Further copies of this document are available, on request,
in audio, large print format and in community languages.
Please contact 0131 244 2213.
Being a Witness
Dokument dost_pny jest tak_e na kasetach, w wersji z
powi_kszonym drukiem oraz w innych wersjach j_zykowych.
Going to Court
A booklet on being a witness and special measures
in civil cases in the Court of Session and sheriff court
© Crown copyright 2007
This document is also available on the Scottish Government website:
www.scotland.gov.uk
RR Donnelley B51695 11/07
Further copies are available from
Blackwell’s Bookshop
53 South Bridge
Edinburgh
EH1 1YS
Telephone orders and enquiries
0131 622 8283 or 0131 622 8258
Fax orders
0131 557 8149
Email orders
[email protected]
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being a witness
Going to Court
S
A booklet on being a witness and
special measures in civil cases in the
Court of Session and sheriff court.
The pictures used in this booklet
have been taken from the
Scottish Executive ‘Being a Witness
CD-Rom – a guide for children and
adult vulnerable witnesses’.
A special thanks to everyone
involved.
scottish
court
service
being a witness
Going to Court
Contents
Introduction
2
What is a witness?
4
What support and assistance is available to you as a witness?
6
Some other things you may be thinking about
8
Courts and court proceedings
10
How a court case is prepared
12
The court date
13
Preparing for court – what you have to do
14
The day of the court case
16
Waiting
17
Giving your evidence
18
After you have given your evidence
22
The end of the court case
23
What is a vulnerable witness?
24
Special measures available for vulnerable witnesses
27
Special measure – using a screen
29
Special measure – using a television link
30
Special measure – using a supporter
32
Special measure – evidence taken by a commissioner
35
Your views
37
Any other questions or comments?
39
Useful contact names and numbers
40
Glossary
41
1
being a witness
Going to Court
Introduction
This booklet is intended to provide
information for witnesses in a civil
court case in either the Court of
Session or the sheriff court.
It includes:
• general information on civil
courts and the help available
for witnesses;
• general information on
additional support provisions
that may be available to those
who are regarded by the court
to be particularly vulnerable
witnesses, including child
witnesses;
• a glossary of some of the
words you might come across.
2
This booklet is not intended for
witnesses in children’s hearings court
proceedings as there is a specific
booklet for witnesses attending this
particular type of court case.
‘Civil court cases’ covered in this
booklet are any non-criminal case in
either the Court of Session or the
sheriff court. Civil cases concern
many different types of issues. Most
civil cases involve disputes between
people and/or organisations. For
example they may be cases involving
divorce, parental responsibilities and
parental rights, adoption, bankruptcy,
property disputes and debt/damages
claims.
being a witness
Going to Court
They also include Fatal Accident
Inquiries. A Fatal Accident Inquiry is
a statutory public inquiry that is
conducted by the Procurator Fiscal
into the circumstances of a death.
More information on Fatal Accident
Inquiries is available on the Crown
Office website
http://www.crownoffice.gov.uk/
About/roles/pf-role/investigationdeaths/fatal-accident.
This standard of proof is known
as ‘on the balance of
probabilities’ and is less rigorous
than the standard of proof of
‘beyond reasonable doubt’ that
applies in criminal cases.
A glossary of some of the words
used in civil court proceedings can
be found at the back of this
booklet.
In a civil case, in general, the
party or parties bringing the
case forward need to prove that
it is more likely than not, that
whatever they are claiming is
true.
3
being a witness
Going to Court
What is a witness?
If you are a witness in a civil case, it
may mean that you:
• Are a party to a civil case, this
means that either:
– you have started the civil court
case, or
– someone else has started the
case against you, or
– you have some other formal
interest in a civil case.
• Have seen or heard something in
connection with a civil case.
• Have information about someone
who is a party to a civil case.
4
Witnesses play an essential role by
giving information to the court. This
information is known as the
witness’s evidence. The courts need
witnesses to give evidence so that
they can build up a picture of what
has happened and reach a decision.
There are different people who may
call (or more formally ‘cite’) you to
be a witness. These include the
parties to the case or their lawyers.
You may already have given a
statement to a lawyer.
being a witness
Going to Court
Witnesses may feel anxious about
coming to court. This booklet will
help answer some of the questions
you may have and will help you
understand what happens at court.
It will also tell you who can help you
and what support may be available
to you as a witness.
5
being a witness
Going to Court
What support and
assistance is available
to you as a witness?
There are lots of people or
organisations who can provide you
with information about the court
process and support arrangements
to help you be better prepared for
giving your evidence.
