Victims, Witnesses, and Justice Reform (Scotland) Bill: business and regulatory impact assessment

Purpose and intended effect

Background and objective

The Victims, Witnesses, and Justice Reform (Scotland) Bill ("the Bill") responds to concerns raised about the need to improve the experiences of victims and witnesses within Scotland's justice system, especially the victims of sexual crime. At the same time, it continues to safeguard the operation and principles of the system and protects the rights of those accused of crime.

The Bill contains a package of reforms which collectively form a transformed approach to how victims are treated in more sensitive and responsive justice system.

In particular, the Bill

• strengthens the rights of victims of crime and embeds trauma-informed practice across the justice system
• improves the experience of vulnerable parties and witnesses in civil cases
• looks to address longstanding concerns and difficulties in how justice operates for victims of the most serious sexual crimes.

A summary of the policy content of the Bill and the specific aim of each policy is set out below.

Establishing a Victims and Witnesses Commissioner for Scotland

The Bill will establish an independent Victims and Witnesses Commissioner for Scotland to promote and support the rights and interests of victims and witnesses. Part of the Commissioner's role will be to monitor criminal justice agencies' compliance with the Victims' Code for Scotland and Standards of Service for Victims and Witnesses.

Embedding trauma-informed practice across the justice system

The Bill aims for the justice system to treat victims and witnesses more compassionately. This means engaging with people in ways that understand the impact trauma can have on them and try to avoid the risk of re-traumatising them. This is intended to help people to give their best evidence and support their recovery.

Special measures for vulnerable parties and witnesses in civil cases

The Bill extends special measures to non-evidential hearings and ban personal self-representation in certain circumstances. This will better protect vulnerable parties and witnesses in civil cases.

Abolition of the not proven verdict and related reforms

The Bill will abolish the not proven verdict in all criminal trials in Scotland. This is intended to increase public confidence that criminal verdicts are returned on a sound, rational basis while ensuring balance and fairness to all parties.

The Bill recognises the complex and interlinked nature of the jury system. It also contains related reforms to reduce juror numbers (from 15 to 12) and change the majority required for a conviction.

Creating a Sexual Offences Court

The Bill will create a new Sexual Offences Court, which is distinct from existing court structures. This is intended to improve the experiences of complainers in serious sexual offence cases.

The new Court will place an emphasis on increased pre-recording of evidence and improved judicial case management. It will introduce a requirement for specialist training for all personnel. In addition, the Court will also provide a framework within which to develop and implement best practice in the management of sexual offences cases.

Lifelong anonymity for complainers in sexual and certain other offences

These provisions will protect the dignity of victims by providing an automatic lifelong right of anonymity for complainers of sexual offences and limited other offences (human trafficking, modern slavery, female genital mutilation, and the carrying out of hymenoplasty and virginity testing).

Preserving the anonymity of complainers in such cases serves an important protective function. It will help to minimise the re-traumatisation of victims before, during and after the court process and, in turn, increase the confidence of victims to come forward and report such crimes in the first instance.

Right to independent legal representation for complainers when applications to lead sexual history and/or 'bad character' evidence are made in sexual offence cases

The Bill creates an automatic right to publicly funded independent legal representation for complainers when applications are made to lead evidence of their sexual history or 'bad character' in sexual offence cases.

This is intended to improve the complainer's experience in sexual offence trials, in particular their understanding and ability to provide their views and be heard in court in respect of an especially intrusive aspect of criminal procedure.

Enabling a pilot of single judge trials for cases of rape and attempted rape

The Bill gives Ministers powers to conduct a time-limited pilot of single judge trials for cases of rape and attempted rape, removing the jury as a decision-maker in these cases.

Conducting the pilot will provide evidence to inform debate into the effectiveness of single judge rape trials. The pilot will also provide an insight into the extent to which single judge rape trials can improve the experience of complainers and increase the efficiency of cases through the court system.

Further information

Further information about the background and the policy intention of the Bill is set out in the Policy Memorandum which accompanies the Bill.

Further details relating to costs are included in the Bill's Financial Memorandum, which should be read in conjunction with this BRIA.

The Scottish Government acknowledges that there are different words to describe those who have experienced crime, particularly sexual offences. Views on which terms are used can be strongly held. Some terms, for example 'complainer' are used when describing a person in a legal setting; 'victim' or 'survivor' are more commonly used when referring to a person in a broader context not restricted to the legal system. This BRIA uses a mix of these terms with the choice of term influenced by the context.

Rationale for Government intervention

The Bill contributes to the following objectives of the National Performance Framework

• live in communities that are inclusive, empowered, resilient and safe
• respect, protect and fulfil human rights and live free from discrimination

The Bill is part of a wider programme of work set within the context of the Vision for Justice in Scotland and outlines the aims and priorities for the justice system over the next four years. The provisions in this Bill progress the Vision's transformation priority of a person-centred and trauma-informed justice system and take forward the priority actions of hearing victims' voices and ensuring women and girls are better served by our approaches to justice.

The Bill has been informed by the work of the Victims' Taskforce, Lady Dorrian's Review into Improving the Management of Sexual Offence Cases and the Review's Governance Group, as well as by independent jury research published in October 2019. It has also been informed by public consultations on improving victims' experiences of the justice system and on the not proven verdict and related reforms, as well as by extensive engagement with stakeholders.

Evidence from these sources shows that the justice system is often distressing and re-traumatising for those who come into contact with it, and that legislative reforms are necessary to progress the transformation required to improve the experiences of victims, witnesses and vulnerable parties and ensure that the public have confidence in the system.