Digitally recorded statements could lead to miscarriage of justice as Evidence and Procedure Review calls for recordings of witness testimony to be admitted as evidence at trials

Courts proposal on taped witness statements could skew justice A REPORT published today by the Scottish Court Service claims digital technology should be used to “transform our criminal justice system” and ‘capture’ evidence from witnesses in advance of a criminal trial.

The review, chaired by a senior judge concludes witness accounts recorded at or soon after the scene of a crime should be admissible at trial, and criminal trial procedure should be re-thought to permit such developments.

In response, solicitors say the latest round of politically rooted meddling in the justice system contains little in the way of safeguards for accused and protections for the right to a fair trial.

The Evidence and Procedure Review  – chaired by Lord Carloway - calls for Scotland to harness the opportunities that new technologies bring to improve the quality and accessibility of justice – by recording statements from witnesses in advance of criminal proceedings. The Evidence and Procedure Review was an internal Scottish Court Service research project led by the Lord Justice Clerk, Lord Carloway, supported by a small reference group and a full-time Project Director.

However, legal insiders say the proposals are of serious concern to how the justice system deals with witnesses and the rights of all accused persons – who have the right to test evidence put forward by the prosecution in court.

The move – which some see as a plan to substitute dodgy witnesses for a video recording - may also increase a growing trend in criminal trials where it has become obvious witnesses have been ‘coached’ by prosecutors in their delivery of evidence while under oath.

The growing trend of dodgy evidence presented in court by the crown - an issue familiar to many experienced criminal defence solicitors and counsel -  has now reached a point in Scotland where trials attract regular criticism from the bench of crown agents conduct and the incredulity of witness testimony – among them – statements given by serving Police Officers.

Published here: the Evidence and Procedure Review consists of five Chapters:

Chapter 1 introduces the Review, its remit and details the considerations that led to the Review taking place.

Chapter 2 considers how children and vulnerable witnesses are treated in Scotland, Australia, England and Wales and Norway, and concludes that Scotland there is more that we could to improve the way in which such witnesses are required to give evidence. 

Chapter 3 looks at the legal issues raised if witness statements recorded prior to trial are to be generally admissible.   It reviews the law on hearsay, under which such statements are currently generally excluded, and considers the implications of a rule that would provide for their general admissibility. 

Chapter 4 considers how criminal procedures would have to change to accommodate and take full advantage of the availability of such evidence; it also covers how the infrastructure of the justice system, both in terms of the technology available and the nature of facilities in the courts, police offices and elsewhere will have to be rendered fit to undertake the tasks of recording, editing, storing and presentation of such testimony.

Chapter 5 provides some concluding remarks.

A statement released by the Scottish Court Service said: “We need to rethink what constitutes the best evidence at trial – and this may mean a transformation in the way the evidence of witnesses in general is captured and presented.  It is highly likely that a witness account taken at the scene of a crime or shortly after will be more reliable, full and accurate than their attempt to recall what happened many months later in court. The Report explores what legal and other changes need to be made to allow pre-recorded witness statements to be admitted as direct evidence, and what safeguards need to be in place. There are, potentially, great benefits – these include greater accuracy and reliability of the evidence; the ability to manage cases more effectively; and less reliance on witnesses turning up at court on the trial day.

Scotland needs to move to the forefront of law and practice in relation to children and vulnerable witnesses.There’s extensive evidence that giving testimony at court is especially distressing and potentially damaging for young and vulnerable witnesses; and it is a poor way to get good evidence from them. Although Scotland does have a range of protections available, experience elsewhere, such as in England and Wales, Australia and Norway, suggests we can go further to protect such witnesses and ensure their evidence is taken in the most appropriate way in advance of the trial.

The Report is a starting point for developing ideas and proposals – it aims to be a catalyst for developing reforms that will bring a better experience for those called to give evidence in criminal proceedings, a system of justice that deals with cases speedily, effectively and fairly, and one which remains relevant, trusted and respected by the Scottish people.  The Scottish Court Service will now work with the Scottish Government, other justice agencies, the legal professions and victims groups to explore the implications of the report’s propositions and develop proposals for change.”

Chief Executive of the Scottish Courts Service - Eric McQueen said: “This Report aims to stimulate discussion about the very nature of criminal trials - how do we ensure the testimony of witnesses is as reliable, accurate and complete as it could be; how do we eliminate unnecessary delays and preserve a fair, transparent and just system; how do we make sure that  young and vulnerable witnesses  are safeguarded against further trauma?

"The propositions in this Report could transform our criminal justice system.  We now need work through their implications with everyone with an interest, so that the proposals that emerge are ambitious, workable and will help create a modern, fair and efficient criminal justice system for the digital age.”

Speaking to Scottish Law Reporter earlier today, a criminal defence solicitor said “The proposals presented by the SCS are just another politically motivated ‘think-of-the-PR project’ with little real regard for the interests of justice or the right to a fair hearing”.

James Wolffe QC, Dean of the Faculty of Advocates, promised to consider the report's conclusions in detail but in an initial response 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."

Lord Carloway – who chaired the report – previously called for the removal of CORROBORATION – a long held safeguard against miscarriage of justice in Scots law where evidence in a criminal trial is required from two separate sources for a conviction.

The plot to remove corroboration was instituted by the now sacked Justice Secretary Kenny MacAskill. The bitter debate on removal of corroboration reached a point where Crown Office insiders – angry over adverse media coverage – lashed out at members of the judiciary after a number of High Court judges signed a petition against the planned removal of corroboration.

Prosecutors at Scotland’s Crown Office & Procurator Fiscal Service (COPFS) appeared before MSPs at the Scottish Parliament to back the removal of corroboration in an effort to assist the Crown Office in obtaining higher rates of convictions.

The proposal to remove the right of corroboration was effectively shelved after Scotland’s top judge warned the Scottish Parliament’s Justice Committee against meddling with legal safeguards which cut across almost any criminal offence in law – ensuring the right to a fair trial.