• A social worker: Social workers
assist people who need extra help
or supervision. If you are already
in contact with a social worker,
they may be able to help you
arrange the support you need.
Talking to your family or a friend can
sometimes help. There are other
people who can also help you:
• Voluntary organisations: You may
already have been in contact with
another support organisation
such as a housing advice centre,
a trade union, an advice centre or
a law centre.
• A lawyer: If it is a lawyer who is
citing you to be a witness, you
should ask them for information
about the court process. They
may be able to answer your
questions and arrange any
necessary support such as court
familiarisation visits.
6
• The Crown Office Victim
Information and Advice (VIA)
Service is also available to the
deceased’s nearest relatives and
vulnerable witnesses in cases of
being a witness
Going to Court
deaths which may involve criminal
proceedings, or where there is to
be a fatal accident inquiry or
significant further inquiries.
Further details of the service can
be found on
http://www.crownoffice.gov.uk/
Victims/COPFSServicetoVictims/
VIAhelp.
Remember that no-one should try to
influence you about the information
you give to the court. It is generally
better not to discuss your evidence
with another person involved in the
case, as the court has to hear what
you know or remember, rather than
what someone else has told you
to say.
It can often help to talk to someone
who knows what is expected of you
as a witness and who understands
what the court process is like.
Please use the page at the back of
this booklet to write down the
contact names and telephone
numbers of the people and agencies
who are directly helping you.
7
being a witness
Going to Court
Some other things you may
be thinking about
Will I meet the other parties
involved in the case?
Will the public be able to listen
to my evidence?
If you are particularly concerned
about entering the court building or
being in the same room as someone
else involved in the case, it may be
possible for the lawyer who has
cited you or a court official to meet
you at the court building. A court
official may be able to arrange this.
You may also be able to wait in a
room away from other witnesses.
However, it is not possible to
guarantee that you will not meet
other people involved in the case.
In civil cases, the court will normally
remain open and any member of
the public can sit in the public
gallery at the back of the courtroom
and listen to the evidence being
given, unless they are a witness and
haven’t yet given their own
evidence.
8
It is also possible that the judge or
sheriff may consider closing the
court or excluding particular
individuals, if, for example, there is a
known risk of intimidation or if the
witness’s evidence is likely to be
particularly distressing.
being a witness
Going to Court
You should always tell the lawyer
who has cited you, a court official or
the police about any intimidation
either before or during the case.
What if English is not my first
language?
You may need an interpreter if
English is not your first language.
You may be able to speak some
English but still have problems
understanding all the words. The
person who cited you as a witness
can arrange for you to get help
from an interpreter. They will work
with the court so that you get the
help you need during court
proceedings.
What if I have a disability?
If you have a disability,
communication difficulties or any
other additional needs, you should
tell the person citing you as a
witness (the person who called you
to court). Most courts routinely
provide facilities to assist witnesses
with limited physical ability. Most
have wheelchair access and many
have a ‘loop’ system for the hard of
hearing.
It is important that you tell the
person who cited you as a witness
about anything you are unsure
about or if you have any additional
needs or concerns.
9
being a witness
Going to Court
Courts and court
proceedings
The Court of Session is the highest
court in Scotland in which civil
proceedings can be raised. It sits in
Edinburgh. The case is normally
heard and the final decision made
by a judge sitting alone, although
sometimes in the Court of Session, a
jury is involved and makes the
decision.
The sheriff courts deal with most of
Scotland’s civil court business. There
are sheriff courts throughout
Scotland. The sheriff will hear the
case and make the final decision
alone.
10
Who is in the courtroom and
what is their job?
The judge or sheriff: The judge or
sheriff is an expert in the law and is
in charge of all court proceedings.
They will ensure everything is done
fairly within the law and that the
court rules and legal procedures are
followed. They also have a duty to
protect the interests of all the
people involved in the case,
including the witnesses. In a jury
case, the judge will advise the jury
about the law.
The lawyers: Normally there will be
a lawyer representing each of the
parties to a civil case, unless any of
the parties are representing
themselves (see ‘Party litigants’
being a witness
Going to Court
the evidence and decide if the
evidence shows the case has been
proved ‘on the balance of
probabilities’.
The clerk of court: This person is
responsible for assisting the judge or
sheriff and keeping the court papers
and records.
below). They will ask questions in
court so that the witnesses can give
their evidence in their answers.
Lawyers appearing in court may be
solicitors or advocates.
The parties: The people who have
started the case, or against whom
the case has been started, may be in
the court with their lawyers.
