 There are no apologies. Agenda item 1 is the decision to take item 4, consideration of a proposal to commission research in private today. Are we all agreed? Are all agreed. I'm going to suspend briefly to allow our witnesses to take their positions, not all of them have arrived yet. Agenda item 1 is our third evidence session. Agenda item 2 is our third evidence session on the Vulnerable Witnesses criminal evidence Scotland bill. I refer members to paper 1, which is noted by the clerk, and paper 2, which is private paper. I welcome our first panel, Kenny Donnelly, Procurator Fiscal High Court, Crown Office and Procurator Fiscal Service, Dorothy Bain QC, Faculty of Advocates, Gracia Robertson, Criminal Law Committee, the Law Society of Scotland, and Ewan McElride, casework team, miscarriages of justice organisations Scotland. I thank the witnesses as we do every week for taking the time and trouble to give us routine submissions, which help us tremendously in advance of the formal evidence session. We now move straight to questions from members starting with Rona. Thank you, convener. Good morning, panel. Can I start just by generally opening up the discussion with what you perceive to be the benefits of pre-recorded evidence, for example in terms of the impact on vulnerable witnesses and the quality of evidence that might be given, and then any downside that you see to this method of taking evidence, and whoever would like to start. The Crown Office and Procurator Fiscal Service welcome the introduction of the bill. There are a number of benefits. A professional experience supports the view that a greater use of pre-recorded evidence will have significant benefits to victims and witnesses. As has been noted in many of the written responses to the committee, that will reduce the risk of further traumatisation of victims and witnesses, and will also help to ensure that evidence is taken as close as possible to the point in time at which an allegation is made. It will allow children and vulnerable adults to give their evidence outwith the presence of a jury, which yourself can be a challenging environment for anyone who appears in court. There are clear benefits on that basis, and we welcome that the bill allows that opportunity to assist victims and witnesses to give their best evidence. Pre-recording of the evidence of witnesses will most effectively be achieved by employing a combination of special measures contained in section 271M, namely giving evidence in the form of a prior statement as the evidence in chief, and secondly taking the evidence by commissioner. A high-quality visual and audio recording of a police interview is required to enable the first part of that to be effective. The quality has to be there in both the recording and in terms of the questions that are asked. Once that is achieved, that allows us to use that evidence in the first instance to avoid having the witness to go through all of their evidence in its entirety. We cannot always do that at the moment, because the quality of the recording equipment is not always consistent, and so the quality of the recording that we get can often be difficult, distracting or simply not capable of being played in a courtroom. One of the challenges is ensuring that that recording is capable of being heard in what are quite big environments in many of our courts. Can I just interject how often does that happen? Is that a fairly regular occurrence? Sadly, more often than I would like to be the case, I do not have anything other than a anecdote. It is certainly something that arises reasonably frequently in terms of the recording equipment. It is affected both by the equipment itself and the environment in which it is deployed. Sometimes the recording equipment itself is not the fault, but people may be looking papers at their own points of the interviews or simply where the equipment is positioned in terms of the microphone and the ability of the witness to have their voice captured. You are talking, particularly in the case of children, about really sometimes very softly spoken evidence in the best of times, but talking about very sensitive matters can be difficult unless the equipment is correctly set up and has sufficient quality for the recording to be effective. The second part of it is in the quality of the questioning. Police and social workers, in the case of the joint investigation of interviews of children, are trained in the conducting of these interviews, but there are times when, as a matter of law, we have to review that and times when some of the questioning is not of the sufficient quality, either because something is missed or because a question which is asked results in something which is inadmissible, either because of the nature of the question or because of the nature of the answer. Quality in two fronts has to be sorted out, but once we get that part of it fixed, I know that the Government has been looking at investing in additional equipment, and the Police and Social Work Department have embarked on revising the training with a view to rolling that out across the officers who are trained to do that. That should hopefully provide the framework to allow us to use the prior statement as the evidence, and the evidence by commissioner at an earlier stage to allow the victim to give their evidence in an environment that is more friendly than the more hostile environment of a courtroom, and then allow that best evidence to be presented to the jury. I would agree with what Mr Donnelly has said about the benefits of pre-recording evidence, and I would also support what he has said in relation to the difficulties that are currently faced with the quality of the recording, the equipment available, the quality of the questioning and the product that is available for the jury to see. I support all of what he says in that respect, so rather than just saying and repeating what he has said, another real benefit, particularly in cases involving children, is that the recording is made as near as possible to the time of the events in question, and for children particularly who change so quickly from, for example, age of 10 through to 12 in their physical demeanor, in their emotional development, in their intellectual development, it can make all the difference to a case where you have captured at the time the evidence of the child probably when they are at their most vulnerable. For all those reasons, all the reasons that Mr Donnelly has said, and particularly emphasising the impact on early recording of children's evidence, the Faculty of Advocates supports the bill and the reasons that are underpin it. From the point of view of the Law Society, we approach this very much to emphasise the role of the defence in all of this, and the recording of evidence that we totally accept, particularly when children are concerned that this can be the best way to present that evidence for the purpose of a trial process, and we are supportive of that. We do require to test that evidence in an appropriate manner. You will notice from our response that there was a lot of emphasis about resourcing and funding and the defence being properly resourced, and that was not simply us looking for more cash. It was a recognition that this is a big undertaking that will require a significant financial input. If that is not in place and it is not done properly, then you are almost in a worse position than you were before, because expectations have been raised that this will be a better situation, and it may turn out not to be so for all the reasons that have already been voiced before. We were also influenced by the fact that there is an issue at the moment with the recovery of digital evidence in other criminal court cases, and the presentation of that to the defence in a format that we can use. There are obviously technical issues already in existence, and our concern is that if they are not being properly addressed, what will happen when this system is brought into play, if everything is not just on point, as regards the quality of the equipment and that all elements of it are properly resourced down to the people who are putting the questions to the children, their training. Almost every aspect of this, there is a financial imperative that has to be dealt with. When you said you required to test it, what can you maybe expand on that? Do you mean by phasing it in a slower fashion? I was actually just meaning that the defence has the opportunity to challenge any evidence as they have to do in a criminal court setting. We have to have an opportunity perhaps to have certain questions put to witnesses. That is all something that is already being done, but if that is going to become a more common practice, we just want our membership or solicitors to be assured that there is appropriate legal aid funding in place for us to do that, the correct opportunity and the proceedings are not too soon, not too late, and that we do not encounter difficulties in that, which cause further delay in the process. One of the issues that was highlighted at this should make the matter a bit more smooth running, and it should hopefully avoid longer delays in getting those cases to a court conclusion. It was in relation to that, but also the issue of phasing this in slowly was something that I think we felt very strongly about, that to rush into the process could create great difficulties, and that is why we were fully in favour of focusing first of all on younger children, serious offences, bringing it in there, and testing and evaluating it, not just simply starting with that and then moving on, but evaluating how that element of the process works. Is there something that can be changed? Can we learn from that before moving on to other elements? You will be under pressure from various agencies speaking on behalf of people who say, why not us? We want this to come in sooner, and we want this to be available to other witnesses, so there is a pressure to move along more quickly than perhaps might be wise. Do you have a particular timescale in mind that you think would be reasonable to suggest? I think that there are probably others better versed to suggest something like that, but I think that until we are assured that the new procedure is working well in respect of the gathering of evidence of children in serious matters, we shouldn't be considering rolling it out to any other categories of witnesses. From the outset, we accept the rationale behind the taking of evidence from child witnesses in this way. We can see how that can be beneficial and appropriate. However, my organisation comes at this from a slightly different perspective, in that we represent people for whom the trial process has already gone wrong, and we see quite a lot of devil in the detail. If I can boil it down to the two principal problems that we have, we see an imbalance in the separate treatment of vulnerable witnesses and complainers, as against vulnerable accused. I note from the policy memorandum that we had a look at that there is recognition that similar measures in the interests of fairness might be better to be put in place for vulnerable accused also. It is recognised that there may be a need for that, and therefore it seems to us surprising that we would be proposing to proceed with legislation, which is by definition unbalanced in that way. We would have thought that it might have been better to iron out the approach to vulnerable accused at the same time and then introduce it all at the one time. That is just a general observation. The other difficulty that we have is with the concept of the deeming of witnesses to be vulnerable, particularly where there is no apparent objective standard of actual vulnerability. We take that to constitute a threat to the trial process in that a witness or a complainer who is deemed to be vulnerable will derive some advantage in terms of credibility in the eyes of a jury with that we see as a problem. Can I ask you specifically with regard to children? Do you have any misgivings about that? No, I speak from personal experience. I, probably uniquely on this panel, have been cross-examined as an accused person in the High Court myself. I underwent six days of cross-examination and found the experience very unpleasant. I understand that it is for everyone a very difficult and stressful experience. I think in terms of preserving the quality of evidence, particularly from children, I have no problem with the proposal in general in that sense. On the principle of innocent before guilty, do you not think that for the child accused to be giving evidence before anything, is that not detrimental to them? It may be. There is obviously quite a lot of work that needs to be done in this, and that in a sense is my point. I do not think that it has really been properly examined. There are issues in that an accused person is in a different situation to everyone else and would normally be given their evidence at a different stage. However, if we recognise that there are dangerous or negative impacts on vulnerable witnesses in giving evidence in the high pressure environment of the High Court or the Sheriff's Court or its own procedure or wherever, then we really need to be recognising that that cuts both ways. I will follow on from possible problems with miscarriages of justice, Liam. Thank you, convener. If I can stay with you and Michael Wright, the submissions that your organisation has made, quite rightly in my view, flag up, let's be cautious before we do anything just in case there is an added risk of miscarriages of justice. You say that there is a risk of diluting the right of the accused to a fair trial through those reforms. Can you explain to me how—not in terms of the imbalance—I understand the point that you are making, but I think from your evidence that you are flagging that there is an increased risk of miscarriages of justice taking place as a result of those reforms. How? What is lost? I think that if you are looking at deeming witnesses to be vulnerable on a blanket basis just by virtue of the nature of the offence that is charged, there is a danger there. As we see it, the deeming of a witness or a complainer—in particular, we are concerned about complainers—as being vulnerable and the provision of special measures for them will give them a status in the eyes of jurors, which is an advantage, I would think, in an adversarial situation. There will be some support offered to their credibility, I think, in that situation. Have you any evidence for that? I have the testimony of a number of clients of our organisation who have been convicted on the evidence of false witnesses who were given protection of the existing sort in the course of their trials. I do not, for a moment, suggest that every complainer is a false complainer, but there are some who are. To enhance the credibility or the impact, if you like, of their evidence by virtue simply of the nature of the offence charge is, I think, inherently dangerous. I understand. Just if I might reflect back, by the taking of the evidence of the vulnerable witness, as defined in advance, if you like, that that could prejudice because of the credibility issue, that that could prejudice the jury against you? I think that the juries are going to be subject to a heightened sense of sensibility to that and perhaps a heightened sense of sympathy for a witness in that position. Someone who is identified as being vulnerable I think will derive an advantage from that. I understand. Grazia Robertson, if I might come to you, the Law Society does not raise this specific point. Does that mean that the Law Society does not think that it is a realistic point? The issue of vulnerable witnesses is really something that is now settled in legislation. I mean, we did make representations when that was all an issue, that it was a very wide category of what someone is deemed vulnerable. Also, at that stage, there was a provision where you could consider yourself vulnerable just by virtue of the fact of being a little nervous in court. If you felt that you were vulnerable, an application could be made for special measures. It was certainly a very wide category when it was introduced, but I think that that is really now settled. But, as you and McLeod's point about credibility, does that stand? Well, jurors are given instructions when special measures are rolled into court, they are advised that this is happening. This is just to make the witness feel more comfortable, don't read anything into it in terms that they are told that. It's now become quite common to have these special measures. It's difficult, without formal assessment, to know what impact that's having on jurors. We all form views as to what we think jurors may be thinking or what they might be perceiving in certain situations, but the reality is that we don't really know. Sometimes we can imagine their forming a view when perhaps they're not. It is a little unclear, but I certainly have sympathy for the view of the status of vulnerable accused. We attempt various special measures to ensure that accused persons are supported properly in the trial process, but again that's all largely un-evaluated and we're not entirely clear how successful those special measures for accused persons are. Indeed, the existing special measures, I don't know if there's been a great deal of proper monitoring and evaluation of how successful the existing special measures are, how