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VULNERABLE WITNESSES ACT IMPLEMENTATION STEERING GROUP
ADVICE AND GUIDANCE SUB-GROUP
Draft Guidance – Identifying Adult Vulnerable Witnesses
1) The first draft of this guidance was circulated to members on 30 September for comment
and revised for this meeting. Members are now invited to review and comment on the revised
draft, with a view to it being circulated to the network organisations for their comment. The
timetable includes a period of wider consultation with a view to publishing the guidance
before implementation date of April 1st.
2) The revised document includes a number of Discussion Notes, taken from members
comments, to be resolved at the meeting.
3) A number of other general issues have been highlighted and members are invited to
consider these.
 Members noted the distinction to be made between identifying an adult witness as
vulnerable and identifying an adult vulnerable witness who may require special
measures. Is the guidance sufficiently clear on this?
 There is a distinction to be made between a description of what the legislation
requires and allows and what is being offered as an indication of best practice.
Paras 11 to 23 cover the legislative definitions and steps. Is this enough?
 The guidance refers practitioners to the separate guidance on ‘applying for special
measures’.
 The introduction has been altered to give a clearer indication of the purpose of the
document. Does this satisfy members in relation to the two issues above?
 Crown Office raise concerns about a number of factors which may restrict the
applications to use special measures, notwithstanding the criteria in determining
vulnerability. These include:
o Court time – too many special measures will extend the length of the trial
o Evidential Value – some special measures dilute the evidence to the extent
that it becomes useless
o Resources
o Expectations – we do not want to raise expectations among victims and
witnesses (or indeed practitioners)
o Practicalities
o Availability of equipment/staff
 Members may wish to discuss the implications of these concerns.
SEJD
Victims and Witnesses Unit
October 2005
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2nd DRAFT
IDENTIFYING ADULT VULNERABLE WITNESSES WHO
MAY REQUIRE SPECIAL MEASURES
INTRODUCTION
1. This guidance is designed to help practitioners to identify adult vulnerable witnesses who
could be supported when they give their evidence by the use of special measures under
the VW (S) Act.
Many adult witnesses will have some degree of anxiety when giving evidence in a courtroom.
This does not mean that all adult witnesses will be regarded as vulnerable and therefore
entitled to benefit from the use of special measures. Vulnerability has first to be established in
terms of the definitions set out in the Vulnerable Witnesses (Scotland) Act 2004.
2. This guidance clarifies the key definitions in the Act and provides an explanation of the
legislative tests undertaken by the court when determining whether a witness is
vulnerable and whether to grant the use of any special measures.
3. The guidance goes on to outline a number of indicators of vulnerability at all levels,
which practitioners should be familiar with and take into account. The test for all
practitioners is whether a witness’s vulnerability can be alleviated by non-statutory
support or if legislative steps should be taken to secure the use of special measures.
4. For the purposes of this guidance, practitioners include Crown Office and Procurator
Fiscal Service staff, other legal practitioners, children’s reporters, the police, court
personnel, social workers, Victim Support Scotland volunteers and workers in other
support organisations.
5. It is expected that application of the guidance should assist consistency in the use of
special measures across Scotland.
6. The guidance is non statutory and is not an authoritative statement of the law but aims to
ensure a commitment to practice, which does not discriminate on the grounds of race,
religion, disability, gender, sexual orientation or age.
7. Separate guidance is available on each of the special measures in addition to guidance on
applying for special measures and identifying suitable special measures for child
witnesses.
In making use of this guidance pack, practitioners should have particular regard to the
guidance on the use of special measures for vulnerable witnesses with special needs.
The guidance will be placed on the Scottish Executive Vulnerable Witnesses website at
www.scotland.gov.uk/Topics/Justice/criminal/17416/8451
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SPECIAL MEASURES
8. Special measures are intended to help vulnerable witnesses by providing appropriate
support when they give their evidence. By reducing the anxiety and pressure, which
vulnerable witnesses may feel when giving evidence, it is likely that they will be better
able to give their evidence.
9. Special measures for which adult witnesses may be eligible are:(i) a live television link from another part of the court building or other place outwith
that building;
(ii) prior statements as evidence in chief (criminal cases only);
(iii)taking evidence on commission;
(iv) a screen; and
(v) a supporter.
Each of these special measures can be used on their own or in conjunction with one another.
10. Examples of possible combinations of special measures are: Use of a screen and a supporter;
 Use of a live television link where the witness is in another part of the court building and
the use of a supporter; and
 The use of a prior statement as evidence in chief together with the use of a screen when
the witness’s evidence is subsequently examined.
IDENTIFYING ADULT WITNESSES WHO MAY
VULNERABLE AND REQUIRE SPECIAL MEASURES
BE
Definitions and Legislative Framework
11. Adult witnesses, regardless of who is citing them, are not automatically defined as
vulnerable and have no entitlement to special measures. The party citing the witness must
make an application to the court and the other party or parties will have an opportunity to
challenge it.