Party litigants: Some people in civil
cases will decide to represent
themselves instead of using a lawyer.
They are called ‘Party litigants’.
Jury: The jury are members of the
public (12 people) who know
nothing about the case before they
hear the evidence. They will listen to
The court officer: This person
assists the court and lets the
witnesses know when it is their turn
to give their evidence. They may also
be asked to show a witness different
pieces of evidence, such as
photographs or other items.
The public and press: The public
may sometimes be excluded from
the courtroom. The press is usually
allowed to remain. In some cases
they may be prevented from
publishing any particulars that may
lead to the identification of the
parties or witnesses involved. In
exceptional cases (for example
where issues of national security
arise), the judge might order for the
courtroom to be completely cleared.
11
being a witness
Going to Court
How a court case is
prepared
The lawyer representing the party
bringing the action forward will
interview his client and any other
relevant witnesses and make a
decision on whether there is enough
evidence to proceed.
If the lawyer decides to go ahead
with the case, he/she will approach
the court offices to start the case
formally.
Civil court papers will be served on
the party against whom the case is
12
raised, and any other party who
may have an interest in the case,
who will then have an opportunity,
if they wish, to state their response
to the case.
If the case is disputed, the court will
fix a date for a hearing of the
evidence, which is where the
witnesses will be expected to give
their evidence.
being a witness
Going to Court
The court date
You should receive a citation or letter
giving you a date for the court case
to start.
This citation is a formal notice to
attend the court as a witness. This
must not be ignored.
It is important that you attend at the
place and time indicated in the
citation.
You should let the person who cited
you know immediately if there is
some important reason why the date
in the citation may be difficult for
you, for example, if you are due to
attend a hospital appointment on
that date.
You should also contact them if you
have any other questions or
anxieties about the citation and the
court appearance.
If you are cited as a witness, you
must attend court. If you fail to
attend, a warrant may be granted
for your arrest.
If you are worried about giving
evidence, you should speak to the
person who has cited you to be a
witness.
13
being a witness
Going to Court
Preparing for court what you have to do
In many cases, the issue between the
parties is resolved before the case goes
to court and there may be no need for
the witness to come to court to give
their evidence.
Where the case goes to court, there
may be a proof or other hearing
where the court needs to hear
evidence from witnesses like you.
If your evidence is not controversial, it
may be possible to have it agreed
between the parties so that you may
only have to give a sworn written
statement (affidavit) rather than come
to court.
14
The judge or sheriff needs witnesses
to give their evidence by answering
questions, so the court can build up a
picture of what has happened.
Without witnesses, the judge (or jury)
or sheriff will not know what has
happened.
What if I am working?
To be a witness, you may need time
off work. You should let your
employer know in advance that you
have been cited as a witness. If your
employer is reluctant to give you time
off to attend court, you should tell the
person who cited you to be a witness
straight away. If you lose pay or
being a witness
Going to Court
earnings you can claim money back
from the person who cited you
although there is a limit as to how
much you can claim. You should
speak to the person who cited you
about making a claim.
What if I need childcare?
What should I wear?
There is no particular uniform or style
of clothes for a witness. You should
wear clothes that you feel comfortable
in for coming to court, but should
remember that courts are formal
environments. Most people choose to
wear clothing that is neat and smart.
Children under the age of 14 are not
allowed into courtrooms unless they
are a witness. There are no childcare
facilities within the court buildings. If
you do not have your own babysitter
or childminder, you can contact your
council or local social work department
for a list of all the registered child care
facilities in your area.
15
being a witness
Going to Court
The day of the
court case
When you come to court you should
bring your citation with you and
show it to the person at reception.
You will be asked to sit in the
waiting area, perhaps with other
witnesses. The court officer will
come and tell you when it is your
turn to give your evidence.
Most witnesses come into the court
building through the main public
door. If you are particularly
concerned about entering the court
building or being in the same
waiting area as someone else in the
case, it may be possible in some
courts for the court official or lawyer
to meet you at a private entrance
and let you wait in a different room.
16
Please ask the person citing you as a
witness about this. Arrangements
can be made in advance and
everyone will do their best to help,
although it is not possible to
guarantee that you will not meet or
see people involved in the case
during the course of the trial or
hearing.
Even after you are given a date for a
hearing, the case may be postponed
for a number of different reasons.
This may be unavoidable and some
delays cannot be predicted.
Witnesses and families can
sometimes feel frustrated about any
delays.
being a witness
Going to Court
Waiting
Sometimes problems can occur on
the day, such as someone being ill.
