Victims, Witnesses, and Justice Reform (Scotland) Bill: child rights and wellbeing impact assessment (CRWIA)

CRWIA Stage 1 – Screening

Brief Summary

The Bill responds to concerns raised about the need to improve the experiences of victims, witnesses and vulnerable parties 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

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 independent jury research published in October 2019, as well as formal public consultations on improving victims' experiences of the justice system and the not proven verdict and related reforms, and ongoing engagement with stakeholders.

A summary of the policy content of the Bill and the aims 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.

Piloting 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.

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. The CRWIA uses a mix of these terms with the choice of term influenced by the context.

The process of developing policy that is contained in the Bill has been ongoing since 2021, with the impacts on children's rights and wellbeing considered as part of this process.

Which aspects of the relevant proposal currently affects or will affect children and young people up to the age of 18?

The Bill contains a package of reforms to improve the experiences of victims, witnesses and vulnerable parties in the criminal and civil justice systems. Some of the reforms may also improve the experiences of children and young people who encounter the justice system as accused persons.

The Bill will therefore affect children and young people who come into contact with the justice system.

Specific aspects of the measures in the Bill which may affect children and young people in particular are described below.

Establishing a Victims and Witnesses Commissioner for Scotland

The Bill seeks to establish the Victims and Witnesses Commissioner as an independent office with autonomy to determine how to best fulfil their functions. While the Bill sets out what those functions are, it does not specify how the Commissioner should undertake them.

However, one of the main functions of the Commissioner will be to monitor the criminal justice agencies' compliance with their Standards of Service and the Victims' Code for Scotland. The Victims' Code makes specific reference to the rights of victims aged under 18 when coming into contact with criminal justice agencies. Furthermore, victims and witnesses aged under 18 are automatically entitled to use special measures when giving evidence – vulnerable witnesses are subject to specific standards and rights in both the Standards and the Victims' Code. It is highly likely, therefore, that the Commissioner will be required to engage with children and young people who are victims and witnesses to effectively fulfil these functions, and to promote their rights and interests.

Embedding trauma-informed practice across the justice system

Evidence gathered during the policy development found some groups, including children and young people are more likely to have been the victims of crime, to be vulnerable to trauma, or both. Evidence was also found that suggests young victims and witnesses find aspects of the justice system particularly traumatising. The policies intended to recognise the impact of trauma and seeking to minimise re-traumatisation may therefore impact more on children and young people.

These measures also relate to children and young people who may come into contact with the justice system as an accused person.

Special measures for vulnerable parties and witnesses in civil cases

This policy aims to extend special measures to protect vulnerable people in court to non-evidential civil hearings and to prohibit a person from conducting their own civil case and from cross-examining others when there has been abuse. The proposals mirror for civil cases generally what has already been put in place, but not yet implemented, for child contact and residence cases in the Children (Scotland) Act 2020.

This part of the Bill will affect children and young people who have to attend and participate in civil court cases. As noted above, children and young people may be particularly impacted by aspects of the justice system and these measures are intended to provide additional protections and mitigations against re-traumatisation.

Abolition of the not proven verdict and related reforms

Complainers and accused persons in criminal trials in Scotland may be under the age of 18.

In respect of accused persons, the age of criminal responsibility in Scotland is 12. Children aged 12 to 15 who are accused of committing a criminal offence are likely to be referred to the Children's Reporter and possibly to a Children's Hearing. However, if the offence is serious, they may be prosecuted in the criminal courts. Young people aged 16 to 18 who are accused of committing a criminal offence will usually have their cases dealt with by the criminal courts.

Therefore, complainers under 18 as well as children and young people over the age of 12 who are accused of committing a criminal offence may be affected by reform of the verdict system (both in terms of the abolition of not proven and the jury majority required for a conviction).

Creating a Sexual Offences Court

The Sexual Offence Court's jurisdiction encompasses all sexual offences that are triable on indictment (which are usually more serious cases) and includes specific offences that relate to sexual activity with or crimes perpetrated against children.

By hearing cases that involve offences under the Domestic Abuse (Scotland) Act 2018, the court will affect children whose parents and carers are victims of sexual abuse. The Bill includes provision which will extend the protections in the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 to include children giving evidence in the Sexual Offences Court.

As set above in the section on trauma-informed practice, children and young people may find aspects of the justice system particularly traumatising. The specialist, trauma-informed approaches taken in the Sexual Offences Court will benefit both children and young people who are complainers and those who are related to a complainer (i.e. a parent or sibling) by reducing the risk of secondary trauma associated with the trial process.

