Hansard

Amendment 130 is a minor technical amendment, the purpose of which is to change the current reference to “all reasonable hours” in section 40(2)(b) to “a reasonable time and in a reasonable place”, to ensure consistency with section 97(3).Amendment 131 seeks to remove section 40 from the bill. We are aware of the concerns that were expressed during stage 1 about the provisions on witness statements, which may have given rise to amendment 131. It is useful to have a debate on those issues.We understand the desire that has been expressed to preserve the tradition of oral evidence in Scotland. The provisions on witness statements will not put an end to that. Witnesses will still appear in court, give evidence from the witness box and be examined and cross-examined. That is not changing. It is important that the accused has a proper opportunity to test that oral evidence. The provisions on witness statements will not lead to a move towards trial by statement.We respectfully remind the committee that Lord Coulsfield considered that provision was necessary after his thorough and detailed consideration of the law in this area as a whole. Members will remember that when the Solicitor General for Scotland spoke in support of the provisions during his evidence at stage 1, he said:“Many trials are really a memory test for witnesses. For example, in a cold case, witnesses who gave evidence in 1991 might be called to give evidence in 2009 and be questioned on the detail of their statement. If they cannot remember precisely what they said or if they say something slightly different, they will be accused of being inconsistent. It seems unfair that the only person in a prosecution who cannot see the statement before the trial is the witness who gave the statement in the first place.”—Official Report, Justice Committee, 9 June 2009; c 2070.Concern about the accuracy of statements appears to lie at the heart of the issue. We acknowledge the concerns of defence practitioners about the quality of statements but, like Lord Coulsfield, we believe that rigour in the way that statements are taken, which he recommended, should reduce the risk of problems arising. It should be remembered that Lord Coulsfield pointed to the fact that elsewhere in the United Kingdom, the practice of giving witnesses copies of their statement is accepted and uncontroversial.10:45 Section 40 will help to ensure greater accuracy by allowing witnesses to review and identify any inaccuracies in their statement before trial. Removing section 40 from the bill would lead to the anomaly that witnesses would not be able to see their statement in advance of giving evidence, yet under section 62 they would be able to refer to their statement at trial. That could mean that the first time that any inaccuracies came to light would be during the trial.As the Solicitor General said when he gave evidence to the committee at stage 1:“In my view, the proposed change will improve the accuracy of statements. If witnesses can see their statement in advance of giving evidence, they will be able to see whether it contains any inaccuracies that should be drawn to the attention of those involved in the case. The proposal is a further measure that will save time and improve criminal justice for witnesses. After all, we rely on witnesses to prove cases so we need to treat them with respect.”He went on to say:“I mentioned the accuracy of statements, which we hope the proposed change will help to improve. I see no problem with the proposals.”—Official Report, Justice Committee, 9 June 2009; c 2071.The Law Society of Scotland and the judiciary expressed concern about the accuracy of witness statements and therefore the dangers of relying on them. Indeed, much of the debate thus far has focused on the dangers of relying on statements that may not have been noted in the witness’s own words. I have a tremendous amount of sympathy with that concern. I understand that it has not been uncommon—perhaps because of the circumstances in which statements are obtained—for the person who notes the statement to take notes that summarise the witness’s position and to note a full statement thereafter. Against that background, it is not surprising that concerns have been expressed about the accuracy of statements and whether they are noted in the witness’s own words.In future, I understand that that is to be addressed by a change in procedure that is to be set out in the code of practice. The police officer will note a full statement from the witness in the witness’s own words. The normal practice will be for the witness to be given the opportunity to sign it. If circumstances prevent a full statement being taken at the time, notes will be taken, which will remain as notes, without being expanded on by the officer. Again, the witness will have the opportunity to sign them. It is vital that statements are accurately noted, as far as possible, in the witness’s own words and that they are signed by the witness. That is what Lord Coulsfield recommended, which I support. I understand that the Lord Advocate intends to address the issue in the code of practice on disclosure, to ensure that information is accurately recorded and, in particular, that any witness statement that is obtained or generated during an investigation accurately and comprehensively reflects the evidence that is provided by the witness. I understand that it is also intended that the code of practice will provide, as far as possible, that the witness statement must contain the witness’s actual words, and that the witness must be given an opportunity to sign it and to make any amendments that he wishes to make. That is to be supplemented by guidance and training for police officers, which is already under way and is due to finish at the end of May.I remind members that under section 114 of the bill, the police, other investigating agencies and prosecutors are bound to have regard to the terms of the code of practice.The Sheriffs Association indicated that if the law is to be changed, that should be done in primary legislation. Lord Coulsfield’s recommendation is that witness statements be signed by witnesses. I respectfully suggest that that is a procedural step. We do not agree that the bill is the place for such procedural matters to be dealt with. We think that it is entirely appropriate for such a matter of practice and procedure to be dealt with in the code of practice. That is what the Lord Advocate intends to do.The issue is one of fairness to witnesses, who could be presented with their statement for the first time in court, which could inadvertently have a detrimental effect on their ability to give evidence. In addition, witnesses are now commonly the only participants in a trial who have not seen their statement prior to trial, and we do not think that that is appropriate.We absolutely accept that proper testing of witnesses is valid and important, but a witness’s evidence should not be reduced to a one-sided memory test, in which every minor discrepancy is put under the microscope. Section 40 is designed to help to reduce the amount of time that is spent examining irrelevant minutiae and thereby allow the court to focus on the real issues at trial.Without section 40, witnesses would still be able to refer to their statements during a trial, under section 62, without inaccuracies being addressed in advance. That would risk delay and disruption to proceedings, and it could sometimes appear as though it was the witness, rather than the accused, who was on trial. We believe that it is unreasonable to expect witnesses to recall every detail of events from many months or even years prior to their giving evidence. It is fairer to everyone, including the accused, if witnesses are allowed to refresh their memories and if decisions are reached on the best evidence that is available.We do not share the concerns that were expressed by the Faculty of Advocates in its stage 1 evidence. It is not clear to us why the provision would exacerbate a difference of treatment between prosecution and defence witness statements. Section 40 applies to all witnesses who have given a statement, whether they are witnesses for the defence or for the prosecution. Indeed, in many cases, at the point at which the statement is noted, it might not be clear for whom the witness will give evidence. We trust Scotland’s judges to manage such situations appropriately and to exercise their discretion in a way that enables the giving of good, clear, accurate evidence without risk to the tradition of oral evidence. I remind members that the judges of the High Court of Justiciary themselves said in evidence at stage 1:“We recognise that there may be value in allowing a witness to read a prior statement before giving evidence in court.”I have gone on at some length out of respect for those who have made strong submissions on these matters and I have sought to respond explicitly, at greater length than I would normally, to those august bodies and persons who have given evidence.We will resist amendment 131. I move amendment 130.