well they are working, clearly for considering bringing in something else. It tends to imply that perhaps the existing special measures have failed in some way, but I don't know that that's necessarily true. That's interesting. Dorothy Bain, if I might move to you, the faculty suggests in their submission that there's a need to safeguard against miscarriages of justice, so I take from that that the faculty is conceding that it could happen as a result of these changes. Perhaps Mr Mackle right is right that there's an increased risk of miscarriages of justice. I'll be interested in the faculty's view on that. Your evidence then goes on to suggest that sufficient safeguards are required to ensure that there aren't miscarriages of justice. Can you help the committee to understand what those sufficient safeguards might be if they're not already there? I think that what you're referring to is the faculty of advocates general position that was stated in their response to the bill. The faculty of advocates were recognising that this change, which would permit the early recording of evidence, is something that's going to substantially alter the way in which trial procedures work at present. It's just a recognition that if you change something, within the procedure and balanced processes that we have, you need to recognise that there might be a knock-on effect on one particular party to the process. Necessary safeguards should be identified when that change of process comes about. What the faculty envisaged was an assurance that there was full disclosure of evidence early, that there was a proper opportunity for a defence council to prepare in response to the case that's presented against their client, and for the appropriate opportunity for cross-examination of witnesses. That would be a cross-examination that might arise following upon, for example, simply leading a child's joint investigative interview to the police as evidence in chief. What was recognised is that where you have change, you may upset what is a balanced procedure, and you need to ensure that individual people who are taken up in that procedure are protected against in the sense of any miscarriage of justice. It was just a general recognition that change brings the need to take care, but it's also very powerfully recognised by the faculty of advocates in their response that the vulnerability of witnesses requires the court process to be moulded around the witnesses' needs rather than the old rigid structures that we are so familiar with, and the benefit of this procedure in gathering evidence as near as time is possible to the events in question is that accurate evidence is being gathered that is recorded and it's there for the jury to see near to the time of the offence rather than a jury being dependent upon seeing evidence of a child maybe two or three years after the event. If I can just press you just so I'm absolutely clear because the faculty submission says it is vital that sufficient safeguards are in place to enable the rule to operate fairly, so can you help me understand, presumably those sufficient safeguards have to be in place prior to any such change happening, so has the faculty made clear what those sufficient safeguards are and I think you listed some, and how confident are you that they will be in place to enable the rule to operate fairly? Well I suppose the confidence of the safeguards being in place would require to come about after understanding that the issues that we have raised as being of concern in our response are properly addressed and the main part of our concern relates to the disclosure of evidence and ensuring that those who are coming to present an accused person's interests in proceedings are properly informed of the evidence and they are in a position to properly prepare and present their client's case and one of the safeguards would be to ensure that the Crown are meeting their disclosure obligations, that's one and there is a real question mark over that at the moment and that is raised within the faculty's response. The other issue relates to the quality of the recording that's been raised and another issue relates to the manner in which vulnerable witnesses have been questioned by the police perhaps due to the joint investigative interview process. Quite often the manner of questioning is very difficult issue in a trial and often members of faculty have experience of evidence not being admissible from the joint investigative interview because the manner of questioning of the child has been inadequate. Another safeguard would be to ensure that those representing the interests of an accused have the full opportunity to consider material and prepare whatever was necessary in response to that. Within a preparation phase for any trial, there are a number of issues that require to be addressed and those are just two of them but we could easily list them in a written response if that would satisfy you. I think that that would be a benefit if you wouldn't mind just so we understand what the safeguards are to make sure that they're being put in place. Yes, because I see that it is a general statement in the introduction that was made in response to the call for evidence on the bill and then in terms of the response specific questions were asked that required us to address specific points which perhaps excluded the opportunity for that. If I could run before I bring Daniel in with the supplementary main line of questioning just to the definition of vulnerable witness and notice Mr McOvryde you mentioned that it appears to be defined in the policy memorandum in terms of the nature of the offence therefore is a blanket cover as opposed to having any objective or evidence-based test. Is it your position that children would be automatically in that vulnerable category and that for other people the objective test should most certainly be there whether that's accused or a witness? Yes, I think that's the case. I would have no problem with children invariably and automatically being deemed as qualifying for whatever the special measures were. My concern is with adult vulnerable, deemed vulnerable witnesses. Again, just for the record, I mean I have no difficulty whatever with protection being offered to vulnerable witnesses who are vulnerable. Absolutely, but the test should be there to actually study something. There should be some test. Can I, do you mind if I just raise an issue here just in relation to the question of the proposed safeguards? I mean I would be more confident about that if it were the case that we made any inquiry into the nature of miscarriage of justice as it has already happened. I wouldn't be confident about our being able to effectively design safeguards in an environment where when we do encounter miscarriage of justice we make literally no inquiry into it at all. There is no inquiry when a miscarriage of justice is uncovered as to the nature and cause of it. The appeal court will certainly identify what the miscarriage of justice arises from, but there is no subsequent inquiry as to how or why that has happened. In statistical terms, I accept that the number of miscarriage of justice as a percentage of the number of trials we have is not high, but it is still a very serious problem. I obtained from the Scottish Courts and Tribunal Service last month under freedom of information the statistics for the last five years in relation simply to solemn appeals. That is appeals arising from jury trials, so therefore the more serious types of crime carrying the more serious types of sentence. In conviction appeals alone over the five years to 2017 the appeal court recognised 110 miscarriages of justice. That's two a month. It's a significant number. There's obviously more information I think that both Dorothy Bain and herself suggests could be brought forward in terms of safeguards and I think the committee would be very pleased to receive that if you want to provide additional information just on that specific point, because it is a very important one. Daniel. I'd like to begin by following up on one of the contensions that you made, Mr McRide. I think that the contention that evidence given by commission would have enhanced status. That's quite a serious contention if we're seeking to promote something that is ultimately obtaining justice. I'd just like to put a number of points to you and I'd be interested in your reaction. First and foremost, in terms of the concerns that have been expressed to us already, there's some concern that rather than enhancing that evidence there's some concern that actually viewing evidence that's been prerecorded rather than in person might actually diminish the impact of that evidence. That has, I think, been allayed somewhat by the actual use of this in practice. Indeed, the second point is that these special measures are currently in use and I was just wondering whether or not your insight was actually borne out by the use of that as it's currently standing. The final point is really this. I was wondering if the converse of this is that providing evidence in person for particular people who suggest children in particular, their ability to provide good evidence is diminished by doing that in court. Surely I'm just wondering how you'd address those points. Can I first explain that my position in this is informed by the experience of the people that I meet in a daily basis? A number of whom have been convicted and then subsequently exonerated their conviction founding on the use of witnesses being permitted special measures. Now, I accept that and I've made this point before. I accept that it is not universal the case that any witness presenting as vulnerable is necessarily not a vulnerable witness, but there is a danger. I'd simply address the fact that there is a danger of which we have direct experience of too much weight being given to the evidence of witnesses who have been afforded a particular status as a vulnerable witness. I don't really understand why you're giving any great weight just because it was pre-recorded. Let me give you one example, which is perhaps not immediately directly relevant in the centre. It has a criminal and a civil element. I have a client who was convicted of historical sexual abuse, went to prison, served a substantial period of time in prison, was subsequently cleared at appeal and went to retrial and was acquitted. The evidence relied upon to convict him was the evidence of a witness given special measures. His acquittal is where the criminal position stands. He has been exonerated. He is, however, denied to this day the right to practice his profession because his professional body decided that the vulnerable witness was to be believed by dint of being vulnerable and they have refused to permit him to return to his profession. That is, as I say, perhaps not a direct or relevant, a directly relevant example, but it's an example of how the excessive use of reliance on perceived vulnerability has real consequences in people's lives. That's about the perception and the consequences, rather than the method of taking the evidence itself. In particular, if those witnesses are subject to ground rules hearings, if those witnesses are still subject to cross-examination, I'm still struggling to understand why the special measures in and of themselves actually enhance the evidence. The perception is ultimately what the case is decided upon. The jury will decide a case, which will reach its verdict on the basis of its perception, not only of the evidence, but of the witness giving. What you have not explained to me is why viewing that evidence as a recording, rather than viewing it in person, actually alters the perception of that evidence. As I say, I refer you merely to the examples of which I am aware, in which that has been the outcome of it. I would be interested to see if there is any study of that, as to whether it enhances or detracts from the credibility of a witness. I can only come at this from the perspective of the job that I do and the people that I work with. I think that you've acknowledged that that's a speculative view. Can I just ask the Law Society and the faculty whether they share any of those concerns about the altered status of the evidence on the basis of it being pre-recorded? Well, people have expressed views as to how they imagine jurors may perceive certain types of evidence, and certainly when the remote link was used for evidence so that the witness was not in court, the witness was elsewhere, and jurors were viewing that evidence on a screen. There was some concern that that meant that the witness was at some distance, and perhaps the jurors couldn't get quite a feel for the evidence in the same way that they might do with a witness being present in court. But again, there are different views on that, and it's not really settled. I know that some academics did respond to that and gave a view that there had been some study done or studies done to show that jurors don't perceive or don't assess the witness differently depending on whether it's on a screen or whether the person is in front of them, that they don't have a difficulty with that. Again, others may have a different view. As I said, we're working on the basis where imagining what jurors may be perceiving in certain situations when they view that evidence, but certainly jurors, in my experience, certainly try their best to view the evidence as carefully as possible and reach a verdict. As much as any of us can know that, because obviously their deliberations are understandably secret. In response to the suggestion that there's an enhanced status in relation to the credibility of the witness who's had a pre-recording of their evidence, the Faculty of Advocates doesn't hold the view as expressed. That's useful. I've taken a bit of time, but I would just like to briefly ask about the possibility of extension to other forms of hearing. In particular, the Sheriff Court, where the bulk of child witnesses will be appearing. Obviously that's not provided for in this legislation, but given that there is provision for extension by regulation, are there any concerns or thoughts that the panel might have about the possibility of putting provision to enable that extension, albeit not immediately and perhaps with caveat of further consultation or work? Would you have any concerns about that? Would those concerns be largely practical, or would there be any concerns in principle with making provision for further extension for different types of hearing? At the risk of signing, just as if I'm being a grubby lawyer here, it would have to be funding and it would be financing and it would be resourcing. There are huge resource implications in extending that, both into sheriff and jury cases and into sheriff summary cases. I would just reiterate at the point previously, if it's not done properly, it could be quite disastrous at the end of the day if it was implemented badly, and people actually had a worse experience than they may have had by the use of the existing special measures. We're interested in the Crown Office supports the phased approach that's been recommended by the Government. It's proposed that deliberate decisions should be taken sequentially over a period of time to extend the presumption for additional categories of witnesses, but we can only do that in a phased way, learning as we go, so process of evaluation, review, learning as we move through each stage. I think that the law society is absolutely correct in highlighting that at each stage there's a resource requirement. All of this is additional. Each of these hearings is an extra hearing for the process. It's not absorbed anywhere else in the process, and so there is a resource requirement. I can understand the frustration of those who represent other groups looking for the rule to be implemented more widely immediately, but to implement too quickly would overwhelm the criminal justice system and cause both systemic and individual case risk. I'll give you an example of an increase over the course of the last year, since Lady Dorian's practice note was introduced in May 2017. In the period from May 2017 to March 2018—this is only in the High Court—there were an average of five evidence by commissioner applications per month. That increased to an average of 14 per month over the period of April to August 2018. The strain that it put on the system was enormous in terms of advocate deput time, judicial time, and I'm not so well-sighted on the defence position, but I'm assuming that it would have been equally taxing for counsel and solicitors instructed in the cases. It really caused a massive upsurge of work and, obviously, the absence of resource. There was anecdotally some suggestion that it was causing delay rather than expedition. I don't have any data to support that, but I'm simply trying to find the capacity to conduct the hearings in what's a relatively modest increase. Based on the Government figures and the proposal on the bill, we're looking at an additional—at the moment, I think the Government benchmark is 100 commission hearings per year for children alone in the High Court. We anticipate that that's going to go up somewhere in the region of another 350 or so. We're talking about going up to more than 40 a month in the High Court alone for children. That's without then extending it to vulnerable adults and extending it to the sheriff's court. One step at