DN: Does the other party have an opportunity to lodge an objection on receipt of the
application? Is there another way of wording this?
12. It is for the Court to decide whether any adult witness is a vulnerable witness and whether
to grant the use of any special measure. Practitioners will wish to have regard to the
guidance on “Applying for Special Measures”.
13. Under the Vulnerable Witnesses (S) Act 2004 a special measure for an adult witness can
only be considered:-
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“where there is a significant risk that the quality of the evidence to be given by
the person will be diminished by reason of –
(i) mental disorder within the meaning of section 328 of the Mental Health
(Care and Treatment) (Scotland) Act 2003, or
(ii) fear and distress in connection with giving evidence at the trial or
proceedings”.
14. The reference to the quality of evidence is to its quality in terms of its completeness,
coherence and accuracy
15. The Act does not define the word “significant” however, the Oxford English Dictionary
offers the following:“Extensive or important enough to merit attention”.
16. The point about the use of the word “significant” in the Act is that an adult may only be
considered as a vulnerable witness if there is an important or material risk that the
completeness, coherence and accuracy of his or her evidence will be reduced as a result of
any of the foregoing reasons. It is only then that a special measure could be granted.
17. The position with regard to arrangements for giving evidence can be reviewed by the
party citing the witness or by the court itself, at any time in the course of the court
proceedings.
18. Before granting the use of special measures, the court must first be satisfied that the adult
witness is a vulnerable witness and in determining this, the court must take into account a
number of factors about the circumstances of the case, and the personal and social
circumstances of the witness. These factors are set out in the legislation and include:
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adult witnesses with mental health problems or learning disabilities emotional or
behavioural problems amounting to a personality disorder.
DN: do we want to include details of Mental Health Act?
the nature and circumstances of the alleged offence;
the nature of the evidence to be given (if it likely to be particularly distressing);
the relationship between the accused and the witness;
the witness’s age and maturity;
any behaviour towards the witness from the accused, their family or associates, or
from any other witness or accused person;
the witness’s religious beliefs, sexual orientation, ethnic, social and cultural
background or political opinions;
the witness’s domestic and employment circumstances;
any physical disability or impairment of the witness which could effect the giving of
evidence; and
any other relevant factor.
19. Some or all of the above factors may indicate to the court that there is a significant risk
that the quality (namely the completeness, coherence and accuracy) of a particular
witness’s evidence may be affected and that the use of special measures may be
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appropriate. Some factors will have greater significance in certain types of cases than in
others and this is covered in more detail later in this guidance.
20. These factors are not in themselves absolute indicators of vulnerability and in any
individual case, a factor that may present a significant risk to the evidence of one person
may have little or no effect on the evidence of another. In every case there must be a
significant risk that the quality of the witness’s evidence will be diminished as the result
of one or more of these factors.
21. Same of the factors may have different significance for different witnesses, even within
the same case. For example, it is possible that two victims of sexual violence may be
distressed by quite different aspects of the case. Equally, two co-accused may be
identified as vulnerable in respect of very different factors.
22. Some of the factors may be relevant to the preparation of the case and to the comfort and
safety of an individual witness, but may not necessarily render a witness vulnerable
within the terms of the Act. For example a witness may have a particular physical
disability that requires to be taken into account by the court, but does not necessarily
cause that witness to experience fear or distress in relation to giving evidence. The test is
the effect of the witness’s disability (or other personal circumstances) on the quality of
their evidence, not the disability per se.
In reaching a fair and informed decision, the court will benefit from having information about
any vulnerability that the party (and the witness) considers may give rise to a substantial risk
of diminishing the quality of that witness’s evidence.
23. If the court is satisfied that the witness is a vulnerable witnesses, it must then consider
two things:
 the possible effect on the witness if they have to give evidence without using a special
measure, and
 whether it is likely that they would be better able to give their evidence when using a
special measure.
[DN: If an application is not granted or if the use of a supporter is granted but
the witness’s preferred supporter is not approved, can the decision be
appealed and if so should we say something about that?]
SCRA: Very good question; not sure what the answer is. In contentious cases there will
have been a hearing before the sheriff to thrash out the pros and cons of the
application; it’s likely/possible that the judgement of the court of first instance – ie the
one making the decision on the application – will be seen by an appeal court as on a par
with the decisions that that court makes about credibility and reliability ie the judge on
the ground is best placed to form a view and an appeal solely on that basis is likely to
fail ?
COPFS - there is no reference in the Act to any appeal – however, the defence
can raise a Petition to the Nobile Officium.
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Practice Issues/
Early Identification Of Vulnerability
24. The question of a witness’s vulnerability cannot be responded to with a simple yes or no.
It is often a changing process and requires continuous assessment and review. There will
be witnesses who are assessed as:
 not vulnerable;
 vulnerable and in need of support, other than special measures;
 vulnerable and would benefit from the use of special measures, ie that there is a
significant risk that the quality of their evidence would be diminished without the use
of special measures
Whether in criminal proceedings or children’s hearing court proceedings, it is the
responsibility of the party citing the witness, in collaboration with other relevant agencies,
to apply the following 3 questions:
1. Is the witness potentially vulnerable?
2. Is there a significant risk that of the vulnerability will affect the quality of the witness’s
evidence?