You may then be asked to return on
another day. The court will try to
minimise the waiting time as much
as they can.
If you are concerned about any
delays, you should speak to the
lawyer or person who cited you to
be a witness.
Even once the case starts, delays can
occur and some witnesses may have
to wait quite a long time before it is
their turn to give evidence. It may
be that the witness giving evidence
before you is taking longer than
expected.
It is a good idea to bring something
to help you pass the time such as a
book or magazine. Some courts
have a café or canteen and most
have a vending machine for snacks
or soft drinks. However, you should
check this in advance as you may
wish to bring a snack with you.
When the court case starts and
when you are waiting to give
evidence, you must not discuss your
evidence with any other witnesses
involved in the case.
When you have finished giving your
evidence, you cannot go back into
the witness waiting room.
17
being a witness
Going to Court
Giving your evidence
One by one, witnesses will give their
evidence by telling the court what
may have happened or what they
may know.
To help you give your evidence you
will be asked questions, usually by a
lawyer or possibly by a party to a
case, if (s)he does not have a lawyer.
If one of the parties disagrees with
what you have to say, it is the job of
that person’s lawyer to ask you
about matters of disagreement. In
order to do so properly, the lawyer
may suggest to you that you are
wrong in what you say.
The judge or sheriff may also ask
you questions. They may ask you
18
questions about something that may
have happened to you or someone
else. Or they may ask you about
something you may have seen or
heard.
Before you give your evidence, you
will be asked to either repeat a
religious oath or agree that you
promise to tell the truth. If you
choose to take an oath, the court
will take account of your religious
beliefs.
The time it will take to give your
evidence will depend on how much
information you have to tell the
court and how many questions you
are asked.
being a witness
Going to Court
As a witness, you must answer the
questions truthfully and tell the
court what you know.
Examination and
cross-examination
The lawyer for the party bringing
the case forward and lawyers for
any of the other parties to the case
(or in some cases, the parties
themselves) will all get a chance to
ask questions to help you tell the
court what you know, and to clarify
your answers. This is known as
examination and cross-examination.
You should listen carefully and try
your best to answer as accurately as
you can.
Sometimes a question may be
difficult to answer. You should
remember that the court is
experienced at hearing evidence
from a range of witnesses and will
understand that some questions
may be more difficult than others.
You should take your time and keep
telling the truth.
It is extremely important that
witnesses tell the truth at all times
while giving evidence.
Witnesses who deliberately do not
tell the truth may face criminal
charges.
19
being a witness
Going to Court
If you are concerned about what
will happen to you if you tell the
truth about someone, and feel
nervous and anxious about
giving your evidence, for any
reason, please tell the person
who cited you to be a witness.
Witnesses are normally expected to
stand to give their evidence but you
can ask to sit if you cannot stand for
long periods because of age or
health reasons. You can also make a
request to the judge or sheriff to be
seated at any time throughout the
proceedings if you are becoming
particularly uncomfortable.
When giving your evidence, you
should try to speak clearly so that
everyone in the courtroom can hear
you properly and don’t have to ask
you to repeat anything.
In some cases, everything that
happens in the court is recorded on
a tape or by a shorthand writer. This
20
is another reason to speak clearly. It
also means that you can’t just nod
or shake your head.
Try to speak slowly, as people will be
taking notes of what you have to
say. Normally you will be asked to
confirm your name and give your
age, but you may not have to state
your current address. If, for any
particular reason, you are concerned
about the possibility of your address
being read in court, talk to the
person who cited you as a witness.
If you don’t understand a question,
it’s okay to say you don’t
understand. Don’t just guess. Ask
the person to explain the question
or say it differently so you can
understand it properly. Likewise, if
someone in court has not
understood your answer, they
should let you know.
If you cannot answer a question
because you cannot remember
being a witness
Going to Court
something, or don’t know the
answer, please say so.
In all courts, the judge or the sheriff
has a duty to protect the interest of
witnesses.
You are encouraged to let the judge
or sheriff know if you have any
concerns about the tone or manner
of questioning or about your own
comfort.
You may wish to discuss how to
address the court with the person
who cited you as a witness.
Remember what you tell the court
must be your own evidence. The
court needs to hear from you in
your own words. Nobody should tell
you what to say. You must tell the
truth at all times when giving your
evidence.
21
being a witness
Going to Court
After you have
given your evidence
When the lawyers have finished
asking you questions, the judge or
sheriff will let you know that you are
finished and you can leave.
You are then finished being a
witness and should not have to
come back.
