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Evidence and Procedure Review Report

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Evidence and Procedure Review Report Evidence and Procedure Review Report March 2015 Contents CHAPTER 1: Introduction ........................................................................................ 3 Principles for reform ................................................................................................ 4 The imperatives for change ..................................................................................... 5 The premise explored ............................................................................................. 9 CHAPTER 2: Children and Vulnerable Witnesses ............................................... 11 Introduction ........................................................................................................... 11 Children and vulnerable witnesses in Scotland ..................................................... 12 The legislative provisions ................................................................................... 12 Current usage of special measures in Scotland ................................................ 13 Future demand for special measures ................................................................ 14 Child and vulnerable witnesses in other jurisdictions ............................................ 14 Case Study 1: The “Full Pigot” in action - Western Australia ............................. 16 Case Study 2: Moving towards the Full Pigot - England & Wales ...................... 18 Case Study 3: a different approach - Norway .................................................... 21 Evidence of children – lessons to be drawn .......................................................... 24 The evidence of children and vulnerable witnesses – a systematic approach ... 25 Interviewing and cross-examination ................................................................... 27 Training and qualifications ................................................................................. 31 Case management and the role of the judiciary................................................. 31 Technology ........................................................................................................ 32 Facilities ............................................................................................................. 33 Other special measures - intermediaries ........................................................... 34 Conclusions and recommendations ...................................................................... 35 CHAPTER 3: Admissibility of Statements ............................................................ 39 Hearsay – background .......................................................................................... 39 Prior statements by witnesses .............................................................................. 43 Admissibility of recorded statements – the way forward ....................................... 46 Examination .......................................................................................................... 48 Who carries out the examination ....................................................................... 48 When and where the examination is carried out ................................................ 49 The style of examination and its control ............................................................. 50 Safeguards where examination not possible ........................................................ 51 Oaths .................................................................................................................... 53 Conclusion ............................................................................................................ 54 Chapter 4: Modernising Criminal Trial Procedures ............................................. 57 Introduction ........................................................................................................... 57 A new model for criminal trial procedures ............................................................. 59 Judicial case management.................................................................................... 62 1 Changes to infrastructure ...................................................................................... 63 Conclusion ............................................................................................................ 64 Chapter 5: Conclusion ........................................................................................... 65 Annex A: Cases & Legislation List ...................................................................... 67 Cases .................................................................................................................... 67 Legislation ............................................................................................................. 68 Annex B: Reference Material ................................................................................. 69 Articles and Speeches .......................................................................................... 69 Books .................................................................................................................... 74 Guidance Material ................................................................................................. 74 Reviews and Reports – Scotland .......................................................................... 76 Reviews and Reports - other jurisdictions ............................................................. 77 Presentations and Course materials ..................................................................... 78 2 Evidence and Procedure Review Introduction CHAPTER 1: Introduction 1.1 This Review is concerned with a fundamental element of the criminal justice system. Although there are some who might argue otherwise, most (and especially those not engaged in the niceties of legal philosophy) would agree that the trial process is about the ascertainment of the truth1. The Review’s purpose is to explore and identify the best possible methods for ascertaining the truth in the context of the trial in the modern environment. It aims to generate proposals for changes to the law, procedures and practice that will contribute to the modernisation of the criminal justice system so that it meets the highest standards of justice now and in the foreseeable future. 1.2 In May 2013, the Lord Justice Clerk, Lord Carloway, delivered a speech to a Criminal Law Conference at Murrayfield2, in which he called for “clear-sky thinking” to help bring trial procedures rooted in the Victorian era into the modern, technologically-enhanced society today and in years to come. His view was that certain rules of criminal law and practice were becoming increasingly divorced from the realities of the modern world and current concepts of justice. In particular, he called for an examination into how digital technology could be used to capture and present the testimony of witnesses in advance of the trial. The reasons for this were that it should improve the quality of the evidence being presented; make the administration of justice much more convenient for witnesses and the courts; and tackle some of the inefficiencies that are endemic in the criminal justice system. 1.3 At the same time the Scottish Court Service, Scottish Government and others participating in the criminal justice system were becoming increasingly concerned that, despite a series of reforms since devolution, the criminal justice system, particularly in summary cases, was not becoming significantly quicker or more efficient3. This inefficiency was, in itself, contributing to the obstruction of justice and the frustration of the search for the truth. 1.4 The Scottish Court Service therefore considered it appropriate to establish a judicially-led review to explore these issues in greater depth, on the grounds that modernisation of the rules of evidence and procedure could make a substantial contribution to improving the fairness, efficiency and effectiveness of trials, and would contribute to the core aim of enhancing the trial’s role in discovering the truth. The Lord Justice Clerk convened a small Steering Group4, supported by a full-time project Director, to oversee the Review. 1 For a discussion of the role of truth-finding in criminal trials, see T. Weigend, Should We Search for the Truth, and Who Should Do it? N.C. J. INT’L L. & COM. REG. [Vol. XXXVI 2010], 389-414. See also the exploration of the issue in M. Damaska’s, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study (1 Jan 1973) http://digitalcommons.law.yale.edu/fss_papers/1591 2 Lord Carloway, Scots Criminal Evidence and Procedure – Meeting the Challenges and Expectations of Modern Society and Legal Thinking, Criminal Law Conference, Murrayfield 9 May 2013 available at http://www.scotland-judiciary.org.uk/26/1045/Lord-Justice-Clerks-speech-at-the-Criminal-Law-Conference 3 See 1.14-1.19 infra 4 In addition to the Lord Justice Clerk, the members of the Steering Group were Lady Dorrian, Sheriff Principal Craig Scott and Eric McQueen, Chief Executive of the Scottish Court Service. 3 Evidence and Procedure Review Introduction 1.5 At the first meeting of the Group, it was agreed that the Remit of the Review should be that it: 1) conducts an initial phase of research into the current and potential conduct of criminal proceedings, with particular reference to the rules of evidence and procedure, to cover: the current law and jurisprudence
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