|The provision that enables the evidence of children to be given in Scottish criminal courts through the medium of a live television link is contained in Sections 56-60 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. It came into partial effect on 30 September 1991. The main purpose is to allow children to testify without undue distress and to secure full and coherent evidence, without prejudicing the right of the accused to a fair trial. Its use was evaluated and monitored over the first 27 months of operation. The findings are summarised below. A detailed research report is to be published in due course by the Central Research Unit of The Scottish Office.|
- Applications were made for the use of a live TV link by 117 prosecution witnesses and 1 defence witness cited in 55 High Court cases; also by 26 prosecution witnesses cited in 15 sheriff court cases in Glasgow and in Lothian and Borders. 37 child witnesses were cited in these cases for whom no application was made to use the TV link.
- The factors significantly associated with the decision to apply for its use were the child's age, type of witness (whether a victim or a bystander) nature of charge, relationship between the witness and the accused, geographical origin, and whether the application was supported by an expert's report.
- 3 applications were refused outright and 13 were refused at that stage ('in hoc statu').
- In the cases that proceeded to trial (21 High Court and 8 sheriff court), 50 children gave all or part of their evidence over live TV link and 1 child was found not competent to testify.
- Compared to children who testified in the court room, the TV users were less likely to be in tears during cross-examination, less likely to report experiencing fear while testifying and more likely to describe the proceedings as fair.
- There were few significant differences between TV users and non-users in the quality of evidence, except that users were less likely to recount detailed and convincing evidence and, during cross-examination, were less resistant to leading questions on peripheral matters.
- When prosecutors focused their questioning on the main actions of the accused, TV users were more likely to answer than non-users.
- There was no significant difference between link and non-link cases in the average rate of conviction.
|The introduction in Scotland of special measures to enable children to give evidence without unnecessary distress was recommended by the Scottish Law Commission in their Report on the Evidence of Children and Other Potentially Vulnerable Witnesses (1990). The first to be implemented was a live television link for which provision is made by Sections 56-60 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.|
|Initially, the equipment was installed in Edinburgh High Court and in Edinburgh and Glasgow Sheriff Courts, to be used 'only on cause shown' by child witnesses under 16. The installation allows a child, accompanied by a support person, to give evidence at trial from a room adjacent to the court room: the child's voice and image are relayed to the court by means of a live closed circuit television link.|
|The evaluation focused on all 144 TV link applications lodged during the introductory stage (October 1991 - December 1993). A survey of High Court records identified the factors that significantly influenced the prosecution's decision to petition the court to allow its use, and the court's decision, 'on cause shown', to grant the application. The effect on the child and on the quality of the child's evidence was studied and also the views of lawyers, judges and other participants in the proceedings. Information was derived from individual interviews pre-trial with 71 non-accused parents and post-trial with 37 parents, 56 children, 15 adults who accompanied the children while giving evidence and 8 accused; from court room observation of 49 children using a live TV link and of 17 testifying in the conventional manner; from individual interviews with 20 judges, 32 prosecutors, 34 defence lawyers and 14 clerks of court who were present at the observed trials.|
|Petitions to the court to allow children under 16 to testify by means of a live TV link|
|(SECTION 56 PETITIONS)|
|During the experimental period the Crown lodged 143 petitions (117 High Court, 25 sheriff solemn, 1 sheriff summary), and the defence lodged 1 in the High Court. This represented 10% of all child witnesses (1152) and 21% of those cited in sex-related charges (514) over the experimental period.|
|Factors Influencing the Petitioner|
|In order to satisfy the court that the terms of the Act are met the petitioner (usually the prosecution) must inform the court of the likely effect on the child if required to testify in the conventional manner, and whether it is likely that the child will be better able to give evidence if allowed to use the TV link (Sec.56 (1) and (2), 1990 Act). The court may take into account the age and maturity of the witness, the nature of the charge, the kind of evidence the child may be called on to give and the relationship, if any, between the witness and the accused (Sec.56 (3), 1990 Act).|
|The Crown was significantly 1 more likely to lodge a Section 56 petition for children who were victim witnesses, where the charges were sex-related, and where the children were closely related to the accused and, after February 1993, if expert opinion supported an application. The children were, on average, 10 year's old|
|The decision to grant a Section 56 petition is made by a judge. The defence opposed 32 of the Crown applications: 3 were refused outright by the judge and 13 were refused 'in hoc statu' (at that stage). The reported case of HMA v. Birkett 1992 indicated that in order to secure the use of a live TV link the applicant must demonstrate that there is sufficient cause to justify its use; the case suggested that it is not sufficient merely to narrate the child's age and specify that his evidence is of a frightening nature. The judgement also reserved the possibility of the application being renewed before the trail judge.|
|Impact on the child|
|Before the Trial|
|Children waited on average 9.7 months (ranging between 3 and 17 months) between the date when the accused was formally committed and the start of the trial. The TV link cases were not significantly more delayed than non-link cases. All parents reported that, while waiting for the case to come to trial, their children manifested signs of stress.|
