The General Assembly in reaffirming the need to have clearly defined procedures available for all Church Courts to follow; and in noting the need for the Church to meet the standards set out in civil regulations for best practice in modern society, particularly with regard to the interviewing of women, children and vulnerable witnesses, insofar as these standards do not involve principles or practices in conflict with Scripture; and further in noting that sensitivity applies in all situations where women appear before an all-male court, especially in relation to breaches of the seventh commandment or in any matter where questions of an intimate nature are raised; with the consent of all Presbyteries hereby enact and ordain as follows:
1. Where judgment is announced with information that a complaint has been lodged, parties should be informed of the possibility that the complaint may be abandoned. This may affect decision on their part to appeal.
2. It is open to anyone who appears before a church court to be accompanied by a friend or support person. Depending on the circumstances of the case, the support person may be legally qualified. On such occasions, the church court itself should arrange to have a legal assessor present. The court should receive no less than seven days notice of such attendance in order to make its own arrangements, if required.
3. Sensitivities apply in all situations where females appear before an all-male court, especially in relation to breaches of the seventh commandment or in any matter where questions of an intimate nature arise. If a female is a potential witness in a matter which could lead to the disciplining of a church member, another female should, where practicable, conduct the initial interview of the female, for the purposes of obtaining a precognition, which could inform the decision whether to institute disciplinary process. In any such situation, the following regulations shall apply:
(a) The female who provides such assistance should be a mature believer, preferably a communicant member of the Free Church of Scotland, or, where this is not possible, a professing Christian in another denomination. Such a female should possess appropriate professional qualifications and experience of the procedures and issues involved in interviewing females, whether from a legal, social work or similar background.
(b) The female must be appointed by the church court involved. No interviews should be conducted by individuals who are not so appointed.
(c) The principal questions should be prepared in advance by the relevant church court in liaison with the female who is to undertake the interview. At the discretion of the interviewer, supplementary questions may be asked in the light of answers received.
(d) The Principal Clerk of Assembly shall keep an updated list of suitably qualified females to undertake such interviews, entries to be by recommendation of Presbyteries and reviewed annually, to be known as the List of Female Interviewers. Church courts shall not be confined to using personnel from this list but Presbyteries should ensure, so far as possible, that they inform the Principal Clerk of Assembly of all suitably qualified females known to them for inclusion on the central list.
(e) Interviewers’ reasonable expenses shall be paid by the appropriate court.
4. In the event that, having considered the precognition obtained, the Church court considers that a disciplinary process should be instituted the general procedures applicable in all Church courts, as set out in Chapter V, Parts I and II of The Practice, (8th edition, revised) shall be followed. In the event that it is deemed necessary to have a female give evidence to a Church court the court should consider in advance whether or not any of the standard or further special measures set out in the Vulnerable Witnesses (Scotland) Act 2004 *, are practicable and appropriate. Before reaching a decision on whether such measures are appropriate, parties to the disciplinary process should have an opportunity to be heard.
5. In circumstances in which a minister or elder requires to interview a female in confidence, for example in connection with a pastoral matter, he should carefully consider the most appropriate venue for such an interview so as to ensure, so far as possible, that others are in close proximity.
6. For the avoidance of doubt, where circumstances arise which merit implementation of the Church’ s Child Protection Policy and Guidelines the foregoing guidance shall only be followed, if necessary, subsequent to such implementation and any proceedings following thereon.
7. Church courts should ensure that in all instances where a child (being a person under the age of sixteen) or other vulnerable witness (as defined in the Vulnerable Witnesses (Scotland) Act 2004**) is interviewed the interview is conducted in a skilled manner and in a low-key environment, with questions being simple and nonleading, and with the child or other vulnerable witness being given a break or rest period at any time requested. Careful reflection is necessary, having regard to the whole circumstances of the case including the welfare of the child or other vulnerable witness, before any Church Court seeks to have such a witness give evidence on a matter involving church discipline.
8. If it is deemed necessary to have a child or other vulnerable witness give evidence to a Church court the court should consider in advance whether or not any of the standard or further special measures set out in the Vulnerable Witnesses (Scotland) Act, 2004*, would be practicable and appropriate. If there is a significant risk that the quality of the witness’ s evidence would be diminished through mental disorder, fear or distress, or if it is felt that the giving of evidence without such special measures would be detrimental to welfare of the witness, an appropriate measure from such measures should be introduced where practicable provided its introduction, in the particular circumstances of the case, would not prejudice the legitimate rights of the party who is the subject of the disciplinary process. Before reaching a decision on whether any such standard or special measures are appropriate, parties to the disciplinary process should have an opportunity to be heard.
9. An individual who is the subject of a disciplinary process in connection with an allegation of sexual misconduct shall be prohibited from conducting his own defence. In such circumstances, a representative shall be appointed to conduct his defence. (this sentence to be added to the penultimate paragraph of (3) Questions of Evidence, etc., The Practice, page 205, 8th edition, revised).
* In terms of Vulnerable Witnesses (Scotland) Act 2004 standard and special measures include giving evidence from behind a screen, having a supporter present, giving evidence by live television link, giving evidence in chief in the form of a prior statement, the giving of evidence on commission or any other measures the Scottish Ministers may prescribe by Statutory Instrument.
** In terms of the Vulnerable Witnesses (Scotland) Act 2004 a vulnerable witness is (a) a child or (b) a person who is not a child but in respect of whom there is a significant risk that the quality of his evidence would be diminished by reason of mental disorder within the meaning of S.328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 or by reason of fear or distress in connection with giving evidence.