a time allows the resourcing to be put in place for the facilities to be checked and make sure that they're adequate and that they're sustainable, and then, as I said, from that to learn for the roll-out to the wider classes of cases. It's appropriate to start with children because they are the most vulnerable in our society and to start in the High Court because those are the most serious cases unless the most sensitive areas that the witnesses are likely to be speaking about. The phased approach is the right way ahead to allow the system to cope and absorb it. I think that the senators of the College of Justice in their commentary—sorry, the written evidence used a phrase that I think I would just reiterate, that an unsupportable surge in demand in the justice system with limited resources would be the result of bringing this in on a wider basis. My question isn't so much challenging that the phasing that I accept and the need for that is just a question of whether or not the bill could make provision for additional future phases once that is sort of proven. At the moment, we need to come back to primary legislation to extend the sheriff court. Sorry, I hadn't picked up. The bill does provide for it in the Sheriff and Dury Court, but not in the Summary Court. Sorry, I may have misunderstood your question. The answer to that is a matter for the Government, but that would have a massive result of simplification again. We need to do the calculations over what that would mean in terms of children and vulnerable adults, or deemed vulnerable adults, to be fair. In terms of children, in some of the cases, we endeavour not to use such child's evidence unless it is absolutely necessary to the proof of the case. That tends to be more so in the more serious cases that you are having to rely on a child's evidence, but there is still a significant number of witnesses in the Summary Courts to our children, and certainly a significant number who would be deemed vulnerable adults in the categories of cases. I have taken a bit of time, so unless any of the other panellists particularly want to answer that question at all. Ewan McElroy, did you want to add something or you have? No, no. Subject to the comments that I have made about fairness and balance, I have no problem with what has been said. Liam McArthur? I think that, Kevin Donnelly, you might have answered this. I do not think that anybody disputes the additional workload that this will create. It is certainly not about streamlining the system, but improving the quality of the evidence and improving the justice system as a result. Is there any way in which, on down this route, it is likely to improve, I do not know what we heard repeatedly during our inquiry into the Crown Office, Bucuretta Fiscal Service, the problems that are created by churning cases, that this would reduce or bear down on those sorts of problems and, therefore, perhaps at some point in the system, free up resource or improve the way in which the system is working at present? Of itself, not necessarily, but it is certainly a step in the right direction. The one huge advantage of it is that it certainly reduces the impact of churn on the victim or the witness whose evidence has been given, because any future delay in the proceedings will not have the victim still concerned about when and where they will give their evidence. The early capture of their evidence is certainly hugely beneficial in terms of the victim or the witness being able to, to some extent, put that aspect of the proceedings behind them and know that, while still still have an interest in the outcome of the proceedings, they will not have that trauma of giving evidence still to face. There is no evidence from what you have seen since March last year that, while you might frontload quite an additional quantity of work across the piece, in the later stages of a trial, that that is bearing dividends in terms of reducing problems, delay, etc. I have come on to that. The bill itself is one measure, which of itself does not do that. There is a separate piece of work that we have embarked on in the Crown Office with a view to reducing the overall journey times of our cases. The idea of that was born of the Inspectorate of Prosecutions report, which I think was in November of last year, earlier abouts. One of the recommendations of the Inspectorate of Prosecutions report, one of the observations, which is accepted, was that cases take too long to get from the point of charge and the point of report to the Crown to actually conclusion. Now, we have embarked on work to try and tackle that. Government made additional funding available earlier this year, I think, in September, and much of that will be applied by us with a view to reducing the journey times. The work has already started, but the additional resource that that funding will provide will allow us to make strides in reducing the journey time and to bringing those cases to the court at a much earlier stage. We have a programme that allows within that. The intention is that, although the report is related to sexual offences cases, we are applying that across our caseload in the High Court, with a view to bringing all of the cases back to earlier indictment and, in particular, prioritising those cases, which involve the most vulnerable. With particular priority over our young children and children in general. Deemed vulnerable adults, again, most of our cases involve someone who is vulnerable, and so the prioritisation there is simply in terms of trying to get those cases into the court at an earlier stage. We have already made some progress in that. The committee may recall during the Justice Committee inquiry and also from the Inspectorate of Prosecution report that there was a reference to a backlog of work involved with what is called pre-petition investigation. Those are cases that have been reported to the Crown by the police, but which a decision has not yet been made on whether or not to place the court the accused before the court. No petition appearance. When we started tackling that problem around about October 2016, there were 700 of those cases. That is now down to less than 100, so there is progress in terms of that age of profile of the cases before they get to court. In terms of the court side of things, again, at the same time as we have been trying to do this, we have faced a massive increase in the number of sexual offences cases that were being placed before the court. In the last financial year, we were projecting 50 per cent—I think that it ultimately was around 40 per cent—increasing the number of new petitions for sexual offences cases. Notwithstanding that, we have managed to increase the number of cases that we are getting into the court. The age profile that we analyse as part of our management information of the cases that we have is showing that that is coming in. It is a long process. We are not going to get there overnight, but we are starting to see the signs of progress in terms of the cases that we are getting into court being at an earlier stage than was perhaps the case when we started in the process. Moving away from the terms of the legislation— Sorry, it was just to explain that this is a piece of work that, in terms of that wider piece of work, getting the cases indicted earlier will allow us to get the evidence captured earlier and hopefully get an earlier trial. The two things are hopefully running in parallel. We have moved on to timescale, so I will bring Jenny in. If the witnesses could be a bit more succinct, we have a limited time, and if the responses tend to be as lengthy as some of the ones that we have had, we will not get through all our questioning. Thank you, convener. I would like to ask a couple of questions around the timing of commissions. The committee heard last week from Children First and Barnardo's with regard to the time taken at the police end in terms of giving evidence. There was one case cited with a child witness having to give evidence to the police 27 different times—a statement, rather. I note also, Kenny Donnelly, in your written submission for today, at the court end of things, if the accus is indicted but on charges that differ from those that have been anticipated at an earlier stage, it might be necessary to hold a further commission hearing. Multiple hearings would be likely to increase rather than reduce trauma. We have an issue here in terms of the quality of evidence and also potentially in terms of re-traumatising the witness with regard to the length of time taken. I wonder, therefore, if you might have a view in terms of the opportunities here to expedite the process with regard to child witnesses. Yes. I think the written submission about the timing of the commission hearing arises from the provision in the bill, which removes the barrier from holding a commission prior to service of the indictment. Now, we welcome that provision, but the crown's position remains that the majority of commission hearings will take place after service of the indictment. I will just refer back to the last answer that I gave. The idea that the crown has is not to have the commission before the indictment but to expedite service of the indictment to allow the commission to take place at the earlier stage. The provision allows, however, in some cases where we see that that is not going to be feasible for us to do it at the earlier point prior to service of the indictment. The reasons for that are many and varied, but the faculty of advocates, I am sure, are going to disagree with me, but the experience in the crown office is that once a case is reported to the crown, the investigation that the crown conducts known as the precognition process evolves where and gather the evidence. We do not get all of the evidence at the point where we get a police report, we have to gather the statements, we have to gather forensic material, get that analysed, we have to have analysis of digital devices, going back to the point that I mentioned earlier, get those analysed, which is often in gather medical and social work records. The investigation is organic to an extent, you identify what you think you need, you gather the material, you do not get all at the one time, so again when we receive it we then have to assess it and assess what is material and relevant and what is material and relevant has to then be disclosed to the defence. Often that results in further matters coming to light that you decide that you need to get in fairness either in support of the crown case or is something that is required because it may be relevant to the defence, so it grows as the investigation goes on. Further, as we examine this material and we examine the witness statements, the charges that we draft at the petition stage are routinely replicated in the indictment, there are often significant changes in the indictment process from what appears in the petition and again in terms of informing the questioning at commission hearing, it is important that a party is now exactly what the evidence is and what the charges are to allow the questions to be properly framed and to cover all of the areas that they accused is likely to stand trial on. There are three principal risks, I think that if you do it too early, one is that the material is missed and you have to do a further commission and in fairness to the accused that is absolutely right. Secondly, we could do an unnecessary commission hearing because after investigation we may decide not to proceed with the charge, again there is an attrition rate for these matters and thirdly if the accused is to choose to plead guilty, again the commission hearing could be viewed as having been unnecessary, so the accused's opportunity to plead guilty is after service of the indictment in most cases and so that's where we see that the majority of cases will be post indictment but the opportunity to do it in appropriate cases is pre indictment where that time frame can be matched is helpful and appropriate. In the faculty of advocates response to the question of the timing of the commission that's fully explained there and for the reasons given there I would disagree with what Mr Donnelly has just said about the timing of the commission requiring for the most part to be after the service of the indictment. I agree more with the Crown's position rather than risking multiple engagements with the child witness it would be better that that a more appropriate time be chosen and the best time be chosen. I think you can really only look at these provisions in terms of eliciting the best evidence from a witness and not traumatising the witness rather than seeing this as a mechanism for speeding up the whole process because there are just far too many other variables involved. If our written submissions we would prefer to see it being post indictment rather than petition in that sense I agree with the gentleman from the Crown's office. I suppose it's a balance we know that there can be a disproportionate effect on a child a delay of a week, a fortnight, a month let alone two years which I think it can have but equally you want to ensure that all the evidence and late disclosure evidence is heard so it's a tricky balance but one I think that has to be negotiated. Is this that once an accused person appears on petition the disclosure obligations of the Crown are focused by statute and precognition as described by Mr Donnelly doesn't happen to the same extent now and when an accused appears on petition great care is taken to craft the charges that appear on the petition and just as Mr Donnelly comes with the great wealth of experience from the Crown Office and Procurator Fiscal Service the Faculty of Advocates response comes with a great depth of experience of prosecution in the High Court so it is an informed view informed by very good and strong personal and a large balance of experience from the faculty. I think from your submission you're saying that these late disclosures should be the exception rather than the rule but as things have currently worked then perhaps the balance hasn't worked out that way and it's something that needs to be looked at and that if I understood you properly then before indictment really all the facts are already known substantively and that would be the counter argument. Yes very much. Okay that's helpful. Jenny. Thank you. Thanks good morning panel. I was wanting to look around the use of pre-recording the evidence that we've spoke about. Is there any other ways that you think we could create better use of pre-recording? I maybe want you to specifically reference the children's hearing system where we heard evidence last week on that from the Scottish Children's Reporter Administration where they said that they would like to see a marine up off the use through the criminal courts and through the children's hearing system. Sorry to interrupt. The children's hearing system is a slightly different or it should be a very different environment to a criminal trial setting when the whole purpose of bringing in the children's hearing system was that it wasn't a criminal trial process. So I wouldn't have thought there would be a... So can I just say on that just to clarify again it was the children's reporter themselves that brought that to the table last week? Well my phrase I don't have much experience of the children's hearing system as a practitioner but my understanding was that there was a more holistic approach in a children's hearing environment than a criminal court setting. So I would have thought there would be other mechanisms that the evidence could be elicited without it being too traumatic for a child. I'm not aware of the evidence but I'm aware that the children's reporters administration are keen to look at what we've been doing in the criminal courts to see what lessons can be learned and I think we've certainly been sharing our experience with them of implementing the practice note and what we've been doing around improving how we approach evidence by commissioner hearings at present under the existing legislation. I'm aware that they're keen to use pre-recorded evidence and I see no real barrier to the same pre-recorded evidence being used in both the children's hearing and the criminal procedure. The statements that are given to the police are used in both environments at the moment as it is and so using a video-recorded piece of evidence seems perfectly sensible but I'm no expert in the children's hearing system. The reasons identified as to why it will benefit to the criminal justice process exactly the same reasons can be translated to children's hearing systems so if it could be done that would make sense. The other question that I've got, and we touched on earlier about vulnerable accused in the special measures for them as well but I want to specifically ask about where a child is accused and it's of interest as well because obviously the criminal age of responsibility bill is concurrently going through the Parliament at the same time as the progress of the bill so I want to hear your thoughts on that if you think that there should have been provision around child accused. I think that Crown covered this in some point in their written submissions at paragraph 17 and 18 but I think that it's important to take due account of the age and vulnerability of accused persons as well as victims and witnesses. Pre-recorded evidence however may not be