Criminal Justice Committee 11 June 2025
In every circumstance in which remote evidence is used, it is delivered in a way that is consistent with the solemnity and integrity of court proceedings. As the Crown Office set out in its evidence,
“Professional witnesses are sent additional information on what is expected of them”
if they are cited to attend a trial virtually.
The Scottish Courts and Tribunals Service, the Crown Office, the Faculty of Advocates and the Law Society of Scotland have also agreed a witness protocol that sets rules that must be complied with by all witnesses who are giving evidence remotely—I have already referred to that. The protocol includes the rule that, while a witness is giving evidence, no one else can be in the same room or be able to overhear what has been said, unless the court gives express permission.
Moreover, when hearing remote evidence, the court has all its normal powers to regulate proceedings, either of its own accord or in response to an objection raised by parties. As such, if there were concern that the integrity of proceedings had been compromised, because the witness was not complying with the rules, the court would be able to address that appropriately.
Ms McNeill has previously probed the lack of a requirement in the bill for a witness to attend a Scottish Courts and Tribunals Service site or other approved place to give remote evidence. Again, I refer to the evidence of the Crown Office, which was supportive of the flexibility that could be afforded to police and professional witnesses and which highlighted that the framework of special measures to support vulnerable witnesses to give their evidence remains in place.
I would also point out that, in its stage 2 evidence, Victim Support Scotland highlighted its opposition to the amendment. Witnesses can, and continue to, give evidence remotely using SCTS remote sites and other purpose-built facilities. Therefore, I do not share Ms McNeill’s concerns and, with respect, ask her not to press or move her amendments.
My officials have engaged with justice agencies on amendments 41 and 42. On amendment 41, committee members will note the briefing from Victim Support Scotland, which cautions against such an approach and opposes that amendment.
There are a number of concerns about amendment 41. Again, as noted by Victim Support Scotland, there might be significant confidentiality and security concerns for some witnesses in having their addresses made available. There are also concerns that, when the direction is made—which is often far in advance of the trial—prosecutors might not know the location that remote evidence will be taken at, if it is subject to, say, witnesses’ working arrangements. As such, extra time and procedure will routinely be required to vary directions when, closer to the trial date, the location changes. A further concern is that being restrictive about location would limit the witness’s ability to be responsive to any pressures arising, where such matters might lead them to work from a location that is not their usual place of work.
On amendment 42, it is not clear how those requirements could be enforced, other than by the court reacting if there were real difficulties with the evidence being given. As the court would already be able to respond to that appropriately, I would be wary of placing an additional onerous and potentially impracticable obligation on the Scottish Courts and Tribunals Service.
The bill already provides, at subsection 3 of proposed new section 303K of the Criminal Procedure (Scotland) Act 1995, that the court must set out in its direction that enables a person to attend virtually how they ought to do that. In practice, that is achieved by providing them with information on how to use the Webex platform. The guidance is publicly available and, as I have mentioned, I can send it on.
As with in-person attendance, issues with individual cases will no doubt crop up from time to time. However, I am satisfied that over the past five years of the operation of those provisions, partners have refined the process and have no concerns about implementation when it comes to remote evidence. As with any aspect of operational practice, they will continue to keep matters under review. I acknowledge that things have not been as smooth with virtual custodies, and they are being paused to allow the development of an improved model that better meets the needs of all users.
As for Mr Kerr’s amendment 43, I do not think that it would be possible, as currently drafted, to deliver the required report. Information on technical issues is not collected and reported on in a systemic way, and to require that in relation to everything that might be considered a technical issue would be resource intensive.
However, if the report were to focus on improving understanding of how virtual attendance is delivering greater efficiency and effectiveness, and if it were more closely linked to existing data collection processes, we might be able to explore that further. If Mr Kerr’s concerns relate to virtual custodies, that will be addressed by the work that is being led by Malcolm Graham of the Scottish Courts and Tribunals Service. I am of course happy to engage further with Mr Kerr on that in advance of stage 3.
To conclude, I ask Mr Kerr and Ms McNeill not to move or press their amendments in this group.