3. What support or special measures might benefit the witness and help restore the quality of
the evidence?
25. It is important to consider each witness’s vulnerability and special needs at an early a
stage as possible. This indicates a need for good information gathering systems and
interagency co-operation.
1. Is the witness potentially vulnerable?
26. At an early stage, the person citing the witness should aim to gather as much information
as possible to help them identify potential vulnerability. This will include essential
information such as the witness’s age and gender, the nature of the case and whether the
witness is also a victim of an alleged crime, an accused person or a significant party in
children’s hearings proceedings.
27. In most criminal cases the first contact many witnesses will have with the criminal justice
system is through the police. The police are not expected to make a formal assessment of
vulnerability. However, the good practice guidance on “Information about Child, Young
and Vulnerable Adult Witnesses to Inform Decision-making in the Legal Process”
published by the Scottish Executive as part of the Supporting Child Witnesses guidance
pack [D.N. insert web link] sets out a framework to enable the police to capture
observations and key background information in the Standard Prosecution Report (SPR)
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as part of the investigative process. DN: - should we say when this is to be in
operation?
28. The new SPR framework will contain contains a number of prompts as follows: whether a witness appears to be vulnerable;
 whether the witness is a victim/complainer;
 home situation and any social work or carer arrangements;
 details of any responsible person if applicable;
 the relationship of the witness to the accused;
 any interpretation and translation needs including specification of the witness’s
preferred language;
 any additional/special needs (which may include any know mental or physical health
issues);
 how the witness feels about going to court and giving evidence;
 whether it seems likely that the witness will need special measures to support them
when giving evidence.
29. Completion of these fields in the SPR is not mandatory (DN:is it or isn’t it? Need to
reword?) but is aimed at helping the person preparing the case to assess vulnerability
and to decide, taking the views of the witness into account, whether or not to make an
application to the court for a special measure to help the witness give evidence in any
court proceedings.
30. In most cases the police report or statements will also contain information about the
witness’s level of understanding, ability to communicate and any identifiable stress or
trauma. The person citing the witness should also attempt to identify the witness’s
linguistic ability (comprehension and speech, vocabulary), the witness’s family
composition and living arrangements, and any known sources of stress for the witness
including fear of intimidation.
DN: It is highly unlikely that COPFS (as the person citing the witness) will be able to
identify factors such as linguistic ability and sources of stress – especially in summary
cases where there is no interview with the witness. This may be a matter of identifying
properly who should provide this kind of information – perhaps it should be the police
and not the person citing the witness.
31. Should vulnerability come to light after submission of the initial SPR, the police will
submit further reports to the procurator Fiscal.
32. Witnesses called by defence lawyers may have had no contact with police, nor be
included in any SPR, however, it is recommended that a similar process of informationgathering is undertaken at an early stage.
33. In children’s hearing court proceedings, in addition to the SPR or other police report
arising from care concerns, the reporter is likely to have some information on the adults
within the family of a child who is subject of proceedings, derived from relevant social
background reports. Where these adults are also to be witnesses, this will be a starting
point from which the need for more information may arise: social work or other agencies
may be consulted as required.
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34. Where the adult is a bystander witness with little or no connection to the child, the
starting point will be information recorded by the police.
2. Is there a significant risk that the vulnerability will affect the
quality of the witness’s evidence?
35. It will not always be obvious from the SPR or other investigative report or from
immediate contact with a witness, that he or she may be so vulnerable as to require a
special measure. Many witnesses will not display any obvious signs of vulnerability and
their specific needs may be difficult to identify. Some witnesses will identify themselves
as vulnerable to varying degrees, others will deny or not wish to be classed as vulnerable
and make efforts to hide symptoms or minimise their fear or distress.
36. Responses to crime and legal processes are entirely individual and it is therefore vital that
practitioners are open to a range of possibilities throughout the investigative and
preparation process.
37. A witness may be vulnerable in a simple or ‘minor’ case, perhaps by virtue of their
personal or social circumstances. On the other hand, a witness will not necessarily be
vulnerable in every complex and ‘serious’ case. Where special measures are sought the
party making the case for them will be required to convince the court that a particular
combination of factors in this particular case for this particular witness leads to the risk
that the quality of the evidence will be diminished, and that the risk is significant.
38. With this in mind, the following section offers a number of specific indicators of
vulnerability intended to help focus more fully on the different factors to be considered by
the court. .
Key Indicators to help identify witnesses who may benefit from support or
the use of special measures
39. Vulnerable witnesses are not a homogenous group and identifying adult witnesses who
may benefit from special measures is not an exact science, nor is it enough to rely on
instinct or a ‘gut’ feeling. Wherever possible, practitioners should refer to particular
emotional or behavioural evidence. The following is a list of key indicators likely to
significantly affect a witness’s ability to give or complete their evidence, or cause undue
levels of distress. It is acknowledged that they are unlikely to cover all situations and
practitioners must take account of the different and possible changing needs of individual
witnesses throughout the whole process.