the appropriate special measure for accused persons as there is I think a conflict with the right to silence and the determination as to whether or not evidence should be given is made after hearing the Crown evidence. Two of the key benefits of pre-recorded evidence are that it removes the need for the witness to attend the trial and removes the need to give evidence in the presence of the accused person so neither of those apply to a child accused in the same way that they would apply to a child witness because the accused needs to be at the trial and as I say has that opportunity to decide whether or not to give evidence but there's no barrier to use of other special measures for an accused person where a decision is taken to lead evidence beyond that I'm not sure that from the Crown perspective I can add very much. The faculty of advocates have made extensive reference to the accused as a vulnerable witness in response to the consultation exercise and also in response to the bill and that we have a lengthy paragraph particularly in our response to the consultation. These are very different issues arise for a complainer and witness in a trial as opposed to an accused and for the reasons given I think it makes sense that this current bill doesn't apply to vulnerable accused and I understand that the Scottish Government are currently undertaking an exercise looking at this issue and that's to be welcomed. The Law Society I think you can see from the response agrees pretty much with the faculty of advocates in this in the interests of our client accused we didn't think it was an appropriate matter to proceed with at this stage. Absolutely if it's pre-recorded before you you actually see how the trials unfolding. I wonder if I could ask the panel's views on the ground roads hearings provision in the bill and perhaps start with you Mr McOgride you refer to the policy memorandum and the total lack of a definition on what ground rules actually. Well indeed and it's a general observation I understand at my perspective and this is rather less technical than that of the other members of this panel it just struck us as a little in congress that there was reliance placed on a hearing where there was no apparent definition of what that was to constitute and what was inside and outside the scope. I don't claim any knowledge or expertise in the particular specifics of that. That was a fair point and also the permissible lines of question it would be helpful to have a definition of permissible. I would think so yeah. Okay I know the other panels have various views in class here. Ground rules hearings I think Dorothy probably has more experience in respect of those as they currently exist. I'm not aware of any particular issues regarding how they are at present. I don't think there would be any particular issues. Kenny, whichever one we choose to go first. Yeah I think the ground rules hearing envisages what's captured in the practice note as currently matters which the court need to determine in advance of the commission hearing taking place so Lady Dorian's practice note number one of 2017 which I'm sure the committee has had sight of sets out a number of factors which parties in the court need to agree in advance of a commission hearing taking place that is simply a mechanism to allow the court to regulate the commission hearing in the way that best suits the needs of the witness as well as preserving the rights of the accused to a fair trial so I think it's a wholly appropriate step to take and it replicates what the practice note already requires of parties. The current system, the current preliminary hearing system is what is essentially used to permit a ground rules hearing to be undertaken in relation to any particular case and so I understand that that's working relatively smoothly but one of the issues that the faculty raised in the response is the benefit of the ground rules hearing in the absence of intermediaries and that was an issue that we've focused on in our response and we raised the real issues to whether or not the absence of intermediaries is a problem in terms of how eventually the legislation will be given effect to and whether or not it's practical to envisage that it will be a successful in the absence of intermediaries. I think that we're going to move on to that in more detail so if no one else is ending to add to that point, Liam. Yeah, just pick up, I think that you've tube me up very nicely Dorothy Bain. We had last week again a strong level of support for the role that intermediaries could play in terms of making the assessment of the communication capabilities of individual children and vulnerable witnesses. I take it from your written evidence that you strongly support inclusion within the legislation, reference to intermediaries and maybe you could expand on those thoughts. Yes, so that's very much given faculty support and the reason that underpins that I suppose is experience from taking the evidence of children and realising that with the best of endeavours, with a great deal of preparation and a great deal of attention to detail, as a lawyer you're not in the position of an expert witness who understands the psychological, educational, intellectual needs of a vulnerable child is just not the job that you're trained for and if you have a trained expert assisting you in understanding the needs of the individual witness, then you can do what we're hoping to achieve by all of this, which is to mould the procedure around the witness's needs and in the absence of that expert input one could legitimately question will we get to where we want to be and that is something that the faculty have raised strongly in their response. I think that it's echoed by Police Scotland in their evidence as well, I think, through even where you've got joint interviews with police and social work input, there was still a feeling from them that intermediaries providing that sort of expertise would be hugely beneficial. It is an expertise and an expertise that will allow the child witness, the child vulnerable witness, to be given their voice and that's what this process wants and in the absence of that expert input no lawyer would say that they have that expertise because that's not their training but they take on board expert input and they frame and they mould their questioning around that. Do you agree with that? I have no issue about the suggestion of intermediaries, someone to assist in the communication needs and my only caveat is that with regard to vulnerable accused we have someone called an appropriate adult who is purportedly to do the similar job and there have been significant issues and difficulties with that existing scheme of providing the appropriate degree of expertise and meaningful support in an environment and in a personal level. We criminal practitioners don't find appropriate adults a particularly helpful presence in many cases and it would be unfortunate if intermediaries were brought into a system and the same difficulties were encountered. I think that it's simply a caveat that you have to be careful that you have meaningful benefits brought by the right type of people properly of a proper standard to carry out that work. Cavia is sufficient to make you supportive of the idea? Discouraging of any suggestion that should be in the bill itself? I have no problem with the idea of intermediaries but just with the caveat you need to make sure that it's done properly for want of a better word and as I say history shows us that in other similar areas it hasn't perhaps worked out as well as we had hoped. The potential use of intermediaries I think was raised by Lady Dory in the evidence procedure review paper and whilst it's not covered by this bill it is something which I think some more work needs to be done to scope the benefits and potential benefits of using intermediaries. I think that that's work that the Government has started on separately from this bill. I may be wrong about that but I think that that's correct. I think that it is something that we should be looking at and should be carefully considering but I don't think that we would want to delay the implementation of this bill whilst that scoping work was going on. It's something that perhaps could be looked at separately. You feel that there would be no difficulty in the sense of retrofitting that provision in due course? Would it need a regulating power put into the bill so that once the scoping exercise is completed? I suppose that one option is to put an enabling provision which would allow that to be done by regulation and the other alternative is that it's captured in a separate piece of legislation. Again, that's a matter for Government. I would imagine that until the scoping is done perhaps the enabling provision, in some views, would be premature but I don't profess any great knowledge or experience in that regard. I visited the Crown Court in Liverpool recently and spoke to some of the judges of the Liverpool Crown Courts, one of the pilot courts for pre-recorded evidence. They talked about the use of intermediaries there and the general feedback was very positive in terms of some of the inputs that they can provide, both in terms of advice and not just to parties but also looking at proposed questions and trying to assist in framing those in a way that best meets the witnesses' needs. There's clearly something to be looked at and explored and I would welcome that, but how it's taken forward, I think, is a matter for Government. Morning panel. Can I ask about the current use of appropriate special measures? Mr Roberts, you said that existing measures may have failed and that's why we're here. Is there any attitudes or understanding among criminal justice professionals that can lead to a reluctance to use special measures? No, I wasn't meaning to give the impression that special measures may have failed, but obviously if we're considering the pre-recording of witnesses' evidence that there's an implication that all these other special measures that we've brought in perhaps haven't done what was expected of them, that was my only observation with regard to the existing special measures. Also, I'm not entirely sure that the existing special measures have been fully monitored and evaluated as to how successful they have been to date. It may be that they have been found to be successful. My own experience of them is that they generally tend to work reasonably well and fairly straightforwardly, but then of course they're not catered to my needs. From the point of view of presenting the defence, etc., we haven't encountered particular difficulties with them, but as to whether they enhance the evidence that is given, I think that it would be interesting to know whether the existing special measures have been of benefit. I wonder, Mr Donnelly. We heard that sometimes witnesses weren't consulted, it was just presumed that they would get a screen, I think, as I was always put to us. Is there a reluctance to apply them? I don't think that there's a general reluctance to apply them, but there can be difficulties in identifying what the right special measure is. We should not routinely be applying for measures without consulting with the victim of the witness. However, when we are making the applications, it can be difficult on occasions to make contact with the victim and there are time limits for lodging the applications. Within guidance, there are certain default applications that we look at for certain categories. I think that the bill is to be welcomed in so far as it changes the emphasis and actually pushes parties into applying for this particular special measure in the categories of cases and for the categories of witnesses that we're talking about, because what we've recognised and what the evidence procedure review recognised is that that's what's best for the victims and witnesses. Where, at the moment, we have to persuade the court that this is the appropriate measure, the bill puts us in a position where we have to justify not using the measure, so the bill is a device that enables us to make far better use of what's available to the best advantage of the victim and the witness. Can I then turn to the issue of training, please? Ms Bain, if I noted you correctly, you said that you would take on board expert input if there were intermediaries involved, but also earlier in the session you talked about the manner of questioning a child has sometimes been inadequate. Can you highlight what training need analysis you feel should be or what training needs should be identified for professionals in the field, please? Yes, so just in relation to my statement that the questioning of the witnesses has been inadequate, the import of that is that the prerecorded evidence could not be used at the trial because elements of the evidence was inadmissible. So it's imperative that those who are questioning children in prerecorded sessions know of the rules of evidence, know of the manner in which you can elicit evidence in chief and know the parameters within which they're working. So an understanding that if there's a deficiency in that process, it's going to upset all of this work that's being done to ensure that the victim's evidence isn't captured as near as possible to the time of the events. What lawyers are very good at is taking on board change. You might not feel like that, but they really are. If a lawyer was given expert input from, for example, an intermediary who's skilled in understanding the needs of children, skilled in their intellectual assessment and their ability to communicate, you will then have an individual who's able to tell you as a practising lawyer that the way in which you're framing your questions is inadequate and that you're not going to get to the truth and you're not going to elicit the evidence of the child effectively. Combining the skills that a lawyer has, which is to ensure that they know the rules of evidence and they know how to elicit evidence in chief with that expert input, you're going to ultimately achieve the goal that you want to achieve, which is to get the witness to speak, to tell what happened to them in a way that can be relied upon and in a way that the child witness is comfortable with. That translates on to vulnerable adults with learning disabilities and the like. The combination of training and ensuring that you know the rules of evidence alongside the input from the expert in the field, you will achieve what you want to achieve. That's what I meant by what I said earlier. Mr Donnelly, where would you see the crown with this? In fairness to police and social workers, this is extremely difficult. It's not an easy task, notwithstanding the training, and they don't have the benefit of another party representing the accused to object or a judge to overrule whatever they're saying. The training has to be right. I mentioned earlier that sometimes we do run into difficulties with using the pre-recorded statement or the video-recorded interview as the evidence in chief. That doesn't preclude us from using the evidence by commissioner. We can proceed and have both the examination in chief and the cross-examination recorded at the commission hearing, but our optimal is to use the video-recorded evidence that is given at the time. As I mentioned earlier, police and social workers are currently reviewing the training. Crown officers are inputting to that and will assist with the delivery of that training. I think that if we continue to strive to improve the quality of the questioning, the concerns that have been raised by the faculty of advocates will, I think, diminish once that degree of specialism and expertise evolves even further. The role for judicial training? There's always a role that we commit. Tell the judges they need to learn, but every day is a school day for all of us, isn't it? I think that making greater use of this is something that judges would probably benefit from some degree of training from, whether in the High Court or as we expand down to the Sheriff Court. As I mentioned earlier, we're doing increased numbers in the High Court already, and I think that that has highlighted some issues around some of the logistics. Again, going back to what I said earlier about the resourcing and having the right facilities, not all of the courtrooms have all the right IT or video equipment that we require for playing certain pieces of evidence and such likes. I think that parties need to have a full open mind about what they need to have prepared in advance of the hearing. Judicial training, by all means, is something that would also be welcomed by the judges themselves. We've heard your views previously about the principles around the special measures. I just want to confirm more about the process. In the bill, it's a proposal for an administrative application process, which is to try to reduce bureaucracy, simplify the process and standardise it. From your written evidence, you were, I think, by and large quite satisfied with that? Yes. The simplified provision is designed to remove bureaucracy and, hopefully, will result in some savings for ourselves in terms of the administration of drafting documentation for consideration by a court. That relates only to standard special measures to which a victim and witness is entitled. There's no real need for a judicial consideration. It's simply about notifying parties as to what's required. Generally