Being a Witness. Going to Court. A booklet on being a witness and special measures in civil cases in the Court of Session and sheriff court

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1 Being a Witness A booklet on being a witness and special measures in civil cases in the Court of Session and sheriff court

2 A booklet on being a witness and special measures in civil cases in the Court of Session and sheriff court. S scottish court service 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.

3 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

4 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. 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. 2

5 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 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

6 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. 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. 4

7 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

8 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. Talking to your family or a friend can sometimes help. There are other people who can also help you: 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 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. 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. The Crown Office Victim Information and Advice (VIA) Service is also available to the deceased s nearest relatives and vulnerable witnesses in cases of

9 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 Victims/COPFSServicetoVictims/ VIAhelp. 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. 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. 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

10 Some other things you may be thinking about Will I meet the other parties involved in the case? 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. Will the public be able to listen to my evidence? 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. 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. 8

11 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

12 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. 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 10

13 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

14 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. 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. Civil court papers will be served on the party against whom the case is 12

15 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

16 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. 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 14

17 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? 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. 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. 15

18 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.

19 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

20 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.

21 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

22 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 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 20

23 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

24 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. 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. 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

25 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

26 What is a vulnerable witness? To help the most vulnerable witnesses, legislation was passed in the Scottish Parliament in 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 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. 24

27 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

28 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. 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. 26

29 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. The special measures are: a screen in the courtroom; a television link outwith the courtroom; a supporter (a support person); evidence taken by a commissioner. 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. 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. 27

30 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 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. 28

31 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

32 Special measure - using a television link 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 is linked to the courtroom so that everyone inside the courtroom can see and hear you give your evidence. 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. 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

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