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Being a witness: Helping people with learning disabilities who go to court: A guide for carers

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4. What you can do in advance

Here are some things you can do before the court case.

You can find out how the court works

The person you care for may never have been in a court before. It can help if you and they understand how the court works and the importance of a witness giving their evidence. There are organisations that can help to answer your questions. You can help the person to obtain the information they need and make sure that it is in a form they can understand.

You could contact:

  • the person who has cited the witness, e.g. Procurator Fiscal, lawyer or the Children's Reporter
  • Victim Information and Advice (only in some criminal cases)

This is part of the Procurator Fiscal service to help vulnerable witnesses, including victims of serious crime and their relatives.

  • the Witness Service

The Witness Service offers information and practical support to all criminal case witnesses and their families while attending court.

  • Victim Support Scotland

This organisation offers support to victims, witnesses and others affected by crime.

You can help the person you care for by talking to some of these people or agencies and keeping a note of how to contact them. Details of all these organisations are on page 30.

There is accessible information available that explains what it means to be a witness and about going to court. You and the person you care for will find it very helpful if you look at some of these booklets and resources together.

what to do in advance image

small signpost imageI am a witness in court

  • An easy-read booklet for people with learning disabilities.

small signpost imageBeing a witness: a guide for child and adult vulnerable witnesses

  • A CD Rom that includes useful information about going to court, video clips of witnesses giving evidence in court and using special measures, and a virtual tour of a courtroom.

small signpost imageWhat happens next?

  • A DVD resource for people with learning disabilities that provides information from when a crime is committed through to appearing in court and giving evidence.

You can help the witness to visit the court

Not all courts are the same and different types of court cases can work slightly differently. A court familiarisation visit is usually the best way to help people prepare for being a witness. If a person is nervous this can help to reduce their anxiety. They can find out what the court looks like, who will be in the court and what to expect. As a result they may be more able to give their evidence.

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Ask the Witness Service to arrange a court familiarisation visit or speak to the person who has cited the witness to arrange this. If Victim Information and Advice are involved you can ask for their help. You can go with the witness when they visit the court.

Court familiarisation visits take place when the courtroom is empty. The witness may also find it helpful to go and see a court in action. You can do this by sitting in the public gallery during a court case. The court staff will be able to tell you what is possible.

After getting information and visiting the court, you can help the person go over some of the information and think about things like:

  • Will they swear an oath or take an affirmation?
  • How do they feel about their address being read out in court?
  • What additional help would they find useful?
  • Will they be able to tell the court what they know?
  • Do they want to be considered for one of the special measures?
  • If yes to the question above, then which special measure and how do they think it will help them give their evidence?
  • Is there anything that continues to confuse or worry them?

It may be helpful to have more than one visit so that the person becomes comfortable with the court setting and the people there.

You can contact the Procurator Fiscal, lawyer or Children's Reporter with relevant information

The witness may have specific difficulties or needs that might affect their ability to give their evidence. It is important to inform the person who asked them to be a witness about any:

  • communication skills and abilities
  • concentration levels
  • mobility or physical difficulties that affect their ability to attend court and stand for any length of time
  • medication requirements
  • need for frequent breaks
  • concerns, fears or worries about being a witness.

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You can help to identify the person as a potential vulnerable witness

A person with a learning disability might be considered as a particularly vulnerable witness and may qualify to use one or more special measures while they give their evidence.

Adult witnesses do not have automatic entitlement to use special measures so it is important to identify a potentially vulnerable witness as early as possible. It may not be obvious that the person you care for is particularly vulnerable. Make sure that the Procurator Fiscal, lawyer or Children's Reporter is aware of any individual needs or concerns that the witness may have.

The person citing the witness (Procurator Fiscal, other lawyer or the Children's Reporter) will decide whether to make an application to the court for the witness to use a special measure. The judge or sheriff then decides if someone is vulnerable and if a special measure will assist the person to give evidence. The judge or sheriff will consider if anything will affect the witness's ability to tell the court all of their evidence and whether the evidence will make sense and be accurate.

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In trying to decide if a witness should be considered particularly vulnerable, the judge or the sheriff will look for evidence of any significant risk that the quality of the evidence to be given by the witness will be affected by:

  • mental disorder ( e.g. learning disability, mental health problem or personality disorder)
  • fear or distress in connection with giving their evidence.

The judge or the sheriff will look at the information in the application including any communication difficulties or behaviour that indicates any possible vulnerability that may affect the ability of the witness to give their evidence.

The judge or sheriff will also consider:

  • the nature and circumstances of the alleged offence
  • the kind of evidence the witness is likely to give
  • the relationship between the witness and the accused
  • the age and maturity of the witness
  • any behaviour towards the witness by the accused, other witnesses or other persons
  • any disability or impairment that the witness has.

These factors do not automatically mean the person is vulnerable and therefore entitled to use special measures. The judge or sheriff will need to weigh up the impact of any of these factors on the witness's ability to give evidence and decide whether there is a significant risk that the quality of a witness's evidence will be affected.

Also it is important to note that because someone has a learning disability this does not necessarily mean that they will need to use a special measure.

You can explain special measures to the witness

If the Procurator Fiscal, lawyer or Children's Reporter makes an application to the court for a special measure they must include the views of the witness.

