. I thank Fulton MacGregor for his kind remarks, but I concur with Jackie Baillie’s comments about the necessity for progress and a timetable for implementation.

In conclusion, I ask the Scottish Government to commit today to providing the substantial resources for the new technology that will be necessary to achieve a Scottish barnahus. In the meantime, the Scottish Conservatives will have much pleasure in voting for the bill this evening.

Photo of Ash Denham Ash Denham Scottish National Party

I begin my closing remarks by thanking again the many stakeholders and individuals who gave evidence to the committee—in particular, on the benefits that pre-recording evidence can bring. I suspect that many of those people are looking on to see the conclusion of the debate today.

I also thank everyone who has contributed to the very constructive and well-informed debate this afternoon. It is clear that we are all committed to the key principles that underpin the bill. I consider that that positive approach has been the hallmark of the bill’s entire process, and is a true reflection of the professionalism and integrity of the Justice Committee, as is its vigorous examination of the bill and amendments.

I believe that we now have a bill which has broad and significant cross-party support, on which we can lay the foundations for further protection of the most vulnerable victims and witnesses. It reflects a positive template for managing legislation for the future.

That said, we do not doubt the scale of the challenge and the appetite for rapid and early momentum. The bill prepares the foundations: now is the time for clear progress on delivering the reforms. We will continue to work closely with our justice sector partners and stakeholders to ensure that the reforms work well in practice and benefit vulnerable child witnesses.

At this juncture, I put on record again my welcome and support for the sentiment behind amendment 1—the review amendment that was lodged by Liam Kerr. I believe that it provides a suitable and sensible mechanism through which we will be able to determine how successful is delivery of the measures that are detailed in the bill. We need to learn from our successes and from evidence about what we could do better. I am pleased that others in the chamber today have also seen fit to support Liam Kerr’s amendment.

The Deputy Presiding Officer:

Excuse me, minister. Will members who have just arrived in the chamber be a bit quieter, please? Thank you.

Photo of Ash Denham Ash Denham Scottish National Party

I regret that we were unable to support Margaret Mitchell’s amendment 7. We believe that the amendment would have placed an unnecessary and potentially inhibiting legislative burden on the Scottish Government. I hope that what I have said today reassures Parliament that we are committed to developing a truly trauma-informed and child-centred response to child victims. I believe that we have consensus on that: it will take careful work across the justice, health and child protection systems in the coming months.

We will continue to communicate with Parliament and the committee about progress on barnahus and key milestones. I am happy to make that commitment again today.

I will now address some points and common themes that have emerged from the contributions this afternoon. A number of members, including Liam Kerr, mentioned barnahus, as we would expect. I note the strong interest both in moving towards that as a destination and in the idea of keeping up momentum, which has come across strongly from members.

Of course, barnahus is about more than just criminal justice; it involves healthcare, child protection and the legal profession, so it is right that we take the time, across Government and with our key stakeholders, to develop a Scottish version of the barnahus model. We have set out a clear timetable to develop standards for Scotland. I hope that that reassures members that we are committed to keeping up momentum.

Daniel Johnson made a number of points, the first of which being that the bill is a really good starting-point. I thank him for that view, which was echoed by others across the chamber. He also made a point about potentially developing the ground rules hearings further in the future. He will be aware of the latest High Court practice note, which sets out a general approach for preparing questions in advance for child witnesses, for instance. Obviously, the practice note can be updated over time, which I think offers an appropriate level of flexibility.

Daniel Johnson also raised a point about greater use of special measures. It is important that vulnerable witnesses in general are aware of the special measures that are available to them. The Crown Office is beginning a process of reviewing all the correspondence that is issued by the victim information and advice service, as well as information leaflets and so on, to make sure that they are as understandable and clear as possible and so that people have the right information.

The Scottish Courts and Tribunals Service plans a rolling programme of upgrades across its estate, which will ensure that technology—Daniel Johnson made a point about that—and equipment in courtrooms and in live television link rooms keep pace with improvements.

I will address a couple of points that Jackie Baillie made. Changing the way in which evidence is taken for so many needs to be done in a controlled and careful way. We will deal first with child witnesses in the most serious cases but, as has been noted, the bill includes a framework for extension to other vulnerable witnesses, so that it can cover more deemed vulnerable witnesses over time. It is important to make the changes in a managed way, as I am sure Jackie Baillie understands. The draft implementation plan sets out the Government’s intentions; unfortunately, I cannot give any commitment beyond that today.

Jenny Gilruth mentioned a child witness who was made to give evidence 27 times. That example alone shows us why the bill will be transformative and will lead to a better quality of evidence.

I am delighted to have spoken to the bill at stage 3, because it is clear how important the changes will be. The bill is a major milestone in ensuring that many more children can pre-record their evidence before a criminal trial. I hope that all of us in the chamber will support the reforms, and that we will pass the bill.