Scotland’s judicial system could become opened up to miscarriages of justice if plans to roll out an overhaul of the way vulnerable witnesses give evidence go ahead, MSPs have been told.
The widespread use of special measures such as video evidence, including pre-recorded statements, screened witnesses and “supporters” being on the stand, carry “inherent dangers”, Holyrood’s justice committee heard yesterday.
Euan McIlvride, of the Miscarriages of Justice Organisation Scotland, warned it will give witnesses more credibility in the eyes of jurors if they are allowed to give evidence in ways which are denied to the accused, and raised concerns about the lack of objective tests over who is vulnerable.
Dorothy Bain of the Faculty of Advocates also warned the change may upset a “balanced procedure” and said individuals caught up in this process must be protected against miscarriages of justice.
Many of the special measures proposed for delivering evidence already exist in courts, but the Scottish Government’s Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill will streamline their use and make it far more widespread.
Mr McIlvride said he was concerned that witnesses were deemed vulnerable on a “blanket basis” by virtue of the offences involved.
He said: “There’s a danger there. As we see it, the deeming of a witness, or complainer particularly, 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 for them, I would think, in an adversarial situation.
“There will be some support offered to their credibility, I think, in that situation.”
Mr McIlvride said he was basing this on the evidence of testimony from a number of clients who have worked with his organisation and were convicted on the evidence of what he said were “false witnesses” who had used such special measures.
He added: “To enhance their credibility or the impact of their evidence simply by virtue of the nature of the evidence charged is something I think inherently dangerous.”
The Faculty of Advocates had already warned that safeguards will have to be put in place to ensure the changes don’t lead to miscarriages of justice in a submission to MSPs.
Yesterday Ms Bain said: “What was recognised was 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 the sense of any miscarriage of justice.”
She called for prosecutors to meet their disclosure obligations and warned there is a “real question mark” over this at the moment.
The quality of recordings made to take evidence was also cited by Ms Bain as a cause for concern, as well as the questioning by police of child witnesses, which has previously been ruled inadmissible in trials.