Mental Disorder
40. The Act states that mental disorder is one of the criteria of vulnerability as a witness, and
in most cases a medical, psychiatric, psychological report or social work report will alert
practitioners to any known mental health problems or learning disability or emotional or
behavioural problems amounting to a personality disorder.
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41. Consideration should be given to the stigma often experienced by people with mental
illness as this may be a factor in any distress they may be suffering or explain their
reluctance to give evidence.
42. They may also experience poor concentration or memory as a side effect of treatment and
these are likely to be exaggerated when facing an unfamiliar and often lengthy legal
process.
43. Consultation with those specialists will help practitioners identify to what degree a
witness’s mental health will be affected by attending court proceedings and giving
evidence and to consider how a witness’s medication or any learning disability will affect
their ability to give evidence.
44. Adult witnesses with learning disabilities will have varying degrees of ability and
vulnerability. Practitioners are referred to the specific indicators of vulnerability
considered in the separate guidance on “The use of special measures for vulnerable
witnesses with special needs”
DN: There is also an issue here about privacy that needs to be considered, not just for
this group of vulnerable witnesses but also for others. Should there be a separate
section on confidentiality?
Fear and Distress
45. The Act states that a witness’s fear and distress in connection with giving evidence is an
indicator of vulnerability. Practitioners should therefore carefully consider the likely fear
and distress experienced or likely to be experienced by a witness and how this might
affect their ability to give their evidence. The following indicators suggest some causes
of a witness’s fear or distress.
The nature of the case and nature of the likely evidence to be given
46. Sometimes the very nature of the case will alert practitioners to possible vulnerability of
witnesses and particularly of complainers in criminal cases. Vulnerability is most often,
but not always, associated with certain categories of offence types and is non-gender
specific. These include:
 sexual offences
 violent or sexual abuse in residential homes
 elder abuse
 domestic violence
 murder or culpable homicide
 serious assault
 housebreaking
 racially aggravated offences or other hate crimes
 road traffic deaths
DN: There may be a danger in listing too many examples because the list will then
appear to be prescriptive. Do we want to restrict it?
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47. However, given that different witnesses will find different things distressing or traumatic,
it may be that the nature of the case is a significant factor for one witness and not for
another.
48. The nature of each witness’s evidence is also likely to vary. Distress can be caused by the
memory of actual events to be recounted whilst giving their evidence. In some cases,
particularly involving accounts of serious or repeated sexual offences or extreme
violence, it is not uncommon for witnesses to experience severe physical reactions, such
as violent shaking, vomiting or collapse.
49. The nature of the witness’s evidence may also reveal issues of a particularly private or
sensitive nature about the witness themselves and could therefore envoke feelings of
shame or guilt or feared stigmatisation such as evidence of pregnancy or any contracted
sexually transmitted disease.
50. In some cases a witness will have suffered trauma as the result of being a victims of crime
or will have experienced a significant personal loss because of harm to another person, or
will have witnessed a harrowing crime or other traumatic event. Examples of these may
include:
 the family of the deceased in any violent death, either criminal or civil; or
 an eye witness to any road traffic accident or other violent death.
51. Practitioners should note that whilst the above categories are non-gender specific, male
witnesses may be inclined to outwardly minimise any distress or trauma caused by a
crime or event.
DN: Does this generalises the position too much?
52. Practitioners should also note the multiple vulnerability of some witnesses because they
experience more than one indicator of vulnerability. For example a victim of domestic
violence, who is also a member of some ethnic communities, may suffer additional
stigma within that community and may feel further isolated or intimidated which in turn
could present a serious risk to the quality of their evidence. .
The relationship, past or present, between a witness and an accused
53. The relationship between a witness and an accused can be significant for different
reasons. Where there is or has been an imbalance of power or significant age difference,
there is likely to be an issue of actual or perceived intimidation. This is particularly
relevant where the relationship has been intimate, such as between partners, or where the
accused has been in the role of carer, or the witness has otherwise been dependent on the
accused.
54. The relationship may also be significant where the witness is likely to have ambivalent
feelings towards the accused and may find it difficult to give evidence against him/her.
55. Examples of case types are:
 any domestic violence
 any sexual offence where the accused is well known to the witness
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historical sexual or physical assault particularly where the alleged offence took
place when the adult witness was a child and the accused was in a position of
power,
other cases involving an accused previously or currently in the role of carer in the
community
o or residential setting,
o or significant family member,
o or employer.
Intimidation
56.