If you have finished giving your
evidence you may want to go into
the public gallery of the courtroom
to listen to the rest of the court
case. You should always check with
the court staff whether you are
allowed into the public area after
22
you have given your evidence. If
there is a possibility that you may be
recalled as a witness, then you will
not be allowed to sit in the public
area.
being a witness
Going to Court
The end of the
court case
It is never possible to predict how
long each court case will last. Some
cases last only one day, others can
go on for several days, weeks or
much longer. It usually depends on
how many witnesses there are and
how long each witness takes to give
their evidence.
When the evidence of all witnesses
has been heard, the judge/sheriff (or
jury) must make their decision.
23
being a witness
Going to Court
What is a vulnerable
witness?
To help the most vulnerable
witnesses, legislation was passed in
the Scottish Parliament in 2004. The
Vulnerable Witnesses (Scotland) Act
2004 aims to improve the support
measures available to help witnesses
who are particularly vulnerable, give
the best evidence they possibly can.
Under the legislation, a person is
automatically classed as a vulnerable
witness if they are under 16 (a ‘child
witness’) when the proceedings
begin.
There are certain special measures
which child witnesses are expected
to use. Any person citing a child
witness must find out the child’s and
the views of their parents on using
24
special measures. If the child is 12 or
over, the child’s views should take
precedence over those of the parent
where these differ.
The person citing the child witness
must lodge a Child Witness Notice
with the court. This notice must say
which special measures are best for
the child, and the reason why. If the
notice specifies a screen, television
link or a supporter used with a
screen or TV link, the court will
automatically grant the request.
Even if the person citing the child
witness thinks that no special
measure(s) is needed, a Child
Witness Notice stating that view
must still be lodged.
being a witness
Going to Court
However, an adult witness (a
person aged 16 and over when
the proceedings begin) would
only be classed as a vulnerable
witness if the court considers the
quality of their evidence will be
affected by a mental disorder or
by fear or distress relating to
giving their evidence.
Mental disorder can mean
mental illness, personality
disorder or learning disability.
Fear or distress can be caused by
a number of different things.
If you think that you may be a
vulnerable witness, you should
discuss this with the person
citing you. They will discuss your
circumstances with you and
whether it is appropriate to
make an application to the court
for you to use special measures.
If the person who is citing you as a
witness considers that you may be
regarded as a vulnerable witness
under the terms of the legislation,
they will discuss this with you, or
arrange for a suitable person to
discuss this with you. They will also
explain about the application they
will need to submit to the court (the
judge or sheriff who is dealing with
the case) to decide whether you can
be regarded as a vulnerable witness
under the terms of the legislation
and whether you would benefit
from the use of special measures to
help you give your evidence.
Their application will need to include
details about:
• why you should be considered as
a vulnerable witness, including
any additional information
prepared to support the
application;
• your views as to which special
measure(s) you would prefer to
use; and
• whether this is considered the
most appropriate special
measure(s) to support you whilst
you give your evidence.
25
being a witness
Going to Court
The judge or sheriff must be
satisfied that you meet the legal
criteria to be regarded as a
vulnerable witness, and to do this,
they will consider all of the
information in the application.
If the judge or sheriff agrees that
you are vulnerable under the terms
of the legislation, they must consider
what effect it may have on you if
you had to give evidence without
using a special measure and
whether you may be better able to
give your evidence if you have the
benefit of a special measure.
It is the judge or the sheriff who
will decide whether to grant
permission to allow a witness to
use special measures and which
special measures may be most
appropriate.
Many witnesses will be anxious
about giving evidence and some
may be identified as vulnerable
under the terms of the legislation.
However, not every witness will
require the benefit of using special
measures.
26
Remember
Whether or not you are using a
special measure to help you give
your evidence, there are
additional support arrangements
that can be made for witnesses
who may feel vulnerable.
For example, you may:
• be able to enter the court
building through a different
entrance, or
• wait to give your evidence in
a different room from the
other witnesses,
• be able to request extra
comfort breaks to help you
when you are giving your
evidence, or
• find the court might be closed
to members of the public.
Speak to the person who cited
you to be a witness. They will
discuss your particular
circumstances and what might
be most helpful to you.
being a witness
Going to Court
Special measures
available for
vulnerable witnesses
If you are identified as a witness
who might be particularly vulnerable
as described by the law, there are a
number of special measures to help
you give your evidence so that you
can participate more fully in the
court proceedings.
It is also possible to use a
combination of these special
measures. For example, you may be
considering whether to use a
television link and also have a
support person sit with you whilst
you give your evidence.
