Eamon Keane

Further, I will draw attention to the failure of Scots law to adequately support effective participation in one specific context, namely where the vulnerable accused requires the assistance of another (excluding interpreters) to understand, and give, evidence at trial. I will suggest that this problem has been exacerbated by the failure of the Scottish criminal courts, beyond certain defined instances, to engage fully with the concept of effective participation itself. I will also highlight how there is a worrying lack of reliable data and information about how the Scottish criminal justice system treats vulnerable accused individuals, in general.

Support for the vulnerable accused at trial in Scotland: the power of Scottish courts at common law

The measures of support that exist to enable the vulnerable accused to effectively participate in the trial exist at both common law (Her Majesty’s Advocate v Hampson) and in statute (s.271 of The Criminal Procedure (Scotland) Act 1995 hereafter ‘the 1995 Act’). In respect of the former, the Scottish courts retain a discretion, under the common law, to regulate and adjust their own proceedings in such a manner as is necessary to meet justice. This power has long been used by Scottish courts in order to adjust their proceedings to take account of the vulnerability of the accused and other witnesses, whilst giving evidence. For example, the common law power to appoint an interpreter for a vulnerable accused person who does not speak English is recorded as occurring as far back as 1913 in Scotland (as was noted in the 1941 case report of HM Advocate v Olsson). The High Court of Justiciary (Scotland’s superior criminal court) has provided specific guidance as to what the right to interpretation of evidence actually entails (see e.g. Erkurt v Higson & San Lee v HM Advocate), as a result of its longstanding nature and importance in the context of Article 6 of the European Convention on Human Rights. The problem, however, is that the form and extent of the Scottish courts’ common law power is, in most other respects, somewhat ill-defined and undeveloped.

Support for the vulnerable accused at trial: statutory measures

The court’s common law power has also been supplemented by specific statutory provisions. In this respect, at trial, the vulnerable accused may benefit from what are known as ‘special measures’ in respect of the giving of evidence under the 1995 Act. The special measures available under the 1995 Act include the presence of a supporter whilst giving evidence giving evidence via video link from a room other than the court room, and giving evidence in chief in the form of a prior statement (s.271H of the 1995 Act). The first two of these are ‘standard’ special measures whilst the final measure is ‘non-standard’ (s.271A of the 1995 Act).  The distinction between the two types of measures relates to whether the grant of the measure sought is automatic or not, and in this context that matter is determined essentially by whether the vulnerable accused is under eighteen or not at the commencement of the proceedings (s.271A of the 1995 Act). This is because the 1995 Act creates two classes of vulnerable witness; those witnesses automatically entitled to special measures that may assist them to give evidence, and those whose entitlement to such measures is discretionary. Both categories are inclusive of the vulnerable accused.

Automatic entitlement to standard special measures, as already noted applies to all of those under the age of eighteen at the commencement of the proceedings (referred to as “child witnesses” in the language of the Act) although there is discretion for the court not to grant the measures in exceptional circumstances (s.271A(10)(b)). There is a further category of witness in the Act referred to as ‘deemed vulnerable witnesses’ who also have automatic entitlement to standard special measures. Such witnesses gain entitlement to standard special measures as a result of the nature of the offence allegedly committed against them in respect of which they will give evidence about. These provisions of the Act obviously do not apply to the vulnerable accused (s.271 of the 1995 Act).  

Discretionary entitlement to any special measures under the Act may apply to any individual, including the vulnerable accused, whose mental disorder or fear or distress in connection with giving evidence creates a significant risk that the quality of their evidence may be affected, or because there is considered to be a significant risk of harm to the person by reason only of the fact that the person is giving or is to give evidence in the proceedings (s.271(1)(b) & (d ) of the 1995 Act). The definition of ‘mental disorder’ used in this context applies to any mental illness, personality disorder or learning disability (s.271(1)(b)(i) of the 1995 Act) which uses the definition given in s.328 of the Mental Health (Care & Treatment)(Scotland) Act 2003. In deciding whether a witness may be entitled to discretionary special measures there are a wide range of circumstances that the court must take into account (s.271(2) read alongside 271F of the 1995 Act). These factors, in the context of the vulnerable accused include, amongst others, whether the accused is or could be legally represented, the nature and circumstances of the alleged offence including the nature of the evidence likely to be given, the accused’s age and maturity, any physical disability or other physical impairment, the social and cultural background and ethnic origins of the accused, and any behaviour towards the accused by witnesses or co-accused. The court must have regard to the best interests and views of the vulnerable accused in question when deciding whether to grant special measures (s.271(4A) of the 1995 Act).  

There is an overarching obligation under the 1995 Act that requires the party seeking to lead evidence from a potentially vulnerable witness, including the vulnerable accused, to carry out an assessment to determine whether said individual may be vulnerable and thus if they require special measures in order to give evidence in the first instance (s.271BA of the 1995 Act). The party citing a vulnerable witness, including the vulnerable accused, must also ascertain the vulnerable witness’ views and have regard to their interests prior to making an application for special measures (s.271E(1)(A) of the 1995 Act. The Crown or a co-accused may object to the application for special measures on behalf of the vulnerable accused (271A & 271C of the 1995 Act).