You can help make sure that the witness understands what the special measures are and what is involved in each. Make sure the witness is aware that they may not qualify for a special measure and that it is ultimately up to the sheriff or judge to decide.

small signpost imageI am a witness in court - an easy-read booklet for people with learning disabilities.

small signpost imageBeing a witness - the use of special measures - a booklet for adult witnesses.

small signpost imageBeing a witness: a guide for child and adult vulnerable witnesses - a CD Rom that includes useful information about going to court, video clips of witnesses giving evidence in court and using special measures, and a virtual tour of a courtroom.

Think about the following:

  • Will the person feel intimidated by seeing the accused in court?
  • Will they feel intimidated by being in the witness box on their own?
  • Will they need some kind of reassurance in court?
  • Is there a chance that they will be unable to remember what happened if a lot of time passes between the event and the court case?
  • Do they have a communication difficulty that will make it harder for them to give evidence?

Be careful not to raise expectations as this may cause extra stress to the witness if the judge or sheriff does not grant any special measures.

The person you care for may not want to use a special measure to help them give their evidence. They can make this clear when they are asked for their views. However, the court may ultimately decide that the quality of the witness's evidence is at risk because of their vulnerability and request that they use a special measure.

Whether a witness qualifies for a special measure or not, there are many ways that you can help to reduce their anxiety about going to court. This includes helping them to obtain information, arranging court familiarisation visits and giving them your continued reassurance.

You can help the witness deal with the citation

The witness will be sent an official letter (a 'citation') telling them when and where they must appear in court. Make sure that they know the date, time and place and that they must attend. Tell the person who cited them immediately if there is any important reason that makes it difficult for the witness to attend on that particular date.

If the person you care for has a job or attends a day service they may need to inform their employer or care provider that they need time off on the day of the court case. Make sure this is done in advance so that any difficulties about dates can be sorted out at an early stage.

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Giving evidence is important. Witnesses must turn up on the day requested. If a person does not turn up, the court may issue a summons or a warrant for their arrest.

You can help the witness take part in precognition

Before the court date, the witness may be sent a letter or telephoned and asked to attend a meeting with the Procurator Fiscal, defence lawyer or other lawyer or Children's Reporter. During the meeting a statement will be taken from the witness. This statement is called precognition. This is normal procedure and allows the lawyers to prepare for the court case. The witness may be asked to take part in more than one precognition meeting to enable both sides in the case to prepare.

The meeting might take place at the lawyer's office or at the home of the witness. A precognition meeting with the Procurator Fiscal will usually take place at the Procurator Fiscal's office. If there is any difficulty with the meeting place that has been suggested, you can speak to the person who is arranging the meeting and try to negotiate a suitable alternative.

witness precognition image

The Procurator Fiscal, lawyer, Children's Reporter or their representative will usually speak to the witness alone. However, they will also want to ensure that any witness can understand the questions and to assist witnesses to respond fully and accurately. The person arranging the meeting may contact carers in advance to clarify the witness's level of understanding and ability to communicate and, in exceptional circumstances, may ask the carer to be present. This will not be possible if the carer is also a witness in the case or if there are any concerns that having someone else present might affect the interview and the evidence.

In some cases, an 'appropriate adult' may be present at the precognition interview. Their role is to facilitate communication and to provide support and reassurance for an individual who may have learning disabilities.

If the witness has any questions or worries about a precognition meeting, speak to the person who has cited them to be a witness.

You can find out where the court is and what facilities it has

Information about your local court and court facilities can be found at http://www.scotcourts.gov.uk/locations/index.asp

This includes an information sheet, photo of the court, local transport, street map with location of the court, where to report on arrival, refreshment facilities, and contact details. You can search by court or by town. If you do not have access to the internet, contact the court where the witness will be attending and ask for this information.

You can offer reassurance

If the person is a victim they may be especially nervous or worried about going to court. They may not want to see the accused or have to tell a lot of people what happened to them. They may feel ashamed or fearful. You can offer support and reassurance. Sometimes, victims may need professional counselling while waiting for the case to go to court. There is a risk that this may affect their evidence. If you think the person you care for would benefit from counselling, speak to the person who asked them to be a witness and find out what is possible.

All witnesses may worry about the questions they will be asked in court.

Remind the witness that:

  • witnesses do an important job
  • it is important to always tell the truth
  • it is important to say as much as they can remember - even where this is upsetting or if it has been a secret
  • the lawyers will ask them questions about what happened or about what they know
  • the lawyers may repeat the same questions in slightly different ways to test the evidence. The witness should just keep telling the truth
  • if they don't understand any of the questions they should say so. They can ask the lawyer to say the question in an easier way
  • if they don't remember or don't know the answer, they should just say I don't know or I can't remember. They should not guess or agree when they do not understand or do not agree with what is being said
  • the witness must not discuss their evidence with you or anyone else except the lawyers involved in the court case or their representatives.

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You can find a source of support for yourself

You may find that helping someone with a learning disability to be a witness is also stressful and upsetting for you - especially if they have been a victim of a crime or are accused of one. Make sure that you have a source of support and advice for yourself.

Carers can contact the Witness Service or Victim Support Scotland for advice. You can also speak to the person who cited the witness or the Victim Information and Advice officer. Your local carers' group may also be able to provide or link you to sources of emotional support.

If you do know anything about the case, you must not discuss this with anyone.