Intimidation of the witness or their immediate family by the accused or other party in the
proceedings or by their associates, features significantly in the fear and distress reported
by many witnesses. It is often an issue:
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if the crime was committed close to the witness’s home or within the witness’s
family;
if intimidation is likely due to the witness’s relationship with accused or the
accused’s family or associates; or where, in children’s hearing court proceedings,
the issues are around allegations by one parent against another.
if there is any history of actual threatening behaviour or stalking;
if the witness has previous experience of prejudice, crime or threatening behaviour
not necessarily associated with this case or this accused, eg: members of minority
groups with previous experience of racial or other hatred;
if there are any religious or cultural issues relating to giving evidence in a court of
law which may alienate a witness within their own close ethnic community;
if a witness has negative experience of other criminal justice systems or authority
figures.
DN: is this list useful?
DN: Should we say that this category might conceivably include professional
witnesses, particularly police officers?
57. An anticipated but unspecified fear of intimidation may sometimes be associated with a
witness’ sense of shame or embarrassment regarding the court case, and the level of
publicity the case may attract.
The witness’s age and maturity
58. Age is not in itself an indicator of vulnerability but can be considered alongside other
many of the other indicators in this section. For example, a young adult witness aged 17
may be vulnerable because of immaturity or because they are still in education and have
little adult life experience.
59. An older witness may be vulnerable because of physical frailty, social isolation repeat
victimisation and/or fear of intimidation. Many older witnesses may experience feelings
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of shame or guilt and may be reluctant to cause ‘too much fuss’ Many will also fear any
loss of independence or unwanted interventions by statutory agencies.
Other personal or social indicators
60. This is a broad area encompassing a range of circumstances relevant to the individual
witness, regardless of the particular case or the nature of the witness’s evidence. Some
personal circumstances may be temporary, eg pregnancy, but be significant in terms of a
witness’s response to stress when giving evidence. Some social circumstances may be
more long term, eg a witness who is the sole carer of a dependent or terminally ill
relative, and this may seriously impact on their emotional state and, in extreme cases,
may therefore inhibit the quality of their evidence.
Communication difficulties
61. Witnesses with communication difficulties may be vulnerable on different levels and
need different levels of support and special measures. The use of an interpreter is standard
practice for those witnesses, whose first language is not English. Other communication
difficulties can be more complex. Practitioners should consider the needs of:
 any witness who needs assistance to communicate;
 witnesses who have no speech or limited speech;
 witnesses who communicate by means other than the spoken word.
62. Communication also covers a witness’s developmental stage and their level of
understanding. Practitioners should therefore consider:
 an inability to read/write;
 any cognitive difficulty with concepts of time, numbers or spatial awareness.
Social Isolation
63. It is also important to consider any sense of isolation a witness may be experiencing,
especially if this combines with other indicators of vulnerability, such as the experience
of trauma due to the nature of the case and evidence. Some witnesses may be alienated
from their family or local community. A witness related to the accused may or may not
have support from other sources and this may impact on their ability to give their
evidence and the level of support they may need.
Behavioural indicators
64. In addition to the indicators listed already, practitioners should be alert to a number of key
behavioural characteristics liable to be presented by vulnerable witnesses. Of course,
outwardly similar behaviours may be the result of different causes in different witnesses.
It is important to stress that different behavioural characteristics may also result from the
use of drugs, alcohol, emotional states of frustration, irritability, anger, fear, acute anxiety
or a combination of outside influences. The key questions remains the relevance of these
presentations to the likely quality of the witness’s evidence.
65. Particular attention should be given to any witness who presents as:
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unusually withdrawn, lethargic, confused or unable to concentrate at any stage
prior to the trial or hearing, particularly if these behaviours are increasing;
is withdrawn to the extent of having difficulty communicating;
is not engaging during any preparation process or court familiarisation visits;
having unusual or inappropriate behavioural or emotional responses;
displaying extremes of emotions such as being over-excited or excessively tearful;
any difficulty in remembering simple facts such as: date of birth, age, address,
telephone number;
any difficulty knowing the day of the week, where they are and who you are.
DN: Does this section stray too far from the issues of vulnerablity and need for special
measures ?
Review of vulnerability and need for special measures
66. Whilst early identification of vulnerability is of most benefit to practitioners and the
witness, there is capacity in the Act to review the need for special measures at any time in
the course of the trial or court hearing. For many witnesses their anxiety and potential
vulnerability increases the longer they have to wait for court proceedings to commence
and then to give evidence.
67. Some witnesses may benefit from an early court familiarisation visit. This can be a
helpful way to observe their emotional and physical response to the court setting and the
prospect of giving evidence. In criminal cases, VIA and the Witness Service are
experienced in noting any unusual responses, such as a witness who has a particularly
negative emotional or physical response or who has difficulty in communicating to the
extent of being withdrawn and unable to participate.
DN: Referrals for visits are usually after the pre-lim hearing – is this flexible enough to
enable early visits?
68. Some witnesses may not display any significant signs of vulnerability until they
experience the impact of entering a court building and seeing accused; others may only
show signs of acute distress at the point of giving evidence and recounting a traumatic
incident.
69. In addition, practitioners should note that any witness identified as vulnerable is also
likely to be vulnerable if required to give evidence at any re-trial. Similarly any witness
identified in children’s hearing court proceedings is likely to be so in any parallel criminal
proceedings: sharing information of this nature will be helpful and appropriate.