The special measures are:
If the person who is citing you to be
a witness thinks that you may be
vulnerable and there is a significant
risk that the quality of your evidence
will be affected, they will consider
making an application to the court
for you to use one or more of the
special measures mentioned whilst
you are giving your evidence.
• a screen in the courtroom;
• a television link outwith the
courtroom;
• a supporter (a support person);
• evidence taken by a
commissioner.
27
being a witness
Going to Court
They should explain the special
measures to you and discuss which
one may be the most helpful,
according to your particular needs
and the circumstances of the case.
The application will have to contain
information in support of their case
for you to use special measures. This
information may be quite brief or,
where necessary, more detailed. In
some circumstances, the information
required to support the application
for special measures may be of a
private or sensitive nature,
depending on the reasons for your
particular vulnerability.
For the purposes of assessing
vulnerability, or making an
application to the court for you to
use special measures, the person
who cited you as a witness will
discuss your circumstances with you.
In some cases, they may need to ask
for your permission to make further
enquiries as to your health, perhaps
28
from your doctor or social worker, to
support their application to be
submitted to the court.
Please note that some or all of
the information or specialist
reports prepared, in respect of
your particular vulnerability, may
form part of the application to
the court for you to use special
measures and will therefore be
seen by, or be known to, the
other party or their legal
representative.
If you are concerned about any
aspect of this, please speak to
the person who is citing you to
be a witness.
It is important to remember that
the judge or sheriff will take
account of your interests as a
witness but must also take
account of the interests of justice
and the fairness to all involved
in the court hearing.
being a witness
Going to Court
Special measure using a screen
If you are regarded as vulnerable
under the terms of the legislation,
and the person who cited you as a
witness believes that your evidence
might be affected by seeing another
person or people involved in the
case, using a screen in the
courtroom may help you to give
your evidence.
The screen is put up as a ‘room
divider’, or curtain, beside the
witness box, between you and the
other person or people involved in
the case. Therefore you will not see
this person or these people. The
only people you will see will be the
judge or sheriff, the jury (if present)
and the lawyers involved in the
proceedings.
However, it is important for you to
know that the other people on the
other side of the screen in the
courtroom will be able to see you
indirectly through a court television
monitor when you are giving your
evidence.
29
being a witness
Going to Court
Special measure using a television link
The television is linked to the
courtroom so that everyone inside
the courtroom can see and hear you
give your evidence.
If the person citing you considers
that you may be a vulnerable
witness, and that your evidence may
be affected by you being inside the
courtroom, the court may be asked
to consider an application for you to
use the television link to give your
evidence.
The television link room is
separate to the courtroom where the
hearing is taking place. It is usually in
the same building as the courtroom.
30
The judge or sheriff and lawyers in
the courtroom each have a television
monitor, microphone and camera,
but you will only be able to see and
hear the person who is asking you
questions – you won’t be able to see
anyone else in the courtroom.
being a witness
Going to Court
All the cameras are controlled by the
judge or sheriff. When these are
switched on, you will only be able to
see and hear the judge, sheriff or
lawyers one at a time and they will
be able to see and hear you.
You must understand that even
though the television link will
prevent you from seeing the
other person or people involved
in the case, this person will still
be able to see and hear you on
the courtroom’s television
monitor when you are giving
your evidence.
31
being a witness
Going to Court
Special measure using a supporter
Many witnesses who are feeling
vulnerable may feel very isolated
when giving their evidence and can
sometimes be reassured by having
someone sitting near them, either in
the courtroom or in the television
link room. This person is known as a
supporter. They can support you just
by being present when you are
giving your evidence.
However, your supporter cannot
help you with any part of your
evidence. They must not
interfere, or try to influence your
evidence in any way. When
sitting near you whilst you give
your evidence, they must not try
to prompt you or interrupt you
whilst you are giving your
evidence.
Your supporter can also offer
support and reassurance to you
before you give your evidence and,
if the court allows, they can keep
you company during any breaks.
If the person citing you as a witness
is making an application to use this
special measure, you can tell them
who you would like as your
supporter, although the final
decision will be made by the court.
32
being a witness
Going to Court
Most witnesses prefer to have
someone they know, and will feel
comfortable with, when giving their
evidence.