In respect of the grant of special measures, beyond the grant of standard special measures for the vulnerable accused under eighteen, the court must be convinced that the measures sought are appropriate and that the individual in question is indeed vulnerable. The 1995 Act makes provision for the hearing of argument in this regard if the measures sought are contested, or the court itself disagrees with the application (271C of The 1995 Act). The court is required to consider the possible effect on the witness if they are required to give evidence without the measure sought and whether the witness would be better able to give evidence with the benefit of the special measure (s.271C(8) of the 1995 Act).

There is no comprehensive contemporary empirical research available relating to the prevalence or efficacy of these statutory measures in practice in respect of the vulnerable accused in Scotland (although both the Law Society of Scotland and the Equalities and Human Rights Commission have recently drawn attention to potential problems in the area). The measures however are all obviously targeted at the vulnerable accused who gives evidence and thus only address one aspect of the trial.  

Support for the vulnerable accused at trial: a satisfactory state of affairs?

As has been mentioned, the Scottish Courts retain a power at common law to go above and beyond any of the measures specified in the statutory scheme (Hampson v HM Advocate). It is to the common law therefore that we must turn to for assistance for the vulnerable accused who requires assistance to participate effectively, beyond the limited statutory measures detailed above. It is in this respect that my work, through an analysis of available legal measures of support and relevant caselaw in the area, has shown there are clear issues.

Of note in the first instance is that, unlike the other legal jurisdictions of the United Kingdom, Scotland has no defined statutory scheme nor legal practice of regularly allowing third parties to act as intermediaries for the vulnerable accused. Intermediaries are those whose function is to communicate to a witness the ‘questions put to a witness’ and ‘to any person asking such questions, the answers given by the witness in reply to them’ (s.29 of the Youth Justice and Criminal Evidence Act 1999). The benefits of such a system are well known (Plotnikoff & Woolfson 2015). Whilst as other posts on this blog have shown, the legal provision and use of defendant intermediaries in these jurisdictions is underutilised (Taggart & Fairclough), in Scotland, there is simply no statutory system whatsoever. Instead, Scottish courts have only used their common law discretion to permit supporters to stay with the accused for the entirety of the trial to try to ensure they understand proceedings (details on file with author). A supporter in this context is someone under the 1995 Act who may be present alongside the accused in the dock, but who is not permitted to prompt or otherwise seek to influence the accused whilst they give evidence (271L & 271F of the 1995 Act). There is no established system permitting supporters to actively engage with the accused to help them during key parts of the trial in the role of an intermediary such as by e.g. interpreting questions or evidence for them or relaying their answers to the court. This position is in stark contrast to the practice at police interview in Scotland where Scots law permits ‘appropriate adults’ to actively facilitate ‘effective communication’ and understanding (s. 42 The Criminal Justice (Scotland) Act 2016).

A wider problem identified by my research relates to the fact that the concept of effective participation itself is poorly defined, and has been little explored in this specific context, in Scots law (the contested scope and requirements of the concept have been explored in England and Wales by Owusu-Bempah 2018). My work has shown how in the criminal sphere, the concept of effective participation predates the incorporation of the European Convention on Human Rights in Scotland, and loosely relates to the right to understand and participate in, legal proceedings. The language of effective participation has also been used explicitly in some parts of Scots criminal law relating to fitness to plead (s.53F of the 1995 Act). In the context of the vulnerable accused who has legal capacity, however the High Court of Justiciary has failed to provide much in the way of comprehensive analysis of what the principle of effective participation actually requires, beyond limited comment in cases involving translators. I suggest that this contributes to the lack of clarity surrounding support for the vulnerable accused at trial, and that statutory reform may now be necessary in order to structure and regulate the court’s common law discretion.

Conclusion

During the ongoing period of reform of Scottish criminal justice due to Covid 19, which entails e.g. greater use of remote hearings, the risks of the vulnerable accused being adversely affected are clear (McDermott 2020). The observations made in this blog are based on a forthcoming chapter I have written on the subject of protection for the vulnerable accused in Scotland, which highlights how the scope and implications of the right to effective participation in Scots law in this area are in many respects unclear (Keane 2021). My own, and others’, work on this topic has also revealed serious gaps in knowledge about what exactly is happening in practice in Scotland relating to the vulnerable accused. Given the number of adults in Scottish prisons with some form of a learning difficulty, which was estimated to be as high as 80% in 2015, serious attention now more than ever, needs to be given to this issue by policy makers (The Scotland Institute 2015). Focusing on the support for the vulnerable accused at trial, would I believe, be a good place to start.

Eamon Keane is a solicitor (non-practising) and early career fellow in criminal law and evidence at the University of Edinburgh. This article first appeared on the Defending Vulnerability website.