Analysis: Why court culture may clash with child protection law

Evidence from under 18s will now always be pre-recorded in specialist centres.

Justice secretary Humza Yousaf today hailed the introduction of new measures to protect child witnesses in court as a “significant milestone” to prevent re-traumatisation.

Under 18s no longer face the daunting prospect of having to testify in the imposing formal surroundings of the High Court. Instead, their evidence will be pre-recorded in specialist centres.

The foundation of today’s law was laid by Mr Yousaf’s predecessor Michael Matheson who, after introducing similar legislation six years ago, was clear that more needed to be done.

Both justice secretaries have moved cautiously – balancing the desire to protect vulnerable witnesses with an accused person’s right to properly test their evidence. That balance seems to have been achieved. Even the most hard-bitten of defence lawyers no longer seem to suggest that pre-recorded evidence is unfair.

Should Mr Yousaf regard it as job done? Can any unfortunate child exposed to serious criminality now expect to be treated with sensitivity and respect by the justice system? My knowledge and experience of the system would suggest not.

Last year, STV News reported on the case of a young girl who was aged between eight and ten when she was sexually assault by a teenage family friend.

It made the news because the sheriff decided to give the teen an ‘absolute discharge’ – meaning he walked free from Dumbarton Sheriff Court without a criminal conviction. But the case could also serve as a textbook example of bad practise.

The girl initially gave a video recorded interview to the police. Police interviews can sometimes be accepted as testimony by courts. But in this case – somehow – the recording failed.

The option for the girl to then pre-record her evidence ahead of the trial was never even made to her parents. This meant she was cited to attend court and provide live testimony via CCTV from another room. Over almost two hours she was questioned by a prosecutor then cross-examined by the defence, recounting every detail of her ordeal all over again.

I also have some personal experience of the reality of how children are treated – in this case my own daughter who witnessed a craven attack on myself by an acid and knife-wielding hitman at our home.

With the trial pending, my dealings with the Crown Office were protracted and emotionally draining. At first I was told my daughter would only need to be interviewed by the police. Then – contrary to this initial claim – a psychologist phoned to say he was to assess her ability to give evidence.

I was dumbfounded but felt compelled to agree. The psychologist duly recommended that my daughter should give pre-recorded evidence. This, the Crown explained, would be on a school day and 50 miles from home in Edinburgh. I refused – knowing that it could happen in Glasgow. The Crown relented and arranged a CCTV link between both venues.

They then shifted the agreed date to a new one – marking almost exactly the first anniversary of my attack. I refused. After all that, the defence eventually conceded my daughter’s police interview was sufficient.

It was apparent that any consideration for my daughter’s wellbeing, and minimising further disruption to her, was of much less importance than the convenience of the lawyers and judges.

While Mr Yousaf’s new law should be commended, he should realise that legislation can’t fix ingrained cultures and attitudes where children do not come first.