Here are some things you may want
to consider when deciding who
might be your supporter:
• if your preferred supporter is also
cited as a witness, they won’t be
able to act as your supporter
unless they have finished giving
their own evidence;
• you should try to think about
how your supporter might react if
they hear your evidence. For
example, you may want to
protect certain family or friends
from hearing the details of your
evidence. If you think they might
get upset or angry in court, this
may also upset you. You may
decide that it is best for you to
have someone from outside your
family;
• the person you wish to have as a
supporter may already know too
many details about the case and
the court may think they could
have an influence on what you
say. In some cases, the court may
not approve your preferred
supporter because of this;
33
being a witness
Going to Court
• you may already be supported by
someone from a specialist support
organisation or social work
department and wish to
nominate them.
The person citing you as a witness
should be able to offer you some
advice and help you to choose a
supporter.
It is always important to
remember that your supporter
cannot help you with your
evidence and cannot answer any
questions for you in court.
If the court has allowed you to have
a supporter, your supporter will be
able to sit alongside you when you
are using any of the other special
measures approved by the court.
34
being a witness
Going to Court
Special measure evidence taken by a
commissioner
If you are considered to be a
vulnerable witness, in some cases,
the lawyer might want to record
your evidence before the court case
starts. The court might agree to this
if it is thought, for example, that the
quality of your evidence might be
affected by waiting until the court
date. Giving recorded evidence
outside the courtroom is known as
giving your evidence to a
commissioner.
Giving evidence to a commissioner
means that you give your evidence
separately at a different time or
place from that of the actual court
hearing. The evidence you give to
the commissioner can then be used
during the court case.
In some circumstances, this special
measure can also be used once a
court case has started.
35
being a witness
Going to Court
The court will nominate someone to
act as the commissioner. Depending
on the type of case, this may be a
judge or advocate or other suitable
person. You will be asked questions
and give your evidence in the usual
way but this will be in front of the
commissioner rather than the judge
or sheriff at the court case.
During the commission, the
opposing party or parties involved in
the court proceedings, are entitled
to see and hear the proceedings as
they happen but will not normally
be in the same room as you.
36
All of the commission proceedings
will be video recorded and the
recording will be kept by the court.
It will then be played during the
court hearing and will be regarded
as your evidence in the same way as
the evidence of any other witness.
If your evidence is recorded at a
commission, you will not normally
have to give any evidence during the
court case.
If the person citing you as a witness
is considering this special measure,
they will talk to you and explain
more about what it means and how
it will be done.
being a witness
Going to Court
Your views
If the person citing you as a witness
believes that you might qualify as a
vulnerable witness, they will explain
the special measures to you and how
they will work. They will ask for your
views about whether any of the
special measures might help you to
give your evidence and which one(s)
you might prefer to use. They will
also explain what information will be
included in the application to be
submitted to the court.
Not all vulnerable witnesses will
want to use special measures. Even if
you are particularly vulnerable, you
may prefer to give your evidence
without using a special measure.
However, in some cases, the judge or
sheriff may still decide that it would
be in your best interest to use a
special measure whilst giving your
evidence.
You should talk to the person citing
you about your own particular
circumstances and your thoughts
about the court case including which
particular special measure(s) you may
find most helpful.
The court will take account of
your views along with any of the
information included in the
application before coming to a
decision about whether to allow
you to use a special measure and
which special measure is the
most appropriate to your
circumstances.
37
being a witness
Going to Court
If your circumstances change, or you
change your mind about what
special measures might be most
helpful, you should tell the person
who is citing you as a witness. They
will discuss with you what alternative
special measures might be more
suitable and whether an application
will be made to the court.
In all cases, it is possible for the court
to review the arrangements for you
to give your evidence. This means
that, even once you have started
giving your evidence, the court can
consider allowing you to use a
special measure or can change the
special measure you are using. The
court is likely to do this if it believes
that the quality of your evidence is
being affected by your particular
vulnerability.
After reading this information, you
may already have an idea about
whether you should be considered a
vulnerable witness when giving your
evidence and if so, which special
measure might be most helpful to
38
you. If you are considered to be a
vulnerable witness under the terms
of the legislation, you may find it
helpful in reaching a decision about
using special measures, to visit a
courtroom or the television link room
if you are considering using this
special measure. If you think a visit to
a courtroom would help, speak to
the person who cited or asked you
to be a witness. They should arrange
a visit for you. It may also be possible
to view a CD Rom or a DVD to look
at an image of the courtroom and
see how each of the special
measures will operate.
It is important to remember that
the court will have regard to
your best interests as a witness
but must also take account of the
interests of justice and fairness of
the court hearing.
being a witness
Going to Court
Any other questions
or comments?