speaking, yes. It was born, I think, from the written submission of the inspectorate report, which I referred to earlier, which highlighted that that was one of their key findings, rather than recommendations, but something that could be used to streamline that process. Although the bill seeks to make the evidence, by commissioner of standard special measures, the requirement of the ground rules hearings distinguishes that because, obviously, there's a further consideration that's got to be given, not to granting the measure, but to actually the regulation of the commission hearing. I'm not requiring, and this is our response where you're satisfied with that proposal. Sticking with process and procedures, whether the panel believes that any further action might be required to ensure that the right measures are identified for vulnerable witnesses, and we've obviously ground rules hearings aside, we've obviously heard about that, but are there any other measures beyond that that you would want to highlight? Every case rests on its own circumstances, which is a typical lawyer's answer, sorry. But it's an accurate one, and in each case, for instance, when applying for this special measure for a child or otherwise vulnerable witness, there can be a combination of special measures that we have to apply for, so you can be looking to have the evidence by commissioner application as a special measure, the use of the prior statement as a special measure, and the use of close circuit television so that, given the evidence from a separate site, so in every case, we look at all the measures that are available, we discuss them with the victim of the witness, subject to the concerns that I mentioned earlier, sometimes that can be difficult, and come up with the right balance of different measures, which will hopefully support the witness best through their evidence at the same time as preserving the integrity of the proceedings. And you believe that the process for that is fairly, is okay in terms of the procedures for getting to those decisions? Yes, again, whilst we welcome the streamlining of the initial part of the process, there's mechanisms for review. Again, as things get nearer the date, there can be changes in circumstances or changes in the witness's desires or wishes for how they want to go about it, and there's mechanisms within it for the court to review on the application of parties right up until when the hearing of the evidence is given, so I think there's sufficient process and flexibility within the process to meet the interests of justice. I want to move on to resources, and we've already touched in the evidence session on resources. A number of comments have been made. I guess what I would want to hear from the panel is your response to the resource implications. You've covered some of that within your written evidence, whether they're adequately reflected in the financial memorandum, but taking into account the phased approach that's proposed here, so clearly the resources will need to match that phased approach if you get what I mean. What we're talking about is the speed of change, what can be achieved when and whether the resources identified will allow that speed and cautious approach to go forward. Clearly, beyond that, there would be further resource implications. What we're talking about is what the bill is trying to achieve, rather than the resources that are required for the potential future changes. It would be helpful to get your views on the record. Just in response to that, the financial memorandum that was produced is a very detailed financial memorandum, more detailed than I have seen in some other bills. The cost proposals are very fully reflected. There's not much that the faculty can do to challenge those figures, and I would just say that they do look thoroughly researched. For that reason, I've got nothing to say about that. What we did say in our response to the financial memorandum was that much of the assumptions that underpin that are that the current preliminary hearing system will continue to act as a ground rules hearing and that currently there are very limited extra costs apportioned for the Scottish Courts and Tribunals Service and the Scottish Legal Aid Board. If it is to be the case that the procedure is to be brought into effect to ensure that evidence is captured at nearest to time as possible, then that links in with what the faculty of advocates are saying, which is that those procedures shouldn't be taking place after the service of the indictment. If that's right, you're not going to have the opportunity for the preliminary hearing system to work as a ground rules hearing, so you will have an extra hearing and there may be financial consequences for that. Separately, the step process that this bill envisages for the introduction of these measures is to be commended. Step change is necessary in this particular legislative change and financial analysis of that step change is what is required after we see how this procedure beds down and what the on-going evaluation of the impact and whether or not there's an impact on other parts of the system. I agree entirely with what you're suggesting. That might also be the case if there's a reduction in churn that there's savings elsewhere, because it might be possible after that evaluation exercise to say that this procedure has produced savings elsewhere, which we can't envisage at the moment. That's helpful. Anybody else? No, I don't think that the Law Society had a great deal to say with regard to the finances other than the general principles that we made about resourcing and our keenness for this to be a phased impact. Kenny made the point earlier on that this has to be new funding. If you take it from somewhere else within the criminal justice system, you're going to have imbalances there, and that's going to have a different set of problems for us all. As regards the defence, obviously, the legal aid board and others will have to be alert to if there is a change in procedure, and we require to do certain things at an earlier stage in proceedings. That may have to be looked at to make sure that funding is properly in place for that to take place, but I'm happy to leave it at that. I've got an agreement. Like any financial memorandum, there's a degree of projection and estimation of time and how much that would cost. An important element of the phased review, as I mentioned earlier, is that there's an ongoing evaluation to see whether, in fact, what we have projected is adequately or effectively meeting the requirement of the roll-out to next phases. I'm conscious of time, so if you could maybe just answer very briefly this question as to whether you are in favour of the barnhouse system of children given evidence or child's house, such as used in Scandinavian countries, a more holistic way of kids to give evidence? Can you maybe say if you support this or not? It's difficult to answer that very quickly, but in general, it's certainly something that we should be looking at as a potential future model, but it's such a departure from how we currently conduct investigations and subsequent court proceedings that would require a long-term vision rather than something that I think we could look at just now. I'm very much supportive of that procedure concept, and I think that what this just highlights is that we are all still learning about how to do these very difficult cases and every opportunity should be considered for change if it's going to help. So, I'm very much in support of that. Law Society, we would never close our minds off to any suggestion, however. We have quite a lot of packages of changes that have already been implemented. We're now considering another one. I think all we want is to just take our time and assess things and then move on once we've got all the information about what's in existence and what's new on the horizon before moving on to other elements. It's not an issue that we've considered, but having said that, I can't think of any reason why we would have a problem with it. There's just one final question that I'd like to pose. It's in two parts really. Communication has been mentioned by previous witnesses as being absolutely crucial throughout the whole process, so I wondered if you've used that. Maybe more specifically, cases where perhaps the vulnerable witnesses have been encouraged to give evidence and have done that, only to find the trial that they were expecting to happen, doesn't take place because the accused has pleaded to a lesser charge. They've been totally unaware of that until they arrive at the court door, so there's obviously a communication issue there. More generally, if having encouraged those vulnerable witnesses to come forward in very serious cases—and there has been a conviction—if there is a repercussion, as there very frequently can be with people in the position of power, whether the bill should be looking at extending measures beyond the support for the vulnerable witness, giving the evidence and the pre-recording to looking at what happens after conviction and still ensuring that support is in place. Would anyone like to start with that? In terms of communication, there are undoubtedly examples of cases that the committee will be aware of where things haven't been as well communicated as they ought to be. We're constantly striving to improve that and recognise that communication is key. Similarly, the inspector's report focused on that as well. Again, one of the recommendations is about increasing the frequency of contact with victims and witnesses, so that's something that we're implementing and trying to improve on. Plain negotiation, I could be here all day, so I don't want to go down that line too much unless you want more detail on it, but it's obviously something that parties look at with a view to trying to resolve proceedings in the best interest. Was it just the communication that I can appreciate can happen very late? Part of the problem is that sometimes that can be at the 11th hour and sometimes even the 12th and 13th hour, but it's still imperative that we should be communicating that appropriately in the right manner and at the right time, subject to the circumstances to victims and witnesses. As far as there have been examples where that hasn't happened, I would welcome the opportunity to look at those and see what we can do to learn from them. It shouldn't be that way. The support is, to an extent, outwith the remit of the Crown Office and Procurator Fiscal Service, where the prosecution service and at the point where the case is concluded, whilst we offer support to victims and witnesses through the court process, I think is for other agencies to be looking at offering that support up in the post trial period. Communication with the victim of crime and the necessary support to be given to victim of crime is key to the success of the criminal justice process in those particular cases. Acumunication is the Crown's responsibility from the stage at which the case is reported to Crown Office and I don't feel in a position that I can comment on what they do or do not do in that regard. Support after conviction or support after there's been an acquittal, one can see readily that that would be another issue that should be looked at. If it's provided, I'm sure that that would be welcomed by victims who feel that they've gone through the process successfully or indeed have been let down by the process. Through all of this, key to the successful outcome, including the successful outcome in trial, is communication with the victim and support, including when they're giving their evidence in court before and after. From the Law Society's perspective, I don't think that there's very much that I would add. I don't know that this is necessarily something that we gave a great deal of thought to our attention to in our response. I'm quite happy for the Crown to—I can see where communication with their witnesses is very important. I think that it has to be made clear what type of communication we're talking about, understanding the process, explaining to them what's happening and why. Not going into the ins and outs of a witness's evidence, sometimes witnesses feel that that's what the Crown should be doing with them and that's obviously something that's quite improper and the Crown are alert to that. Sometimes witnesses do have expectations that they will receive certain types of information that they in fact cannot receive, but with regard to being kept abreast of the proceedings and why there are delays, I can understand why that's very stressful and that should be avoided at all costs. The area of communication with victims and witnesses, as it's being discussed here, is not really something with which we have any involvement. I don't think that there's anything that I can usefully add. Thank you very much. That's been a very worthwhile evidence session. Can I now suspend and have a five minute comfort break? I welcome our second panel, Detective Chief Inspector Graham Lanigan, Public Protection Specialist, Crime Division Police Scotland and Kate Rocks, Head of Public Protection and Children's Services, East Renfrewshire Health and Social Care Partnership, representing Social Work Scotland. I thank the witnesses again for written submissions, which we find so helpful in advance of any hearing from you in person. We now move to questions starting with Fulton. Thanks very much, convener, and good morning panel. I just want to start with a very general question. If both panels feel there's a problem with vulnerable witnesses and children obviously, in particular having to explain events to police and social work and maybe reflect on the joint investigative interviews and the concept that these might take place over several occasions in over a long period of time. I don't want any misconceptions about joint investigative interviews. Usually they happen at the point that an incident arises for a child, so it's usually incident-specific and certainly police and social work would plan that investigation together. The starting point for social work would be to assess where the risk currently lies for the child and to make sure that that safety plan is in place. Obviously we try to minimise the amount of interviews as possible, Graham will probably say that, and I don't want to speak for Police Scotland, but the whole purpose of the joint investigation is for police to establish whether any crime has been committed towards that child. We come from different approaches at the very beginning to establish the facts and what's happened to that child. I suppose that some of the learning that we've had over the years about GIIIs is that we need to do it better, and it needs to be much more trauma-informed, and certainly myself and Leslie Ball are the co-leads of the new GIII training programme. We're in the process of developing what that GII will look like in the future, that we're more likely to recognise the trauma of children from the very outset. So we do see an opportunity to see improvements in the system, but GIII in the main is used for children where there has been identified as a child protection issue, or where that child may not be the victim of a child protection but might be associated as a witness. For example, it may be their sibling that that child protection issue has occurred, and we have to interview the other children to establish whether they are also at risk or any other crime has been, from the police's perspective, has been committed against them. It is quite a different starting point for social work, and I know that there has been lots of reference around GIII in the previous submissions of witnesses. I felt that it was really important for the committee to be clear about what the purpose is for GIII. GIII, from a policing perspective, stems from the interagency referral discussions, where we've identified these children, where it would be beneficial, where they have a joint interview between police and social work. How many times in the length of time for these interviews varies, and they should be based on the child and the planning and preparation that goes into these. Indeed, the consideration that we are having during the new training product should absolutely be trauma informed and child focused. Rather than to suit the needs of the police or the judiciary or social work, those should really be focused on the child. I am keen not to step on my colleagues' toes if there is a questioning that they are looking at later. I was wondering if perhaps you could think about the issues that might be around, because I heard Kate Rock's answer in your own game as well. It is very specific and it is planned on each individual basis, but can you perhaps give it a bit more detail where there may be, for example, communication difficulties for the child, and they may require use of a communication aid to discuss how the pre-recording of evidence could work on those occasions? Communication specialists are something that we use on occasion. The traditional training that we have had for JII up-to-date has been a five-day course, and I think that, as you can understand, that in no way trains people in communication specialism. We have colleagues in speech and language who can help us, and we also use specialists from within the UK, such as the national crime agency, when we can link them with specialist interview advisers, to