Input from other sources
70. In some cases the SPR or other report may have identified other statutory and/or
voluntary agencies already involved with the witness in some capacity, either directly
relating to the case or for some other reason. In many cases, these specialist agencies, and
in particular any psychologist, psychiatrist, medical practitioner, nurse, social worker or
therapist, may be able to give early advice as to any key indicators which might help
assess the witness’s likely vulnerability.
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71. Practitioners should be open to contact from specialists, carers or family members calling
on behalf of a witness and may, in some cases, consider making an approach to these
service(s) for their views or to assist in determining the witness’s views, depending on the
witness’s circumstances and in keeping with issues of confidentiality and data protection
legislation.
72. The person citing the witness should therefore consider all available information carefully
when preparing the case and, in the witness’s best interests, encourage co-operation
between those involved.
73. If the witness may benefit from the use of one or more special measures when giving
evidence, the person citing the witness may wish to obtain a report to help them decide
and to give advice as to which special measure may be most appropriate. Such reports
may also assist the court when considering the Vulnerable Witness Application.
DN: Should this be developed further?
It is important that the person seeking the expert advice makes clear to the expert
the purpose of the report and precisely what the report should cover.
3. What support or special measures might benefit the witness
and help restore the quality of the evidence?
74. As previously noted, many witnesses will be anxious and some may be identified as
vulnerable, however they will not all require or benefit from the use of special measures.
Some will be helped by special arrangements at court or by non-statutory support
measures such as those listed below.
In many cases, a witness’s anxiety can be alleviated by good preparation, information and
supportive contact.
75. Assistance can be given by a number of agencies including VIA, the Witness Service,
Police, Scottish Courts Service, Victim Support Scotland community based services, or
other support organisations.
Support and Assistance Available to all Witnesses
76. Victim Information and Advice (VIA) is part of the Crown Office and Procurator Fiscal
Service. In criminal cases, where a person is a witness in certain types of cases or is also
a victim in the case or is considered vulnerable in other ways, their details will be referred
to VIA who will then provide the witness with up to date information about the case;
details and leaflets about court procedures and criminal justice procedures; and
information about available support services.
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77. The Witness Service is part of Victim Support Scotland, a voluntary organisation, and has
a presence in all High Courts and Sheriff Courts. Their services are available on a “walk
in” basis on the day of the proceedings or they can be contacted in advance and are
available to all witnesses in criminal proceedings whether they are cited by the
prosecution or the defence. The Witness Service routinely carry-out familiarisation visits
at court and at remote sites to help anxious witnesses become more familiar with the court
setting and proceedings. It can also provide practical advice about being a witness; liaise
with the court officers regarding special needs and provide a supporter where no obvious
supporters can be identified in discussion with the witness (and any carer).
78. Both VIA and the Witness Service will routinely liaise with police regarding a witness’s
expressed fear of intimidation. The police have a presence in all courts to ensure public
safety and will take seriously any reported allegations of intimidation. Any practitioner
informed about any allegation of intimidation should report the matter to the police at
once. In extreme circumstances the witness protection scheme may be invoked.
DN: should we add anything about the Witness Protection Scheme?
DN: Is more guidance is required about intimidation?
[DN:Do we need anything about support services available in children’s hearing
court proceedings?
79. Any witness may also benefit from the help of other support organisations such as Victim
Support Scotland, Women’s Aid, Rape Crisis, Age Concern, and others.
80. Most courts routinely provide facilities to assist witnesses with limited physical ability.
Most have wheelchair access and many have a ‘loop system’ for the hard of hearing.
81. For a witness whose preferred language is not spoken English, interpreters can be made
available. The person citing witnesses should liaise with the court to ensure that the
required facilities are available for the duration of the trial or other court proceedings.
82. Whilst it is not possible to guarantee that a witness will not encounter others, if a witness
is particularly concerned about entering the court building or being in the same waiting
area as someone else in the case, it may be possible for the Court Service, Witness
Service or VIA to arrange for the witness to be met and to wait elsewhere in the court
building.
83. In a few exceptional cases, where a witness is especially vulnerable, it may be possible to
consider using a waiting area outwith the court building such as a nearby social work
office or day care unit, or to request a ‘stand-by’ arrangement whereby a witness can
request to arrive at court only at the time he or she is likely to be called.
84. Witnesses are normally expected to stand to give their evidence but can request, in
advance through the person citing them, to be seated if they cannot stand for long periods
because of age, infirmity, or other health reasons. A witness can also make a request to
the judge to be seated at any time throughout the proceedings if they are becoming
particularly uncomfortable.
85. Some witnesses may be reassured to know that, although they will be asked to confirm
their name, they do not have to state their current address, unless it is an essential part of
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the evidence. If a witness is unsure, they can ask the Judge if they can write their address
instead.
DN: Is the last sentence superfluous?