More effective and efficient management of court and judicial resources will also impact positively on children and young people who may appear as accused in the Sexual Offences Court by reducing delays in their case coming to trial, which can be particularly disruptive for children.

Lifelong anonymity for complainers in sexual and certain other offences

These measures will provide an automatic right of anonymity to all children and young people who are victims of sexual offences and other listed qualifying offences, which relate to human trafficking, modern slavery, female genital mutilation, virginity testing and carrying out hymenoplasty.

A bespoke approach has been taken in respect of children and young people. The provisions enable adult victims to elect to waive their anonymity through a third-party publisher subject to the victim providing freely given written consent to the publisher. The Scottish Government considers additional safeguards are needed in respect of victims who are children (aged 18 and under) and, as such, the Bill requires judicial oversight for the waiving of anonymity by a child where a third party wishes to publish identifying information.

The Bill provides that any third-party publisher wishing to tell a child victim's story on their behalf must apply to the sheriff court for an order to dispense with the anonymity restrictions. Following the receipt of any such application, a sheriff may order the lifting of anonymity where: the child to whom the information relates understands the nature of the court order sought; appreciates what the effect of making such an order would be; and gives their consent to the making of an order.

As an additional safeguard, the Bill provides the court must also ensure it is satisfied there is no other good reason why an order dispensing with the child's anonymity should not be made. This may include, for example, because the court does not consider that the order would be in the best interests of the child.

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

Children and young people under the age of 18 who are victims of sexual offences where an application is made to lead evidence in relation to their sexual history or other character evidence during criminal court proceedings in Scotland will be affected by the introduction of the automatic right to publicly funded independent legal representation.

The proposal will enable children and young people to participate as a party to the proceedings when such an application is made and where they choose to progress their automatic entitlement to publicly funded legal advice and representation as part of that process.

Piloting single judge trials for cases of rape and attempted rape

As set out in the section on the abolition of the not proven verdict and related reforms above, complainers and accused in criminal trials in Scotland may be under the age of 18, so may be affected if they are involved in a trial which is included in a pilot.

The Bill contains enabling powers for a pilot of single judge rape trials for cases of rape and attempted rape to take place. The criteria for the pilot are yet to be determined and will be subject to Parliamentary scrutiny through the affirmative procedure process. It is therefore currently unknown to what extent rape and attempted rape cases involving children and young people will be included within the pilot, with consideration of matters such as this taking place following the Bill's passage through Parliament.

Which groups of children and young people are currently or will be affected by the relevant proposal?

The Bill contains measures to improve the experiences of victims and witnesses in criminal proceedings and vulnerable parties in civil proceedings. Children and young people who come into contact with the justice system in these capacities will therefore be directly affected by the Bill.

A number of the measures relate to sexual offences, of which girls (and women) are more likely to be victims. As well as being applicable to sexual offences the statutory right to anonymity also pertains to certain other offences where girls and young women are at risk of being a victim, including female genital mutilation, virginity testing and the offence of carrying out hymenoplasty.

The measures in the Bill will also affect children and young people who are accused of offending behaviour in criminal proceedings or the subjects of civil proceedings. Embedding trauma-informed practice and measures which will bring about changes to court procedures will impact on accused/those who are subject to civil proceedings as well as on complainers, witnesses and vulnerable parties.

The Bill is part of a wider programme of work, including the Children Care and Justice (Scotland) Bill and Bairns Hoose, with ongoing engagement taking place with officials leading on these areas to ensure a joined-up approach across government.

The Bill aligns with and supports the Bairns Hoose approach by seeking to make the justice system more person centred and trauma informed in general, as well as containing policies specifically aimed at keeping complainers out of court and making more efficient use of resources to minimise delays.

Is a Stage 2 Children's Rights and Wellbeing Impact Assessment required?

A CRWIA is required for the Bill, but it has been determined that further assessment is not necessary in relation to the following policies:

• abolition of the not proven verdict and related reforms
• piloting single judge trials for cases of rape and attempted rape

While children and young people who are complainers and accused in criminal trials in Scotland will be affected by these policies, it is not anticipated that the measures will have any differential impact between groups of children and young people or between children and young people and adults.

In relation to the pilot of rape and attempted rape cases, the Bill contains enabling powers for a pilot to be carried out and any particular impact on children and young people will be considered as and when the criteria for pilot are determined.