|The great majority of children were relieved to learn that they would be allowed to testify over TV link although a small number either did not know or misunderstood the outcome of the Section 56 petition. Children and parents wanted more information and support prior to trial, speedier processing of the case, fewer professional interviews with the child and more of a say regarding use of a live TV link. A number of the non-accused fathers of child victims of sexual assault felt that their own need for counselling had not been met.|
|In the Trial|
|The majority of children never testified, the accused pleading guilty in 60% of the High Court and 47% of the sheriff court cases. When they did testify, all witnesses were rated highly for co-operation and concentration and for confidence and composure. Compared to children in the court room, TV users were significantly less likely to cry during cross-examination and to report feeling fear while testifying and significantly more likely to say they were fairly treated. More than half of the children found the TV set-up strange, 6 described it as 'scary' and 3 strongly disliked the device, one of whom asked to complete her evidence in the court room.|
|Only a small number of older children who testified by TV link understood that people in the court room could see and hear them. Both users and non-users were confused about the respective legal roles and had difficulty understanding the lawyers' questions.|
|Impact on the quality of the child's evidence|
|By whatever means the children testified, they received high ratings for responsiveness, consistency, credibility, resistance to leading questions and for effectiveness. Compared to non-users, the TV users were significantly less likely to answer in detail and, during cross-examination, were significantly less resistant to leading questions on peripheral matters. Only when the prosecutor focused on the main actions of the accused were the users significantly more likely to answer than non-users.|
|Some support persons reported that poor sound quality had, occasionally, reduced the child's audibility.|
|Impact on lawyers and judges|
|Although prosecution and defence lawyers preferred court room testimony, all of them conceded that some children would have been unable to testify without special measures. The lawyers' criticisms of the live TV link were that it interfered with witness rapport, increased the difficulty of cross-examination, distorted the impact and import of the evidence, and could detract from the jury's ability to grasp a complete and accurate picture of the witness's demeanour.|
|The majority of judges favoured the use of live TV link to alleviate the ordeal of testifying for some child witnesses and to secure a more coherent account. They were critical of the limited perspective, the remoteness and the artificial quality of the evidence. They found the controls simple to operate and, while a few judges said they disliked the equipment and were distracted by it, the majority adapted quickly to its use.|
|Impact on other participants|
|The adult who would accompany the child while giving evidence via the TV link was not settled in advance. If the defence objected to the support person, the trial proceedings could be delayed. The majority of support persons said they had felt very apprehensive and unprepared for the task.|
|The accused were in favour of a live TV link for child witnesses whom they felt needed protection from the intimidating atmosphere in the court room. None reported feeling it had been unfair to use the provision although some would have liked more attention given to their need to see and hear the witness clearly.|
|Clerks of court were favourably impressed by the equipment and by the ability of children to testify by this means. Because High Court trials in Glasgow had to transfer to the sheriff court to allow children to use the TV facility, the clerks of court faced some administrative and logistical problems.|
|Conclusions and main recommendations|
|The use of a live TV link appeared to reduce the extreme fear and distress felt by some child witnesses and left them with a more positive impression of fairness in the legal process. Whether children used the provision or not seemed to make little difference to the quality of their evidence, although some would not have testified without it. The impact on the jury's evaluation of witness reliability and credibility should be systematically investigated.In order to increase the availability of a live TV link and to reduce the delay affecting witnesses outside central Scotland, the television equipment should be installed in other sheriffdoms. At the same time a number of practical and professional matters require attention.|
|The court should be required to consider and give weight to the adverse effect of delay or adjournment on the well-being of a child witness. Mechanisms should be sought to ensure that all cases involving child witnesses are expedited speedily.|
|Appropriate preparation and support should be available for all child witnesses and their parentsor guardians. Children should have more say regarding the use of TV link. Interviews with children should be kept to a minimum and specialist interviews to support an application to use the TV link should rarely be necessary. Children should know in advance who will be the accompanying adult. Appropriate guidance should be given to the support person.|
|If any child witness is authorised to use the provision all other child witnesses in the case should be given the option of using it. The trial judge should have the power to authorise the use of the provision on cause being shown.|
|The equipment should be in perfect working order at all times, particularly the sound. Children's special needs should be investigated, especially hearing and vision. Judges and lawyers should be practised in its use.|
|The competency requirement for child witnesses should be abandoned.|
|In view of the limited use of the live TV link, alternative options such as video recording of the child's prior statement should be the subject of further consideration.|
|It should be considered whether provision ought to be made to enable a child to give evidence by means of a live TV link in any case where a child is a witness in civil or in other non-criminal proceedings.|
|1'Significant' meaning statistically significant in this summary. |
See main report for full details.
|Further copies of this Research Findings Paper or information about the Central Research Unit Programme can be obtained by contacting the: |
Central Research Unit,
The Scottish Office,
St Andrew's House,
Edinburgh, EH1 3DG.
The report can also be ordered online from:www.thestationeryoffice.co.uk