86. A witness can also request a comfort break during the proceedings. This may be
particularly important for witnesses with specific medical conditions or who need to take
regular medication.
87. The court will routinely be asked to consider closing the court to members of the public
when any adult victim of an alleged sexual offence is giving evidence. It is also possible
to ask the court to consider closing the court for other witnesses if, for example, there is a
known risk of intimidation or if the witness’s evidence is likely to be particularly
distressing. The press are not excluded from a closed court. However it may reassure
victims of any sexual offence to be advised that the press will not identify them and that
any such identification (even where it is accidental) is a breach of the Press Complaints
Commission – Code of Practice.
88. Children’s hearing court proceedings are only heard in private, with no members of the
public present.
89. In all courts, the Judge or Sheriff has a duty to protect the interests of the witness.
DN: Any suggestions for wording?
The use of special measures to assist vulnerable witnesses
90. Notwithstanding the range of support detailed above, some witnesses will be identified as
vulnerable and likely to benefit from the use of one or more special measures in order to
preserve the quality of their evidence.
DN: should we say something about the importance of resolving identification issues
before considering the use of special measures ?
91. Identifying the most suitable special measure or combination of measures is not governed
by any rigid rules. There are advantages and disadvantages to the use of each special
measure and the guidance pack on ‘Special Measures for Vulnerable Adult and Child
Witnesses’ provides helpful information on each of the special measures listed earlier.
Each section provides guidance on the benefits of each special measure and when a
particular special measure might be most suitable. There are also some suggestions as to
when a particular special measure, or combination of special measures, may not be
helpful. These should be read together with this guidance.
92. There are however, a number of general points which should be considered, which may
assist practitioners.
93. Victims of any alleged sexual offence may be particularly distressed by seeing the
accused person face to face in court whilst giving evidence of a very personal and
intimate nature. The use of a screen may therefore be suitable.
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94. Some victims of an alleged sexual offence might be equally distressed by giving such
intimate evidence in open court face to face with lawyers and jurors and the use of a TV
link may be more suitable.
95. Most vulnerable witnesses regardless of their age, find the presence of a supporter one of
the most helpful special measures, on its own or in combination with other measures. The
party citing the witness should work with the witness to provide them with someone who
is known to them and/or has specialist knowledge/understanding of their vulnerability
Adults who have had contact with particular support services may state a preference for a
particular person and this should always be discussed and considered. However, older
witnesses, particularly those who are socially isolated, may have greater difficulty in
identifying a supporter from within their own network and may particularly benefit from
referral to the Witness Service where no obvious supporters can be identified in
discussion with the witness (and any carer).
DN: all - please note that use of a supporter IS a special measure in its own right.
96. Any witness with a mental illness will have a right to access independent advocacy
services under the Mental Health (Care and Treatment) (Scotland) Act 2003. If the use of
a supporter is granted as a special measure, the witness may identify someone from these
services as their preferred supporter.
97. An older, physically frail witness, with mobility problems, may benefit from giving
evidence by TV link from a location near to their home area.
SEEKING THE VIEWS OF ADULT WITNESSES WHO
MAY BENEFIT FROM SPECIAL MEASURES
98. Assumptions about the wishes of adult witnesses who may require special measures
should not be made. Many adult witnesses will not want to be defined as ‘vulnerable’
and, in some cases, may be insulted by this label, particularly male witnesses. Any
approach should therefore be made sensitively and the person citing the witness must be
prepared to be open to the views of each individual witness as to what, if any, special
measure(s) they might feel most comfortable with or find most helpful.
99. In seeking a witness’s view, it is important that non-legal practitioners avoid giving the
impression that the person citing the witness will definitely submit an application to the
court; or that, having submitted it, special measures will automatically be granted by the
court.
100. It is also important to note that, while a witness should give a view about the most
appropriate special measure for him or her, which will be taken into account by the court.
This does not mean that the witness has over the final say in the matter. Their view will
be noted and submitted to the judge or sheriff in the Vulnerable Witness Application.
DN: should we specify who is expected to note witnesss’s views so that there are not
repeated enquiries made of the witness?
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101. However the court may take the view that a different special measure is more suitable
or may not grant the application at all.
102.
In some cases, a carer’s view may also be helpful but is not required by the Act.
103. Any practitioner seeking to determine the views of an adult witness must first provide
the witness with enough information about the court procedures, the process of giving
evidence, the range of support services and special measures likely to be considered to
make an informed decision. Vulnerable witnesses should have access to the Scottish
Executive ‘Being a Witness’ booklet and be shown the CD ROM ‘virtual courtroom
tour,’ giving the witness an opportunity to ask any questions. These materials can help to
address many of the questions a witness may have and reduce some of their fear and
anxiety about going to court and giving evidence. The CD ROM can also help a
vulnerable witness consider the different special measures at an early stage and form a
view as to any preference. As previously stated however, an actual visit to the court is still
the best way to familiarise a witness with the court setting and procedures. Crucially, it
may be during the court visit that a witness’s vulnerability becomes more apparent.