try and point us as interviewers in the planning stage so that we can get the best information from the child in a way that suits them. The current course in no way means that those particular police officers or social workers are communication specialists. We do have to work together with our partners in a way to plan that interview bespoke to that child. I would agree with what Graham Graham is saying. Excellent. To avoid the risk of covering any other areas, I am happy to leave it at that, but it has just fallen down on me, and I apologise in advance that I should have declared her an interest at the start of the first panel on my register of social workers, the triple SC. You have done so now, Mr Leone. I would like to, in many ways, follow directly on from that. I think that one of the key principles of why we are looking at this is providing a good environment for children giving evidence, but it is also about trying to reduce the length of time at which evidence is taken. We have also heard that the JII can be a useful tool in doing that because it can be admitted as evidence in chief and therefore avoid the need for duplication of children giving evidence through the court hearing. I am just wondering what insights you could provide in terms of how the JII has been improved so that the quality of the evidence that is there can be improved so that it avoids duplication of evidence. I think that, just to make you aware, I am involved in the new JII training product, so I am working with key individuals within police and social work to further develop that. First and foremost, in terms of the training, we are looking at a trauma-informed approach. We are looking at learning some of the skills and specialisms from within speech and language. Just to set the outset, the current training looks to be going from where we are as five days up towards a year's worth of training, so that shows you the difference that we are trying to make. When we look at age development and communication abilities, we then tie the training down to essential elements of crime and look at all the topics that we would wish to cover in order to test the evidence. Once we have identified which areas we want to cover, how do we best introduce that to the child? What are the phrases that we use? What are the question types that we use? We appreciate that we have to get all the information to try to test and probe that evidence to get that high-evidential standard that you are looking at, but to do that in a child centre way, which is legally sound, compliant and understood equally by the child. Those are some of the core values that we are trying to instill in the new training product. You might be able to provide evidence of the sorts of things in terms of altering the questions or the nature of questions, just to ensure that it has that high kind of evidential standard. Most people have heard of things such as leading questions or double negatives, etc. However, the new training product also looks towards the NICHD model, which is internationally acclaimed and has researched backing. This is a way of once we have identified the topics, there is a phased process or framework that we can work through to try and use the best open questions, the best questions that would suit the child in terms of their needs communication skills, and then try and allow the child to interpret and give their best information as best they can. In terms of questioning, the less spoken by the interviewer and more by the child for me is always beneficial. Close questions, as an example, we should just really try and encourage that child to provide their evidence as best they can. That is very helpful. I was wondering if you could also just tell the committee how that is going to be measured and evaluated, just in terms of ensuring that it is doing what it is intended to do in terms of providing that higher quality of evidence. Indeed, that is essentially pre-empting the need for additional questioning or interviews to take place later on in the process. There are several processes in that. One is self-evaluation after the interviews that are finished by the interviewers. There is also feedback required from the quote process if any particular line of questions has been objected to and peer reviews. In terms of the model going forward, it will be subject to rigorous scrutiny by the individual, peers, supervisors, managers and interview advisors, by the quotes and all fed back and a 360 feedback to increase the quality. Again, by looking at highly trained officers using them more frequently, that would all lead to a better product. Is that a formal feedback from the courts to the police? That is something that we wish to build on further. We have worked with COPFS and SCTS during the training, and we really want to build on that. Sometimes there can be a disconnect between what actually happens at court and that coming back to the original interviewers to inform practice. Kate Rock, from the social work perspective, what your views were on some of those questions? Obviously, the whole self-evaluation process or the evaluation process is really, really important to ensure the standard. I think that where we stand currently, children and family social workers, if you look at my local authority, every single social worker in my local authority is trained in GII. The chances are that they may well in a year might conduct three or four GIIs. What we know is that we need small cadres of social workers and police officers that become highly skilled at this piece of work. This is a very complex area for social workers and police. We have to get it right to ensure that the child gets justice. The standard of the VRI or the GII, depending on how it is done, is really at the nub of getting justice and ensuring that the child is not traumatised through any kind of legal process. We see the importance of GII and what it can achieve, more longer term, and no doubt the committee will probably want to know our views about that. Interestingly enough, it has to be evaluated and it needs to be done rigorously. I think that we have come to a conclusion from Social Work Scotland and as a chief social work officer, which I am also. Is that not every social worker that works in children and families may well have the skillset to do GIIs? We need to make sure that we get the right social workers and the right police officers, because it is not necessarily just about social work. There is a particular skill about communicating with children. You may well be good at providing the support for a family, but you should be able to make sure that you effectively communicate to get underneath what has happened to that child. It is a skill in itself and it will take time for us. The system needs to improve and we have recognised that. We welcomed Lady Dorian's report. Police and social work got together very quickly afterwards and said that this is an opportunity for us to do something differently in terms of the evidence and procedure review. We feel that evaluation of it and that high-threshold test is really important around making sure that it is effective moving forward. I understand that you will have highly trained people and it is gratifying to hear the level of co-operation and detail that is going into that. I am trying to think of a situation, and Ms Rock has touched on it, that all social workers will have GII training. If someone discloses, it is extremely unlikely that they are going to disclose to someone who is trained to this level, you are going to have an officer or officers who are going to respond perhaps to disclosure. Is there going to be any input into every officer's training so that there is nothing that we have done that might inadvertently prejudice some further? That is absolutely right. Through the in-depth research that we have done in terms of the new GII programme and the trauma informed approach, I definitely think that this training would need to be rolled out to everyone. As we move forward to a smaller cadre of officers doing much more planning prior to the GII, that does introduce a gap where we would need the initial attending officers or social workers to ask a certain amount of questions to decide what to do, but those questions cannot be leading and they have to be asked in an appropriate way to get the most information in a way that is not traumatising to that child. My answer is yes, I do think that there is a need for further training and I think that a lot of the research that we have done in that project would be viable and would be able to be used for that purpose. That is one final question. I was quite interested in your comment about the need to create small cadres of specialist social workers. Indeed, I think that the implication was of specialist police officers as well. Can I just tease that out a little bit? What is your conclusion from that? Within local authorities, are you talking about specialist teams that maybe go beyond local authorities? The requirement is there. I would be interested to put the same question to the police. Is the division beyond a specialist function that is required? I would like to not necessarily contradict myself, because what we want is social workers that are trained to a high level. The danger is that, if you create specialist social workers, you create a single point of failure for a system, so you have to ensure that you have succession planning and how you deliver GIIIs. You never know what you are going to get in any day for a busy social work team. For larger local authorities, we have had this discussion. It is more likely that the critical mass and getting that expertise in the bigger cities, such as Glasgow City, is more likely than East Renfrewshire. Social workers will be much more exposed and might have a higher experience of undertaking GIIIs. It would be for up-to-local authorities to decide how they would organise it, working on the principle that the training is quite different. It is not five days, it is up to nearly a year, as Graham had already outlined. We have a bit of work to do across the 32 local authorities about how we structure that. I can only talk for my own area, because it is very small and I do not have the volume that the cities have within or the more urban areas. It is more likely that I would have to get into a shared arrangement with my neighbouring local authorities to ensure that we have the number of highly trained social workers to undertake GIIIs. A more shared service approach would probably have to be taken to ensure that, but for bigger local authorities such as Glasgow, they are more likely to have that experience, because just of the critical mass that they deal with on a daily basis. I hope that answers your question. That is very helpful. From the police perspective, how specialist is this? Is this a central resource to GIIIs? It is very difficult to say that acronym, or is there something embedded at a local division level? What is the degree of specialism that this requires? For police officers, it is more simple because we can take a specialism and react throughout boundary areas. The challenge for this one is a joint interview, so we have to do that with our colleagues and social work. From a police perspective, it is easy to put the right resources in the right place with a specialist skillset, but I have to match them with social work. Again, not to draw particular to one area, but it is easy to say that smaller cadres use more often. However, where you have geographical issues, for example in the Highlands and Islands, we really need to work closely with them to ensure that you may have to fly to an island, you may have to get a ferry, there might not be flights, there may not even be police officers in some islands, so we actually have to link closely and to make a model that would work just as well in a city centre, but equally services everywhere throughout Scotland to the same standard. I know that in Lanarkshire, for example, there is a family protection unit that provides the officers for the joint investigative interviews. Is that a model that is mainly replicated across the country or is it different in different places? Again, just as I've alluded to, and probably the more built-up areas, the more populated areas, that would be the case. However, as I've mentioned with some of the areas, maybe in the north or the south, where they don't have that cadre of specialist detective investigators, I actually have to look well. What is beneficial for the child is it beneficial to wait for two, three, four hours, even a day for one of those officers or if they have locally trained officers who have the skillset, but we need to balance that with how often those skills are used. So there's not an easy answer to that question. I think that what we'll have to get is the right people with the right skills at the right place in the best interests of that child. I wonder if I could have your view on the proposal to restrict the application at this stage to the most serious cases in going to the High Court? I think that that's absolutely the way to go. I think that there comes a point when people realise we need to do better, and I think that there's an anticipation we want to do that now. However, when we previously heard some evidence from the bill team, they looked towards down south and said, well, how did it work there? The information that came back was don't go too fast too soon, roll out in a certain area, learn the lessons from that, what's the capability, what's the capacity and then take it from there. So in terms of police Scotland's response, I think that a phased approach is exactly the way to go. Do you think that there should be anything in the bill that states that this will happen, albeit with a caveat, but rather than having to go back to primary legislation, if it was to be extended after a period of time, should there be something in the bill just now that would allow us to expand it without having to go through much more legislation? I think that flexibility in legislation is really helpful, but we need to look at what the learning is as we move forward, because this is a significant cultural change in terms of how we want a system change, and it will take time. For it to be effective, we need to look at the learning and ensure that we are also evaluating the impact of what it is on children. I was interested to hear what the advocate was saying earlier on and the law society. We don't know enough about the impact of special measures as it stands and how effective that has been, because we have never asked the questions, so that would be my plea to the committee to ask the questions. Flexibility is key. The goal, the vision moving forward, is for all vulnerable witnesses to be able to give their evidence in this manner. We are fully supportive of that, but we are just cognising of the fact that resources and finance have to learn lessons as we go. I go back to commending the phased approach in learning lessons as we go. I would like to revisit some of the evidence that we heard at last week's committee from the children's charities with regard to the children's experience of the system as it currently stands. One of the charities told us about a child witness who had to give 27 statements to the police. That obviously impacts upon the quality of evidence and retraumatises the witness. I would like to hear Graham Lannigan's views on that from a police perspective. Should there be a cat, for example, on the number of times the police are able to speak to a child witness? I heard that evidence and I do not know that case, so I cannot speak about an individual case. I was somewhat surprised at that, and I would say that that is not normal circumstances. I have never heard of that before. However, what I would say is that, if you have a very protracted child sexual exploitation case—which that may well have been—actually, when you say a statement, it might not have been a statement, it could have been a contact, but in answer to your direct question, I do not think that there should be a cap per se on it. I think that we should plan our interviews, focus on that child. If, for example, a child has such a medical difficulty that they can only spend five minutes at a time being asked questions, I could envisage that. However, those are extreme circumstances and I do not anticipate that to be a normal case. I would like to move on to, perhaps in a bit more detail, the training that the police in social work Scotland are now being revised at the moment. I was quite heartened to hear some of the terminology that you spoke about in your question to Filsen McGregor at the start of this session. You spoke about being trauma-informed, child-focused and all of that is great to hear. However, there seems to be a bit of a disconnect between that end of the system at the police and social work site and the court system itself. Were the courts at all or the Crown Office involved in revising the training? We have a policy officer from COPFS embedded within the training. We are well represented across the sectors. In fact, it was one of the things that we went out of our way to do at the start. We have the team developing the training. We are supported by NHS. We have a reference group. We also have governance groups. We are widely represented throughout the sector to ensure that there is a cohesive response right through