The Law Society of Scotland has recently held a webinar on the vulnerable accused persoons in the Scottish criminal justice system. The webinar, as an earlier roundtable and a report were organised under on the the Netpralat Project on the vulnerable accused person in the Scottish criminal justice system. In this article, the Law Society would like to share some of the themes discussed at the event and to seek comments from the wider legal community about work on this subject.
The webinar considered the issues regarding the vulnerable in the Scottish criminal justice system by:
- raising awareness of the work on the vulnerable in the Scottish criminal justice system
- providing a focus on the vulnerable accused
- how to improve and debate the position of the vulnerable in a criminal justice system
The UK has an adversarial system compared to the European inquisitorial system. Exactly what difference that makes is not known. The Scottish Government has been working actively on policies supporting the vulnerable witness. “Vulnerable” witnesses are those likely to suffer significant risk of harm as a result of giving evidence. But what does this definition mean? In practice, it includes those who are victims of sexual assault, domestic abuse, trafficking and stalking and those under the age of 18.
As with other countries, our vulnerable witnesses are supported in court by the use of special measures (remote links and screens). What is important is to support that witness to provide their best evidence. Recently, the Vulnerable Witness (Criminal Evidence) (Scotland) Act 2019 will ensure more child witnesses will be able to pre-record evidence to minimise distress and improve the quality of evidence by recording evidence at an earlier stage in proceedings for the most serious offences. The Act includes powers to extend the rule in time to vulnerable adult witnesses.
The vulnerable accused person
No-one would suggest that measures should not exist to support the vulnerable witness in giving evidence. Justice needs to be done quickly and to support them from “repeated” distressing and traumatic experiences. However, turning to the much broader question about the treatment of the vulnerable, there is a growing need to be able to identify and support the vulnerable accused person. Ultimately where there is inadequate support, miscarriages of justice may arise through unfairness, piecemeal approaches (with a post code lottery), delay within the court system, funding of the defence (Legal aid) and access to justice.
Many issues are like those affecting vulnerable witnesses. But the vulnerable witness focuses only on giving evidence whereas the vulnerable accused person has to understand the court proceedings (physically and mentally), instruct legal representatives and give evidence if they elect so to do.
Too often, vulnerable people get into trouble with the law and are faced with navigating what is at times a clunky and highly challenging justice system. Many may not have previously been involved with the Scottish criminal justice system; some may be regular participants. Identification of the vulnerable accused person as early as possible in the system is crucial. Identification of those vulnerable accused. The role of their family is important as they may flag up conditions or issues for us as criminal justice professionals.
Consider what role you play? Could you do more to help those vulnerable accused persons at the outset. Where should advice be available?
How to identify vulnerability?
Some suggested approaches?
1. A Statutory Approach-
Section 42 of the Criminal Justice (Scotland) Act 2016 defines vulnerable as “where owing to mental disorder, the person appears… to be unable to (i) understand sufficiently what is happening, or (ii) communicate effectively with the police.”
2. The Equality Act 2010 “protected characteristics”
Take as an example. Should it be defined as being over 50/60/70?
Should we include:
- Dependence issues
- Immigration Status
- Transient /permanent
- Adverse Childhood Effect (situations leading to an elevated risk of children/young people experiencing damaging impacts on health, or other social outcomes)
Our Report called for clearer/more consistent definitions of vulnerability, the creation of a central knowledge hub and how new technology can improve information sharing. Our work continues now on our project “Ensuring fairness: a review of the existing legislation measures and practices concerning the vulnerable persons accused of criminal offences in Scotland.”
We are interested in a comprehensive review of the existing legislation and practice with a UK and EU dimension. We would welcome examples from the defence and Crown perspectives highlighting issues arising in cases involving vulnerable accused persons. Any examples or information to help identify the practices/concerns to frame the final report and provide a comparative aspect.
 The project is funded by the European Union’s Justice programme.
Gilliam Mawdsley is a Policy Executive in The Law Society of Scotland.