104. The party citing the witness needs to involve the witness in any decision about special
measures and make the effort to ascertain their views. Many adult witnesses will be able
to give a clear view as to the extent of their vulnerability and the causes. Many witnesses
will also be able to give a clear view as to which of the special measures may be most
likely to help them give their evidence. However, witnesses should always be advised that
the final decision is for the court.
105. Methods of seeking the views of witnesses with learning disabilities are suggested in
the guidance on “The use of special measures for vulnerable witnesses with special
needs”.
106. Before any meeting with a witness, the person citing the witness or preparing the case
should have conducted all due enquiries to ensure that he or she is familiar with the
person’s circumstances. The aim should be to elicit the most accurate information from
the witness in the least stressful manner.
107. It is important that information given to the witness is conveyed in a way that is
appropriate to their age, maturity, level of understanding, cultural context and degree of
language proficiency.
108. Some people may be influenced by the way information is presented to them. It is
therefore important that anyone helping to obtain the views of the witness has sufficient
knowledge and experience of court proceedings and the special measures, to enable them
to give information accurately and without prejudice. Separate guidance on each of the
special measures is available within this guidance pack. If there is any doubt about any of
the special measures, it is better to seek additional advice in order to avoid giving
inaccurate or misleading information.
109. Care should also be taken to avoid interference or undue influence from any other
people present during an interview or court visit, particularly if the interviewer or other
person present has a strong preference for a particular special measure or views that may
differ from those of the witness.
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110. It is important to remember that the process of making an informed decision is likely
to take time and can be reviewed. Witnesses may change their mind about how they
might be helped to give their evidence and it is essential that any information about this
should be conveyed immediately to the person citing the vulnerable witness.
Remember …….
111. The whole court process – from the start of an investigation to giving evidence in
court – can make an already traumatic experience even more upsetting and stressful. This
is even more likely to be the case if the witness is an adult vulnerable witness.
112. Special measures introduced by the Vulnerable Witnesses (Scotland) Act 20904 aim
to provide support for all witnesses falling within the statutory definition of vulnerable, to
help them give their evidence.
113. It is important to identify, at an early stage, those who may benefit from special
measures when giving their evidence.
October 05
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ANNEX A
DN: At a recent meeting with practitioners, the benefits of having a
‘checklist’ were discussed. The content is taken entirely from the guidance
document but put into a different format for discussion by the sub-group.
VIA:I can see a value in a checklist but am not clear what the second column is for? Is
to give details about the vulnerability itself or to give further detail about signs pointing
to the particular vulnerability or to flag up key issues connected with the vulnerability?
Perhaps more than 2 columns are needed??
DN: Is the checklist helpful? Do we need to change the style?
Medication
Recent hospitalisation
Poor concentration or memory as side effect of treatments
Carer arrangements
Learning Disability
Cognitive issues
The nature of the case and serious or repeated sexual offences or extreme violence
nature of the likely evidence other sexual offences
any violent or sexual abuse in residential homes
to be given
elder abuse
domestic violence
murder or culpable homicide
Mental Disorder:
victim of a crime,
trauma as result of a significant personal loss,
eye witness to a crime or other traumatic event.
feelings of shame or guilt
Risk of Intimidation
Actual or likely intimidation of the witness by the accused
or their associates
history of threatening behaviour;
crime committed close to the witness’s home or within the
witness’s family;
previous experience of prejudice, crime or threatening
behaviour
feared stigmatisation
member of minority group with previous experience of
racial or other hatred
The witness’s relationship,
past or present, with an
religious or cultural issues likely to alienate a witness
within their own ethnic community;
domestic assault where there maybe a history of
intimidation
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accused:
stalking
historical sexual or physical assault
Accused in a position of power:
accused a carer at home or in residential setting,
a significant family member,
an employer
witness dependent on the accused
witness has ambivalent feelings towards the accused
Age and Maturity
a young person
still in education
immature
An older person:
physical frailty,
social isolation
fear of intimidation.
fear any loss of independence or unwanted interventions by
statutory agencies
Other personal or social the sole carer of a dependent or terminally ill relative
pregnancy ???
indicators
communication difficulties
first language not English
needs assistance to communicate
no speech or limited speech or communicates by means
other than the spoken word
an inability to read/write
any cognitive difficulty with concepts of time, numbers or
spatial awareness
Social isolation
alienated from their family or local community
negative experience of other criminal justice systems or
authority
Behavioural indicators
 experience of severe physical reactions, such as violent
particularly
if
these
shaking, vomiting or collapse when recounting events
behaviours are increasing
 otherwise displaying extremes of emotions such as
being over-exited or excessively tearful
 unusually withdrawn
 lethargic
 confused
 unable to concentrate
 withdrawn to the extent of having difficulty
communicating
 not engaging during any preparation process or court
familiarisation visits
 having unusual or inappropriate behavioural or
emotional responses
 difficulty in remembering simple facts such as date of
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birth, age, address, telephone number, day of the week,
where they are and who you are
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