the third sector, children's first. I would have to say that the training has been well supported throughout Scotland. It also includes SCRA, which is really important because of the civil threshold. We hope that whatever evidence is taken in chief or by commission or whatever we determine, it can be used for the civil proceedings in terms of proof. It is very important to involve SCRA within those discussions. We feel that we have had a really high level of buy-in and good representation. One of the things that we wish to happen is that the new national trauma framework—NES—has been involved in helping to develop the first module, for example, because it needs to be consistent with the national trauma framework. It becomes part and parcel of the culture of Scotland and not something that is sitting out in the margins for children. We have had really good buy-in from partners. I want to take you on to a couple of areas where I think we have heard fairly strong support for the way things are working, but questions might be about whether or not the bill should be going further. First, in relation to ground rules and hearings, there was some concern that perhaps the detail about what should be involved in those hearings was not as explicit as it might be, whether or not that needs to be reflected in the bill. I was wondering whether either of you had a strong view as to whether or not you felt that there was a common understanding and things were working well, or whether or not it would benefit from additional detail being placed within the bill. I am fully supportive of ground rules and hearings. It is not something that the police are involved in. However, from the early stages of meeting a victim of witness, we actually begin to build up a picture of them. I would suggest that information gained right from the start could be advantageous to a judge, a sheriff and a ground rule hearing. I know that Kate May also wished to add to that as well. We are not involved in ground rules and hearings. In some respects, a lot of those children are known to us, so we feel that there is probably an opportunity for us to help the ground rules hearing to establish how best to support that child and to take in evidence. I am generally supportive of the ground rules. In the sense that you indicated the way in which you get involved in a process, you are not directly involved. Is that happening routinely enough? Would it benefit from a greater clarification about where appropriate that sort of input from a police perspective and a social work perspective could and should be factored in or sought? I think that, as we put in the submission, since 2014, Police Scotland has been involved in witness strategies for the High Court in terms of victims of rape. I think that the learning from there could come across and transcend into the ground rules hearing and, again, just to reiterate, when we have information and a relationship built up through planning and preparation, and, indeed, officers who may well, if it is a GII that we are talking about, all of that information about how they communicate and their needs should be passed across into that. Do we do that as well as we could do just now? I do not think so, but I think that in the future we have to. I think that communication that I heard earlier on has been an issue. Social work might not actually know that that child is approaching going to trial, even though we are not notified by the Crown Office. There is an assumption in the system that we would know that that child would be given evidence. That is not always the case, because there is no automatic notification to local authorities around the child. So, in previous witnesses, we were touching on Lydia Dorian's report and some of the fleshing out, I suppose, that she provided in terms of the way that this process should work. However, from what you are saying, there has necessarily been a change in terms of the way in which police and social work input has altered as a result of that. No, because we need to be notified. We are relying on parents' telling us, or someone's third party telling us. As I say, the information lies with the Crown Office, and there is no automatic notification to social work. That is helpful. I am going on to the issue of intermediaries. In your written submission, Police Scotland was very supportive of the benefit that expertise can have in terms of facilitating the communications and making that expert assessment. Again, we heard that from the faculty in the previous evidence session, although other witnesses were perhaps a little bit more not sceptical, but raised concerns about the quality of that intermediary involvement. I was wondering whether, from a Police Scotland perspective, there was a feeling that having the intermediary role again set out within the legislation may be beneficial? I would think that it is hugely beneficial. I have been fortunate to work for a UK policing agency where I came into contact with intermediaries and the department who deployed them and facilitated them. I would have to say that, as a previous on-call resource for supplying intermediaries, I found that to be hugely beneficial. That takes you right from, as an independent communications specialist, to the pre-planning of the interview, to through that process right through to the court. I know that the demand for registered intermediaries is growing, and it would seem that those particular specialisms are used and sought after in England and Wales, and I think that there would be a huge advantage in Scotland. I think that, from recollection, the Law Society was comparing it with some of the issues that they believe ever is in relation to appropriate adult involvement for other adult vulnerable witnesses, and suggesting that the consistency of the input that has not necessarily been as high has been hoped for. However, from your experience of working alongside intermediaries in England and Wales, you have not seen a similar issue arising there, I take it. I think that, where you have particular difficulties, you might have a minimal amount of people with that specialist skillset. That is why we have to get the best people to help. Some children have really bespoke communication issues, and that is why we need a specialist. Even with the best wishes, with a year's training, you are still not going to get that level of specialism that you may require on occasion. That is why I think that intermediaries, that independent communications specialist on occasion, can be worth its weight. Who would be the arbiter of where that intermediary was required? Who makes that judgment? I think that, before it gets to the court process right at that interview stage, as a senior investigating officer, if I had a case where a child with significant challenges in terms of communication, I would be requesting the possibility of an intermediary to get involved right from the start, for example at a JII. That information would then pass right through towards COPFS right through to the court process. From my point of view, the earlier you get a communication specialist on board, the more beneficial it is to the whole judicial process. Do you see that running through any hearings thereafter? The same individuals, ideally, would remain— That is my experience about how that works. From a social work perspective— We cannot really comment on it because we do not understand enough about the intermediary system. Reading the previous evidence submission, it sounds as if it is an effective way to go. Again, it is about who commissions that intermediary and what is the purpose of the intermediary. Even when it comes down to the JII, what we knew when we re-looked at the JII chain-in is that there was a need for more speech-in-language communication input. If you look at where that sits nationally, we have not got huge expertise nationally for forensic speech-in-language therapists out there. They are commonly found down south, more or less in Scotland. There are some, but not a lot. I would be keen to understand who that intermediary would be and what kind of qualifications it would hold. Intermediaries are much different from the appropriate adult scheme. The appropriate adult scheme, I imagine, is how it is operated across the board. You do not necessarily have to be a professional who is highly trained to be an appropriate adult. It is just having an understanding of ensuring that the communication within an interview for an appropriate adult is in keeping with that adult's understanding and check-in and sense-checking. I do not think that appropriate adults and intermediaries are the same thing. They are quite different from what I have read in the previous submissions. The criteria that we need to apply would be the level of expertise, which would almost seem self-evident, but also a concern that we have the capacity to deliver that in terms of the quantity of people that have that expertise. Thank you, convener. You have talked in response to various of the questions about support or improved communications, improved training throughout the process when dealing with vulnerable witnesses. Is there any area that you can think of where the support for the vulnerable witness through the process can be improved? Is there anything that you want the committee to take on board? I think that there are children out there that have been involved in the care system, that have given evidence that local authorities or social work are not aware of and that education is not aware of. If you look at the GIFEC approach, if you have a child that has given evidence, you would want the professionals or the team around the child to know that that child has given evidence and to help to support that child and not rely just on the Crown Office to put an arrangement. The other issue that we have is the length of time that it can take for children to give evidence and the memory of the child about that and the recall. Particularly for solemn proceedings, it can take a long time for a child to give evidence. Those children are usually traumatised about what has happened. They may be a victim, but they may be a witness and generally a witness of quite a significant domestic abuse case and how that impacts the name and have their own trauma. Those are the things that we have to consider because what children need is help as quickly as possible. Sometimes the court system is counterintuitive to providing that level of early help, so that is necessarily the bits that we think that the system needs to be superior for children. If we assume that the length of time will continue, at least in the foreseeable future, in some cases, more help is needed. What does that help look like specifically? Secondly, you talked about the education authorities and local authorities perhaps not being made aware. That surprises me in the sense that it seems fairly obvious that all of the agencies that are relevant should be aware. Is there a barrier to that happening and is it a data protection issue, for example? It is just something that happens. I think that there are assumptions made that local authorities know. You rely on information coming from Crown Office to yourself. They might not know that social work is involved. We might have been involved at the very outset. It might have been a GII, but the child might not be known to us anymore because there are not any care and protection issues or because the risk has been removed. However, there will always be a name person or someone in education who knows the child's universal services. I suppose that it is inconsistent. It may well happen, but I did check that out before I came here. I did check it out that even assist is not always notified with children who they support. They have to become reliant on the parents to advise them themselves or for third parties. Were there any particular barrier to that happening? No, not any barrier, no. Mr Lannigan, before I ask another question, is there anything that you want to say in relation to that? No, nothing I can add to what Kate said. Can you help the committee with something that we were talking about earlier, post-process support? We have talked a lot about the support for a vulnerable witness going through the process. Can you help us to understand what happens after the process to the vulnerable witness? In any event, what should happen? What could happen? What would you like to see happen? I think that I believe that there should be an automatic entitlement for children to get recovery services for what has happened nationally. The picture is really inconsistent. It depends on the professionals that are involved with that child, and that is working in the presumption of I kind of take my first point that there is professionals involved and have known what has happened to that child as well. Obviously, the whole court process is that it is something that happens in secret, and that is the experience of children that they cannot talk about it. They are not allowed to talk about it. The professionals are really anxious about talking it to them, because it might be subject to subjury, etc. It is clouded in a level of secrecy, and what we know is that children's recovery needs to happen quickly and then to be given the opportunity to speak as quickly as possible. After a process of vulnerable witness may have some form of support, but a lot depends on where they might be, which professionals have been involved and there is no standardisation. Is that what I am hearing? If I could put that question to you, Mr Lannigan, have you been aware that after someone has given evidence and there has been a conviction that there has been a vulnerable witness like that, you or the police have been called out and aware of circumstances, repercussions, and when you look into the circumstances, it dates back to that vulnerable witness having the courage to come forward. Obviously, if we are encouraging this, that is something that we would like to know about. I cannot give you specific examples, but what I would say is that if someone goes through a quote process and it does not work for them and it is unhelpful, I am sure that that is an inhibitor to come forward again. I am sure that they would tell those people round about them how unfortunate that has been for them. Any advancement that we can make, any way that we can make this process better, any way that we can assist recovery for me is hugely beneficial from a policing perspective, because it is then not an inhibitor to giving evidence, which we absolutely rely on. I suppose that we are looking at encouraging people to come forward in these very serious cases. Even with the conviction, the people that are convicted can be in a position of power and influence, even after they are convicted. Should there be provisions in the bill to look at any possible revictimisation as a direct consequence of having the courage to come forward and give this evidence? Against that at all, I think that people who come forward and report what has happened to them are very brave. It is a real chance for them to go through the quote process, for anyone never mind a vulnerable individual, so anything that we can do to enhance that would be hugely supportive of that. We would agree, and we would ask the committee to consider where that sits with the new domestic abuse bill, because for children they are going to be the victims of coercive control, as well as the mother or the father or whatever. I do not want to be gender specific, but that will be an issue, and the anxiety around that whole element of coercive control and where it sits, particularly after a conviction has been successful or not, is going to be an issue for that child. And possibly the wider family? Yes, absolutely. Daniel Nenjo. I set a supplementary following on from what both the Liams were asking about the ground rules hearing and the support extended to witnesses. Last week we heard from the panel the view that there needs to be a single point of contact guiding the child through. We have just heard from yourself about the lack of notification by the support, but by dint of that it could be provided by social work. If you just look at the ground rules hearings and the provisions in the bill, it provides the commissioner with the ability to consider appropriate support in terms of a supporter and also consider whether there are steps reasonably to be taken to enable the vulnerable witnesses to participate more effectively in the proceedings. I am just wondering whether or not those considerations should be much more proactive and perhaps should be asking on the commissioner to ensure that the information is provided and ensure that support is in place rather than being a negative or a more positive duty on the ground rules. That might in turn lead them to consider contacting whether it be social services or indeed other parties and organisations that might be involved in the child's life that might be able to help them with that process. Do you think that that might be something that is worth considering putting into the ground rules hearings and what is in the bill? I would agree. It needs to be done in a much more assertive way, as opposed to being something that you can decide, perhaps or maybe not. I think that I want to say that not all children that will go through the process will be known to social work, but we should work on the basis that