Call for pre-recorded video evidence in courts

Pre-recorded video testimony should be used in criminal trials to help ease the burden on Scotland’s court system and deliver “more accurate and reliable” evidence, according to a new report.  

The review, chaired by the Lord Justice Clerk, Lord Carloway, has called for a rethink on what constitutes the best evidence at trial and how it is captured.

The Scottish Court Service (SCS) Evidence and Procedure Review Report suggests pre-recorded witness statements taken within minutes, hours or days of the incident being reported “may be far more conducive than a belated appearance at court to eliciting a comprehensive, credible and reliable story”. 

“The increasing complexity of some crimes combined with the tightening constraints on all public services means that there is already considerable strain on the justice system,” the report says. 

“Cases take longer to process, with, arguably, a detrimental effect on the ability of the system to do what it is meant to do – ascertain the truth. This strain could be eased substantially if we were to take advantage of the increasingly high quality, now ubiquitous medium of video-recording.”

Pre-recording would mean “far fewer witnesses” would be required to attend the trial diet, including police officers who frequently spend time waiting at court to give evidence.

“There are benefits in the ability to schedule the recording of witness statements and examination for the courts, for witnesses and jurors and for the parties; there are efficiencies in the final trial deriving from a procedure that means original statements are edited and appropriate controls placed on cross-examination,” says the report. 

“And, critically, there is every reason to think that the evidence gathered and presented will be more accurate and reliable if taken substantially closer to the incidents in question than the trial diet – in other words, it will make a positive contribution to the ascertainment of the truth.”

However, the report acknowledges that legislation would be required to ensure prior statements that have been recorded are admissible in court, while a “substantial investment” would be required in both storage and processing facilities given the volume of evidence involved.

Meanwhile, the authors warn that Scotland is “still significantly lagging behind” a number of other countries in terms of children and young people’s experience of the court system.

Child and vulnerable witnesses have been introduced into a system “ill-equipped to accommodate them” with subsequent adjustments made that “at best only partially address their needs”.

“There is a compelling case that the evidence of a child or vulnerable witness should be captured in advance of any trial, in the form of a forensic interview preferably as soon as possible after the initial complaint,” says the report. 

Cross-examination should also take place “in advance of the trial, again as soon as is reasonably possible”, recommends the report, in order to minimise the strain on witnesses and deliver a better quality of evidence.

Norway, where the entire evidence of a young or vulnerable witness is taken in the course of one full interview within a few weeks of the incident being reported, is held up as the “approach most likely to minimise the adverse effects on the child or vulnerable witness”.

However, the authors add: “The idea that the full evidence of a child can be taken so early in the process, before all material have been disclosed, and that there should be no direct questioning of the witness by either Counsel is particularly alien to Scottish legal practice as it currently stands. 

“Such a transformation may take time and may need to take place within a broader revision of our legal culture and practices.”

This model, as well as a Scottish version of what takes place in England and Australia where an “initial forensic interview” is followed by a pre-recorded cross examination, should be considered. Irrespective of the approach, work should be undertaken with a view to making greater use of locations outwith court premises for child and vulnerable witnesses, the report concludes.  

The paper has been submitted to the Scottish Government and will now be the subject of discussion with other justice agencies, the legal profession and victims group with a view to developing proposals.

James Wolffe, QC, dean of the Faculty of Advocates, said: "It is fundamental to the rule of law that an accused person should be able to challenge and test the evidence led by the prosecution. That is the mechanism by which we, in Scotland, seek to ensure that only the guilty are convicted. 

“All of us have an interest in securing the sound administration of justice in Scotland - and, used appropriately, technology may provide opportunities for improving that system. 

“I look forward to considering the suggestions made in this review - particularly those relating to the evidence of children and vulnerable witnesses - in more detail."

Ian Cruickshank convener of the Law Society of Scotland Criminal Law Committee, said: “We would welcome any measures which improve the quality of evidence presented in criminal trials, particularly in relation to the evidence of children and vulnerable witnesses who can find the process very intimidating.

"We also believe that that the admissibility of statements and the modernisation of trial procedure are areas which should be considered.

“However it is essential that any proposal for change will continue to ensure witness evidence can be properly examined without compromising  the accused’s right to a fair trial."