You should make sure that you have
all the information you need before
the date of the court case. For
example, check that you know
where the court building is and how
you are going to get there.
It may be helpful for you to write
down any questions you have about
being a witness, so you can discuss
these with the lawyer or other
person who cited you.
Use the note page at the back of
this booklet to write down any
questions you may have.
All of the people working in the
court will understand that it may be
a difficult time for you. Please talk to
them about your concerns and
fears. They are there to help you.
If you have any questions about the
content of this booklet or anything
else you are not sure about, please
speak to the person who has cited
you to be a witness.
Your most important task as a
witness is to tell the court the truth
about what you may know.
Thank you
39
being a witness
Going to Court
Useful contact names
and numbers
The person that cited you as a witness:
Lawyer:
Other organisation/agency contact:
Other:
40
being a witness
Going to Court
Glossary
Action
proceedings started by a person in a civil court
Advocate
a lawyer who is a member of the Scottish Bar (also known as
‘counsel’)
Affidavit
a signed statement made on oath. Sometimes this can be used in
court as evidence of what the witness says, without the witness
having to come to court
Affirmation
a declaration that you will tell the truth in court that does not involve
taking a religious oath (see oath)
Allegation
something that someone says happened
41
being a witness
Going to Court
Citation
the official form or letter that tells a witness to go to a particular court
on a certain date
Clerk (of court)
the person who keeps the court papers and records
Commissioner
Giving evidence to a commissioner means that you give your evidence
at a different time or place than the actual court case. The evidence
you give to the commissioner can then be used during the court case.
The commissioner might be a lawyer, a judge or sheriff or some other
suitable person
Counsel
a member of the Faculty of Advocates (Scottish Bar)
Court case
an individual action in court
Court of Session
The highest court in Scotland in which civil proceedings can be raised
Court officer
(sometimes called a macer) a person who helps the judge in practical
matters, e.g. they also call each witness into court
42
being a witness
Going to Court
Cross-examination
being questioned by the other lawyers after questioning by the person
who has asked the witness to come to court (see examination-in-chief)
Defences
the statement by way of defence lodged by the defender (see
‘defender’ below)
Defender
a person against whom a civil case is raised and who disputes the
claim made against him
Diet
the date for hearing of a case for any one of a variety of purposes,
fixed by the court
Evidence
what a witness says in court – it can also be things like photographs,
clothes or drawings that are brought to court to show what
happened. See production
Initial writ
the document by which civil proceedings in the sheriff court are
normally started
Jury
in a civil case, 12 men and women who (jurors) who listen to the
evidence and decide on the matter in dispute
43
being a witness
Going to Court
Oath
a religious promise by the witness to tell the truth when they give
evidence in court – a witness can also promise to tell the truth
without the oath (see affirmation) – you can ask about this
Party litigant
Someone who raises a court action, or against whom a court action is
raised, without a legal representative
Petition
a document used to begin certain types of civil court cases, e.g.
bankruptcies
Production
an article produced as evidence in court
Proof
1) Evidence of something; 2) A formal hearing of evidence in a case
Pursuer
a person who starts a court case by making a claim against someone
else
QC (Queen’s Counsel)
A lawyer who is a senior member of the Scottish Bar (see also
‘advocate’)
Scottish Bar
The Faculty of Advocates in Scotland
44
being a witness
Going to Court
Sheriff
a name for a judge in one of the sheriff courts
Social worker
a person who works with children and adults when they need extra
help or supervision
Solicitor
a lawyer who is not a member of the Scottish Bar
Statement
a note or recording made by the police or other party as to what the
witness has said
Summons
the document by which civil proceedings in the Court of Session are
normally started
Support person
a person who can stay with a witness when they are giving evidence
Witness
a person who may have information about something and is asked to
tell the court – see ‘evidence’
45
being a witness
Going to Court
Your notes
46
Further copies of this document are available, on request,
in audio, large print format and in community languages.
Please contact 0131 244 2213.
Being a Witness
Dokument dost_pny jest tak_e na kasetach, w wersji z
powi_kszonym drukiem oraz w innych wersjach j_zykowych.
Going to Court
A booklet on being a witness and special measures
in civil cases in the Court of Session and sheriff court
© Crown copyright 2007
This document is also available on the Scottish Government website:
www.scotland.gov.uk
RR Donnelley B51695 11/07
Further copies are available from
Blackwell’s Bookshop
53 South Bridge
Edinburgh
EH1 1YS
Telephone orders and enquiries
0131 622 8283 or 0131 622 8258
Fax orders
0131 557 8149
Email orders
[email protected]
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