they have an entitlement to a supporter. Dr Lannoghan, you talked about a witness strategy. Is that something that is at the moment extended to the people that we are talking about that would be covered by the legislation? No, not specifically to children, as the legislation says. It is not specific to those high tariff sexual offences that are going to the High Court. It is not a perfect situation, but I think that the reason that I mentioned that is because all information that comes forward would be hugely beneficial. That takes you right from that initial police involvement right through to ground rules hearings. If the greater knowledge that we have about that individual allows the strategies to be put into place and thereafter specific plans and actions for that individual to make that judicial process more suitable for them, that is why I mentioned it because I think that there is work to be done from early information gathering to make sure that information flows straight through the process. Do you have two or three questions from that? Would it be possible to share some information with the committee, maybe by letter, or something more about the strategy? Absolutely, I can do that. If indeed there is a document, it would sound like there is the potential perhaps to extend it to the group of people that we are talking about. What I am wondering on is whether, given the nature of some of the people who are the accused and those who have propensity to extreme levels of violence and intimidation, is a risk assessment form part of that strategy? I cannot tell you all the details of the strategy, but in terms of are you talking about potential for the future? Yes, because I was then going to go on to pick up on the point that the convener made, because a risk does not stop with conviction. In fact, the risk could be compounded by conviction, so it was to understand. I think that if a particular case that I was involved in assisting someone with, it was a community where extreme levels of violence and that continued after, and the police continued to have an involvement and were very helpful. In circumstances like that, I think that we have to be involved. I think that we have to be aware post trial, and I think that we have to be really alive should that person not have gone to prison or been released from prison. The repercussions to that witness or victim who stood up and given their evidence, we absolutely have to protect him because if we are seen to do that, that encourages other people to come forward. I am fully supportive of looking at risk, fully supportive of supporting all victims and witnesses who are brave enough to report what has happened to them. A small question to both of you. Are you aware of any reluctance to put in place special measures, or we have heard previously that sometimes witnesses had not been consulted, there was just a presumption, we will put a screen up. Are you aware of that? Indeed, would that form part of the witness strategy, Chief Inspector? We are not involved at the stage of special measures in terms of the courtroom. However, I heard early evidence that there is no reluctance. I am not aware of any personally, however, I would be fully supportive of bespoke special measures when they are planned in response to the needs of that individual. Similar to Police Scotland, we would not be involved in the special measures. As I have already outlined, sometimes we only become aware of it if the parent or a third party advises. If we know that that is required, we would make contact with the Crown Office if that child was on a statutory order to ourselves. However, I cannot possibly comment, I would not know enough. If not social work services, who would be supporting a vulnerable witness in those circumstances? Who is doing that? That is a good question. It may well be that there is some third sector involvement, but it might be the extended family. Not all vulnerable adults will be supported by professionals. I think that there is always a presumption out there that vulnerable witnesses or victims have. Certainly for children it is more likely, but for adults perhaps not, unless they are involved in services. The wideness of doubt has not been critical of social work services. You can only assist if you know. Absolutely. Whether there is a reason for involvement, a child being a witness to a crime is not always the reason why social work would become involved. That would be the same for adults as well. Our business is about promoting the welfare and ensuring the safety of individuals, but we do that in a very holistic way. I want to come back to resources that we have touched on already. We have a financial memorandum that is quite detailed. It is just whether you want to be beyond what is in your written evidence to put more on the record. Police Scotland seems to be saying that, essentially, as long as it is a phased approach, you are not overly concerned about resources, but if it went further than is in the bill, you would have concerns beyond that. Is that generally speaking in your position? Do you feel that it adequately resources what is in the bill, albeit that it is the first phase? Yes. I think that the bill is very specific in that prior evidence can be one of the things mentioned is a written statement. Therefore, by the nature of that, that does not refer the requirement for more video-recorded interviews. However, if further video-recorded interviews were required, that would have huge, significant financial implications for the police in terms of facilities, training, IT infrastructure, etc. Those are not mentioned in the bill because the prior statement is an option for that, which was included in the written statement. Police Scotland wishes to put on the record that, should the initial narrow scope, which includes the written statement, be extended to an inference that there would be far more video-recorded interviews, that would have huge implications across Police Scotland. Do you agree with the previous panel where there was a call for continuing evaluation, if you like, so that we can have a proper assessment of the costs of implementing this bill, but more widely, whether there may be savings elsewhere in the system because of this bill, and what would be required to help us to identify the resources that are required? Is that something that you would agree with? I think that mention has been made from COPFS that they would benefit in terms of a ground rule hearing if the prior statement was video-recorded. However, the requirement for that is not included in the bill, so you will note that, in terms of the financial memorandum, Police Scotland has not put any further additional costs there. However, it is just that balance of if we were to do that. Would there be savings in terms of the length of commissions, how they would run? If there is further investment required, that would really need to be met, however, that could be balanced against savings in the court processes. Kate Rock, in your submission from Social Work Scotland, the resource issue seems to centre around the additional training needs, specifically you mentioned, of the legal profession, but also of the local authorities, social workers. I think that you mentioned this earlier in your evidence about the training that is required to be much greater than is currently the case. Does that summarise where your concerns about resources lie, or is there anything else that you would want to put on the record? Do you recognise that the phased approach will help, hopefully, to make sure that we are going at a pace that resources are matching? Yes, but I would want to take into mind what Graham has already said. If there are more other lines in VRIs, there will be more other lines in social work to provide that VRI. It is not just an issue for Police Scotland, it will also be an issue for social work. The asks as we move forward in various bits of legislation are all interrelated about how we deliver effect of interviewing of children, whether that is the age of criminal responsibility, or even in the bill. There will be big asks from local authorities, and the financial memorandum has not included the impact for local authorities at all. Can I ask your views on the Barnahouse system? If you think that it is something that we should be moving towards? For me, there are several things about that. One is the facility, and I think that the facility, how it appears, the funding for that, when I have not attended personally and been at one, however, I have seen images, photographs, and it is far in advance of the facilities that we have in Scotland just now. In terms of that facility, that would be hugely beneficial. In terms of how the actual interview takes place, and we will link in with the legal system, I think that the work that we are doing in terms of JII and that product that we are going to have at the end, if we match that with a bespoke facility or facilities throughout Scotland, that would be hugely beneficial, whether it is Batch Barnhouse or not. However, I think that investment in facilities is without question and required. I had the opportunity to visit the Barnahouse and Iceland, and I was very struck with the fact that it is about the child and setting the right conditions to get the best evidence for the child. Some of the thought processes of Leslie Ball and myself, who has had a public protection for Police Scotland, felt that some aspects of the Barnahouse had to be applied to the new JII training. The difference of what the Barnahouse brings in Scotland to what we have now is that that is an inquisitorial system, and we are in an adversarial system. I was struck with the fact that the children get justice really quickly and about the high level of skill that the interviewers have, and that is directed by the judge that is presiding over that actual case within the Barnahouse, because the judge goes to the Barnahouse. I think that it should be our aspiration as we move forward. We know that the conditions are not as they are for us to do it, but we will strive to make sure that JII, as much as possible, can achieve some of the very good practice that we have seen in Iceland. I went there very cynical, so I did not go there. I was very surprised at what I did see. I suppose that the environment was fabulous for children. It was something that was just a house, a wee house, that everything was thought of—they got justice, they were greeted at the door, they were welcomed, the parent was welcomed, everything about that house was warm. The conditions that, before a child even gets into a joint investigative interview, are even more important than the actual interviewer themselves, because that is how we set the conditions to ensure that children get the bed. They need to feel relaxed, they need to feel that there is something, they feel safe, and everything about Barnahouse did feel safe. It felt safe for me, for an adult, and it never bothered being a child. That is helpful. That is very helpful. We are looking forward to seeing it ourselves, actually, this weekend. Before we close the question, could I just clarify one thing, Kate? You said that there would be cost implications, most definitely, for social work. Have you had discussions with the bill team? I know that you get criminal justice social work and probably mainstream social work. Have you had any discussions, and is it clear which budget any resources would come from? No, we haven't had any discussions. I suppose that when the bill came out, we need to be clear about the phased approach and what the implications will be. However, if, for example, there will be more of a requirement for VRI, there will be more of demand on social working police to do that together, it is really hard to estimate what that would be. The purpose of evaluating, as we move forward, is probably the right way to do it, to understand the impact. The financial memorandum says that it is not anticipated that there will be any new cost to local authorities as a result. A, we need to tease out. Is this going to fall on local authorities? Is it going to fall on the justice budget? Has it been looked at as most definitely an issue where more resources are going to be put in, and the answer seems to be no? That concludes our questioning. I am going to spend for one minute just to allow the witnesses to leave. The next agenda item is consideration of a proposal by the Scottish Government to consent to the UK Government legislating using the powers under the European Union Withdrawal Act in relation to three UK statutory instruments listed on the agenda. I refer members to paper 3, which is a note by the clerk. Before I invite comments for members, the justice clerks have looked at the instruments and made a couple of points and observations, which would be good to highlight to you. I am going to pass over to Stephen, and he will explain to many areas that they thought that we should be aware of. Thank you, convener. Just to update the paper in front of you, which said at the point of writing that officials did not have any particular comments. Subsequent to that, we have been able to look at things in a little bit more detail, so there are just a couple of points to bring to the attention of the committee. The first is that the committee might want to note that the timescale available for scrutiny of these particular instruments is shorter than the normal 28 days that we have available. The Scottish Government has said that this is due to drafting issues that emerge late. In the case of the statutory instrument on institutions and consular protection, the clerks understand that Westminster's sifting committee received the statutory instrument before we were notified, which is not the normal procedure. Normally, the Scottish Parliament begins its scrutiny before Westminster does, so we thought that we would bring that to your attention. Secondly, to point out that the two instruments on civil law raise a number of important issues covering child maintenance and civil law regimes for cross-border and commercial courts. Of course, that is entirely a matter for the committee, but the committee may wish to ask Scottish Government officials to confirm that there are no substantive differences between what is being proposed here and what was proposed in the Scottish Government's consultation earlier this year on the effect of Brexit on family law, so we just wanted to bring those two issues to your attention. I certainly think that the timing one may be extenuating circumstances this time, and of course that can happen, but I think that we would want to send out a very strong marker that this cannot be the norm, especially as we have no idea how many of those statutory instruments we are going to be getting in the not-too-distant future. Similarly, with the query on the effect of those, it would be good just to get some more thoughts on that. I welcome comments from members. John A couple of comments, if I may please, in relation to the civil jurisdiction and judgments amendment etc. EU exit regulations 2018 and an hour paper, which I think is a public paper, paragraph 21 there. If I read from that, however, in the absence of an agreement between the EU and the UK, the retained EU law will cease to operate reciprocally between the EU member states in the UK. Now, we would all understand that. It then goes on to say that the UK alone is not able to legislate to restore that reciprocity and, in addition, the retained law will contain numerous EU exit-related deficiencies, meaning that it will cease to operate effectively. Therefore, I just want to put on record my anger at a situation that means that the quality of law that we are having for our citizens is reduced because of this ridiculous situation with the UK Government. If I may also commend, and I note what was said by the clerk in relation to immunities, paragraph 35, you will know my aversion to encouraging anyone to be immune from criminal or civil law in Scotland. The removal of anyone from those immunities is to be welcomed in my opinion, so a modest start is a long way to go. I will echo John Finnie's comments on the deficiencies that are highlighted. We have seen a number of those instruments coming forward. I would not propose abstaining or voting against them, but I think that each of them have illustrated in their own way. As John Finnie says, the ridiculous position that we find ourselves in is highly, highly regrettable. Members are content that we make that point about the timing issue, which I think is crucial to us. We are going to be dealing with a lot of those. We seek confirmation that the Scottish Government is quite happy that there is no substantive difference between what is in the SI and what it is covering and what the Scottish Government had in its own consultation and impact assessment. I would not propose that that stops us approving it within the 10-day time limit, but to seek assurance that they are quite happy, which I think that you said Stephen could be done by a phone call more or less. Subject to that, we are happy to approve. That concludes the public park of today's meeting. Our next meeting will be 18 December, when we will continue our consideration of the Vulnerable Witnesses criminal 11, Scotland Bill. We are set to take further evidence on the management of offenders Scotland Bill, and we now move into private session.