WITNESS POLICY AND GUIDANCE
Date policy adopted: 06/06/2014
Review frequency: 3 years
Date of last review: 31/10/2017
Date policy must be reviewed by: 31/10/2020
The Ethical Standards in Public Life etc. (Scotland) Act 2000 (“the 2000 Act”) established the Standards Commission for Scotland (“the Standards Commission”), and an investigatory role which is now performed by the Commissioner for Ethical Standards in Public Life in Scotland (“the Commissioner”). The Commissioner is appointed by the Scottish Parliament and conducts investigations independently of the Parliament and the Scottish Ministers.
The 2000 Act requires the Scottish Ministers to issue a Code of Conduct for councillors and a Model Code of Conduct for members of devolved public bodies. The most recent version of the Councillors’ Code of Conduct was issued on 21 December 2010. A new version of the Model Code came into effect in 2014. Public bodies are required to adopt their own code of conduct, based closely on the Model Code.
The Commissioner receives and where appropriate, investigates complaints about the conduct of councillors and members of the boards of public bodies. The Commissioner is also responsible for investigations into certain types of complaint alleging a breach of the Code of Conduct for MSPs.
The Commissioner’s findings may result in a report being submitted to the Standards, Procedures and Public Appointments Committee of the Scottish Parliament (in respect of MSPs) or to the Standards Commission for Scotland (in respect of breaches of the Councillors’ Code or of the code adopted by a public body).
In the process of conducting investigations, evidence may be taken from any individual who may be in a position to provide information connected with such investigations. This policy sets out the way in which information will be requested and handled and, where appropriate, how it may be made public on the conclusion of an investigation.
2. Who May Be Required As a Witness?
Complaints which are to be investigated are assigned to an Investigating Officer (‘IO’), who will identify those individuals who may hold relevant information, including but not limited to the person who has made the complaint and the person against whom the complaint has been lodged (the ‘respondent’). The IO is not required to make arrangements to interview everyone who may hold such information: only those required to give a clear picture of the circumstances.
In assessing who is required for interview, and in making arrangements for interviews, the IO will have regard to the following:
a) The information which it is anticipated the witness may be able to provide;
b) Whether the information can be obtained efficiently by any means other than an interview in person, for example by a telephone call;
c) The relationship/connection between the witness and the complainer and the respondent;
d) The role of the witness, eg as an officer of the council/public body, a fellow member of the council / public body or a member of the public;
e) Any special considerations to be taken into account when conducting the interview, eg access arrangements and privacy.
The Commissioner aims to ensure that an appropriate balance is struck between the need to conclude investigations expeditiously and the thoroughness of the process. Interviews are normally arranged by staff in the Commissioner’s office.
Where special circumstances apply, for example because of the possible implications for working relationships or because the witness has come forward as a whistle blower, particular care will be taken in relation to the timing of, and location for, interview, with a view to ensuring confidentiality and providing reassurance to the witness during the investigation. This will include interactions with the Commissioner’s staff in making the arrangements for corresponding with or contacting the witness. Confidentiality will be observed throughout the duration of the investigative process, until such time as the provisions of Part 5 of this policy (Reporting Witness Evidence) are applicable.
3. How Witness Information Will Be Obtained
Once the IO has identified the individuals to be interviewed, letters will be sent to each of them advising that they are required to provide evidence as part of the investigation. Details of the arrangements for the interview will be provided, including confirmation that the interviews will be conducted in a private environment observing the need for confidentiality, and the expected duration of the interview.
4. Interview and Evidence Gathering
At the start of the interview, the witness will be advised of the overall process of the investigation and the likely timescale towards completion. The witness will be reminded of the need for all parties to observe confidentiality as required by section 12 of the Ethical Standards in Public Life etc. (Scotland) Act 2000.
Interviews are not normally recorded. The IO or a colleague will take notes during an interview and the witness may also do so. The witnesses will be given the opportunity to make any final comments prior to the conclusion of the interview. Interview notes are treated as confidential and will not be released except on cause shown under data protection or freedom of information legislation and subject to appropriate redaction to protect [sensitive] personal information.
5. Reporting Witness Evidence
In any decision issued by the Commissioner, the following arrangements for disclosing the identity of witnesses will normally apply:
a) All respondents will be identified;
b) All complainants will be identified;
c) MSPs and Members of a council/public body will be identified;
d) Chief Officials and their equivalent will be identified;
e) In the case of any other official, only their job title will be disclosed.
The identity of any other witness will remain undisclosed in the decision, except in circumstances where their identity is a matter of public knowledge. Where disclosure is considered integral to the understanding of the outcome, any witness falling within category (e) whose identity it is proposed should be disclosed will be advised in writing of the reasons why disclosure is considered necessary. This will be done in advance of the decision being issued by the Commissioner.
In summaries of investigation reports published on the Commissioner’s website, the identity of a complainer will remain undisclosed except if they are an MSP, fellow councillor or public body member.
6. Witness Anonymity
A witness will normally only be afforded anonymity in a case where he or she can satisfy the Commissioner that their evidence is being given in compliance with section 1 of the Public Interest Disclosure Act 1998.